                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-303

                                Filed: 6 December 2016

Transylvania County, Nos. 14 CRS 484, 15 CRS 163

STATE OF NORTH CAROLINA

            v.

WILLIAM SHELDON HOWELL


      Appeal by defendant from judgment entered 9 December 2015 by Judge Mark

E. Powell in Transylvania County Superior Court. Heard in the Court of Appeals 4

October 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Susan Fountain,
      for the State.

      Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for defendant-
      appellant.


      BRYANT, Judge.


      Where the sentencing statute states that a Class 1 misdemeanor under the

Controlled Substances Act “shall be punished as a Class I felon[y]” where the

misdemeanant has committed a previous offense punishable under the Act, the

sentencing statute acts to enhance punishment for a misdemeanor offense and is not

a separate felony. Accordingly, we reverse the trial court’s judgment sentencing

defendant as a Class E felon.
                                    STATE V. HOWELL

                                    Opinion of the Court



      On 27 October 2014, a grand jury sitting in Transylvania County indicted

defendant William Sheldon Howell on the charge of, inter alia, attaining habitual

felon status.     On 15 June 2015, defendant was further indicted on charges of

possession of marijuana over one-half ounce but less than one-and-one-half ounce, a

Class 1 misdemeanor, and of having been previously convicted of any offense in

violation of the Controlled Substances Act.

      On 9 December 2015, defendant entered into a plea agreement with the State:

defendant pled guilty to the Class 1 misdemeanor possession of marijuana,

acknowledged the prior conviction of a drug offense in violation of the Controlled

Substances Act which subjected defendant to an enhanced punishment, and

acknowledged attaining habitual felon status.              Other pending charges were

dismissed. Before accepting defendant’s plea, the court engaged defendant in the

following discussion regarding his sentencing exposure:

                THE COURT: I had a conference on Monday with [defense
                counsel] and [the prosecutor] concerning the charges
                against you. And [defense counsel] was arguing that the
                way the statute [punishing possession of marijuana greater
                than one-half ounce but less than one and one-half ounces]
                was worded . . . [an enhanced sentence due to a prior
                controlled substance conviction should be interpreted as] a
                Class 1 misdemeanor punished as a felony, not really a
                felony but just punished as a felony. . . .

                ...

                I'm going to go over the charges. The possession of
                marijuana greater than one-half ounce but less than one-


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                                 STATE V. HOWELL

                                 Opinion of the Court



            and-one-half ounces is a Class 1 misdemeanor with a
            possible maximum sentence of 120 days in prison, but
            there's no mandatory minimum sentence. Do you
            understand that charge?

            THE DEFENDANT: Yes, sir.

            THE COURT: Now, because you have the prior convictions
            for controlled substances that Class 1 misdemeanor can be
            punished as a Class I felony. And that has a possible
            maximum sentence of 24 months in prison, but there’s no
            mandatory minimum sentence. Do you understand that,
            I'll say, enhanced punishment?

            THE DEFENDANT: Yes, sir.

            THE COURT: . . . [B]ecause you've obtained the status of
            habitual felon, the Class I felony can be punished as a Class
            E felony with a possible maximum sentence of 88 months
            in prison, but no mandatory minimum sentence. . . .

            Do you understand that now?

            THE DEFENDANT: Yeah, I understand that. Yes, sir.

      Defendant entered a plea of guilty to the Class 1 misdemeanor possession of

marijuana offense, admitted he had a prior drug conviction that would enhance the

punishment, and acknowledged that he had attained habitual felon status. The trial

court accepted defendant’s plea and entered a consolidated judgment on the charges.

            THE COURT: All right. Madam Clerk, a Class 1
            misdemeanor, but I will say for the record I'm treating it
            as a Class I felony because of the prior conviction. And that
            Class I felony because of the habitual felon status is
            punished as a Class E felony.




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                                  STATE V. HOWELL

                                  Opinion of the Court



Defendant was sentenced to an active term of 29 to 47 months, which the court

suspended and placed defendant on supervised probation for a period of 36 months.

Defendant appeals.

                   ___________________________________________

      Pursuant to North Carolina General Statutes, section 15A-1444,

             [a] defendant who has entered a plea of guilty or no contest
             to a felony or misdemeanor in superior court is entitled to
             appeal as a matter of right the issue of whether the
             sentence imposed: . . . (2) Contains a type of sentence
             disposition that is not authorized by G.S. 15A-1340.17
             [“Punishment limits for each class of offense and prior
             record level” (felony)] or G.S. 15A-1340.23 [“Punishment
             limits for each class of offense and prior conviction level”
             (misdemeanor)] for the defendant’s class of offense and
             prior record or conviction level[.]

N.C. Gen. Stat. § 15A-1444(a2) (2015). As defendant challenges the sentence imposed

on the basis that such is not authorized by G.S. §§ 15A-1340.17 or 15A-1340.23, this

appeal is properly before this Court.

      On appeal, defendant argues that the trial court erred by enhancing his

sentence for misdemeanor possession of marijuana to a Class I felony based on a prior

conviction and then to a Class E felony based on defendant’s habitual felon status.

We agree.

      Per his plea agreement, defendant pled guilty to a Class 1 misdemeanor, see

N.C. Gen. Stat. 90-95(d)(4), and acknowledged a prior conviction for an offense also

punishable under the Act.     On appeal, defendant contends that the Controlled


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                                  STATE V. HOWELL

                                  Opinion of the Court



Substances Act (the Act) does not elevate the offense of a Class 1 misdemeanor to a

Class I felony. Instead, rather, where a defendant commits a Class 1 misdemeanor

and has a prior conviction in violation of the Act, the Class 1 misdemeanor is simply

enhanced and the offense sentenced as a Class I felony. In support of his proposition,

defendant cites State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610 (1994) (habitual

impaired driving), and State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518 (2000)

(habitual misdemeanor assault).

      In Smith, the defendant challenged the sentence imposed upon him after being

convicted of two counts of habitual misdemeanor assault and attaining habitual felon

status. 139 N.C. App. 209, 533 S.E.2d 510. The defendant argued that the habitual

misdemeanor assault offense did not create a substantive offense but merely

conferred a status upon the defendant for the purpose of enhancing punishment. Id.

at 212, 533 S.E.2d at 519. The Smith Court looked to the wording of the habitual

misdemeanor assault statute.

             A person commits the offense of habitual misdemeanor
             assault if that person violates any of the provisions of G.S.
             14-33(c) or G.S. 14-34 and has been convicted of five or
             more prior misdemeanor convictions, two of which were
             assaults. A person convicted of violating this section is
             guilty of a Class H felony . . . .

Id. at 213, 533 S.E.2d at 520 (alteration in original) (quoting N.C. Gen. Stat. § 14-

33.2). The Smith Court noted similar language in the habitual impaired driving

statute, General Statute section 20-138.5. “A person commits the offense of habitual


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                                   STATE V. HOWELL

                                   Opinion of the Court



impaired driving if he drives while impaired as defined in G.S. 20–138.1 and has been

convicted of three or more offenses involving impaired driving as defined in G.S. 20–

4.01(24a) within seven years of the date of this offense.” Id. (alteration in original)

(quoting N.C. Gen. Stat. § 20-138.5(a)). The Court contrasted the language of these

two statutes with that of the habitual felon statute: “Any 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 . . . .”

Id. (quoting N.C. Gen. Stat. § 14-7.1). The Court considered the declaration “commits

the offense of” used in both the habitual misdemeanor assault statute and the

habitual impaired driving statute followed by the series of required acts indicative of

a substantive offense, while the phrase “ ‘declared to be’ immediately before ‘habitual

felon’ ” in the habitual felon statute, “denot[es] a status, rather than an offense.” Id.

      In Priddy, the defendant made a challenge similar to the argument presented

in Smith: “[T]he habitual impaired driving does not constitute a separate felony

offense; rather, it is a mere punishment enhancement statute like . . . the habitual

felon statute.” Priddy, 115 N.C. App. at 548, 445 S.E.2d at 612. As in Smith, the

Priddy Court reasoned that “the legislature clearly intended felonious habitual

impaired driving to constitute a separate felony offense,” and not a mere punishment

enhancement. Id. at 550, 445 S.E.2d at 612.




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                                  STATE V. HOWELL

                                   Opinion of the Court



      We now turn our attention to the case sub judice. Within Chapter 90, Article

5 of our General Statutes is codified the North Carolina Controlled Substances Act

(the Act). Defendant pled guilty to possession of marijuana, a Schedule VI controlled

substance, greater than one-half ounce (and less than one and one-half ounces). N.C.

Gen. Stat. § 90-94(1) (2015). Pursuant to section 90-95, governing violations of the

Act, it is unlawful for any person to possess a controlled substance. Id. § 90-95(a)(3).

Possession of more than one-half ounce and not in excess of one and one-half ounces

of marijuana is punishable as a Class 1 misdemeanor. Id. § 90-95(d)(4). Defendant

pled guilty to this Class 1 misdemeanor and admitted to receiving a prior conviction

that would enhance his sentence to a Class I felony.

             The prescribed punishment and degree of any offense
             under this Article shall be subject to the following
             conditions, but the punishment for an offense may be
             increased only by the maximum authorized under any one
             of the applicable conditions:

                    ...

                    (3) If any person commits a Class 1 misdemeanor
                    under this Article and if he has previously been
                    convicted for one or more offenses under any law of
                    North Carolina . . . which offenses are punishable
                    under any provision of this Article, he shall be
                    punished as a Class I felon.

Id. § 90-95(e)(3) (emphasis added).

      Because section (e) states that the defendant “shall be punished as a Class I

felon,” it appears that our General Assembly intended that section (e)(3) act as a


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                                  STATE V. HOWELL

                                   Opinion of the Court



sentence enhancement rather than a separate offense. Cf. Smith, 139 N.C. App. at

213, 533 S.E.2d 520 (“A person commits the offense of habitual misdemeanor assault

. . . .” (alteration in original) (quoting N.C. Gen. Stat. § 14-33.2)); Priddy, 115 N.C.

App. 547, 445 S.E.2d 610.       Thus, while defendant’s Class 1 misdemeanor is

punishable as a felony under the circumstances present here, the substantive offense

remains a Class 1 misdemeanor. Defendant’s status as an habitual felon cannot be

used to further enhance a sentence that is not itself a substantive offense. Therefore,

because defendant’s habitual felon status has no impact on his sentence as a

misdemeanant, punishing defendant’s offense as a Class E felony is not authorized

by sections 15A-1340.17, 15A-1340.23, or 90-95(e)(3). Accordingly, we reverse the

trial court order sentencing defendant as a Class E felon due to defendant’s habitual

felon status and remand for resentencing.

      REVERSED AND REMANDED.

      Judges CALABRIA and STEPHENS concur.




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