{ "id": 11361404, "name": "STATE OF NORTH CAROLINA v. JAMES THOMAS BROWN, Defendant", "name_abbreviation": "State v. Brown", "decision_date": "2001-10-16", "docket_number": "No. COA00-1057", "first_page": "590", "last_page": "594", "citations": [ { "type": "official", "cite": "146 N.C. App. 590" } ], "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": "540 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "415", "parenthetical": "finding no error when court imposed presumptive sentence despite defendant's undisputed evidence in mitigation" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442290 ], "year": 2000, "pin_cites": [ { "page": "568", "parenthetical": "finding no error when court imposed presumptive sentence despite defendant's undisputed evidence in mitigation" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0553-01" ] }, { "cite": "535 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "878" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12123845 ], "year": 2000, "pin_cites": [ { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0198-01" ] }, { "cite": "470 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "546", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918359 ], "year": 1996, "pin_cites": [ { "page": "505", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0504-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "146 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11356647 ], "year": 2001, "pin_cites": [ { "parenthetical": "No. COA00-1039" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0299-01" ] }, { "cite": "546 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135802, 135759, 135846, 135958 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0279-02", "/nc/353/0279-03", "/nc/353/0279-01", "/nc/353/0279-04" ] }, { "cite": "533 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "139 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497226 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/139/0544-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-7.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 466, "char_count": 10539, "ocr_confidence": 0.743, "pagerank": { "raw": 3.2786299126315437e-07, "percentile": 0.8706329982944951 }, "sha256": "abcfeb4efb7e87b2d7071447b23ab44f0fcd2d8af5c7b40221ceab3d16f52118", "simhash": "1:0279ea10060e68cc", "word_count": 1704 }, "last_updated": "2023-07-14T17:14:58.205856+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES THOMAS BROWN, Defendant" ], "opinions": [ { "text": "HUDSON, Judge.\nDefendant appeals his sentence as an habitual felon for sale and .delivery of marijuana. We overrule all assignments of error.\nDefendant was indicted on 6 April 1998 on charges of possession with intent to manufacture, sell, and deliver marijuana and sale and delivery of marijuana. On 14 September 1998, Defendant was indicted as an habitual felon. Defendant was tried before a jury and, on 13 April 2000, Defendant was convicted of two counts of possession with intent to sell or deliver marijuana, two counts of sale of marijuana, and of being an habitual felon. The trial court arrested judgment on the possession convictions, consolidated the remaining convictions, and sentenced Defendant as an habitual felon to 80-105 months imprisonment. Defendant appeals his sentence.\nAdditionally, on 12 October 2000, Defendant filed a motion for appropriate relief (\u201cMAR\u201d) with this Court, pursuant to N.C. Gen. Stat. \u00a7\u00a7 15A-1415, -1418(a) (1999). Defendant alleges in his MAR that the Moore County District Attorney abused his discretion by failing to exercise it, and that this abuse of discretion resulted in violations of Defendant\u2019s constitutional rights.\nI.\nIn his first assignment of error, Defendant argues that the Habitual Felons Act (\u201cthe Act\u201d), see N.C. Gen. Stat. \u00a7\u00a7 14-7.1 to -7.6 (1999), is unconstitutional on the following grounds: (1) the Act violates the Separation of Powers Clause of the North Carolina Constitution, see N.C. Const, art. I, \u00a7 6; (2) the combined use of the Act and Structured Sentencing, see N.C. Gen. Stat. \u00a7\u00a7 15A-1340.10 to -1340.23 (1999), violates the Double Jeopardy Clause of the U.S. Constitution, see U.S. Const. amends. V, XIV, and the North Carolina Constitution, see N.C. Const. art. I, \u00a7 19; and (3) the Moore County District Attorney\u2019s policy of indicting as habitual felons all persons eligible under the Act is an abuse of discretion and violated Defendant\u2019s equal protection rights under the U.S. Constitution and the North Carolina Constitution, see U.S. Const, amend. XIV; N.C. Const. art. I, \u00a7 19. We overrule this assignment of error on all grounds.\nThis Court has previously rejected the argument that the Act violates the separation of powers. See State v. Wilson, 139 N.C. App. 544, 533 S.E.2d 865, appeal dismissed and disc. review denied, 353 N.C. 279, 546 S.E.2d 394 (2000). This panel has rejected Defendant\u2019s remaining arguments in State v. Brown, 146 N.C. App. 299, - S.E.2d -(Sept. 18, 2001) (No. COA00-1039) (rejecting the claim that the combined use of the Habitual Felon Act and Structured Sentencing subjects a defendant to double jeopardy), and in State v. Parks, 146 N.C. App. -, - S.E.2d - (Oct. 16, 2001) (No. COA00-1275) (rejecting the claim that indicting as habitual felons all eligible defendants violates equal protection). In particular, this Court held in Parks that the Moore County District Attorney did not abuse his discretion by adopting a policy of prosecuting all defendants who qualify as habitual felons. We are bound by those decisions. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Accordingly, this assignment of error is overruled. Because we have found that the Moore County District Attorney did not abuse his discretion, we deny Defendant\u2019s MAR.\nII.\nIn his second assignment of error, Defendant argues that the Habitual Felon Act is ambiguous with regard to when a person becomes an habitual felon, and consequently, the rule of lenity requires that his indictment as an habitual felon be dismissed. Because- we find no such ambiguity, we overrule this assignment of error.\nThe Act provides in relevant part that \u201c[w]hen an habitual felon as defined in this Article commits any felony under the laws of the State of North Carolina, the felon must, upon conviction or plea of guilty under indictment as provided in this Article ... be sentenced as a Class C felon.\u201d N.C.G.S. \u00a7 14-7.6. An \u201chabitual felon\u201d is defined as follows: \u201cAny person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared, to be an habitual felon.\u201d Id. \u00a7 14-7.1 (emphasis added). To be convicted as an habitual felon, a defendant who commits a felony after he has qualified as an habitual felon must be charged as an habitual felon in the indictment charging the principal felony, and there must be a separate indictment charging the defendant with being an habitual felon. See id. \u00a7 14-7.3. Only after the jury finds the defendant guilty of the principal felony may the bill of indictment charging the defendant as an habitual felon be presented to the same jury. See id. \u00a7 14-7.5.\nDefendant argues that the language of the statute indicates that a defendant is not an habitual felon until the jury finds him guilty of being an habitual felon. Thus, according to Defendant, he did not become an habitual felon until the jury returned its verdict to that effect on 13 April 2000, which occurred after Defendant had committed the instant offense. Defendant concludes that he was not an habitual felon when he committed the instant offense, and it was error for the trial court to sentence him as an habitual felon.\nAnticipating the contrary argument that the statute provides that a defendant becomes an habitual felon once he has been convicted of the third qualifying felony, see id. \u00a7 14-7.1, Defendant argues that this interpretation would render superfluous the jury\u2019s role in convicting a defendant of being an habitual felon, see id. \u00a7 14-7.5. Thus, Defendant contends that the statute is internally inconsistent and ambiguous.\nWe find the statute to be clear. A defendant becomes an habitual felon when he is convicted of the third qualifying felony. The jury\u2019s role in convicting the defendant of being an habitual felon is not, however, superfluous; rather, the requirement that a jury convict a defendant of being an habitual felon safeguards the defendant\u2019s rights in that the State must prove to the satisfaction of a jury that the defendant has in fact been convicted of three qualifying felonies. Because the statute is not ambiguous, the rule of lenity has no application here. Accordingly, this assignment of error is overruled.\nIII.\nFinally, Defendant argues that the trial court erred by failing to sentence him in the mitigated range. Specifically, Defendant asserts that he presented uncontradicted evidence of mitigating factors. He interprets the trial court\u2019s statement that \u201cI will not make any findings in aggravation or mitigation, but I have considered all the factors in sentencing at the lower end of the presumptive range and consolidating, as well as all the other factors which would make that appropriate\u201d to indicate that the court thought a mitigated sentence was appropriate and justified, based on Defendant\u2019s evidence on mitigation, yet sentenced Defendant in the presumptive range. Defendant contends that the court erred in sentencing Defendant at the low end of the presumptive range instead of in the mitigated range.\nDefendant was sentenced within the presumptive range. Thus, he is not entitled as a matter of right to appeal his sentence. See N.C. Gen. Stat. \u00a7 15A-1444(a1) (1999). Defendant has not petitioned for a writ of certiorari. See id. Accordingly, we would ordinarily be without jurisdiction to hear this issue. See State v. Waters, 122 N.C. App. 504, 505, 470 S.E.2d 545, 546 (1996) (per curiam). However, we treat Defendant\u2019s argument on this issue as a petition for writ of certiorari, which we allow, and thus reach the merits of the issue. See State v. Jarman, 140 N.C. App. 198, 201, 535 S.E.2d 875, 878 (2000).\nAlthough the trial court must consider evidence of aggravating or mitigating factors, it is within the court\u2019s discretion whether to depart from the presumptive range. See N.C.G.S. \u00a7 15A-1340.16(a); N.C.G.S. \u00a7 15A-1340.16(b) (\u201cIf the court finds that aggravating or mitigating factors exist, it may depart from the presumptive range of sentences specified in G.S. 15A-1340.17(c)(2).\u201d (emphasis added)). Additionally, the court is required to make findings of mitigating factors \u201conly if, in its discretion, it departs from the presumptive range of sentences specified in G.S. 15A-1340.17(c)(2).\u201d N.C.G.S. \u00a7 15A-1340.16(c).\nThe court here, after hearing Defendant\u2019s evidence regarding mitigation, determined, in its discretion, not to depart from the presumptive range; hence, as the court explained, it did not make findings of mitigating factors. We find no abuse of discretion. See State v. Chavis, 141 N.C. App. 553, 568, 540 S.E.2d 404, 415 (2000) (finding no error when court imposed presumptive sentence despite defendant\u2019s undisputed evidence in mitigation). Accordingly, this assignment of error is overruled.\n\u201cMotion for Appropriate Relief\u2019 denied.\nNo error.\nJudges WALKER and McGEE concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.", "Cunningham, Dedmond, Petersen & Smith, L.L.P., by Bruce T. Cunningham, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES THOMAS BROWN, Defendant\nNo. COA00-1057\n(Filed 16 October 2001)\n1. Sentencing\u2014 Habitual Felons Act \u2014 constitutionality\nThe Habitual Felons Act is not unconstitutional and it does not violate the separation of powers clause under N.C. Const, art. I, \u00a7 6; the double jeopardy clause under U.S. Const, amends. V, XIV, and N.C. Const, art. I, \u00a7 19; or defendant\u2019s equal protection rights under U.S. Const, amend. XIV and N.C. Const, art. I, \u00a7 19.\n2. Sentencing\u2014 Habitual Felons Act \u2014 ambiguity\nThe Habitual Felons Act is not ambiguous with regard to when a person becomes an habitual felon since a defendant becomes an habitual felon when he is convicted of the third qualifying felony, and therefore, the rule of lenity does not apply.\n3. Sentencing\u2014 habitual felon \u2014 presumptive range \u2014 mitigating range\nThe trial court did not abuse its discretion by sentencing defendant as an habitual felon for sale and delivery of marijuana at the low end of the presumptive range rather than in the mitigated range even though defendant presented evidence of mitigating factors, because the trial court is required to make findings of mitigating factors only if it departs from the presumptive range of sentences specified under N.C.G.S. \u00a7 15A-1340.17(c)(2).\nAppeal by defendant from judgment entered 14 April 2000 by Judge Catherine C. Eagles in Moore County Superior Court. Heard in the Court of Appeals 15 August 2001.\nAttorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.\nCunningham, Dedmond, Petersen & Smith, L.L.P., by Bruce T. Cunningham, Jr., for defendant-appellant." }, "file_name": "0590-01", "first_page_order": 622, "last_page_order": 626 }