{ "id": 8352812, "name": "STATE OF NORTH CAROLINA v. DONALD WAYNE McGEE, Defendant", "name_abbreviation": "State v. McGee", "decision_date": "2006-01-17", "docket_number": "No. COA04-1338", "first_page": "586", "last_page": "590", "citations": [ { "type": "official", "cite": "175 N.C. App. 586" } ], "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": "573 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "673", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 35", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248912 ], "year": 2002, "pin_cites": [ { "page": "41", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0035-01" ] }, { "cite": "524 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "817", "parenthetical": "interpreting N.C. Gen. Stat. \u00a7 15A-1331(b) (1997) \"to mean that formal entry of judgment is not required in order to have a conviction\"" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240854 ], "year": 2000, "pin_cites": [ { "page": "527", "parenthetical": "interpreting N.C. Gen. Stat. \u00a7 15A-1331(b) (1997) \"to mean that formal entry of judgment is not required in order to have a conviction\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0524-01" ] }, { "cite": "596 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "891" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 775", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8901947 ], "year": 2004, "pin_cites": [ { "page": "778" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0775-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "453 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "864", "parenthetical": "quoting Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)" } ], "opinion_index": 0 }, { "cite": "339 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558634 ], "year": 1995, "pin_cites": [ { "page": "728", "parenthetical": "quoting Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0725-01" ] }, { "cite": "121 S. Ct. 890", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2001, "opinion_index": 0 }, { "cite": "148 L. Ed. 2d 797", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1130", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9725312, 9726080, 9725538, 9725636, 9725125, 9726440, 9726185, 9725963, 9725742, 9726553, 9726323, 9725849, 9725435, 9725213 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1130-03", "/us/531/1130-10", "/us/531/1130-05", "/us/531/1130-06", "/us/531/1130-01", "/us/531/1130-13", "/us/531/1130-11", "/us/531/1130-09", "/us/531/1130-07", "/us/531/1130-14", "/us/531/1130-12", "/us/531/1130-08", "/us/531/1130-04", "/us/531/1130-02" ] }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "437", "parenthetical": "\"A defendant waives an attack on an indictment when the validity of the indictment is not challenged in the trial court.\"" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "173", "parenthetical": "\"A defendant waives an attack on an indictment when the validity of the indictment is not challenged in the trial court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "462 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "parenthetical": "declining to address the issue because defendant moved to dismiss on double jeopardy rather than variance grounds" } ], "opinion_index": 0 }, { "cite": "341 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793121, 793060, 793106, 793175, 793112 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0653-03", "/nc/341/0653-02", "/nc/341/0653-05", "/nc/341/0653-01", "/nc/341/0653-04" ] }, { "cite": "453 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "195" }, { "page": "194", "parenthetical": "\"[N]o fatal variance was shown between the indictment and proof at trial since defendant's counsel stipulated to the previous convictions as set out in the indictment.\"" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526276 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "717" }, { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0713-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "577 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "324" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191220 ], "year": 2003, "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0490-01" ] }, { "cite": "543 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155590, 1155784, 1155950, 1155612, 1155742 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0644-03", "/nc/351/0644-02", "/nc/351/0644-01", "/nc/351/0644-04", "/nc/351/0644-05" ] }, { "cite": "524 S.E.2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "66" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238396 ], "year": 1999, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0092-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2003, "opinion_index": 0 } ], "analysis": { "cardinality": 529, "char_count": 9524, "ocr_confidence": 0.749, "pagerank": { "raw": 4.438094214056671e-07, "percentile": 0.9210573666650064 }, "sha256": "0d842aeb6fded44f09d130f2b98f501605f4145395ba6cac3a3832200811651b", "simhash": "1:a9d8704e76ff422a", "word_count": 1546 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and HUDSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DONALD WAYNE McGEE, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nAfter being convicted by a jury of felonious possession of cocaine and driving while his license was revoked, defendant Donald Wayne McGee pled guilty to being a habitual felon. On appeal, he does not challenge his convictions on the substantive charges, but rather contends that he was improperly sentenced as a habitual felon. Although he argues that the information regarding his felony convictions contained in the habitual felon indictment was incorrect, he waived his right to seek review on that basis by pleading guilty. Defendant also argues that the indictment was invalid for not alleging three discrete, non-overlapping felonies as required by N.C. Gen. Stat. \u00a7 14-7.1 (2003). We find that the three felonies listed in the indictment do comply with the requirements of \u00a7 14-7.1.\nOn 6 January 2003, defendant was arrested by the Forsyth County Sheriffs Department for driving without a license. During a search of defendant incident to his arrest, police found a clear, plastic bag containing 0.3 grams of cocaine. Defendant was indicted for felonious possession of cocaine, driving while license revoked, and having attained the status of habitual felon.\nOn 27 April 2004, a jury convicted defendant of both substantive charges, and the following day, defendant pled guilty to being a habitual felon. Pursuant to the plea agreement, defendant received a mitigated range sentence of 105 to 135 months imprisonment.\nDefendant first challenges the habitual felon indictment on the ground that it incorrectly identified the court and the case file number for one of the predicate felonies. By knowingly and voluntarily pleading guilty, an accused waives all defenses other than the sufficiency of the indictment. State v. Hughes, 136 N.C. App. 92, 97, 524 S.E.2d 63, 66 (1999), disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000). Nevertheless, when an indictment is alleged to be facially invalid, thereby depriving the trial court of jurisdiction, the indict-merit may be challenged at any time. State v. Bartley, 156 N.C. App. 490, 499, 577 S.E.2d 319, 324 (2003). \u201cOur Supreme Court has stated that an indictment is fatally defective when the indictment fails on the face of the record to charge an essential element of the offense.\u201d Id.\nN.C. Gen. Stat. \u00a7 14-7.3 (2003) specifies what a habitual felon indictment must allege:\nAn indictment which charges a person with being an habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place.\nIn this case, defendant does not dispute that the indictment included each of the elements specified in the statute. The indictment is, therefore, facially valid.\nDefendant argues, however, that the information in the indictment regarding one of his felony convictions is incorrect. In other words, defendant is arguing that there was a variance between the indictment and the proof offered in support of this indictment. As this Court held in State v. Baldwin, 117 N.C. App. 713, 717, 453 S.E.2d 193, 195, cert. denied, 341 N.C. 653, 462 S.E.2d 518 (1995), when considering the defendant\u2019s contention that a habitual felon indictment contained incorrect information regarding one of his felony convictions, \u201c[t]he issue of variance between the indictment and proof is properly raised by a motion to dismiss.\u201d When a defendant fails to raise the issue at trial, he waives his right to appeal that issue. Id. (declining to address the issue because defendant moved to dismiss on double jeopardy rather than variance grounds).\nBy pleading guilty, defendant thus waived his right to challenge the indictment on the ground that the information in the indictment was incorrect. See State v. Braxton, 352 N.C. 158, 173, 531 S.E.2d 428, 437 (2000) (\u201cA defendant waives an attack on an indictment when the validity of the indictment is not challenged in the trial court.\u201d), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797, 121 S. Ct. 890 (2001). We also note that defendant\u2019s counsel stipulated to the convictions set out in the indictment, resulting in no fatal variance. Baldwin, 117 N.C. App. at 716, 453 S.E.2d at 194 (\u201c[N]o fatal variance was shown between the indictment and proof at trial since defendant\u2019s counsel stipulated to the previous convictions as set out in the indictment.\u201d).\nDefendant next argues that his habitual felon indictment is invalid under N.C. Gen. Stat. \u00a7 14-7.1, which defines who qualifies as a habitual felon:\nAny 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. . . . The commission of a second felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the first felony. The commission of a third felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the second felony.\n(Emphasis added.)\nIn the State\u2019s superceding habitual felon indictment, the State alleged that defendant was convicted of possession of stolen goods on 15 April 1998, speeding to elude arrest on 28 January 2000, and maintaining a vehicle for keeping and selling controlled substances on 29 August 2001. Defendant argues with respect to the first felony that a jury convicted him in absentia and that a prayer for judgment was continued until defendant was apprehended in October 1998 when he was arrested for the second felony. Defendant was sentenced for the possession of stolen goods conviction on 4 November 1998. Defendant argues that he was not convicted for purposes of N.C. Gen. Stat. \u00a7 14-7.1 until he was sentenced in November 1998 and, therefore, he committed the second felony before he was \u201cconvicted\u201d of the first felony.\nSince this argument does not challenge the sufficiency of the indictment on its face, defendant\u2019s guilty plea has waived this argument as well. Even if this issue were properly before us, the plain language of the statute refers to \u201cconviction\u201d and not entry of judgment or sentencing. \u201c \u2018Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.\u2019 \u201d State v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 864 (1995) (quoting Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)).\nBlack\u2019s Law Dictionary 358 (8th ed. 2004) defines \u201cconviction\u201d as \u201c1. The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty. ... 2. The judgment (as by jury verdict) that a person is guilty of a crime.\u201d Thus, under the traditional definition, \u201cconviction\u201d refers to the jury\u2019s or factfinder\u2019s guilty verdict. This definition is also consistent with how we have defined \u201cconviction\u201d for purposes of sentencing. Thus, in State v. Canellas, 164 N.C. App. 775, 778, 596 S.E.2d 889, 891 (2004), we held that when a defendant pled guilty, but \u2014 as here \u2014 judgment was continued, defendant was \u201cconvicted\u201d as of the date of his guilty plea. See also State v. Hatcher, 136 N.C. App. 524, 527, 524 S.E.2d 815, 817 (2000) (interpreting N.C. Gen. Stat. \u00a7 15A-1331(b) (1997) \u201cto mean that formal entry of judgment is not required in order to have a conviction\u201d). We, therefore, hold that defendant was \u201cconvicted\u201d for purposes of N.C. Gen. Stat. \u00a7 14-7.1 of possession of stolen goods on 15 April 1998 and there was, therefore, no impermissible overlap of felonies.\nFinally, defendant argues that his sentence violates the Eighth Amendment. Defendant did not, however, raise this issue before the trial court. \u201cIt is well settled that this Court will not review constitutional questions that were not raised or passed upon in the trial court.\u201d State v. Carpenter, 155 N.C. App. 35, 41, 573 S.E.2d 668, 673 (2002) (internal quotation marks omitted). Accordingly, defendant\u2019s third assignment of error was not properly preserved for appeal.\nNo error.\nJudges HUNTER and HUDSON concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State.", "Brian Michael Aus for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONALD WAYNE McGEE, Defendant\nNo. COA04-1338\n(Filed 17 January 2006)\n1. Sentencing \u2014 habitual felon \u2014 indictment-order of convictions \u2014 waiver of argument by guilty plea\nAn habitual felon indictment was facially valid and defendant\u2019s guilty plea waived his right to challenge the correctness of the information in the indictment. His guilty plea also waived his argument concerning a prior prayer for judgment continued and impermissible overlapping convictions under N.C.G.S. \u00a7 14-7.1. Even so, \u201cconviction\u201d refers to the factfinder\u2019s guilty verdict; defendant was \u201cconvicted\u201d when he received the prayer for judgment continued.\n2. Appeal and Error \u2014 preservation of issues \u2014 Eighth Amendment issue-not raised at trial \u2014 not heard on appeal\nThe question of whether an habitual offender sentence violated the Eighth Amendment was not raised at trial and thus was not preserved for appeal.\nAppeal by defendant from-judgment entered 28 April 2004 by Judge Edwin G. Wilson, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 18 May 2005.\nAttorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State.\nBrian Michael Aus for defendant-appellant." }, "file_name": "0586-01", "first_page_order": 620, "last_page_order": 624 }