{
  "id": 11912347,
  "name": "STATE OF NORTH CAROLINA v. HORACE DARRELL MISENHEIMER",
  "name_abbreviation": "State v. Misenheimer",
  "decision_date": "1996-07-02",
  "docket_number": "No. COA95-1243",
  "first_page": "156",
  "last_page": "158",
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      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
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    {
      "cite": "N.C. Gen. Stat. \u00a7 20-138.5",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
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  "last_updated": "2023-07-14T18:05:31.519627+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges MARTIN, John C., and WALKER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. HORACE DARRELL MISENHEIMER"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nHorace Darrell Misenheimer (defendant) appeals from the trial court\u2019s 1 August 1995 Judgment and Commitment, sentencing him to a minimum of eighty (80) months and maximum of one hundred five (105) months in prison for habitual impaired driving, in violation of N.C. Gen. Stat. \u00a7 20-138.5, driving while license revoked, in violation of N.C. Gen. Stat. \u00a7 20-28, and being an habitual felon, in violation of N.C. Gen. Stat. \u00a7 14-7.1.\nDefendant was charged with driving while license revoked on 1 April 1995 and indicted for felony habitual impaired driving, for facts arising out of the 1 April charge, and being an habitual felon on 30 May 1995. The felony habitual driving indictment alleged three offenses involving impaired driving; (1) habitual impaired driving on 8 September 1994, (2) habitual impaired driving on 29 July 1994, and (3) habitual impaired driving on 26 May 1993. The habitual felony indictment alleged three felony convictions; (1) sale of cocaine on 22 April 1992, (2) habitual impaired driving on 26 May 1993, and (3) habitual impaired driving on 8 September 1994. On 1 August 1995, after the conviction of habitual impaired driving and prior to the submission of the habitual felon issue to the jury, defendant made a motion for the trial court to dismiss the indictment for habitual felon, because it was predicated upon the same crimes which had previously been used to convict defendant of habitual impaired driving.\nThe issue is whether N.C. Gen. Stat. \u00a7 14-7.6 prohibits a defendant\u2019s felony sentence from being enhanced on the grounds that he is an habitual felon when elements necessary to prove that he is an habitual felon are the same as those elements which were used to support the underlying felony, for which defendant is being sentenced.\nSection 14-7.6 provides that an habitual felon be \u201csentenced as a Class C felon\u201d and that \u201c[i]n determining the prior record level [under the Structured Sentencing Act], convictions used to establish a person\u2019s status as an habitual felon shall not be used.\u201d N.C.G.S. \u00a7 14-7.6 (Supp. 1995). Under our Structured Sentencing Act, a defendant\u2019s prior record level is used to increase the presumptive range of a sentence that a felon will receive. N.C.G.S. \u00a7 15A-1340.17 (Supp. 1995). The defendant may then be sentenced outside of the presumptive range, if the trial court determines aggravating or mitigating factors exist. Id. Thus, the legislature has provided, in section 14-7.6, that a defendant shall not have his felony level enhanced to Class C on the grounds he is an habitual felon and also be placed in a higher presumptive range because of his prior record level, when the increased presumptive range is based upon the same convictions which make him an habitual felon.\nAlthough we agree that the offenses of habitual driving on 26 May 1993 and 8 September 1994, which were used to establish defendant\u2019s status as an habitual felon, were elements of the habitual impaired driving conviction for which defendant was sentenced, see N.C.G.S. \u00a7 20-138.5 (Supp. 1995), the legislature has not prohibited the use of these offenses in establishing a defendant\u2019s status as an habitual felon. N.C.G.S. \u00a7 14-7.1 (1993). In this case, defendant was convicted of habitual impaired driving, which is a Class G felony. N.C.G.S. \u00a7 20-138.5. Defendant was then adjudicated an habitual felon, to be sentenced as a Class C felon. N.C.G.S. \u00a7 14-7.6. Only at this point, at sentencing, does the legislative prohibition in section 14-7.6 apply. Defendant has not argued and indeed, the record does not show, that his prior record level was established by using convictions necessary to adjudge him an habitual felon. Thus, there was no violation of the legislative prohibition in section 14-7.6 as defendant argues.\nAffirmed.\nJudges MARTIN, John C., and WALKER concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F. Easley, by Assistant Attorney General Linda M. Fox, for the State.",
      "William, D. Arrowood for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. HORACE DARRELL MISENHEIMER\nNo. COA95-1243\n(Filed 2 July 1996)\nCriminal Law \u00a7 1286 (NCI4th)\u2014 adjudication as habitual felon \u2014 different elements used to support underlying felony\nWhere defendant was convicted of habitual impaired driving and then adjudicated a habitual felon, and defendant did not argue nor did the record show that his prior record level was established by using convictions necessary to adjudge him a habitual felon, there was thus no violation of N.C.G.S. \u00a7 14-17.6 which prohibits a defendant\u2019s felony sentence from being enhanced on the ground that he is a habitual felon when elements necessary to prove that he is a habitual felon are the same as those elements which were used to support the underlying felony for which defendant is being sentenced.\nAm Jur 2d, Habitual Criminals and Subsequent Offenders \u00a7\u00a7 26-27.\nAppeal by defendant from judgment entered 1 August 1995 in Cabarrus County Superior Court by Judge Catherine C. Eagles. Heard in the Court of Appeals 4 June 1996.\nAttorney General Michael F. Easley, by Assistant Attorney General Linda M. Fox, for the State.\nWilliam, D. Arrowood for defendant-appellant."
  },
  "file_name": "0156-01",
  "first_page_order": 190,
  "last_page_order": 192
}