{ "id": 9497226, "name": "STATE OF NORTH CAROLINA v. COLLINS STEPHANIE WILSON, Defendant", "name_abbreviation": "State v. Wilson", "decision_date": "2000-08-15", "docket_number": "No. COA99-709", "first_page": "544", "last_page": "553", "citations": [ { "type": "official", "cite": "139 N.C. App. 544" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "175 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "838", "parenthetical": "where theory urged on appeal not raised in trial court, \"the law does not permit parties to swap horses between courts in order to get a better mount [on appeal]\"" } ], "opinion_index": 0 }, { "cite": "207 N.C. 6", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621595 ], "year": 1934, "pin_cites": [ { "page": "10", "parenthetical": "where theory urged on appeal not raised in trial court, \"the law does not permit parties to swap horses between courts in order to get a better mount [on appeal]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0006-01" ] }, { "cite": "365 S.E.2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "641-42" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522207 ], "year": 1988, "pin_cites": [ { "page": "354-55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0353-01" ] }, { "cite": "365 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1988, "pin_cites": [ { "page": "721-22", "parenthetical": "\"[u]pon a conviction as an habitual felon, the court must sentence the defendant for the underlying felony as a Class C felon\"" }, { "parenthetical": "citations omitted" }, { "page": "722" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522149 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "351", "parenthetical": "\"[u]pon a conviction as an habitual felon, the court must sentence the defendant for the underlying felony as a Class C felon\"" }, { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0350-01" ] }, { "cite": "500 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "80" } ], "opinion_index": 0 }, { "cite": "348 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659844 ], "year": 1998, "pin_cites": [ { "page": "270-71" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0266-01" ] }, { "cite": "133 L. Ed. 2d 872", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "516 U.S. 1129", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 328608, 328291, 324260, 327492, 326437, 325380, 325616, 325522, 328084, 324441, 327099, 322908, 325693, 324766, 327647 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/516/1129-06", "/us/516/1129-07", "/us/516/1129-05", "/us/516/1129-14", "/us/516/1129-09", "/us/516/1129-03", "/us/516/1129-15", "/us/516/1129-12", "/us/516/1129-01", "/us/516/1129-10", "/us/516/1129-13", "/us/516/1129-04", "/us/516/1129-08", "/us/516/1129-11", "/us/516/1129-02" ] }, { "cite": "470 U.S. 598", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299798 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/470/0598-01" ] }, { "cite": "459 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "725", "parenthetical": "citing Wayte v. United States, 470 U.S. 598, 84 L. Ed. 2d 547 (1985)" }, { "page": "725", "parenthetical": "\"only limitation on [district attorney's] discretion [in first-degree murder cases] ... is that the decision to prosecute capitally may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification\"" } ], "opinion_index": 0 }, { "cite": "340 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790147 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "588", "parenthetical": "citing Wayte v. United States, 470 U.S. 598, 84 L. Ed. 2d 547 (1985)" }, { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0573-01" ] }, { "cite": "86 L. Ed. 2d 267", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "471 U.S. 1120", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6387653, 6387846, 6387984, 6387541, 6387381 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/1120-03", "/us/471/1120-04", "/us/471/1120-05", "/us/471/1120-02", "/us/471/1120-01" ] }, { "cite": "64 L. Ed. 2d 796", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "446 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6277664, 6275708, 6276260, 6274984, 6278967, 6278350, 6275343, 6278644, 6279286, 6277367, 6276539, 6275996, 6278014 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/446/0941-08", "/us/446/0941-03", "/us/446/0941-05", "/us/446/0941-01", "/us/446/0941-12", "/us/446/0941-10", "/us/446/0941-02", "/us/446/0941-11", "/us/446/0941-13", "/us/446/0941-07", "/us/446/0941-06", "/us/446/0941-04", "/us/446/0941-09" ] }, { "cite": "257 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "562" } ], "opinion_index": 0 }, { "cite": "298 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568503 ], "year": 1979, "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0086-01" ] }, { "cite": "314 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "501", "parenthetical": "quoting State v. Cherry, 298 N.C. 86, 103, 257 S.E.2d 551, 562 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 796 (1980)" } ], "opinion_index": 0 }, { "cite": "310 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395675 ], "year": 1984, "pin_cites": [ { "page": "644", "parenthetical": "quoting State v. Cherry, 298 N.C. 86, 103, 257 S.E.2d 551, 562 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 796 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0632-01" ] }, { "cite": "406 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "329 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553082 ], "year": 1991, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0589-01" ] }, { "cite": "436 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "255", "parenthetical": "upholding Habitual Felon Act against due process, equal protection, and double jeopardy challenges" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522071 ], "year": 1993, "pin_cites": [ { "page": "468", "parenthetical": "upholding Habitual Felon Act against due process, equal protection, and double jeopardy challenges" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0462-01" ] }, { "cite": "528 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "31", "parenthetical": "citing Todd, 313 N.C. at 118, 326 S.E.2d at 253" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 352", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093361 ], "year": 2000, "pin_cites": [ { "page": "354", "parenthetical": "citing Todd, 313 N.C. at 118, 326 S.E.2d at 253" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0352-01" ] }, { "cite": "484 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "820-21", "parenthetical": "during habitual felon trial \"defendant is not defending himself against the predicate substantive felony, but against the charge that he has been previously convicted of the required number of felonies\"" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710357 ], "year": 1997, "pin_cites": [ { "page": "322", "parenthetical": "during habitual felon trial \"defendant is not defending himself against the predicate substantive felony, but against the charge that he has been previously convicted of the required number of felonies\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0318-01" ] }, { "cite": "368 U.S. 448", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173353 ], "weight": 4, "year": 1962, "pin_cites": [ { "page": "452" }, { "page": "450" }, { "page": "456" }, { "page": "453", "parenthetical": "\"conscious exercise of some selectivity\" by prosecutor in application of West Virginia recidivist statute not, in itself, denial of equal protection absent selection deliberately based upon \"unjustifiable standard such as race, religion, or other arbitrary classification\"" } ], "opinion_index": 0, "case_paths": [ "/us/368/0448-01" ] }, { "cite": "40 N.Y.U.L. Rev. 332", "category": "journals:journal", "reporter": "N.Y.U. L. Rev.", "year": 1965, "pin_cites": [ { "page": "348" } ], "opinion_index": 0 }, { "cite": "326 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "255", "parenthetical": "\"a defendant's 'trial' on the issue of whether defendant should be sentenced as an habitual offender [is] analogous to the separate sentencing hearing ... to determine punishment\"" }, { "page": "253" }, { "page": "253" } ], "opinion_index": 0 }, { "cite": "313 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721300 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "120", "parenthetical": "\"a defendant's 'trial' on the issue of whether defendant should be sentenced as an habitual offender [is] analogous to the separate sentencing hearing ... to determine punishment\"" }, { "page": "117" }, { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0110-01" ] }, { "cite": "240 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572735 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0311-01" ] }, { "cite": "235 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "908-09", "parenthetical": "citing N.C.G.S. \u00a7 7A-97 (1999)" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550711 ], "year": 1977, "pin_cites": [ { "page": "524", "parenthetical": "citing N.C.G.S. \u00a7 7A-97 (1999)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0521-01" ] }, { "cite": "466 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "709", "parenthetical": "\"requirement in G.S. \u00a7 14-7.3 that the habitual felon indictment be a separate document from the predicate felony indictment is consistent with the bifurcated nature of the trial\"" } ], "opinion_index": 0 }, { "cite": "342 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796151 ], "year": 1996, "pin_cites": [ { "page": "635", "parenthetical": "\"requirement in G.S. \u00a7 14-7.3 that the habitual felon indictment be a separate document from the predicate felony indictment is consistent with the bifurcated nature of the trial\"" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0633-01" ] }, { "cite": "453 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "864", "parenthetical": "\"trial for the substantive felony is held first, and only after defendant is convicted of the substantive felony is the habitual felon indictment revealed to and considered by the jury\"" } ], "opinion_index": 0 }, { "cite": "339 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558634 ], "year": 1995, "pin_cites": [ { "page": "729", "parenthetical": "\"trial for the substantive felony is held first, and only after defendant is convicted of the substantive felony is the habitual felon indictment revealed to and considered by the jury\"" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0725-01" ] }, { "cite": "454 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 739", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558925, 2556401, 2557239, 2559480, 2556571 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0739-05", "/nc/339/0739-04", "/nc/339/0739-01", "/nc/339/0739-03", "/nc/339/0739-02" ] }, { "cite": "332 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "69" } ], "opinion_index": 0 }, { "cite": "314 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4690757 ], "year": 1985, "pin_cites": [ { "page": "47-48" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0044-01" ] }, { "cite": "449 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "212", "parenthetical": "citing Tetterton v. Long Manufacturing Co., 314 N.C. 44, 47-48, 332 S.E.2d 67, 69 (1985)" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524741 ], "year": 1994, "pin_cites": [ { "page": "506", "parenthetical": "citing Tetterton v. Long Manufacturing Co., 314 N.C. 44, 47-48, 332 S.E.2d 67, 69 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0493-01" ] } ], "analysis": { "cardinality": 881, "char_count": 20360, "ocr_confidence": 0.751, "pagerank": { "raw": 5.052839866336923e-07, "percentile": 0.9372112042053417 }, "sha256": "9a3f8df139c52ebd4bf40739324cbe2510e9c4cf35581106b957f792d1b41c9a", "simhash": "1:8379e06a06ac21d6", "word_count": 3247 }, "last_updated": "2023-07-14T19:40:43.899160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and HORTON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. COLLINS STEPHANIE WILSON, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant appeals judgments entered upon conviction by a jury of felonious breaking or entering and felonious larceny and upon the jury\u2019s further adjudication of defendant as an habitual felon. In addition, defendant has filed a motion for appropriate relief with this Court asserting error in the sentencing process. We hold the trial court committed no error at trial, but grant defendant\u2019s motion for appropriate relief regarding sentencing.\nDefendant was convicted of the above-referenced offenses by a jury at the 8 February 1999 Criminal Session of Moore County Superior Court. The trial court thereupon imposed an active minimum term of one hundred thirty-three months and a maximum term of one hundred sixty-nine months imprisonment upon the habitual felon charge (the habitual felon sentence), and in a separate judgment consolidated the breaking and entering and larceny offenses and imposed a minimum active term of six months and a maximum term of eight months imprisonment to begin at the expiration of the habitual felon sentence. Defendant appeals.\nInitially, we note defendant\u2019s appellate brief includes no argument addressed to assignments of error two and four. Those assignments of error are therefore deemed abandoned, see N.C.R. App. R 28(b)(5) (\u201c[assignments of error not set out in the appellant\u2019s brief . . . will be taken as abandoned\u201d), and we do not discuss them.\nAdditionally, defendant\u2019s fifth and sixth assignments of error asserting constitutional issues have not been preserved for appellate review. The record is devoid of any affirmative indication that defendant raised in the trial court his current arguments based upon the Law of the Land Clause of the North Carolina Constitution, N.C. Const, art. I, \u00a7 19, when requesting certain jury instructions.\n[I]t has long been the rule that we will not decide at the appellate level a constitutional issue or question which was not raised or considered in the trial court.\nPeace River Electric Cooperative v. Ward Transformer Co., 116 N.C. App. 493, 506, 449 S.E.2d 202, 212 (1994) (citing Tetterton v. Long Manufacturing Co., 314 N.C. 44, 47-48, 332 S.E.2d 67, 69 (1985)), disc. review denied, 339 N.C. 739, 454 S.E.2d 655 (1995); see also Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (where theory urged on appeal not raised in trial court, \u201cthe law does not permit parties to swap horses between courts in order to get a better mount [on appeal]\u201d). Accordingly, we likewise do not address defendant\u2019s fifth and sixth assignments of error.\nDefendant first maintains\nthe trial court erred in not allowing [him] to argue to the jury at the first phase of the trial the possible punishment [he] faced as an habitual felon.\nThis contention is unfounded.\nPrior to final argument by counsel at the felonious breaking or entering and felonious larceny trial (the principal felony trial), defendant sought the trial court\u2019s permission to inform the jury that, upon conviction, he might subsequently be subject to a maximum punishment of two hundred ten months imprisonment as an habitual felon. Defendant asserted that\nin order to enable the jury to appreciate the seriousness of their responsibility . . . they should be informed of the consequences of. . . their verdict\nin the principal felony trial. The trial court denied defendant\u2019s request, noting he \u201cha[d] not been declared an habitual felon yet by the Court or by the jury.\u201d We hold the trial court did not err in its ruling.\nN.C.G.S. \u00a7 14-7.5 (1999) prescribes the bifurcated habitual felon determination process as follows:\nThe indictment that the person is an habitual felon shall not be revealed to the jury unless the jury shall find that the defendant is guilty of the principal felony or other felony with which he is charged. If the jury finds the defendant guilty of a felony, the bill of indictment charging the defendant as an habitual felon may be presented to the same jury. Except that the same jury may be used, the proceedings shall be as if the issue of habitual felon were a principal charge. If the jury finds that the defendant is an habitual felon, the trial judge shall enter judgment according to the provisions of this Article. If the jury finds that the defendant is not an habitual felon, the trial judge shall pronounce judgment on the principal felony or felonies as provided by law.\nG.S. \u00a7 14-7.5 (emphasis added); see State v. Cheek, 339 N.C. 725, 729, 453 S.E.2d 862, 864 (1995) (\u201ctrial for the substantive felony is held first, and only after defendant is convicted of the substantive felony is the habitual felon indictment revealed to and considered by the jury\u201d); see generally State v. Patton, 342 N.C. 633, 635, 466 S.E.2d 708, 709 (1996) (\u201crequirement in G.S. \u00a7 14-7.3 that the habitual felon indictment be a separate document from the predicate felony indictment is consistent with the bifurcated nature of the trial\u201d).\nAlthough defendant accurately maintains a criminal defendant has the right to \u201cinform the jury of the punishment that may be imposed upon conviction of the crime for which he is being tried,\u201d State v. Walters, 33 N.C. App. 521, 524, 235 S.E.2d 906, 908-09 (1977) (citing N.C.G.S. \u00a7 7A-97 (1999)), aff'd, 294 N.C. 311, 240 S.E.2d 628 (1978), this principle does not support defendant\u2019s extrapolation therefrom of the right to inform the jury, during a principal felony trial, of the possible maximum sentence which might be imposed upon an habitual felon adjudication. Walters pointedly permits apprising the jury only of \u201cthe punishment that may be imposed upon conviction of the crime for which he is being tried.\u201d Id.\nFurther, the statutory provisions that an habitual felon trial be held subsequent and separate from the principal felony trial, and that an habitual felon indictment be revealed to the jury only upon conviction of the principal felony offenses, see G.S. \u00a7 14-7.5, logically preclude argument of issues pertaining to the habitual felon proceeding, specifically and particularly including punishment, during the principal felony trial. See State v. Todd, 313 N.C. 110, 120, 326 S.E.2d 249, 255 (1985) (\u201ca defendant\u2019s \u2018trial\u2019 on the issue of whether defendant should be sentenced as an habitual offender [is] analogous to the separate sentencing hearing ... to determine punishment\u201d).\nNext, the bifurcated procedure set forth in G.S. \u00a7 14-7.5, separating the principal felony trial from the habitual felon proceeding, avoids possible prejudice to the defendant and confusion by the jury considering the principal felony with issues not pertinent to guilt or innocence of such offense, notably the existence of the prior convictions necessary for classification as an habitual felon, and further precludes the jury from contemplating what punishment might be imposed were defendant convicted of the principal felony and subsequently adjudicated an habitual felon. See Todd, 313 N.C. at 117, 326 S.E.2d at 253 (\u201c \u2018while notice [of the habitual felon charge] is given [to defendant] before pleading, only the allegation of the present crime is read and proved to the jury at the first trial, preventing any prejudice due to the introduction of evidence of prior convictions before the trier of guilt for the present offense\u2019 \u201d) (quoting Recidivist Procedures, 40 N.Y.U.L. Rev. 332, 348 (1965)), and Oyler v. Boles, 368 U.S. 448, 452, 7 L. Ed. 2d 446, 450 (1962) (\u201cthe determination of whether one is an habitual criminal is essentially independent of the determination of guilty on the underlying substantive offense . . . [therefore] although the habitual criminal issue may be combined with the trial of the felony charge, it is a distinct issue, and may appropriately be the subject of a separate determination\u201d) (citations omitted).\nFinally, the proof necessary during a principal felony trial is different and distinct from that required in the habitual felon proceeding. During the former, the State must prove beyond a reasonable doubt each essential element of the charged principal offense. During the latter, on the other hand, the State must prove the defendant was \u201cconvicted of or pled guilty to three felony offenses\u201d within an allotted time frame. N.C.G.S. \u00a7 14-7.1 (1999); see State v. Mason, 126 N.C. App. 318, 322, 484 S.E.2d 818, 820-21 (1997) (during habitual felon trial \u201cdefendant is not defending himself against the predicate substantive felony, but against the charge that he has been previously convicted of the required number of felonies\u201d). Although the\noriginal or certified copy of the court record [of prior convictions] ... shall be prima facie evidence that the defendant named therein is the same as the defendant before the court [charged as a habitual felon] . .. [and] of the facts set out therein,\nN.C.G.S. \u00a7 14-7.4 (1999), the defendant may contest any prior conviction relied upon by the State to establish habitual felon status by presenting to the jury evidence indicating he was not the perpetrator of such felony or certified court records reflecting such conviction was otherwise inaccurate or flawed.\nIn short, considering the statutory provisions, authorities and public policy noted above, we hold the trial court did not err in denying defendant\u2019s request to argue to the jury the punishment he might receive as an habitual felon if found guilty of the principal offenses.\nDefendant next contends the trial court erred by denying his motion to dismiss the habitual felon indictment. Defendant argued to the trial court and reiterates on appeal his contention that the habitual felon provisions of G.S. \u00a7\u00a7 14-7.1 et seq. (the Habitual Felon Act) violate North Carolina Constitution art. I, \u00a7 6 (\u2019\u2019legislative, executive, and . . . judicial powers of the State government shall be forever separate and distinct\u201d) by\nauthorizing] the District Attorney, in his sole and unrestricted discretion, to decide whether to enhance the legislatively prescribed punishment for a certain crime.\nSpecifically, defendant claims the prosecutor sub judice possessed the \u201cunfettered discretion\u201d either to punish defendant under the Structured Sentencing Act, see N.C.G.S. \u00a7\u00a7 15A-1340.10 et seq. (1999), for the Class H felonies of breaking or entering and larceny, see G.S. \u00a7 15A-1340.17, N.C.G.S. \u00a7 14-54(a) (1999) and N.C.G.S. \u00a7 14-72 (1999), or to indict and try defendant pursuant to the Habitual Felon Act so as to achieve an enhanced sentence. According to defendant, the prosecutor was thereby allowed to infringe upon the prerogative of the General Assembly which bears the \u201cresponsibility to establish the parameters of criminal sentences within which judges may exercise limited discretion.\u201d As a consequence, defendant concludes, \u201ca[ny] person with more than three non-overlapping felony convictions can be punished either as a Class H felon or a Class C felon\u201d as the prosecutor may elect.\nOur courts have held the procedures set forth in the Habitual Felon Act comport with a criminal defendant\u2019s federal and state constitutional guarantees. See State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 31 (2000) (citing Todd, 313 N.C. at 118, 326 S.E.2d at 253), and State v. Hodge, 112 N.C. App. 462, 468, 436 S.E.2d 251, 255 (1993) (upholding Habitual Felon Act against due process, equal protection, and double jeopardy challenges). Further, the clear mandate of North Carolina Constitution art. IV, \u00a7 18, stating\n[t]he District Attorney shall ... be responsible for the prosecution, on behalf of the State of all criminal actions in the Superior Courts of his district,\nN.C. Const, art. IV, \u00a7 18, is that \u201cthe responsibility and authority to prosecute all criminal actions ... is vested solely,\u201d State v. Camacho, 329 N.C. 589, 593, 406 S.E.2d 868, 871 (1991), with the various elected district attorneys.\nIt is well established that\nthere may be selectivity in prosecutions and that the exercise of this prosecutorial prerogative does not reach constitutional proportion unless there be a showing that the selection was deliberately based upon \u201can unjustifiable standard such as race, religion or other arbitrary classification.\u201d\nState v. Lawson, 310 N.C. 632, 644, 314 S.E.2d 493, 501 (1984) (quoting State v. Cherry, 298 N.C. 86, 103, 257 S.E.2d 551, 562 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 796 (1980)), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985).\nFor defendant to have prevailed on his motion, therefore, he must have shown that the instant \u201cprosecutorial system was motivated by a discriminatory purpose and had a discriminatory effect.\u201d State v. Garner, 340 N.C. 573, 588, 459 S.E.2d 718, 725 (1995) (citing Wayte v. United States, 470 U.S. 598, 84 L. Ed. 2d 547 (1985)), cert. denied, 516 U.S. 1129, 133 L. Ed. 2d 872 (1996); see Oyler, 368 U.S. at 456, 7 L. Ed. 2d at 453 (\u201cconscious exercise of some selectivity\u201d by prosecutor in application of West Virginia recidivist statute not, in itself, denial of equal protection absent selection deliberately based upon \u201cunjustifiable standard such as race, religion, or other arbitrary classification\u201d); see generally Garner, 340 N.C. at 588, 459 S.E.2d at 725 (\u201conly limitation on [district attorney\u2019s] discretion [in first-degree murder cases] ... is that the decision to prosecute capitally may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification\u201d), and State v. Rorie, 348 N.C. 266, 270-71, 500 S.E.2d 77, 80 (1998) (prosecutor is accorded broad discretion to try a defendant for first-degree murder, second-degree murder, or manslaughter in homicide case, but has no discretion to try a defendant capitally or noncapitally for first-degree murder due to expressed provisions of N.C.G.S. \u00a7 15A-2000 (1999) specifically controlling such issue).\nUpon careful review of the record, we hold defendant has neither argued nor does any evidence reflect an improper motive by the prosecutor sub judice in the decision regarding the charges upon which defendant was indicted and tried. Indeed, called as a witness by defendant, the district attorney testified as to the general policies of his office as follows:\nanyone who is eligible to be indicted as an habitual felon is indicted as such .... [0]nce a person is indicted as an habitual felon there is not a dismissal taken of that unless there is an evi-dentiary reason to do so.\nThe trial court did not err in denying defendant\u2019s motion to dismiss.\nIn conclusion, we consider defendant\u2019s motion for appropriate relief. The motion alleges the trial court erred in imposing the habitual felon sentence in a separate judgment from the principal felony convictions, and directing that the latter sentence run at the expiration of the habitual felon sentence. We agree.\nIn responding to defendant\u2019s motion, the State concedes that he correctly asserts an\nhabitual felon conviction is not a separate crime for which a defendant can be separately sentenced, but that the trial court must sentence a convicted habitual felon for the underlying felony as a Class C felon.\nSee State v. Penland, 89 N.C. App. 350, 351, 365 S.E.2d 721, 721-22 (1988) (\u201c[u]pon a conviction as an habitual felon, the court must sentence the defendant for the underlying felony as a Class C felon\u201d). The State adds that the trial court improperly \u201csentenced defendant with a Prior Record Level of I on the Class H felonies.\u201d\nIn Penland, this Court held:\n[t]he only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status. Being an habitual felon is not a crime but is a status. The status itself, standing alone, will not support a criminal sentence. A court may not treat the violation of the Habitual Felon Act as a substantive offense.\nId. (citations omitted).\nTo be brief, the trial court\u2019s judgment \u201cfinding defendant guilty of being an habitual felon,\u201d id., and imposing sentence thereon was erroneous and must be vacated, see id. The sentences imposed upon defendant\u2019s convictions of felonious breaking or entering and felonious larceny must likewise be vacated and remanded for resentenc-ing. See id. Upon remand, the court shall calculate defendant\u2019s proper prior record level pursuant to N.C.G.S. \u00a7 15A-1340.14 (1999) and shall impose sentences upon the \u201cthe underlying felonfies] as . . . Class C felon[ies],\u201d Penland, 89 N.C. App. at 351, 365 S.E.2d at 722; see also State v. Kirkpatrick, 89 N.C. App. 353, 354-55, 365 S.E.2d 640, 641-42 (1988) (where defendant initially improperly sentenced to term of fifteen years upon habitual felon \u201cconviction\u201d and term of three years upon felonious possession of stolen property conviction, imposition following remand of fifteen year sentence upon felonious possession conviction affirmed, notwithstanding provisions of N.C.G.S. \u00a7 15A-1335 (1999) precluding new sentence in excess of prior sentence upon conviction set aside on appeal, because statute \u201cdoes not apply to prevent the imposition of a more severe sentence\u201d when \u201ctrial court is required by [Habitual Felon Act] to impose a particular sentence\u201d on resentencing).\nNo error in part; vacated and remanded in part.\nJudges WYNN and HORTON concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Daniel P. O\u2019Brien, for the State.", "Bruce T. Cunningham, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. COLLINS STEPHANIE WILSON, Defendant\nNo. COA99-709\n(Filed 15 August 2000)\n1. Criminal Law\u2014 habitual felon \u2014 punishment\u2014jury not informed at principle felony trial\nThe trial court did not err by not allowing defendant to argue to the jury at the first phase of the trial the possible punishment he faced as an habitual felon. Although a criminal defendant has the right to inform the jury of the punishment that may be imposed upon conviction, that principle does not support extrapolation to the right to inform the jury during a principal felony trial of the possible sentence upon an habitual felon adjudication. Statutory provisions that an habitual felon trial be subsequent and separate from the principal felony trial and that an habitual felon indictment be revealed only upon conviction of the principal felony offense logically preclude argument of habitual felon issues during the principal felony trial. Moreover, the proof necessary during a principal felony trial and an habitual felon proceeding is different and distinct, and the bifurcated procedure precludes prejudice to defendant and confusion by the jury.\n2. Constitutional Law\u2014 habitual felon \u2014 prosecutorial discretion \u2014 separation of powers \u2014 no violation\nThe trial court did not err by denying defendant\u2019s motion to dismiss an habitual felon indictment as violating North Carolina constitutional provisions concerning separation of powers on the ground that the prosecutor infringed upon the power of the General Assembly to determine the parameters of criminal sentences by choosing whether to punish defendant under the Structured Sentencing Act or the Habitual Felon Act. Furthermore, defendant did not argue and the evidence does not reflect an improper motive by this prosecutor in the decision regarding these charges. N. C. Const, art. I, \u00a7 6.\n3. Sentencing\u2014 habitual felon \u2014 status rather than crime\u2014 sentence enhancement \u2014 no separate judgment\nDefendant\u2019s motion for appropriate relief should have been granted and both the court\u2019s judgment finding defendant guilty of being an habitual felon and imposing sentence and the sentences imposed upon the underlying convictions of felonious breaking and entering and felonious larceny were vacated and remanded for resentencing where the trial court imposed the habitual felon sentence in a separate judgment and directed that the principal felony sentence run at the expiration of the habitual felon sentence. Being an habitual felon is not a crime but a status and the status only will not support a criminal sentence. Upon conviction as an habitual felon, the court must sentence defendant for the underlying felony as a Class C felon; here, defendant was improperly sentenced with a Prior Record Level of I on the Class H felonies.\nAppeal by defendant from judgments entered 10 February 1999 by Judge C. Preston Cornelius in Moore County Superior Court. Heard in the Court of Appeals 20 April 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General Daniel P. O\u2019Brien, for the State.\nBruce T. Cunningham, Jr., for defendant-appellant." }, "file_name": "0544-01", "first_page_order": 576, "last_page_order": 585 }