Opinion
No. COA12–154.
2012-07-3
STATE of North Carolina v. Eddie Ray LOFTIN.
Attorney General Roy Cooper, by Special Deputy Attorney General Tina L. Hlabse and Senior Deputy Attorney General Robert T. Hargett, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
Appeal by defendant from judgment entered 20 July 2011 by Judge Russell J. Lanier in Craven County Superior Court. Heard in the Court of Appeals 18 June 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Tina L. Hlabse and Senior Deputy Attorney General Robert T. Hargett, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
ELMORE, Judge.
Eddie Ray Loftin (defendant) appeals from a judgment entered upon jury verdicts finding him guilty of possession of cocaine and knowingly keeping a building used for the purpose of keeping and selling cocaine, as well as his subsequent guilty plea to attaining the status of a habitual felon. The trial court sentenced defendant as a habitual felon to a term in the mitigated range of 60 to 81 months' imprisonment. Defendant gave notice of appeal in open court.
Defendant now argues that his sentence as a habitual felon violates his right against cruel and unusual punishment because this State's evolving standards of decency have caused the North Carolina General Assembly to pass the Justice Reinvestment Act, which, if it were applicable, would have resulted in a lesser sentence for defendant. However, “both this Court and our Supreme Court have rejected constitutional challenges to the Habitual Felon Act based on allegations of cruel and unusual punishment.” State v. McIlwaine, 169 N.C.App. 397, 403, 610 S.E.2d 399, 403 (2005). Moreover, it is well established that a sentence will be found to be so grossly disproportionate as to violate the Eighth Amendment “[o]nly in exceedingly unusual non-capital cases .... “ State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983). “[W]hen deciding whether a sentence is grossly disproportionate, ‘we must place on the scales not only [a defendant's] current felonies, but also his. history of felony recidivism.’ “ State v.. Clifton, 158 N.C.App. 88, 96, 580 S.E.2d 40, 46 (2003) (quoting Ewing v. California, 538 U.S. 11, 29, 155 L.Ed.2d 108, 112 (2003)). “[T]his Court has on several occasions affirmed the sentence of a defendant as a habitual felon where the defendant was convicted of an underlying Class H or Class I felony.” Id. at 95–96,580 S.E.2d at 45.
Here, defendant was found guilty of felony possession of cocaine, a Class I felony. Defendant pled guilty to attaining the status of a habitual felon based on three prior felony convictions dating back to 2003, all of which involved either the possession or sale of a controlled substance. Given his prior felonies, we hold that defendant has failed to demonstrate that his sentence is grossly disproportionate. While the Justice Reinvestment Act may reduce the term of imprisonment to which a similarly situated defendant could now be sentenced, its passage by the North Carolina General Assembly does not make defendant's sentence unconstitutional.
Defendant also argues that the trial court abused its discretion when it denied defendant's motion to dismiss the habitual felon indictment against him because it violated his constitutional rights under the Fifth, Eighth, and Fourteenth Amendments. Defendant contends that the trial court refused to exercise its discretion in ruling on his motion when it stated, “Well, while I agree with you personally, I think the law is against you, so I am going to have to deny that.” Contrary to defendant's contention, we hold that the trial court did not refuse to consider his motion, and the challenged statement is an expression of its application of the well-settled law in North Carolina that habitual felon sentences are constitutional. Accordingly, we find no error in the trial court's entry of judgment and sentencing of defendant as a habitual felon.
No error. Judges HUNTER, ROBERT C., and McCULLOUGH concur.
Report per Rule 30(e).