{ "id": 8470851, "name": "STATE OF NORTH CAROLINA v. DAVID JEROD MILLER", "name_abbreviation": "State v. Miller", "decision_date": "2005-02-15", "docket_number": "No. COA04-429", "first_page": "572", "last_page": "577", "citations": [ { "type": "official", "cite": "168 N.C. App. 572" } ], "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": "N.C. Gen. Stat. \u00a7 90-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(l)(d)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 15-196.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "471 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 623", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919028 ], "year": 1996, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0623-01" ] }, { "cite": "568 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511536, 1511210, 1511342, 1511487 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0171-02", "/nc/356/0171-03", "/nc/356/0171-01", "/nc/356/0171-04" ] }, { "cite": "564 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2002, "pin_cites": [ { "page": "598" }, { "page": "598" }, { "page": "702-03" }, { "page": "597-98" }, { "page": "703-04" }, { "page": "598-99" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082996 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "703-04" }, { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0701-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "598 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2004, "pin_cites": [ { "page": "126" }, { "page": "126" }, { "page": "126" }, { "page": "127" } ], "opinion_index": 0 }, { "cite": "358 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986601 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0473-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2003, "pin_cites": [ { "page": "(d)(2)" }, { "page": "(d)(2)" }, { "page": "(d)(2)" }, { "page": "475" }, { "page": "(d)(2)", "parenthetical": "possession of cocaine is a Class I felony" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "453 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "865" } ], "opinion_index": 0 }, { "cite": "339 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558634 ], "year": 1995, "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0725-01" ] } ], "analysis": { "cardinality": 439, "char_count": 10492, "ocr_confidence": 0.767, "pagerank": { "raw": 4.643594115661138e-08, "percentile": 0.29162877835734824 }, "sha256": "442258d19a61acb5dcb8dfbc49b35e8fd81b2622b2ee0698628d4d9d14546a2e", "simhash": "1:2a4af16276aa0cf2", "word_count": 1674 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TYSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID JEROD MILLER" ], "opinions": [ { "text": "McGEE, Judge.\nDavid Jerod Miller (defendant) was convicted of possession with the intent to manufacture, sell, and deliver cocaine; manufacturing a controlled substance; maintaining a vehicle for keeping and selling a controlled substance; and driving while his license was revoked. Defendant was also determined to be an habitual felon. The trial court consolidated defendant\u2019s convictions and sentenced defendant to 100 to 129 months in prison. Defendant appealed his convictions to this Court. In an unpublished opinion dated 21 October 2003, we reversed defendant\u2019s convictions for manufacturing a controlled substance, possession with intent to manufacture a controlled substance, and maintaining a vehicle for keeping and selling a controlled substance. We also remanded for resentencing.\nAt resentencing, defendant requested that the trial court set aside the habitual felon verdict. The trial court denied defendant\u2019s request and found that defendant was an habitual felon with a prior record level II. The trial court entered an amended judgment sentencing defendant to a term of 90 to 117 months in prison. Defendant appeals.\nI.\nDefendant first assigns error to the trial court\u2019s sentencing defendant as an habitual felon. Defendant contends that the habitual felon indictment only alleged one prior felony offense and therefore the trial court lacked jurisdiction to sentence defendant as an habitual felon.\nAn habitual felon indictment must \u201cset[] forth the three prior felony convictions relied on by the State[.]\u201d State v. Cheek, 339 N.C. 725, 729, 453 S.E.2d 862, 865 (1995); see also N.C. Gen. Stat. \u00a7 14-7.3 (2003). Defendant\u2019s habitual felon indictment listed three previous convictions: one conviction for attempted larceny and two convictions for possession of cocaine. Defendant argues that possession of cocaine is a misdemeanor, and consequently the habitual felon indictment listed only one previous felony conviction.\nN.C. Gen. Stat. \u00a7 90-95(d)(2) (2003), states that any person who possesses \u201c[a] controlled substance classified in Schedule II. . . shall be guilty of a Class 1 misdemeanor.\u201d However, the statute further states: \u201cIf the controlled substance is . . . cocaine . . . , the violation shall be punishable as a Class I felony.\u201d N.C. Gen. Stat. \u00a7 90-95(d)(2). Defendant contends that his prior convictions for possession of cocaine are misdemeanor convictions, arguing that \u201c[t]he fact that possession of cocaine is punishable as a Class I felony does not make it a felony.\u201d\nOur Supreme Court recently rejected a similar argument in State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004). In Jones, the defendant pled guilty to having attained habitual felon status. Id. at 474, 598 S.E.2d at 126. The defendant\u2019s habitual felon indictment listed three prior convictions, including one conviction for possession of cocaine. Id. at 474, 598 S.E.2d at 126. On appeal, the defendant argued that his habitual felon indictment was insufficient to allege habitual felon status because N.C. Gen. Stat. \u00a7 90-95(d)(2) classified possession of cocaine as a misdemeanor. Id. at 475, 598 S.E.2d at 126. Our Supreme Court rejected the defendant\u2019s argument and held that possession of cocaine is a felony, stating that: \u201cThe language of N.C.G.S. \u00a7 90-95(d)(2), the statute\u2019s legislative history, and the terminology used in other criminal statutes all indicate the General Assembly\u2019s intent to classify possession of cocaine as a felony offense.\u201d Id. at 476, 598 S.E.2d at 127.\nBased on our Supreme Court\u2019s holding in Jones, we find that defendant\u2019s habitual felon indictment listed three prior felony convictions and hold that the trial court had jurisdiction to sentence defendant as an habitual felon. We overrule this assignment of error.\nII.\nDefendant next assigns error to the trial court\u2019s determination of defendant\u2019s prior record level. In the amended judgment, the trial court found that defendant had four prior record points and a prior record level II.\nWhen establishing a defendant\u2019s prior record level, the State bears the burden of proving a prior conviction by a preponderance of the evidence. N.C. Gen. Stat. \u00a7 15A-1340.14(f) (2003). Prior convictions may be proven by any one of the following methods:\n(1) Stipulation of the parties.\n(2) An original or copy of the court record of the prior conviction.\n(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.\n(4) Any other method found by the court to be reliable.\nId.\nThe State did not present any evidence at defendant\u2019s resentenc-ing hearing. Defendant argues that this failure to present any evidence precludes the State from meeting its burden of proving defendant\u2019s prior convictions. The State contends that defendant stipulated to a prior record level II since defendant admitted in open court at the resentencing hearing that he had two prior convictions for possession of cocaine:\n[Attorney For Defendant]: Your Honor, . . . we\u2019re asking the [trial court] to modify the sentence in the mitigated range, based on the fact that . . . two of [defendant\u2019s] prior convictions, Your Honor, are possession of cocaine, and Court of Appeals law . . . indicates that possession of cocaine is a misdemeanor punishable as a felony, and therefore, should not be considered ... for the purpose of sentencing for habitual status[.]\nBasically, we would ask the Court to consider... setting aside the habitual status, based on the law we know exists from the Court of Appeals in another case.\nThe State argues that this is the equivalent of a stipulation to a prior record level II. See N.C. Gen. Stat. \u00a7 90-95(d)(2) (possession of cocaine is a Class I felony); N.C. Gen. Stat. \u00a7 15A-1340.14(b)(4) (2003) (two prior record level points are assigned to each Class I felony conviction); N.C. Gen. Stat. \u00a7 15A-1340.14(c)(2) (2003) (a defendant with four prior record level points acquires a prior record level II).\nPrior convictions used to establish a defendant\u2019s habitual felon status may not also be used to determine a defendant\u2019s prior record level. N.C. Gen. Stat. \u00a7 14-7.6 (2003); see also State v. Lee, 150 N.C. App. 701, 703-04, 564 S.E.2d 597, 598, disc. review denied, 356 N.C. 171, 568 S.E.2d 856 (2002). In Lee, the defendant\u2019s habitual felon indictment listed five prior felony convictions. Lee, 150 N.C. App. at 703, 564 S.E.2d at 598. The trial court determined that the defendant had a prior record level III, relying in part on the same five prior felony convictions. Id. at 702-03, 564 S.E.2d at 597-98. Even though the habitual felon statute only required an habitual felon indictment to list three prior felony convictions, we held that none of the felonies listed on the habitual felon indictment could simultaneously be used to prove the defendant\u2019s prior record level. Id. at 703-04, 564 S.E.2d at 598-99; see also State v. Bethea, 122 N.C. App. 623, 626, 471 S.E.2d 430, 432 (1996) (\u201cA defendant\u2019s prior convictions will either serve to establish a defendant\u2019s status as an habitual felon ... or to increase a defendant\u2019s prior record level .... [T]he existence of prior convictions may not be used to increase a defendant\u2019s sentence pursuant to both provisions at the same time.\u201d).\nIn the case before us, the State incorrectly sought to prove defendant\u2019s prior record level by relying on two convictions that were also used to establish defendant\u2019s status as an habitual felon. We therefore hold that defendant\u2019s admission that he had two prior convictions for possession of cocaine is not sufficient to prove that he had a prior record level II. Since the State has failed to present any other evidence regarding defendant\u2019s prior record, we must remand for resentencing.\nIII.\nDefendant argues in his final assignment of error that the trial court erred in failing to credit defendant with time spent in jail prior to judgment. N.C. Gen. Stat. \u00a7 15-196.4 (2003) provides that \u201c[u]pon sentencing or activating a sentence, the judge presiding shall determine the credits to which the defendant is entitled [.]\u201d (emphasis added). In this case, the trial court only credited defendant with fifteen days. However, defendant was confined from (1) the date of his arrest on 3 November 2001, until his release on 17 November 2001, and (2) from 15 May 2002, until the date judgment was entered on 14 November 2003. As a result, defendant argues that he is entitled to a total credit of 563 days, or an additional 548 days of credit. The State admits that the trial court erred in failing to make a determination regarding any credits defendant may have earned, and requests that we remand the issue to the trial court. Therefore, we remand this issue to the trial court to make a determination regarding the credits to which defendant is entitled.\nAffirmed; remanded for resentencing and a determination of earned credits.\nJudges WYNN and TYSON concur.\n. Cocaine is a Schedule II controlled substance. N.C. Gen. Stat. \u00a7 90-90(l)(d) (2003).", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for the State.", "Everett & Hite, L.L.R, by Stephen D. Kiess, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID JEROD MILLER\nNo. COA04-429\n(Filed 15 February 2005)\n1. Sentencing\u2014 habitual felon \u2014 cocaine possession \u2014 felony\nDefendant\u2019s habitual felon indictment listed three prior felony convictions and the trial court had jurisdiction to sentence defendant as an habitual felon where the indictment listed one conviction for attempted larceny and two for possession of cocaine. The North Carolina Supreme Court recently rejected the argument that possession of cocaine is not a felony because it is classed by statute with misdemeanor controlled substances offenses (but is punishable as a felony).\n2. Sentencing\u2014 prior record level \u2014 convictions used to establish habitual offender status\nThe State incorrectly sought to prove defendant\u2019s prior record level by relying on two convictions that were also used to establish defendant\u2019s status as an habitual felon.\n3. Sentencing\u2014 credits for pre-trial incarceration \u2014 remanded\nDefendant\u2019s sentence was remanded where the State admitted that the trial court erred in determining the credits defendant may have earned for time spent in jail prior to judgment.\nAppeal by defendant from amended judgment dated 14 November 2003 by Judge Charles H. Henry in Superior Court, Onslow County. Heard in the Court of Appeals 7 December 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for the State.\nEverett & Hite, L.L.R, by Stephen D. Kiess, for defendant-appellant." }, "file_name": "0572-01", "first_page_order": 602, "last_page_order": 607 }