Opinion
No. COA12–1056.
2013-04-16
STATE of North Carolina v. Corey Desean LEWIS, Defendant.
Roy Cooper, Attorney General, by Barry H. Bloch, Assistant Attorney General, for the State. William D. Spence for defendant-appellant.
Appeal by defendant from judgment entered 21 February 2012 by Judge William R. Pittman in Wayne County Superior Court. Heard in the Court of Appeals 12 February 2013. Roy Cooper, Attorney General, by Barry H. Bloch, Assistant Attorney General, for the State. William D. Spence for defendant-appellant.
DAVIS, Judge.
Corey Desean Lewis (“defendant”) appeals from the trial court's judgment entered on his conviction for possession of a firearm by a felon and his guilty pleas to having attained habitual felon status, misdemeanor hit and run, and misdemeanor possession of marijuana. After careful review, we conclude that, while defendant's trial was free from prejudicial error, his guilty pleas to the misdemeanor charges must be vacated and this case remanded to the trial court for further proceedings.
Factual Background
At trial, the State's evidence tended to establish the following facts: At approximately 9:12 a.m. on 21 February 2009, Officer Jeff Beacon (“Officer Beacon”), a canine officer with the Goldsboro Police Department, was out patrolling in his squad car when he received a call from the communications center that a vehicle had been involved in a hit and run on Beech Street near Williams Street in Goldsboro. A dispatcher relayed the description and location of the vehicle as a black vehicle with heavy front end damage traveling down Williams Street.
Officer Beacon drove down Williams Street where he spotted a black car with steam coming out from under its hood. After notifying the communications center that he had identified a vehicle matching the description of the one involved in the hit and run, Officer Beacon turned on his blue lights and stopped the car. He approached the driver's side of the car with his police dog and ordered the driver—who was identified at trial as defendant—to exit the vehicle.
Several other officers with the Goldsboro Police Department arrived shortly after Officer Beacon initiated the stop in order to provide back-up assistance. Upon arriving at the scene, Officer Steve Lusk (“Officer Lusk”) looked inside defendant's car as Officer Beacon was taking defendant into custody. Officer Lusk saw the “butt end” of a handgun sticking out from underneath the driver's seat, between the seat and the console. The firearm was identified as a .38 caliber Lorsen semiautomatic pistol with a magazine containing eight rounds of ammunition.
Officer Chris Irby (“Officer Irby”), who also had arrived to provide back-up assistance, frisked defendant before placing him in the back of his patrol car. Officer Irby found a small, clear bag of “green vegetable matter,” which he identified as marijuana, inside defendant's left front pants pocket. Defendant was then transported to the police station, where he was advised of his Miranda rights and asked if he wanted to give a statement. Defendant told the officers that (1) his car had run into the vehicle on Beech Street after he had fallen asleep while driving; (2) when the wreck occurred, he saw that the handgun had “flown out from under the seat”; and (3) he “hid the gun” when Officer Beacon stopped him, “hoping [Officer Beacon] wouldn't find it.”
After Officer Beacon wrote down defendant's statement, defendant read it, indicated that he agreed with it, and signed it. Before impounding the car, Officer Beacon initiated a computer search based on the vehicle's license plate number and determined that the car was registered to defendant.
Defendant was charged with misdemeanor hit and run, misdemeanor possession of marijuana, possession of a firearm by a felon, possession of a stolen firearm, and having attained habitual felon status. Prior to trial, defendant pled guilty to the misdemeanor charges. At the close of the State's evidence, defendant moved to dismiss all of the remaining charges against him. The trial court dismissed the charge of possession of a stolen firearm but denied defendant's motion to dismiss with respect to the habitual felon and possession of a firearm by a felon charges.
Defendant then presented evidence which tended to show the following: On the night before he was stopped, defendant and a man named George Mayes (“Mayes”) became intoxicated at a bar. As they were leaving, another man named Devon Andrews (“Andrews”) asked for a ride and when the three men got to defendant's car, defendant crawled into the back seat, passed out, and was asleep for the remainder of the night. Andrews held the pistol in question in his lap as Mayes drove around for several hours. Defendant dropped off Mayes and Andrews just before Officer Beacon stopped defendant's car at 9:12 a.m. on 21 February 2009.
The jury found defendant guilty of possession of a firearm by a felon and defendant subsequently admitted to having attained habitual felon status. At sentencing, the trial court determined that defendant had a prior record level of IV. The court also found two mitigating factors and no aggravating factors, consolidated all charges into one judgment, and sentenced defendant as a Class C felon to a mitigated sentence of 80 to 105 months imprisonment. Defendant gave notice of appeal in open court.
Analysis
I. Denial of Motion to Dismiss
Defendant first argues that the trial court erred in denying his motion to dismiss the charge of possession of a firearm by a felon due to insufficient evidence. We disagree.
On appeal, the trial court's denial of a defendant's motion to dismiss is reviewed de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). When ruling on a motion to dismiss, the question for the court is whether there is substantial evidence of: (1) each essential element of the offense charged; and (2) defendant's being the perpetrator of the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In ruling on a motion to dismiss, the trial court is required to view the evidence in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State.” State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
North Carolina's Felony Firearms Act provides, in pertinent part, that “[i]t shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm....” N.C. Gen.Stat. § 14–415.1(a) (2011). Thus, in order to establish the crime of possession of a firearm by a felon, the State need only prove two elements: (1) that the defendant was previously convicted of a felony; and (2) that the defendant thereafter possessed a firearm. State v. Wood, 185 N.C.App. 227, 235, 647 S.E.2d 679, 686,disc. review denied,361 N.C. 703, 655 S.E.2d 402 (2007). Defendant does not dispute that he is a convicted felon but rather argues that the State failed to present sufficient evidence that he “possessed” the handgun found under his seat in his car.
As this Court has explained,
[p]ossession of any item may be actual or constructive. Actual possession requires that a party have physical or personal custody of the item. A person has constructive possession of an item when the item is not in his physical custody, but he nonetheless has the power and intent to control its disposition.
State v. Alston, 131 N.C.App. 514, 519, 508 S.E.2d 315, 318 (1998) (internal citations omitted).
With respect to the theory of actual possession, defendant acknowledges his statement to police officers, in which he admitted that he “hid the gun” during the traffic stop, “hoping” that the police officers would not find it. Defendant contends, however, that his statement cannot support his conviction under the corpus delicti rule, which generally requires that “there be corroborative evidence, independent of defendant's confession, which tend[s] to prove the commission of the charged crime.” State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 880 (1986). However, we need not address this argument as we conclude that there was sufficient evidence of defendant's constructive possession of the firearm to warrant the trial court's submission of this charge to the jury.
With regard to the doctrine of constructive possession, it is well established that where contraband
materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession. However, unless the person has exclusive possession of the place where the [contraband is] found, the State must show other incriminating circumstances before constructive possession may be inferred.
State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (citation and quotation marks omitted). Constructive possession depends on the totality of circumstances in each case; accordingly, no single factor controls the analysis. State v. James, 81 N.C.App. 91, 93, 344 S.E.2d 77, 79 (1986).
This Court has recently reiterated:
In car cases, not only is ownership sufficient, but “[a]n inference of constructive possession can also arise from evidence which tends to show that a defendant was the custodian of the vehicle where the [contraband] was found. In fact, the courts in this State have held consistently that the driver of a borrowed car, like the owner of the car, has the power to control the contents of the car. Moreover, power to control the automobile where [contraband] was found is sufficient, in and of itself, to give rise to the inference of knowledge and possession sufficient to go to the jury.”
State v. Hudson, 206 N.C.App. 482, 490, 696 S.E.2d 577, 583 (quoting State v. Dow, 70 N.C.App. 82, 85, 318 S.E.2d 883, 886 (1984)), disc. review denied,364 N.C. 619, 705 S.E.2d 360 (2010). Accord State v. Eppley, 282 N.C. 249, 254, 192 S.E.2d 441, 445 (1972) (“One who has the requisite power to control and intent to control access to and use of a vehicle or a house has also the possession of the known contents thereof.”).
In this case, the State's undisputed evidence showed that defendant owned, and was the sole occupant of, the car in which the handgun was found. This evidence, by itself, is likely sufficient to support a reasonable inference that defendant possessed the handgun at issue. See State v. Best, –––N.C.App. ––––, ––––, 713 S.E.2d 556, 562 (surmising that evidence that “revolver was found in a van driven by Defendant, standing alone, might be sufficient to permit a reasonable inference that Defendant possessed the firearm in question”), disc. review denied,365 N.C. 361, 718 S.E.2d 397 (2011).
The State, however, presented additional evidence tending to show that defendant possessed the handgun. In addition to evidence that defendant was the sole occupant of the car at the time of the traffic stop, Officer Lusk testified that when he first arrived at the scene, he looked into defendant's car and saw the butt end of a handgun between the driver's seat and the console of the vehicle, where it would be “readily accessible” to the driver's right hand. This evidence further suggests that defendant was aware of the gun's presence in the car. See State v. Clark, 159 N.C.App. 520, 525, 583 S.E.2d 680, 684 (2003) (finding constructive possession of pistol where defendant was joint owner of vehicle in which pistol was found, defendant was sole driver on day he was stopped, and pistol was readily observable under driver's seat). Thus, we conclude that, considering the totality of the circumstances, the State presented sufficient evidence that defendant constructively possessed the handgun found in his car.
Defendant attempts to rely on our statement in Clark that, as a general proposition, “the mere fact that [a] defendant was in a car where a gun was found is insufficient standing alone to establish constructive possession. “ Id. at 525, 583 S.E.2d at 683. However, the Court in Clark proceeded to determine that the evidence tended to establish other incriminating circumstances beyond the defendant's mere presence in the car in which the gun was found. Id. at 525–26, 583 S.E.2d at 684. In Clark, as in the present case, the defendant was an owner of the car, he was driving it when he was stopped by a law enforcement officer, and the gun was in plain view, protruding from under the driver's seat. Id. at 525, 583 S.E.2d at 684. Thus, our conclusion in Clark that such evidence of other incriminating circumstances was sufficient to survive a motion to dismiss is equally applicable here. Id. at 526, 583 S.E.2d at 684.
Defendant further speculates that someone else might have placed the gun in his car, pointing to his evidence that other people were in his vehicle during the preceding night and early morning hours of 21 February 2009. Viewed in the light most favorable to the State, however, this evidence was sufficient only to raise a factual issue—for resolution by the jury—as to defendant's possession of the firearm. See id. at 525–26, 583 S.E.2d at 684 (explaining that evidence tending to show that someone other than defendant might have placed gun in car in which it was found was sufficient only to raise jury question regarding defendant's possession).
We conclude that the trial court properly denied defendant's motion to dismiss the charge of possession of a firearm by a felon. Accordingly, defendant's argument is overruled.
II. Acceptance of Misdemeanor Guilty Pleas
Defendant's second contention is that his pleas of guilty to misdemeanor hit and run and misdemeanor possession of marijuana should be vacated because the trial court failed to comply with N.C. Gen.Stat. § 15A–1022 and N.C. Gen.Stat. § 15A–1026. For the reasons explained below, we agree.
North Carolina's Criminal Procedure Act provides that a trial judge may not accept a guilty plea from a defendant without personally addressing the defendant and:
(1) Informing him that he has a right to remain silent and that any statement he makes may be used against him;
(2) Determining that he understands the nature of the charge;
(3) Informing him that he has a right to plead not guilty;
(4) Informing him that by his plea he waives his right to trial by jury and his right to be confronted by the witnesses against him;
(5) Determining that the defendant, if represented by counsel, is satisfied with his representation;
(6) Informing him of the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced, including that possible from consecutive sentences, and of the mandatory minimum sentence, if any, on the charge; and
(7) Informing him that if he is not a citizen of the United States of America, a plea of guilty or no contest may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.
N.C. Gen.Stat. § 15A–1022 (a)(1)-(7) (2011).
Section 15A–1022 further requires the judge to determine: (1) whether “any improper pressure was exerted” during plea negotiations; (2) whether “the plea is a product of informed choice”; and (3) whether “there is a factual basis for the plea.” N.C. Gen.Stat. § 15A–1022(b)–(c). In addition to these requirements, N.C. Gen.Stat. § 15A–1026 (2011) mandates that a verbatim record of the plea proceedings be made and preserved.
Defendant asserts, the State does not dispute, and the record confirms that the trial judge in this case failed to comply with the requirements of § 15A–1022 and § 15A–1026 with regard to defendant's guilty pleas to the misdemeanor charges. The record shows that just before the jury was empaneled, defense counsel advised the judge that defendant was entering a plea of guilty to the misdemeanor hit and run charge and the misdemeanor possession of marijuana charge. The judge subsequently informed the jury that defendant had pled guilty to these charges. The transcript confirms that the judge neither engaged in the colloquy with defendant mandated by § 15A–1022(a) nor made the factual inquiries required by § 15A–1022(b) and (c).
This Court has made clear that a trial court's failure to strictly comply with the requirements of § 15A–1022 does not automatically entitle a defendant to have his guilty plea vacated. State v. Hendricks, 138 N.C.App. 668, 670, 531 S.E.2d 896, 898 (2000). Instead, a defendant, in order to have his plea set aside, must demonstrate that he was actually prejudiced as a result of the noncompliance. Id. In assessing whether a defendant has been prejudiced, the reviewing court must consider the “totality of the circumstances “ and determine whether noncompliance with the statutes either affected the defendant's decision to plead or undermined the validity of the plea. Id. (citing State v. Williams, 65 N.C.App. 472, 310 S.E.2d 83 (1983)).
We conclude that the present case is indistinguishable from State v. Glover, 156 N.C.App. 139, 575 S.E.2d 835 (2003), with regard to this issue. In Glover, the prosecutor and defense counsel conducted an off-the-record bench conference, after which the trial judge announced on the record that the defendant desired to enter a guilty plea and that the plea would be addressed at a later point in time. Id. at 146, 575 S.E.2d at 839. In actuality, however, the defendant's plea was never addressed. As this Court observed:
The record contains no transcript of the plea nor any indication, oral or written, that the trial court ever personally addressed [the] defendant regarding the issues contained in G.S. § 15A–1022. Nor does the record indicate any evidence or statement of facts presented by the State with respect to the charge, written statement by [the] defendant, testimony regarding the charge, or other factual basis for entry of [the] defendant's plea.
Id.
This Court vacated the defendant's guilty plea, stating the following:
[I]n this case, there is no indication in the record of compliance, even in part, with G.S. § 15A–1022 or 15A–1026, nor does the record contain any transcript of plea or indicate any factual basis for the plea from which this Court may evaluate whether it was properly accepted. We believe such an absence constitutes more than mere “technical” non-compliance, and is sufficient to establish prejudice to [the] defendant.
Id. at 147, 575 S.E.2d at 840.
Here, as in Glover, the record is devoid of any indication that the trial judge complied with any of the procedural safeguards required by § 15A–1022. As a result, there is no transcript of plea in the record nor is there any indication of the factual basis for the pleas which this Court could review to determine whether the pleas were properly accepted. As this Court is bound by its prior decisions, In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), we are constrained to conclude—based on our ruling in Glover—that the complete absence in this case of the procedural safeguards established by § 15A–1022 constitutes “more than mere ‘technical’ noncompliance” and is sufficient to establish the requisite prejudice. Glover, 156 N.C.App. at 147, 575 S.E.2d at 840.
The State attempts to distinguish Glover on the ground that, in this case, the evidence presented at defendant's trial for possession of a firearm by a felon was “more than enough” to prove defendant's guilt of both misdemeanors. The State, however, fails to cite any authority supporting the proposition that evidence at a trial conducted after the acceptance of a plea may provide the factual basis for the plea where the requirements of § 15A–1022 have not been satisfied. Indeed, to the contrary, our Supreme Court has emphasized that “N.C.G.S. § 15A–1022(c) requires that the trial court make the determination of a factual basis when accepting the plea.” State v. Agnew, 361 N.C. 333, 337, 643 S.E.2d 581, 584 (2007) (emphasis added) (holding that a prosecutor's “summary of facts” during sentencing was insufficient to provide factual basis for accepting plea because summary had been provided to trial court after plea had been accepted). In the same vein, the evidence at defendant's trial relating to the misdemeanor hit and run and misdemeanor possession of marijuana charges to which he pled guilty cannot form the factual basis for his pleas because that evidence was admitted after his guilty pleas to those charges had already been accepted by the trial court.
The two cases relied upon by the State on this issue are distinguishable because, unlike the present case and Glover, they involved only partial—rather than total—noncompliance by a trial court with § 15A–1022. First, in Hendricks, while it was undisputed that the trial judge had failed to strictly follow all of § 15A–1022's requirements, the judge did make some of the statutorily required inquiries, and “the transcript of plea entered into between [the] defendant and the prosecutor covered all the areas omitted by the trial judge....” Hendricks, 138 N.C.App. at 669–70, 531 S.E.2d at 898.
The Hendricks Court, in considering the totality of the circumstances, concluded that the defendant was not prejudiced by the lack of strict compliance, relying on the following relevant factors: (1) in the transcript of plea signed by the defendant, he was asked whether he understood his right to remain silent as well as the nature of the charges against him, and he answered affirmatively; (2) the transcript of plea also indicated that defendant answered “No” to the question of whether his plea was the result of any threats or improper promises; and (3) the worksheet attached to his transcript of plea identified the maximum possible punishment for each offense to which the defendant was pleading guilty. Id. at 670–71, 531 S.E.2d at 898–99.
None of these factors are present here. As noted above, the record contains no transcripts of plea with respect to defendant's misdemeanor charges. Nor is there any other indication that defendant was made aware of the fact that, in pleading guilty, he would be waiving certain “fundamental rights such as the privilege against self-incrimination, the right of confrontation and the right to trial by jury.” State v. Sinclair, 301 N.C. 193, 197, 270 S.E.2d 418, 421 (1980). Thus, the complete failure to comply with § 15A–1022's procedural safeguards in this case is sufficient—as it was in Glover—to establish prejudice.
Second, the State's reliance on State v. Williams, 133 N.C.App. 326, 515 S.E.2d 80 (1999), is equally unavailing. In Williams, the defendant argued that the trial court's failure to inform her of the maximum or minimum possible sentences she could receive violated § 15A–1022(a)(6). Williams, 133 N.C.App. at 329, 515 S.E.2d at 82. In reviewing the defendant's argument on appeal, the Court “refus[ed] to apply a technical, ritualistic approach” in determining whether the trial court had complied with § 15A–1022 in advising the defendant of the direct consequences of her pleading guilty to being a habitual felon. Id. at 331, 515 S.E.2d at 83. The Williams Court concluded that the defendant was made “aware of the direct consequences of her guilty plea” even if the trial court had not specifically informed her of the maximum possible sentence, reasoning as follows:
In the instant case, the trial court in establishing a record of [the defendant's] guilty plea inquired whether she understood that as a consequence of being an habitual felon she would be sentenced as a Class C felon as opposed to a Class G felon. [The defendant] responded in the affirmative and indicated that she had no questions about being an habitual felon. Furthermore, she admitted that she had committed each of the felonies listed on the habitual felon indictment and admitted that she was proceeding voluntarily and without the inducement of deals or threats.
Id.
Unlike the level of partial compliance with § 15A–1022 held to be sufficient in Williams, the present case involves complete noncompliance with the applicable statutory requirements. No colloquy between the trial judge and defendant occurred so as to enable this Court, upon review, to determine whether the pleas were properly accepted. Accordingly, we vacate defendant's pleas of guilty to misdemeanor hit and run (09 CRS 51066) and misdemeanor marijuana possession (09 CRS 51066) and remand the case to the trial court for further proceedings in accordance with N.C. Gen.Stat. §§ 15A–1022 and–1026.
We note that defendant does not argue that the trial court failed to comply with N.C. Gen.Stat. § 15A–1022 in accepting his plea of guilty to having attained habitual felon status. The validity of that plea, therefore, is not before us.
III. Instruction on Flight
Defendant's third argument on appeal is that the trial court erred in giving the jury the following instruction on flight:
The State contends, and the Defendant denies, that the Defendant fled. Evidence of flight may be considered by you, together with all other facts and circumstances in this case, in determining whether the combined circumstances amount to an admission or show a consciousness of guilt. However, proof of this circumstance is not sufficient in itself to establish the Defendant's guilt.
Defendant contends that it was error to instruct the jury on flight because there was no evidence presented at trial showing that he actually fled from police officers. However, we need not address the issue because even assuming arguendo that the instruction was unsupported by the facts in this case, defendant cannot demonstrate prejudice. See State v. Castaneda, 196 N.C.App. 109, 116, 674 S.E.2d 707, 712 (2009) (“[A]n error in jury instructions is prejudicial and requires a new trial only if ‘there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.’ “ (quoting N.C. Gen.Stat. § 15A–1443(a))).
Based on our review of the record in this case, we cannot conclude that there is a reasonable possibility that the jury would have found defendant not guilty of possession of a firearm in the absence of the flight instruction. The evidence of defendant's guilt on this charge was overwhelming in light of (1) defendant's statement to police conceding that he was aware of the gun's presence in his car and that he hid it from the police as the traffic stop was occurring in order to prevent its discovery; and (2) the testimony of Officer Lusk establishing that a gun was found in defendant's car between the driver's seat and the console of the vehicle where it was easily accessible to the driver.
Thus, even assuming that the flight instruction was given in error, this evidence is sufficient to render any such error harmless. See State v. Taylor, 362 N.C. 514, 540–41, 669 S.E.2d 239, 262 (2008) (holding that, “[e]ven assuming arguendo that the instruction on flight was improper, it cannot reasonably be said to have prejudiced defendant” given “overwhelming” evidence of defendant's guilt, including his confession), cert. denied,558 U.S. 851, 175 L.Ed.2d 84 (2009).
Furthermore, as noted above, the trial court expressly instructed the jury that proof of defendant's flight, without more, was insufficient to establish defendant's guilt. See State v. Wright, 151 N.C.App. 493, 499, 566 S.E.2d 151, 155 (2002) (finding no prejudice resulting from assumed erroneous flight instruction where jury was given limiting instruction and “the evidence in the record [was] such that the instruction had a negligible effect on the jury's determination of defendant's guilt”). This argument is, therefore, overruled.
IV. Cruel and Unusual Punishment
Defendant's final argument on appeal is that his enhanced sentence as a habitual felon constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article I, Sections 19 and 27 of the North Carolina Constitution. As a preliminary matter, the State argues that this contention was not preserved for appellate review because defendant failed to raise any constitutional arguments during sentencing. We note that there is conflicting caselaw from this Court as to whether a defendant is required to object at sentencing to preserve such an issue for review. Compare State v. Pettigrew, 204 N.C.App. 248, 258, 693 S.E.2d 698, 705 (rejecting State's argument that defendant's failure to raise cruel and unusual argument at sentencing precluded review as “[d]efendant was not required to object at sentencing to preserve this issue on appeal”), appeal dismissed,364 N.C. 439, 706 S.E.2d 467 (2010), with State v. Cortes–Serrano, 195 N.C.App. 644, 658, 673 S.E.2d 756, 765 (holding that defendant failed to preserve Eighth Amendment issue for review by not raising argument at sentencing), disc. review denied,363 N.C. 376, 679 S.E.2d 138 (2009).
Assuming arguendo that this issue is properly before us, we hold that defendant's argument is meritless. Our Supreme Court has expressly rejected the contention that legislative enactments having the effect of enhancing punishment for habitual offenders violate the constitutional prohibition against cruel and unusual punishment. State v. Todd, 313 N.C. 110, 117, 326 S.E.2d 249, 253 (1985); accord State v. Cummings, 174 N.C.App. 772, 776, 622 S.E.2d 183, 185–86 (2005) (observing that “[t]his Court and the North Carolina Supreme Court have consistently rejected Eighth Amendment challenges to habitual felon sentences”), disc. review denied,361 N.C. 172, 641 S.E.2d 306 (2006), cert. denied,550 U.S. 963, 167 L.Ed.2d 1140 (2007).
In this case, defendant was sentenced to 80 to 105 months imprisonment not only because of the 21 February 2009 offenses but also due to his significant criminal history. We conclude that his sentence—which, we note, is in the mitigated range—is not unconstitutional. See State v. Lackey, 204 N.C.App. 153, 158–59, 693 S.E.2d 218, 222 (2010) (concluding that defendant's sentence of 84 to 110 months, which was within mitigated range for a habitual felon, for possession of 0.1 grams of cocaine did not violate Eighth Amendment); State v. Flemming, 171 N.C.App. 413, 417–18, 615 S.E.2d 310, 313–14 (2005) (holding mitigated range sentence for habitual felon of 84 to 110 months for cocaine possession was not cruel and unusual punishment).
Conclusion
For the reasons stated above, we conclude that defendant received a trial free of prejudicial error. However, we vacate defendant's guilty pleas to the misdemeanor hit and run and misdemeanor possession of marijuana charges and remand this action to the trial court for further proceedings in accordance with N.C. Gen.Stat. § 15A–1022 and N.C. Gen.Stat. § 15A–1026.
NO ERROR IN PART; VACATED AND REMANDED IN PART. Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).