Opinion
No. 04-1708.
Filed 4 October 2005.
Buncombe County Nos. 03CRS018023-24, 057664; 058279-80.
Appeal by defendant from judgment entered 29 March 2004 by Judge Dennis J. Winner in Buncombe County Superior Court. Heard in the Court of Appeals 19 September 2005.
Attorney General Roy A. Cooper, III, by Assistant Attorney General M. Elizabeth Guzman, for the State. David Childers for defendant-appellant.
Charles Frank Raines ("defendant") appeals his sentencing for possession of a schedule II controlled substance, assault with a deadly weapon, misdemeanor larceny, misdemeanor possession of stolen goods/property, and habitual felon status. We affirm the judgment of the trial court.
On 29 March 2004, defendant entered into a plea agreement with the State. Pursuant to the terms of the plea agreement, defendant pled guilty to possession of a schedule II controlled substance, assault with a deadly weapon, misdemeanor larceny, misdemeanor possession of stolen goods/property, and admitted his status as an habitual felon. In exchange, the charges were consolidated for judgment and the State stipulated to the finding of the mitigating factor that defendant had accepted responsibility for his criminal conduct. Additionally, the State agreed that defendant would be "sentenced to the bottom of the mitigated range[.]" At the plea hearing, the trial court accepted defendant's plea, found that he had fourteen prior record level points, and sentenced him as a Class C, Level IV felon to a term of 80 to 105 months' imprisonment.
Defendant argues on appeal that the trial court erred in finding that the prior convictions had occurred because the Sixth and Fourteenth Amendments to the United States Constitution require the State to prove to a jury any fact that would aggravate or enhance his sentence. Defendant additionally argues that the convictions used to calculate his prior record level were also erroneously used to establish his habitual felon status. Finally, defendant argues that his trial counsel was ineffective by stipulating to his prior convictions. After careful review of the record, briefs, and contentions of the parties, we affirm the judgment of the trial court.
Defendant contends the trial court erred in "finding as a fact that convictions had occurred against defendant in the past[.]" Defendant argues the State was required to prove the fact of defendant's prior convictions to a jury, and that the trial court therefore erred in sentencing him as an habitual felon and as a Level IV felon. This argument fails on two grounds. First, defendant admitted to his habitual felon status and stipulated to his prior record level. As such, the State was not required to prove the prior convictions that were necessary for defendant's habitual felon status or his prior record level. See Shepard v. United States, ___ U.S. ___, ___, 161 L. Ed. 2d 205, 217 (2005) (emphasis added) (noting that "any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury, in the absence of any waiver of rights by the defendant"). Second, defendant concedes that proof of prior convictions is exempt from the requirements of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). See Shepard, ___ U.S. at ___, 161 L. Ed. 2d at 217 (emphasis added) (stating that "any fact other than a prior conviction . . . must be found by a jury"). The trial court therefore did not err by sentencing defendant as an habitual felon or as a Level IV felon.
By further assignment of error, defendant argues that the same convictions were used to calculate his prior record level and to prove his status as an habitual felon. We note that defendant's argument does not correspond with any of his assignments of error. Thus, we need not consider defendant's argument. However, even assuming arguendo that defendant's argument was preserved for appellate review, it is wholly without merit. It is apparent from the prior record level worksheet that defendant had been convicted of multiple felonies on the same dates. The State used one felony offense from each of these dates to calculate defendant's prior record level, and one felony conviction from each of these dates to prove his status as an habitual felon. It was permissible to use separate convictions from the same transaction to establish defendant's prior record level and habitual felon status. See State v. Truesdale, 123 N.C. App. 639, 642, 473 S.E.2d 670, 672 (1996) (emphasis added) (trial court not prohibited "from using one conviction obtained in a single calendar week to establish habitual felon status and using another separate conviction obtained the same week to determine prior record level").
Finally, defendant argues he received ineffective assistance of counsel. To obtain relief for ineffective assistance of counsel, the defendant must demonstrate that his "counsel's conduct fell below an objective standard of reasonableness." State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). This requires a showing that: (1) counsel's performance was deficient; and (2) that the deficient performance prejudiced his defense. Id.
Defendant contends his counsel provided ineffective assistance by stipulating to prior convictions because the State was required to prove all aggravators to the jury, and because the same convictions were used to calculate his prior record level and to prove his status as an habitual felon. Again, defendant's argument fails.
As noted above, the State was not required to prove defendant's prior convictions to a jury. We have also determined that the State in fact used separate convictions from the same transaction to establish defendant's prior record level and habitual felon status. Thus, defendant has not shown that his counsel's performance was deficient, and we overrule this final assignment of error.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).