Opinion
No. COA10-1427
Filed 7 June 2011 This case not for publication
Appeal by defendant from judgment entered 4 June 2010 by Judge John O. Craig, III, in Guilford County Superior Court. Heard in the Court of Appeals 23 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General Kevin G. Mahoney, for the State. Don Willey, for defendant-appellant.
Guilford County Nos. 09 CRS 82349-50, 09 CRS 82352.
Ricardo D'Angelo Moore ("defendant") appeals from a judgment entered upon a jury verdict finding him guilty of possession of a firearm by a felon. We find no error.
On 3 August 2009, defendant was indicted for disorderly conduct, resisting a public officer, and possession of a firearm by a felon. For the offense of possession of a firearm by a felon, the indictment alleged that defendant was convicted of felony conspiracy to commit robbery with a dangerous weapon on 8 January 2002. Prior to trial, defendant stipulated to the existence of the 2002 conspiracy conviction both in writing and orally in open court.
Beginning 2 June 2010, defendant was tried by a jury for the offense of possession of a firearm by a felon in Guilford County Superior Court. On 4 June 2010, the jury returned a verdict finding defendant guilty. Defendant then pled guilty to disorderly conduct and resisting a public officer.
The State tendered to the trial court a prior record level worksheet which indicated that defendant was a Level IV offender based upon ten prior record level points, including four points that were assigned for the 2002 conspiracy conviction. Defendant signed the stipulation on the worksheet, and did not object when the State proffered its prior record level calculation in open court. Based on this worksheet, the trial court sentenced defendant to a minimum of 20 months to a maximum of 24 months in the North Carolina Department of Correction. Defendant appeals.
Defendant's sole argument on appeal is that the trial court erred in sentencing him as a Level IV offender, when his prior record level calculation included the underlying felony for his current conviction for possession of a firearm by a felon. We disagree.
Defendant's argument is based primarily upon State v. Gentry, 135 N.C. App. 107, 519 S.E.2d 68 (1999), in which this Court determined whether three prior DWI convictions used to prove an element of the offense of habitual driving while impaired could also be used in the calculation of that defendant's prior record level if defendant was convicted for that habitual driving while impaired offense. The Gentry Court noted that "our legislature recognized [in N.C. Gen. Stat. § 14-7.6] the basic unfairness and constitutional restrictions on using the same convictions both to elevate a defendant's sentencing status to that of an habitual felon, and then to increase his sentencing level." Id. at 111, 519 S.E.2d at 70. The Court then concluded that the "legislature did not intend that the convictions which elevate a misdemeanor driving while impaired conviction to the status of the felony of habitual driving while impaired, would then again be used to increase the sentencing level of the defendant." Id. at 111, 519 S.E.2d at 70-71.
The instant case is distinguishable from Gentry. The underlying 2002 felony conspiracy conviction which was an element of defendant's most recent offense of possession of a firearm by a felon was not used to elevate his sentencing status. While the statutory prohibition for possession of a firearm by a felon "has characteristics of a recidivist statute, a plain reading of the statute shows it creates a new substantive offense." State v. Wood, 185 N.C. App. 227, 236, 647 S.E.2d 679, 687 (2007) (citations omitted). Thus, "[p]ossession of a firearm by a felon is a separate substantive offense from the defendant's prior felony upon which his status as a felon was based." State v. Goodwin, 190 N.C. App. 570, 578, 661 S.E.2d 46, 51 (2008) (citing Wood, 185 N.C. App. at 236, 647 S.E.2d at 687), disc. review denied, 363 N.C. 133, 675 S.E.2d 664 (2009), cert. dismissed, 364 N.C. 437, 702 S.E.2d 499 (2010). Since possession of a firearm by a felon is a substantive offense rather than a sentencing enhancement, defendant's 2002 conviction was not improperly used to "`to elevate defendant's sentencing status . . . and then to increase his sentencing level.'" Id. (quoting Gentry, 135 N.C. App. 107, 111, 519 S.E.2d 68, 70 (1999)). Accordingly, the trial court properly sentenced defendant a Level IV offender. Defendant received a fair trial, free from error.
No error.
Judges STEELMAN and STROUD concur.
Report per Rule 30(e).