An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1162
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 17 June 2014


STATE OF NORTH CAROLINA

      v.                                      Cleveland County
                                              Nos. 09 CRS 53903, 53906-07
TERRANCE JAVARR ROSS



      Appeal by defendant from judgments entered 18 April 2013 by

Judge J. Thomas Davis in Cleveland County Superior Court.                     Heard

in the Court of Appeals 26 May 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Joseph L. Hyde, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Barbara S. Blackman, for defendant.


      HUNTER, Robert C., Judge.


      Defendant      Terrance     Javarr    Ross    appeals     from    judgments

sentencing him based upon convictions for attempted bribery of a

juror, felony obstruction of justice, and solicitation to commit

bribery of a juror.        Because the trial court did not consider an

irrelevant and improper matter at sentencing, and did not abuse
                                         -2-
its discretion by imposing consecutive sentences upon defendant,

we find no error.

                                   Background

      On 20 July 2009, a grand jury returned indictments charging

defendant with attempted bribery of a juror, felony obstruction

of justice, and solicitation to commit bribery of a juror.                          A

jury subsequently found defendant guilty of those charges, and

defendant entered a guilty plea to a charge of having attained

the   status    of    an   habitual   felon.    The    trial    court     sentenced

defendant as an habitual felon to three concurrent sentences of

120   to   153       months    imprisonment     based    upon     each     of     the

convictions.

      Defendant appealed, and this Court concluded, in part, that

the   trial    court    lacked   jurisdiction     over    the    habitual       felon

charge because the habitual felon indictment had been returned

before defendant committed the crimes for which the jury found

him guilty.        State v. Ross, ___ N.C. App. ___, 727 S.E.2d 370

(2012),    disc.      review   denied,    366   N.C.    570,    738   S.E.2d      369

(2013).        This    Court   vacated    the   judgments       entered    against

defendant and remanded this cause for resentencing within the

appropriate sentencing ranges.           Id. at __, 727 S.E.2d at 375.
                                       -3-
       The trial court entered new judgments on 18 April 2013,

sentencing defendant to consecutive terms of 21 to 26, 15 to 18,

and 15 to 18 months imprisonment based upon his convictions.

Defendant’s sentences were also set to begin at the expiration

of all sentences to which he was then obligated to serve. On 26

April 2013, defendant filed written notice of appeal from the

judgments.

                                  Discussion

       We first address whether defendant’s notice of appeal is

sufficient    to   confer   jurisdiction       over    his   appeal      onto      this

Court.      Rule   4   of   the   North      Carolina    Rules      of   Appellate

Procedure provides, in part, that a written notice of appeal

from    a   criminal   judgment    must      be   served     upon    all    adverse

parties, designate the judgments from which the appeal is taken,

and identify the court to which the appeal is taken.                        N.C. R.

App. P. 4(a),(b) (2013).          A defendant’s failure to comply with

the    mandatory   provisions     of   Rule       4   divests    this      Court    of

jurisdiction to hear the appeal.             State v. Hughes, 210 N.C. App.

482, 484, 707 S.E.2d 777, 778 (2011); see also Dogwood Dev. &

Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197-98,

657 S.E.2d 361, 365 (2008) (“A jurisdictional default . . .

precludes the appellate court from acting in any manner other
                                             -4-
than to dismiss the appeal. Stated differently, a jurisdictional

default    brings    a    purported      appeal     to   an    end    before      it    ever

begins.” (citations and quotation marks omitted)).

      Defendant’s        pro    se     written     notice     of     appeal      does    not

identify the court to which his appeal is taken, was not served

on   the   State,    and       does    not    properly      identify       all    of     the

judgments    from    which       he     appeals.         Thus,     we   must      dismiss

defendant’s appeal for lack of jurisdiction.                          However, in the

interest of justice and in our discretion, we allow defendant’s

petition for the issuance of a writ of certiorari and reach the

merits of his arguments on appeal.

      On   appeal,       defendant      argues     the   trial       court    erred      and

abused its discretion in sentencing him to consecutive sentences

at the maximum end of the presumptive range.                          Defendant first

argues the State introduced irrelevant and unfair considerations

into the resentencing process when it urged the trial court to

sentence defendant to consecutive sentences at the maximum end

of   the   presumptive         range    because     defendant        qualified      as   an

habitual    felon.         Defendant         contends    the     State’s      sentencing

requests sought to atone for its error in obtaining the habitual

felon indictment and failed “to impose a punishment commensurate

with the injury the offense has caused[.]”                         N.C. Gen. Stat. §
                                        -5-
15A-1340.12     (2013).        Defendant     further    contends     that    because

nothing    about      his    offenses   or    himself   objectively        warranted

deviating from the middle of the available presumptive range,

the State’s comments regarding his qualification for habitual

felon     status      offended    the    “public    sense      of    fair    play.”

Defendant’s arguments are misplaced.

    “When a sentence is within the statutory limit it will be

presumed regular and valid unless ‘the record discloses that the

court considered irrelevant and improper matter in determining

the severity of the sentence.’”               State v. Davis, 167 N.C. App.

770, 775, 607 S.E.2d 5, 9 (2005) (quoting State v. Johnson, 320

N.C. 746, 753, 360 S.E.2d 676, 681 (1987)).                        “If the record

discloses      that    the    court   considered    irrelevant       and    improper

matter    in    determining       the   severity       of    the    sentence,    the

presumption of regularity is overcome, and the sentence is in

violation of [the] defendant’s rights.”                     State v. Boone, 293

N.C. 702, 712, 239 S.E.2d 459, 465 (1977).                    Where “the record

reveals no such express indication of improper motivation,” the

defendant is not entitled to a new sentencing hearing.                      Johnson,

320 N.C. at 753, 360 S.E.2d at 681.

    Here, the record contains no express indication of improper

motivation.        The State’s comment that defendant qualified as an
                                        -6-
habitual felon cannot be considered an irrelevant and improper

matter in defendant’s sentencing.               In calculating a defendant’s

prior record level, trial courts routinely see information that

indicates     whether   or    not   a   defendant        would    qualify      as    an

habitual felon.      It is clear that a trial court may not sentence

a defendant as an habitual felon without a proper conviction for

attaining that status.         However, there is nothing that prohibits

a    trial   court   from    considering      the   number      and   nature    of    a

defendant’s     prior   convictions      when    it   decides     which     specific

sentence to select within the discretionary range of minimum

terms established by a defendant’s prior record level and class

of offense.     State v. Oakes, ___ N.C. App. ___, ___, 724 S.E.2d

132, 137-38 (2012); see also State v. Parker, 143 N.C. App. 680,

685-86, 550 S.E.2d 174, 177 (2001) (“The Structured Sentencing

Act clearly provides for judicial discretion in allowing the

trial court to choose a minimum sentence within a specified

range.”).     The trial court’s imposition of the maximum possible

sentence in the presumptive range, as requested by the State,

was within its discretion, so defendant has not met his burden

of    showing    his    sentences       are      based     on     irrelevant         or

impermissible factors.
                                           -7-
       Defendant also argues that consecutive sentences were not

warranted in his case based on the nonviolent nature of his

offenses and the fact that all of them arose out of the same

conduct.       However, “[i]t is well established that the decision

to   impose    consecutive      or    concurrent     sentences   is      within   the

discretion of the trial judge and will not be overturned absent

a    showing    of   abuse      of    discretion.”       State      v.    Espinoza–

Valenzuela, 203 N.C. App. 485, 497, 692 S.E.2d 145, 154, disc.

review denied, 364 N.C. 328, 701 S.E.2d 238 (2010).                       Defendant

cites to no authority, and we know of none, that suggests it is

an abuse of discretion to impose consecutive sentences based

upon    convictions       for    committing      non-violent       offenses,      and

defendant      concedes   that       his   conduct   constituted    the    distinct

offenses for which the jury found him guilty.

                                      Conclusion

       We hold defendant has not shown the trial court abused its

discretion in sentencing defendant to consecutive sentences, and

we find no error in the judgments entered.



       NO ERROR.

       Judges STEPHENS and ERVIN concur.

       Report per Rule 30(e).
