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    "judges": [
      "Judges WYNN and CAMPBELL concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. GEORGE LEWIS CATES, JR., Defendant"
    ],
    "opinions": [
      {
        "text": "HUDSON, Judge.\nOn 24 March 1999, a jury found defendant guilty of possession of heroin and of the status of habitual felon. The court imposed a prison sentence of a minimum of 133 months and a maximum of 169 months. Defendant appealed his convictions to this Court, which found no error in State v. Cates, 137 N.C. App. 385, 533 S.E.2d 305 (Table), disc. review denied, 352 N.C. 151, 544 S.E.2d 230 (2000). Subsequently, defendant filed a Motion to Dismiss Habitual Felon Indictment and for other relief with the Superior Court in Durham County. The court recalculated defendant\u2019s sentence as a minimum of 80 months to a maximum of 105 months and denied his motion to dismiss the habitual felon indictment. Defendant appeals the denial of his motion to dismiss the habitual felon indictment.\nIn addition to his appeal, defendant filed a Motion for Appropriate Relief with this Court, in which he contends (1) that his conviction violates his right to due process under the Fourteenth Amendment to the United States Constitution and (2) that he may not be punished for a crime of which he was acquitted. Defendant also filed a \u201cMotion for En Banc Hearing, or in the Alternative, Second Motion for Appropriate Relief\u2019 with this Court requesting that the Court sit en banc to consider overruling one of its own previous decisions. Finding no merit in defendant\u2019s contentions, we deny these motions and note that neither the legislature nor the Supreme Court by rule-making has established a procedure by which this Court may sit en banc, if indeed the North Carolina Constitution permits such sitting.\nIn his first argument on appeal, defendant contends that \u201cthe prosecutor\u2019s manipulation of the defendant\u2019s prior record to increase the points used for structured sentencing purposes violated the [defendant\u2019s] rights secured by the due process clause of the Fourteenth Amendment to the United States Constitution.\u201d Pursuant to N.C. Gen. Stat. \u00a7 14-7.1 (2001), \u201c[a]ny 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 N.C. Gen. Stat. \u00a7 14-7.6 (2001) describes how an habitual felon shall be sentenced: \u201cthe felon must, upon conviction or plea of guilty under indictment as provided in this Article (except where the felon has been sentenced as a Class A, Bl, or B2 felon) be sentenced as a Class C felon. In determining the prior record level [of the defendant], convictions used to establish a person\u2019s status as an habitual felon shall not be used.\u201d Defendant argues that the prosecuting attorney intentionally selected as the basis for the habitual felon status three prior offenses that carried only two sentencing points each. As a result, he contends, his sentence was unfairly enhanced more than if the prosecuting attorney had selected three higher point prior offenses to establish habitual felon, leaving offenses with a lower point total to determine his prior record level. See N.C.G.S. \u00a7 14-7.6. Defendant argues that this selection violated the \u201cRule of Lenity\u201d and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.\nThe rule of lenity is a principle of statutory construction that \u201cforbids a court to interpret a statute so as to increase the penalty that it places on an individual when the Legislature has not clearly stated such an intention.\u201d State v. Boykin, 78 N.C. App. 572, 577, 337 S.E.2d 678, 681 (1985); see also Bell v. United States, 349 U.S. 81, 99 L. Ed. 905 (1955) (defining the rule of lenity). The rule of lenity only applies when the applicable criminal statute is ambiguous. Defendant contends that the Habitual Felon Act is ambiguous because it fails to specify \u201cwhich of the defendant\u2019s prior convictions should be selected to obtain the indictment.\u201d In State v. Brown, 146 N.C. App. 590, 592, 553 S.E.2d 428, 429 (2001), disc. review denied, 356 N.C. 306, 570 S.E.2d 734 (2002), the defendant argued that the Habitual Felon Act was ambiguous with regard to when a person becomes an habitual felon. Finding no ambiguity in that aspect of the statute, we held that the rule of lenity did not apply. Id., 553 S.E.2d at 429-30. Similarly, here we see no ambiguity in the directive as to the use of prior convictions pursuant to N.C.G.S. \u00a7 14-7.6. By declining to place additional limits on the prosecutor\u2019s choices among prior convictions, except to prohibit double usage, the legislature did not intend to limit the prosecutor\u2019s discretion in making such choices. Defendant\u2019s first assignment of error is overruled.\nIn his second argument, defendant contends that the trial court erred in denying his motion to dismiss the habitual felon indictment because the prosecutor had a financial incentive to indict the defendant as an habitual felon. He bases his argument on the existence of a grant program for prosecution of habitual felon cases. Here, however, the \u201cgrant\u201d prosecutor in Durham County had no involvement in defendant\u2019s case, and there is no evidence of any relationship between the number of prosecutions and the continuation of the grant. Thus the record reveals no financial incentive for this prosecutor to have indicted this defendant as an habitual felon.\nIn his third argument, defendant contends that the combined use of the Habitual Felon Act and Structured Sentencing constitutes double jeopardy in violation of the United States Constitution. In State v. Brown, this Court rejected this argument, and we are bound by the decision in that case. 146 N.C. App. 299, 301-02, 552 S.E.2d 234, 235-36 (2001), cert. denied, 122 S.Ct. 2305, 152 L. Ed. 2d 1061 (2002). Defendant\u2019s third assignment of error is overruled.\nIn his fourth argument, defendant contends that the trial court erred in denying his motion to dismiss the habitual felon indictment because he was not an habitual felon when he committed the principal underlying felony. Again, in Brown, we rejected this argument and are bound by that decision. See 146 N.C. App. at 593, 553 S.E.2d at 430. Defendant\u2019s fourth assignment of error is overruled.\nIn his final argument, defendant contends that his sentence violates his right to be free from cruel and unusual punishment as secured by the Eighth and Fourteenth Amendments to the United States Constitution. Habitual felon laws have withstood scrutiny under the Eighth Amendment to the United States Constitution in our Supreme Court and in the United States Supreme Court. Rummell v. Estelle, 445 U.S. 263, 63 L. Ed. 2d 382 (1980); State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985).\nAffirmed.\nMotion for Appropriate Relief denied. Motion for En Banc Hearing, or in the Alternative, Second Motion for Appropriate Relief denied.\nJudges WYNN and CAMPBELL concur.",
        "type": "majority",
        "author": "HUDSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.",
      "Bruce T. Cunningham, Jr., for the defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. GEORGE LEWIS CATES, JR., Defendant\nNo. COA01-1376\n(Filed 17 December 2002)\n1. Appeal and Error\u2014 Court of Appeals \u2014 no en banc authority\nNeither the legislature nor the Supreme Court has established a procedure by which the Court of Appeals may sit en banc.\n2. Sentencing\u2014 rule of lenity \u2014 use of prior offenses \u2014 habitual felon status \u2014 statute not ambiguous\nThe rule of lenity was not violated by the prosecutor\u2019s choice of prior offenses with lesser sentencing points for habitual felon status, so that defendant\u2019s sentence was enhanced more than if the prosecutor had selected the higher point offenses (prior offenses used for habitual offender status may not be used to determine prior record level). The rule of lenity forbids interpretation of a statute to increase a penalty beyond the legislature\u2019s intent only when the applicable statute is ambiguous.\n3. Sentencing\u2014 habitual felon \u2014 grant program \u2014 no financial incentive for prosecution\nThe prosecutor did not have a financial incentive to indict defendant as an habitual felon where there was a federal grant program for the prosecution of habitual felons, but the grant prosecutor was not involved in defendant\u2019s case and there was no evidence of a relationship between the number of prosecutions and the continuation of the grant.\n4. Sentencing\u2014 habitual felon \u2014 not double jeopardy\nThe combined effect of the Habitual Felon Act and the Structured Sentencing Act did not violate double jeopardy.\n5. Sentencing\u2014 habitual felon \u2014 relationship to underlying felony\nThe trial court did not err by not dismissing an habitual felon indictment where defendant argued that he was not an habitual felon when he committed the principle felony.\n6. Sentencing\u2014 habitual felon \u2014 not cruel and unusual punishment\nAn habitual felon sentence did not violate the constitutional prohibition on cruel and unusual punishment.\nAppeal by defendant from judgment entered 9 July 2001 by Judge Orlando F. Hudson, Jr. in Durham County Superior Court. Heard in the Court of Appeals 21 August 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.\nBruce T. Cunningham, Jr., for the defendant-appellant."
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