Opinion
No. COA12–1227.
2013-07-2
STATE of North Carolina v. Jamal Nemay WILLIAMS, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Melissa H. Taylor, for the State. Winifred H. Dillon for defendant-appellant.
Appeal by defendant from judgment entered 21 March 2012 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 February 2013. Attorney General Roy Cooper, by Assistant Attorney General Melissa H. Taylor, for the State. Winifred H. Dillon for defendant-appellant.
GEER, Judge.
Defendant Jamal Nemay Williams appeals from his conviction of felony possession of heroin. On appeal, defendant primarily contends that his guilty plea to being a habitual felon was not a fully informed choice because the trial court misled him into believing that he was receiving a sentence concession as a result of the plea when in fact the trial court actually was imposing the maximum sentence possible given defendant's prior successful appeal. Even assuming without deciding that the trial court's remarks were misleading, we hold that any error was harmless beyond a reasonable doubt.
Facts
The State's evidence tended to show the following facts. On 2 May 2009, Officer Paul Blackwood of the Charlotte–Mecklenburg Police Department was assisting with a vice investigation at a Bojangles restaurant located on West Trade Street in Charlotte, North Carolina. Officer Blackwood was informed that a suspect in a green Toyota Camry had purchased drugs and was possibly consuming the drugs at that Bojangles. Officer Blackwood approached the car and saw defendant in the driver's seat and another man in the back seat.
Officer Blackwood ordered the men out of the car. When defendant exited, something fell out of his lap that Officer Blackwood recognized as looking like packaged heroin. A subsequent chemical analysis of the contents of the package indicated that the package contained .02 grams of heroin.
Defendant was indicted on 15 June 2009 for felony possession of heroin and on 14 September 2009 for being a habitual felon. Defendant was convicted at trial and sentenced to a presumptive-range term of 121 to 155 months imprisonment. On appeal, this Court found error and granted defendant a new trial. State v. Williams, ––– N.C.App. ––––, 719 S.E.2d 255, 2011 WL 5543111, at *1, *2, 2011 N.C.App. LEXIS 2406, at *1, *3–4 (2011) (unpublished). Defendant was retried; he was found guilty of possession of heroin; and he then pled guilty to being a habitual felon. The trial court again sentenced defendant to a presumptive-range term of 121 to 155 months imprisonment. Defendant timely appealed to this Court.
Discussion
Defendant first challenges his guilty plea to being a habitual felon. Defendant points to the requirement that a decision to plead guilty be a voluntary and informed choice, which requires that the plea be “ ‘entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court ....’ ” Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, 760 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir.1957)).
In arguing that his plea violated constitutional principles, defendant points to a discussion before he entered the plea and to the plea colloquy. Prior to defendant's pleading guilty, defense counsel asked whether the trial court would give any consideration in sentencing if defendant pled guilty to being a habitual felon. The trial court responded that he would sentence defendant to the same sentence he had received in the first trial. During the plea colloquy, the trial court explained to defendant that the plea agreement between defendant and the State would be that the trial court “would sentence [defendant] to what [defendant] had received previously at the first trial in this matter to 121 to 15[5] months in the custody of the North Carolina Department of Corrections.” Defendant confirmed that he accepted that arrangement.
Defendant now points out that the trial court was not permitted to impose a greater sentence than that imposed in defendant's first trial. SeeN.C. Gen.Stat. § 15A–1335 (2011) (“When a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.”). Therefore, defendant argues, the trial court's statements were misleading because they suggested that defendant was receiving some benefit in consideration for his guilty plea when, in reality, he was receiving the maximum sentence that the trial court could still impose.
Assuming, without deciding, that the trial court's statements during the plea colloquy were misleading, we hold that any error was harmless beyond a reasonable doubt. SeeN.C. Gen.Stat. § 15A–1443(b) (2011) (“A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt .”).
As relief, defendant seeks a new habitual felon proceeding. Based on our review of the record and defendant's prior appeal, we believe beyond a reasonable doubt that defendant would still, in any new proceeding, be found to be a habitual felon. Although a jury convicted defendant of being a habitual felon in his first trial, defendant made no challenge to the habitual felon proceeding in his first appeal. Williams, 2011 WL 5543111, at *2, 2011 N.C.App. LEXIS 2406, at *3, *4. The record in that case contains copies of judgments for each of the offenses providing the basis for the habitual felon indictment.
On remand, defendant never suggested at any time that he had not been convicted of the felonies set out in the habitual felon indictment. Further, during the plea colloquy, defendant specifically admitted the existence of each of those convictions. Since there is no dispute that defendant was convicted of the felonies alleged in the habitual felon indictment and we have been unable to identify any argument he could make below, we must conclude that even if defendant were granted a new habitual felon proceeding, he would still be found to be a habitual felon. Therefore, any misleading statements by the trial court during the plea colloquy were harmless.
Defendant next argues that his sentence violated his Eighth Amendment right to be free from cruel and unusual punishment because (1) the sentence was grossly disproportionate to the crime, and (2) “the change in the habitual felon sentencing scheme enacted by the legislature in the Justice Reinvestment Act rendered any sentence imposed on defendant under the old scheme violative of the Eighth Amendment.” Defendant did not object on the first basis at trial, and, therefore, that issue is not properly before this Court. See State v. Freeman, 185 N.C.App. 408, 414, 648 S.E.2d 876, 881 (2007) (dismissing defendant's assignment of error that sentence was grossly disproportionate to severity of crime in violation of Eighth Amendment because defendant failed to object at trial and, accordingly, failed to preserve constitutional issue for appeal), overruled on other grounds as recognized in State v. Ward, 199 N.C.App. 1, 681 S.E.2d 354 (2009).
We further note that even if defendant's arguments were properly before us, “[o]ur Supreme Court has rejected Eighth Amendment challenges to ‘legislation which is designed to identify habitual criminals and which authorizes enhanced punishment.’ ” State v. Quick, 170 N.C.App. 166, 170, 611 S.E.2d 864, 866 (2005) (quoting State v. Todd, 313 N.C. 110, 119, 326 S.E.2d 249, 254 (1985)). “In Todd, the Supreme Court stated, ‘only in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment.’ ” Id. (quoting Todd, 313 N.C. at 119, 326 S.E.2d at 254). This result is because a habitual felon sentence is not based only on the defendant's “ ‘most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.’ “ Id., 611 S.E.2d at 867 (quoting State v. Aldridge, 76 N.C.App. 638, 640, 334 S.E.2d 107, 108 (1985)).
Here, defendant's sentence was imposed in accordance with the applicable habitual felon sentencing scheme and was, accordingly, constitutional. See State v. Hodge, 112 N.C.App. 462, 466, 436 S.E.2d 251, 254 (1993) (upholding 14–year sentence for possession of “small amount” of cocaine when defendant was habitual felon); State v. Clifton, 158 N.C.App. 88, 91, 95, 580 S.E.2d 40, 42, 45 (2003) (upholding sentence of two consecutive terms of 168 to 211 months active imprisonment under habitual felon statute when defendant committed two counts of nonviolent Class H felony).
Defendant argues additionally, however, that the passage of the Justice Reinvestment Act, which changed habitual felon sentencing, established that sentences under the prior habitual felon sentencing scheme are violative of the Eighth Amendment. Our Supreme Court has previously rejected a similar argument. In State v. Whitehead, 365 N.C. 444, 445, 722 S.E.2d 492, 493 (2012), the defendant had been sentenced under the Fair Sentencing Act (“FSA”) that “govern [ed] sentencing for felonies committed between 1 July 1981 and 1 October 1994.” The defendant filed a motion for appropriate relief, asserting that based on the subsequently-enacted Structured Sentencing Act (“SSA”), which would have resulted in a shorter sentence than the FSA, his FSA sentence violated the Eighth Amendment. Id. at 448, 722 S.E.2d 492,722 S.E.2d at 495–96. Our Supreme Court rejected that argument, reasoning that “a comparison of the gravity of defendant's offense, second-degree murder, with the severity of his sentence, life with the possibility of parole, leads to no inference of gross disproportionality.” Id., 722 S.E.2d at 496.
We have already observed that defendant's sentence was not grossly disproportionate to the crime committed and to defendant's status as a habitual felon. Accordingly, under Whitehead, defendant's Eighth Amendment right was not violated by his sentence under the old habitual felon sentencing scheme irrespective of the passage of the Justice Reinvestment Act. Since defendant makes no other arguments regarding his trial and sentence, we hold he received a trial free of prejudicial error.
No error. Judges STEELMAN and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).