             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1207

                                Filed: 17 October 2017

Madison County, No. 13 CRS 000248

STATE OF NORTH CAROLINA

            v.

PATTY MEADOWS


      Appeal by Defendant from judgments entered 7 April 2016 and judgment

entered 8 April 2016 by Judge Gary M. Gavenus in Superior Court, Madison County,

after a jury trial before Judge R. Gregory Horne on 4 and 5 April 2016. Heard in the

Court of Appeals 25 May 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Daniel
      Snipes Johnson, for the State.

      Michael E. Casterline for Defendant-Appellant.


      McGEE, Chief Judge.


      Patty Meadows (“Defendant”) was convicted on 7 April 2016 of one count each

of trafficking opium by sale, by delivery, and by possession. The events leading to

Defendant’s arrest and conviction occurred on 14 September 2011.

                          I. Factual and Procedural Basis

      In early September 2011, multiple sources informed the Madison County

Sheriff’s Office that Defendant’s husband, Troy Meadows (“Troy”), was selling large
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quantities of prescription pills.      A confidential informant, Jeffrey Chandler

(“Chandler”) told officers that Troy would be obtaining pills on 14 September 2011,

pursuant to a prescription, for the purposes of illegal re-sale. Chandler informed

officers that he had obtained this information from Jason Shetley (“Shetley”) who, in

the past, had illegally purchased pills from Troy.

      Sheriff’s officers planned a controlled buy for 14 September 2011. The plan

was for Chandler to ask Shetley to purchase pills from Troy, using bills provided by

the Sheriff’s Office, and thereby obtain probable cause to search Troy’s and

Defendant’s house (“the Meadows home” or “the house”) on Rollins Road. Officers

gave Chandler $420.00 (“the buy money”) on 14 September 2011 for the purchase.

The buy money had been photocopied so that individual serial numbers were

recorded. Chandler contacted Shetley to set up the purchase. Shetley was to make

the purchase with the buy money provided by Chandler, and purchase twenty-five

oxycodone pills for himself and fifty for Chandler. At trial, Shetley testified he called

Troy about 9:00 a.m. on 14 September 2011 to tell him he wanted to purchase seventy-

five oxycodone pills.   Chandler then met with Shetley and Shetley’s girlfriend,

Catherine Davis (“Davis”). Chandler used approximately $20.00 of the buy money to

purchase gas for Shetley’s car (“the car”). Chandler, Shetley, and Davis then drove

to the Meadows home.




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          Madison County Sheriff’s Detective Coy Phillips, now a captain (“Capt.

Phillips”), was watching the house that morning. Shetley entered the Meadows home

at approximately 9:45 a.m., while Chandler and Davis waited in Shetley’s car. At

trial, Shetley further testified that he never saw Troy that morning – that he “just

pulled up, went and knocked on the door, and [Defendant] was in the kitchen and

told me to come in. She had the pills out [on the table]. I bought the pills from her.”

According to Shetley, Defendant told him she had already counted out the seventy-

five pills, and he then counted out twenty-five pills, which he put in a pill bottle he

had brought with him. He then counted out an additional fifty pills, which he put in

a plastic baggie provided by Defendant. Shetley testified that he gave Defendant

payment, which she counted. Shetley then left the house.

          About five minutes after Shetley entered the house, Capt. Phillips observed

him exit the house and return to the car. Shetley, Chandler and Davis then drove

away from the Meadows home. Capt. Phillips continued to watch the house until a

deputy arrived “to secure [the house] because we were going to execute a search

warrant at [the house].” Shortly after the car left the house, it was stopped by officers,

including Madison County Chief Deputy Michael Garrison (“Chief Garrison”),1 and

the occupants were searched. Shetley testified that, when he saw police approaching,

he threw his bottle of twenty-five pills out the car window, but that Chandler held



1   Chief Garrison was serving as the Mars Hill Chief of Police at the time of Defendant’s trial.

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onto the plastic baggie that contained the fifty pills. Officers recovered a plastic

baggie containing fifty oxycodone pills from Chandler, and recovered a bottle

containing twenty-five oxycodone pills from the side of the road in the vicinity of the

car. Officers had maintained constant visual contact with Chandler from the time he

was given the $420.00 until the time they stopped and searched the car and its

occupants. One of the photocopied twenty dollar bills was found in Shetley’s sock,

but the remainder of the buy money was not recovered from the car or its occupants.

Shetley and Davis were arrested, and taken to the Sheriff’s Office.

      Chief Garrison testified he secured the house immediately after arresting

Shetley and Davis and, at that time, Defendant was the only person at the house.

Chief Garrison left the house at approximately 10:00 a.m., while deputies remained

to keep the house and Defendant secure. Troy and Defendant’s daughter arrived

sometime after 10:00 a.m., though the exact times they were at the house are unclear.

Chief Garrison further testified he returned to the house just after 4:00 p.m. to

execute a search warrant he had obtained, and that the house and its occupants were

continuously monitored until the search of the house was completed, after 7:00 p.m.

According to Chief Garrison, Troy “did show up there [at the house] and then we

transported him back to the [S]heriff’s [O]ffice.” Troy was also arrested that day.

Chief Garrison testified that “to the best of [his] recollection,” Troy did not return to

the house after being transported to the Sheriff’s Office. Capt. Phillips testified that



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he interviewed Troy at the Sheriff’s Office from 4:29 p.m. until 7:16 p.m., and then

returned to the Meadows home. Capt. Phillips did not indicate in his testimony that

he brought Troy with him when he returned to the Meadows home, and Defendant’s

counsel did not ask Capt. Phillips that question.

      Chief Garrison testified that, after serving the search warrant, he “identified

a large quantity of narcotics and medications on the dining room table.”           Items

recovered included “other pill bottles, empty pill bottles, white pills and pink pills[,]”

and plastic baggies similar to the one recovered from Chandler that contained the

fifty pills Shetley had purchased for him. Chief Garrison testified that, after officers

had searched the house for more than three hours in an unsuccessful attempt to

locate the remainder of the buy money, he confronted Defendant directly. Chief

Garrison testified that he told Defendant: “I knew my buy money was in the house

and I wanted to get it.” According to Chief Garrison, Defendant “told me it was in a

pocket, a jacket pocket in the, I believe it was the bedroom closet.” Chief Garrison

testified that officers recovered $380.00 from “a blue jacket hanging in a closet” that

was later identified as the remaining buy money.

      Chief Garrison then identified State’s exhibit 12 as an envelope containing the

$380.00 of buy money recovered from the Meadows home. Chief Garrison read from

the log sheet attached to State’s exhibit 12, and testified that the log sheet “has [the]

suspect[’s] name, which is Troy Meadows, the date and time recovered which is



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9/14/11 at . . . 7:01 p.m. It has Detective Matt Davis was the recovering deputy. The

description, it says, $380 U.S. currency recovered from back bedroom, blue jacket

pocket.”

          Although both Chief Garrison and Capt. Phillips testified they believed

Defendant was involved in the 14 September 2011 transaction, Defendant was not

arrested until 22 July 2013.2 Defendant testified at trial, contradicting the testimony

of Chief Garrison and Shetley. Defendant testified she had no knowledge of the drug

transaction, that she never saw Shetley that morning, and that she did not know

where the $380.00 was hidden until Troy told her sometime after 6:30 p.m. The two

containers of pills were sent to the State Bureau of Investigation (“S.B.I.”) lab to be

analyzed by Colin Andrews, who determined the pills were oxycodone, and described

them in his report as “a pill bottle containing 25 pink tablets [and] a plastic bag

containing 50 pink tablets.” Defendant was found guilty of all three trafficking

charges on 7 April 2016. Defendant appeals.

                                             II. Analysis

                               A. Ineffective Assistance of Counsel

          Defendant argues she was denied effective assistance of counsel because her

defense counsel “elicited damaging testimony from [Capt.] Phillips that Shetley was




2   This testimony is the subject of one of Defendant’s arguments on appeal.

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‘honest[,]’” and also failed to object to Chief Garrison’s testimony that “[Defendant]

was as guilty as Troy was.” We disagree.

      “A defendant’s right to counsel includes the right to the effective assistance of

counsel. When a defendant attacks his conviction on the basis that counsel was

ineffective, he must show that his counsel’s conduct fell below an objective standard

of reasonableness.” State v. Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 247–48

(1985) (citations omitted). However,

             if a reviewing court can determine at the outset that there
             is no reasonable probability that in the absence of counsel’s
             alleged errors the result of the proceeding would have been
             different, then the court need not determine whether
             counsel’s performance was actually deficient.

Id. at 563, 324 S.E.2d at 248–49. Because we hold “there is no reasonable probability

that in the absence of counsel’s alleged errors the result of the proceeding would have

been different,” we reject Defendant’s ineffective assistance of counsel (“IAC”)

arguments without making any determination concerning whether Defendant’s

counsel was actually deficient. Id. at 563, 324 S.E.2d at 249.

                         1. Vouching for Shetley’s Credibility

      Concerning Defendant’s first argument, her counsel questioned Capt. Phillips

concerning two interviews he conducted with Shetley after Shetley’s arrest:

             Q. My question was, when you conducted that first
             interview [on 14 September 2011], did you feel, leaving that
             interview did you feel or form an opinion as to whether or
             not [Shetley] was being honest with you?


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A. Yes, sir, I did.

Q. So you felt after that first interview he was telling you
the truth?

A. No, sir.

....

Q. So at that time you had an idea, hey, this isn’t, this
doesn’t make sense.

A. Yes, sir.

....

Q. Did you during that first interview ask [Shetley] about
his drug use at the time?

A. Yes, sir, I did.

Q. And what was his response to, to whether or not he used
drugs?

A. He said he didn’t use drugs.

....

Q. And [Shetley] gave you another statement [on 16
September 2011], did he not?

A. He did, yes, sir.

Q. Did he at that time admit or deny having a drug
problem?

A. At this point he admitted it, yes, sir.

....


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Q. And again, [Shetley] admitted to you that he had a very
bad drug problem.

A. Yes, sir, he stated he had a pill problem.

Q. And based on your knowledge and experience as a law
enforcement officer, do people with drug problems typically
break into other people’s houses to supply their habit?

A. Sometimes.

Q. Did Mr. Shetley admit that to you?

A. Yes, sir.

....

Q. And you filled out this Officers Investigation Report as
lead detective.

A. Yes, sir.

Q. And part 10, you stated that . . . Davis was honest and
cooperative.

A. Yes, sir.

Q. And that Troy . . . and . . . Shetley were also honest with
Detective . . . Phillips.

A. Yes, sir.

Q. And you signed that form on 9/19.

A. Yes, sir.

....

Q. And at that time the statements, the follow-up


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             statements, at least with Shetley, and the other statements
             you got, you felt that the witnesses were honest and
             cooperative.

             A. Yes, sir.

      Based upon the testimony above, Defendant argues that her counsel’s

representation was deficient because he “elicited damaging testimony from [Capt.]

Phillips that Shetley was ‘honest.’” However, because we do not believe Defendant

can show the necessary prejudice to sustain her IAC claim, as we will discuss in

greater detail below, we do not need to consider whether Defendant’s counsel’s

representation of Defendant was actually deficient. Braswell, 312 N.C. at 563, 324

S.E.2d at 248–49.

                    2. Chief Garrison’s Opinion of Defendant’s Guilt

      Defendant next argues that her counsel committed IAC by failing to object

when Chief Garrison testified: “I felt like [Defendant] should be charged at that time;

she was as guilty as Troy was.” We disagree.

      Law enforcement officers may not express any opinion that they believe a

defendant to be guilty of the crimes for which the defendant is on trial. State v.

Carrillo, 164 N.C. App. 204, 211, 595 S.E.2d 219, 224 (2004). However, although the

admission of the statement by Chief Garrison constituted error, as in Carrillo, we

hold that Defendant fails to show that the error was so prejudicial, on the facts before

us, as to require a new trial. Id.



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      Initially, during direct questioning by the State concerning why Defendant was

not arrested on 14 September 2011, Chief Garrison testified to the following, without

objection:

             Q. Chief Garrison, was there some – I’m going to follow up
             on a couple of [Defendant’s counsel’s] questions. Was there
             some discussion of [Defendant] being charged back in
             September of 2011?

             A. There was. Initially I felt that [Defendant] had direct
             involvement in the drug transaction, and based on that that
             she should have been charged accordingly. There was a
             discussion and based on that discussion we made a
             determination not to charge her at that time.
             Subsequently, uh, I’m trying to think, it was probably a
             little over a year and four months later we submitted the
             evidence to the SBI and the SBI labs came back as far as
             what the quantities and the product were as far as the pills.
             Determination was made at that time to pursue a grand
             jury indictment, which we did, and the grand jury found
             probable cause to have her indicted, and that’s what
             brought her here today. (Emphasis added).

      Defendant does not argue on appeal that failure to object to this testimony

constituted IAC. Therefore, any such argument has been abandoned, and we must

evaluate the prejudice of the contested testimony in light of this uncontested

testimony. See N.C. R. App. P. 28(b)(6); State v. Evans, __ N.C. App. __, __, 795

S.E.2d 444, 455 (2017).

      Immediately following the above exchange, the State continued:

             Q. So you [Chief Garrison] said that the conversation that
             you had [with other officers] back in September 2011 was
             not to never charge [Defendant], it was just not to charge


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             her at the time?

             A. The conversation was I felt like [Defendant] should be
             charged at that time; she was as guilty as Troy was.
             However, after we had a discussion about it and we made
             a determination collectively not to pursue that at that time.

      Defendant’s counsel also failed to object to this testimony, which is not

substantially different from the unchallenged prior testimony. Chief Garrison’s prior

testimony clearly indicated he believed, from the beginning, that Defendant was

“direct[ly] involve[ed] in the drug transaction, and based on that that she should have

been charged accordingly.” Chief Garrison’s later testimony — that he believed

Defendant “was as guilty as Troy was[,]” — does not contribute significantly to any

prejudice already suffered by Defendant from the unchallenged statement.

      Further, we find that the evidence against Defendant was substantial.

Comparing the facts before us with those in Carrillo, supra, we find the evidence

against Defendant at least as compelling as that in Carrillo. In Carrillo, two officers

testified, without objection, in ways that strongly indicated their opinion that the

defendant was guilty of trafficking in cocaine.          Although this Court held that

admission of testimony indicating the officers believed the defendant was guilty

constituted error, we concluded, in light of the following evidence, that the defendant

failed to demonstrate the improper testimony was sufficiently prejudicial to warrant

a new trial pursuant to either plain error analysis or IAC:

             Evidence at trial showed that the package was intercepted


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             by the U.S. Customs agents and contained three ceramic
             turtles with a substantial amount of cocaine concealed
             inside. The package was mailed from a location in Mexico
             that U.S. Customs agents had identified as a mail
             origination point for cocaine sent to the United States. The
             package was addressed to defendant at his residence.
             Defendant accepted the package. It was found inside his
             residence minutes after he had taken possession of it.
             Broken pieces of similar turtles containing traces of cocaine
             were also found inside his apartment.

Carrillo, 164 N.C. App.at 210–11, 595 S.E.2d at 224. This Court held in Carrillo that

the defendant had failed to prove plain error, then summarily overruled the

defendant’s argument that his counsel’s failure to object to the officers’ testimonies

constituted IAC:

             If we were to conclude there was a reasonable probability
             that the outcome would have been different, this Court
             [would have to] consider whether counsel’s actions were in
             fact deficient. As we have already determined, defendant
             has failed to show [plain error –] that a different outcome
             at trial would have occurred if defense counsel had objected
             to this testimony. This [argument] is overruled.

Id. at 211, 595 S.E.2d at 224.

      In the present case, the relevant evidence presented at trial, discussed in part

above, is sufficient to defeat Defendant’s claim of IAC. Defendant testified she was

in a back bedroom at the time Shetley entered the house because her back was

bothering her and she could not move. In addition, Defendant initially testified that

Troy was gone from the house from some time before 9:30 a.m. until he returned at

approximately 11:30 a.m., and that Troy was accompanied by officers when he


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entered the house. She further testified she did not see or hear anyone in the house

until Troy returned at 11:30 a.m.         After Troy returned to the house, he was

subsequently taken to the Sheriff’s Office and arrested.

       Defendant further testified that, though she knew the officers were searching

for money, she had no knowledge whatsoever of any cash that might have been used

in a drug transaction until after 6:30 p.m. Defendant testified that Officer Davis

questioned her on her front porch, and “showed me four or five . . . pink . . . pills . . .,

and . . . he said, does [Troy] sell his medicine every month? I said, I wouldn’t worry,

there’s so many. And he said, does he take these? And I said, I’ve never seen those

[pink pills] in my home[,]” that the oxycodone that Troy was prescribed were white

pills. However, the pink pills recovered from Chandler and Shetley were determined

to be oxycodone by the SBI, and additional pink pills were recovered from the dining

table when the house was searched.

       According to Defendant, after Troy was taken to the Sheriff’s Office the first

time, he was returned by Sheriff Buddy Harwood (“Sheriff Harwood”) and Capt.

Phillips at approximately 6:30 p.m. Defendant testified that she first learned about

the hidden money during a conversation with Troy, at around 6:30 p.m., in which

Sheriff Harwood participated. Defendant further testified that she never told Chief

Garrison about the location of the money – that it was only Sheriff Harwood who was

informed of the location of the $380.00. Defendant testified that Troy was present at



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the house when the money was recovered and that, once she and her daughter

recovered the money, they handed it to Capt. Phillips.

      However, after reviewing his report, Capt. Phillips testified that he began

interviewing Troy at the Sheriff’s Office at 4:29 p.m. on 14 September 2011, and did

not conclude the interview until 7:16 p.m. It was only after concluding that interview

with Troy at 7:16 p.m. that Capt. Phillips returned to the Meadows home. There was

no testimony from anyone other than Defendant that Troy returned to the house after

he was interviewed at the Sheriff’s Office.       The log sheet that accompanied an

evidence bag that contained the $380.00, indicated that the money was recovered

from the Meadows home at 7:01 p.m. by Detective Davis. According to those two

documents, Defendant could not have discussed the whereabouts of the buy money

with Troy at approximately 6:30 p.m., because Troy was at the Sheriff’s Office in the

middle of an approximately three-hour interview with Capt. Phillips.             More

importantly, Troy was still at the Sheriff’s Office being interviewed by Capt. Phillips

at the time the $380.00 was recovered from a jacket pocket in a back bedroom closet

of the Meadows home.

      According to Defendant’s testimony, after Sheriff Harwood was informed

where the money was located, Defendant “told [Sheriff Harwood] that [she would] tell

my daughter where the money was at and she could go get it.” Defendant testified

that neither Sheriff Harwood nor Capt. Phillips made any effort to have officers escort



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her to retrieve the money. Defendant’s own counsel asked Defendant: “So you’re

telling me that at some point in time you got off the couch and went in the back room

with no officer watching you?” Defendant answered that was correct, that she and

her daughter retrieved the money without escort of any kind. The $380.00 recovered

was later confirmed to be the remainder of the buy money. That Defendant would be

sent unescorted to retrieve the main evidence in the investigation defies logic,

protocol as testified to by Chief Garrison, and what actually occurred as testified to

by Chief Garrison. Chief Garrison testified that he “stood guard” with Defendant

during the search, and that Officer Davis was the officer who recovered the $380.00

from the jacket in the bedroom closet.

      Defendant’s own testimony cannot explain how the $380.00 in buy money could

have been placed in a jacket pocket in a back room closet by anyone other than herself.

All the evidence shows that Shetley entered the Meadows home with $400.00 of the

buy money and left with only $20.00, which was recovered from Shetley when the car

was stopped. Therefore, the $380.00 of buy money recovered from the Meadows home

had to have been left in the home by Shetley between 9:45 a.m. and 9:50 a.m., at the

same time he acquired the seventy-five pills of oxycodone, and at a time Defendant

herself testified she was alone in the house. Shetley had no opportunity to give the

$380.00 to Troy, and when Troy returned to the house before his arrest, he was

accompanied by officers, and not allowed to freely roam the house.          Assuming,



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arguendo, Troy did return to the house a second time, according to Capt. Phillips’

report and testimony, it would have to have been after the buy money was already

recovered.

      On the facts before us, because we hold “that there is no reasonable probability

that in the absence of counsel’s alleged errors the result of the proceeding would have

been different,” we reject Defendant’s argument and need not “determine whether

counsel’s performance was actually deficient.” Braswell, 312 N.C. at 563, 324 S.E.2d

at 249. This argument is without merit.

                                    B. Sentencing

      Defendant argues four errors were committed at her sentencing hearing.

Defendant argues the trial court erred in Defendant’s sentencing because a judge —

different from the judge who presided over the trial — issued the sentence and

improperly “overruled” a prior order of the trial judge. Defendant also argues that

the trial court “abused [its] discretion by imposing consecutive sentences of 70 to 93

months on a 72-year-old first offender for a single drug transaction,” and that this

sentence violated Defendant’s Eighth Amendment right that her sentence be

proportional to her crime. We disagree.

      Defendant did not object to any of these alleged errors at her sentencing

hearing. North Carolina Rule of Appellate Procedure Rule 10(a)(1) states:

             In order to preserve an issue for appellate review, a party
             must have presented to the trial court a timely request,


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               objection, or motion, stating the specific grounds for the
               ruling the party desired the court to make if the specific
               grounds were not apparent from the context.

N.C. R. App. P. 10(a)(1) (2015).3 Despite her failure to object, Defendant makes no

argument in her brief indicating why we should address the first two alleged errors

– that a judge different from the judge who presided over the trial issued the sentence

and improperly “overruled” a prior order of the trial judge. Concerning Defendant’s

remaining arguments – that her long sentence constituted an abuse of discretion and

violated the Eighth Amendment – she contends: “An error at sentencing [including a

constitutional claim] may be reviewed on appeal, absent an objection in the court

below. State v. Pettigrew, 204 N.C. App. 248, 258, 693 S.E.2d 698, 704–05 (2010).”

                             1. Rule 10(a)(1) and State v. Canady

       We assume, arguendo, that Defendant contends that all of her arguments are

preserved without objection because they allegedly occurred at sentencing. See Id.

Defendant is correct that this Court addressed the defendant’s argument in

Pettigrew, even though the defendant had not raised his objection at his sentencing

hearing. This Court reasoned:

               The State argues that [the d]efendant has not preserved
               this issue for appellate review because [the d]efendant did
               not raise [his] constitutional issue at trial. However, in

3 Rule 10 was amended effective 1 October 2009, and certain provisions were changed and subsections
moved. Prior to the 2009 amendment, the language cited above from subsection (a)(1) was located in
subsection (b)(1). Therefore, all pre-amendment opinions refer to Rule 10(b)(1) when referring to what
is now Rule 10(a)(1). In an attempt to achieve agreement between citations in this opinion, we will
change (b) to (a) as needed, which will be indicated by brackets.

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             State v. Curmon, 171 N.C. App. 697, 615 S.E.2d 417 (2005),
             our Court held that “[a]n error at sentencing is not
             considered an error at trial for the purpose of Rule
             10[(a)](1) because this rule is directed to matters which
             occur at trial and upon which the trial court must be given
             an opportunity to rule in order to preserve the question for
             appeal.” Accordingly, [the d]efendant was not required to
             object at sentencing to preserve this issue on appeal.

Pettigrew, 204 N.C. App. at 258, 693 S.E.2d at 704–05 (citations omitted). Curmon

cited State v. Hargett, 157 N.C. App. 90, 93, 577 S.E.2d 703, 705 (2003), which in turn

cited our Supreme Court’s opinion in State v. Canady, 330 N.C. 398, 401, 410 S.E.2d

875, 878 (1991). Our research shows that Canady is the genesis of a line of opinions

from this Court that contend Rule 10(a)(1) does not apply in sentencing hearings.

      However, this Court has also regularly held, post-Canady, that objection to

alleged errors at sentencing is required in order to preserve them for appellate review.

See, e.g., State v. Baldwin, 240 N.C. App. 413, 421–22, 770 S.E.2d 167, 173–74 (2015);

State v. Phillips, 227 N.C. App. 416, 422, 742 S.E.2d 338, 342–43 (2013); State v.

Facyson, 227 N.C. App. 576, 582, 743 S.E.2d 252, 256 (2013); and State v. Flaugher,

214 N.C. App. 370, 388, 713 S.E.2d 576, 590 (2011). In State v. Freeman, this Court’s

holding directly contradicts the Canady analysis in Pettigrew and Defendant’s Eighth

Amendment argument in the present case:

             Defendant further argues that his sentence is grossly
             disproportionate to the severity of the crime and violates
             the Eighth Amendment prohibition against cruel and
             unusual punishment. Defendant did not object at trial,
             however, and “constitutional arguments will not be


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              considered for the first time on appeal.” . . . . Defendant
              has failed to preserve his Eighth Amendment argument,
              and we dismiss defendant’s assignment of error.

State v. Freeman, 185 N.C. App. 408, 414, 648 S.E.2d 876, 881 (2007) (citations

omitted); see also State v. Lewis, 231 N.C. App. 438, 444, 752 S.E.2d 216, 220 (2013).

In light of this conflict between opinions of this Court concerning treatment of the

failure to object to errors during sentencing hearings in the wake of Canady, we must

attempt to determine the correct precedent to apply in the present case.4 Because it

is this Court’s occasional application of certain wording in Canady that has resulted

in a lack of uniformity in some of this Court’s opinions, we first analyze Canady. In

Canady, the defendant’s sole argument was “that it was error for the [trial] court to

rely on the statement of the prosecuting attorney in finding the aggravating factor.”

Canady, 330 N.C. at 399, 410 S.E.2d at 876. This was essentially an argument that

there was insufficient evidence to support the sole aggravating factor found by the

trial court. However, the defendant failed to object to this error at his sentencing

hearing. Id. at 400, 410 S.E.2d at 877.

       For reasons we will discuss in greater detail below, a majority of our Supreme

Court held that the error had been properly preserved for appellate review despite

the defendant’s lack of objection at the sentencing hearing. Justice Meyer dissented

based upon, inter alia, his belief that, pursuant to Rule 10(a)(1), the defendant’s


4 In a dissent in Freeman, the dissenting judge acknowledged that she had applied Rule 10(a)(1)
inconsistently in her prior opinions. Freeman, 185 N.C. App. at 420, 648 S.E.2d at 885.

                                            - 20 -
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                                  Opinion of the Court



failure to object at the sentencing hearing constituted a waiver of his right to

appellate review: “What the majority fails to recognize, however, is that Rule

10[(a)](1) . . . limits this Court’s appellate review to exceptions which have been

properly preserved for review.” Canady, 330 N.C. at 404, 410 S.E.2d at 879 (Justice

Meyer dissenting).    Justice Meyer cautioned: “The majority today discards our

longstanding rules of appellate procedure.” Id. at 406, 410 S.E.2d at 880.

      The majority in Canady then addressed and dismissed the concerns of Justice

Meyer on two different bases:

             Assuming Rule 10 requires an exception to be made to the
             finding of an aggravating factor, we hold the defendant has
             complied with the Rule. At the time of sentencing the judge
             said, “[f]or the record, the Court did take into consideration
             two previous felony convictions, possession of marijuana
             and LSD, and a charge of escape from the department of
             corrections.” The defendant marked an exception to this
             statement and made it the subject of an assignment of
             error. This was sufficient to preserve the question for
             appellate review.

             Justice Meyer in his dissent relies on Rule 10[(a)](1) of the
             Rules of Appellate Procedure and argues that an objection
             to the finding of the aggravating factor should have been
             made at the time the factor was found.

             ....

             [Rule 10(a)(1)] does not have any application to this case.
             It is directed to matters which occur at trial and upon
             which the trial court must be given an opportunity to rule
             in order to preserve the question for appeal. The purpose
             of the rule is to require a party to call the [trial] court’s
             attention to a matter upon which he or she wants a ruling


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                                   Opinion of the Court



             before he or she can assign error to the matter on appeal.
             If we did not have this rule, a party could allow evidence to
             be introduced or other things to happen during a trial as a
             matter of trial strategy and then assign error to them if the
             strategy does not work. That is not present in this case.
             The defendant did not want the [trial] court to find the
             aggravating factor, and the [trial] court knew or should
             have known it. This is sufficient to support an [argument
             on appeal].

             ....

             [W]e have held that Rule 10[(a)](1) does not apply to this
             case. We base this holding on our knowledge of the way
             our judicial system works. As we understand the dissent
             by Justice Meyer, he would require a party to object to any
             finding of fact in a judgment at the time the finding of fact
             is made. This would be a near impossibility in many cases
             in which the court renders a judgment at some time after
             the trial is concluded. We do not believe it was the
             intention of Rule 10[(a)](1) to impose such a requirement.
             We shall not require that after a trial is completed and a
             judge is preparing a judgment or making findings of
             aggravating factors in a criminal case, that a party object
             as each fact or factor is found in order to preserve the
             question for appeal.

Id. at 401–02, 410 S.E.2d at 877–78 (citations omitted). Though we see how the

language used in Canady could lead to misapplication of its holding, in our reading,

the holding appears to be fairly limited. First, the Court held that, if Rule 10 applied

in that case, the defendant sufficiently complied with it. Second, and more relevant

to the present case, the Court did not state that Rule 10(a)(1) never applied to

sentencing hearings. The Court stated, “we have held that Rule 10[(a)](1) does not

apply to this case.” Id. at 402, 410 S.E.2d at 878 (emphasis added). This language


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                                       Opinion of the Court



does not indicate that the Court did not consider sentencing hearings to be a part of

the trial – a fact that is further supported by the Court’s explanation of the purpose

of Rule 10(a)(1), which purpose is just as valid at a sentencing hearing as it is at the

guilt/innocence phase of the trial. The Court explained:

               We do not believe it was the intention of Rule 10[(a)](1) to
               impose . . . a requirement . . . . that after a trial is
               completed and a judge is preparing a judgment or making
               findings of aggravating factors in a criminal case, that a
               party object as each fact or factor is found in order to
               preserve the question for appeal.

Id. at 402, 410 S.E.2d at 878. This holding merely states that Rule 10(a)(1) does not

apply after the proceedings have concluded – including the sentencing hearing – and

the trial court is in the process of memorializing its judgment.5

       However, this Court has read Canady much more broadly. The first opinion to

cite Canady for the proposition that Rule 10(a)(1) does not apply to sentencing

hearings was Hargett, in which this Court considered the defendant’s double jeopardy

argument even though he had failed to object at sentencing:

               Defendant failed to object to the sentencing at trial. N.C.
               Rule 10[(a)](1) requires an objection at trial for
               preservation of an issue on appeal. Our Supreme Court
               has held that an error at sentencing is not considered an
               error at trial for the purpose of N.C. Rule 10[(a)](1) of the
               North Carolina Rules of Appellate Procedure. State v.
               Canady, 330 N.C. 398, 410 S.E.2d 875 (1991).



5 We also note that when Canady was decided, it was the judge acting as the trial court, and not the
trier of fact, who decided whether to find an aggravating factor.

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                                  STATE V. MEADOWS

                                   Opinion of the Court



Hargett, 157 N.C. App. at 92, 577 S.E.2d at 705 (emphasis added). Following the

precedent set in Hargett, Canady has continued to be interpreted by this Court,

intermittently, as including a blanket holding that any error at sentencing is

preserved for appellate review even absent objection because Rule 10(a)(1) does not

apply at sentencing. See State v. McNair, __ N.C. App. __, 797 S.E.2d 712 (2017)

(unpublished); State v. Dove, __ N.C. App. __, 790 S.E.2d 755 (2016) (unpublished);

State v. Allah, 231 N.C. App. 88, 97, 750 S.E.2d 903, 910 (2013) (citation omitted)

(“Admittedly, N.C. R. App. P. 10(a)(1) provides that, as a general proposition, a party

must have raised an issue before the trial court before presenting it to this Court for

appellate review. However, according to well-established North Carolina law, N.C.

R. App. P. 10(a)(1) does not apply to sentencing-related issues.”).

      We do not believe Hargett correctly states the holding in Canady; at a

minimum, Canady does not include language similar to that ascribed to it in Hargett.

The next opinion to cite Canady summarized the Canady holding in a manner more

in line with the particular facts of Canady, and suggested that the defendant had

failed to preserve his argument for appellate review by failing to object at sentencing:

             We note that the defendant cannot argue insufficient
             evidence [to support amount of restitution ordered] when
             there was no objection at trial, and no other way for the
             court to be alerted to defendant’s position that the
             determination was wrong. See State v. Canady, 330 N.C.
             398, 410 S.E.2d 875 (1991) (court allowed argument on
             appeal that aggravating factor was in error even without
             objection when defendant had argued for the minimum


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                                  STATE V. MEADOWS

                                   Opinion of the Court



             sentence, thus alerting the judge that he didn’t want the
             aggravating factor).

State v. Dickens, 161 N.C. App. 742, 590 S.E.2d 24, 2003 WL 22952108, at *3 (2003)

(unpublished) (emphasis added). This Court applied a more limited holding from

Canady in subsequent opinions as well:

             While it is true that defendant must normally make
             specific objections to preserve issues on appeal, our
             Supreme Court has stated “We shall not require that after
             a trial is completed and a judge is preparing a judgment or
             making findings of aggravating factors in a criminal case,
             that a party object as each fact or factor is found in order
             to preserve the question for appeal.” State v. Canady, 330
             N.C. 398, 402, 410 S.E.2d 875, 878 (1991). The Canady
             Court further held that when a defendant argues for
             sentencing in the mitigated range, no further objection is
             required to preserve the issue on appeal when the trial
             judge sentences her in the aggravated range. Id. In the
             case at bar, defendant argued for a sentence in the
             mitigated range, but was sentenced from the aggravated
             range. She properly preserved her right to appeal the trial
             court’s determination of aggravating and mitigating
             factors.

State v. Byrd, 164 N.C. App. 522, 526, 596 S.E.2d 860, 862–63 (2004) (emphasis

added); see also State v. Borders, 164 N.C. App. 120, 124, 594 S.E.2d 813, 816 (2004)

(citation omitted) (Canady held that preserving review of the trial court’s finding of

non-statutory aggravating factors for appellate review by objecting “is unnecessary

because it is clear that a defendant does ‘not want the [trial] court to find [an]

aggravating factor and the [trial] court kn[ows] or should . . . know[ ] it’”). This Court

has also applied Rule 10(a)(1) requirements without mentioning Canady. See State


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                                       Opinion of the Court



v. Jamison, 234 N.C. App. 231, 237, 758 S.E.2d 666, 671 (2014); State v. Martin, 222

N.C. App. 213, 218-19, 729 S.E.2d 717, 722 (2012); Freeman, 185 N.C. App. at 413-

14, 648 S.E.2d at 881. Finally, in State v. Pimental, 165 N.C. App. 547, 600 S.E.2d

898, 2004 WL 1622290, at *2 (2004) (unpublished), this Court actually cited Hargett

and Canady in support of its holding that the State could not challenge sentencing

issues that it had failed to object to at trial.

       We acknowledge that in State v. Culross, this Court, in an unpublished opinion,

rejected a request to review the line of cases applying the Hargett interpretation of

Canady, holding that we were bound by this Court’s interpretation in Hargett:

               [T]he State contends that the rule applied in Owens6
               [which cites Hargett], i.e. that a Defendant need not
               preserve errors during sentencing by objection or motion,
               is based on this Court’s misinterpretation of our Supreme
               Court’s opinion in Canady, supra. The State’s argument is
               misplaced, however. Whether a misinterpretation or not,
               this Court has “repeatedly applied Canady to reject
               contentions that a challenge to a sentence on appeal is
               precluded by a failure to object below.” “Where a panel of
               the Court of Appeals has decided the same issue, albeit in
               a different case, a subsequent panel of the same court is
               bound by that precedent, unless it has been overturned by
               a higher court.” In the Matter of Appeal from Civil Penalty,
               324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Further,
               “[w]hile we recognize that a panel of the Court of Appeals
               may disagree with, or even find error in, an opinion by a
               prior panel . . . the panel is bound by that prior decision
               until it is overturned by a higher court.”


6 State v. Owens, 205 N.C. App. 260, 266, 695 S.E.2d 823, 828 (2010), addressing a double jeopardy
argument despite the defendant’s failure to object during sentencing based on Hargett.


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                                   Opinion of the Court



State v. Culross, 217 N.C. App. 400, 720 S.E.2d 30, 2011 WL 6046692, at *2 (2011)

(citations omitted) (unpublished). While Culross correctly states the law, it is an

incomplete statement of the law.

      First, precisely because of In re Civil Penalty, when there are conflicting lines

of opinions from this Court, we generally look to our earliest relevant opinion in order

to resolve the conflict. As indicated above, Hargett is the earliest opinion of this Court

that we can locate holding that Rule 10(a)(1) does not apply in sentencing hearings.

However, we find multiple prior opinions of this Court, filed between Canady – which

was filed on 6 December 1991 – and Hargett – which was filed on 1 April 2003 – that

declined to review alleged errors at sentencing when the defendant had failed to object

as required by Rule 10 (a)(1). See, e.g., State v. Love, 156 N.C. App. 309, 317–18, 576

S.E.2d 709, 714 (2003); State v. Williams, 149 N.C. App. 795, 799, 561 S.E.2d 925,

927 (2002); State v. Hilbert, 145 N.C. App. 440, 445, 549 S.E.2d 882, 885 (2001); State

v. Clifton, 125 N.C. App. 471, 480, 481 S.E.2d 393, 398–99 (1997); State v. Evans, 125

N.C. App. 301, 304, 480 S.E.2d 435, 436–37 (1997) (“[The d]efendant lastly contends

that the trial court abused its discretion by finding certain mitigating factors in one

judgment but failing to do so in the other judgments. However, a party must present

to the trial court a timely request, objection or motion in order to preserve a question

for appellate review. N.C. R. App. P. 10[(a)](1).”). This Court, in Hargett and in

subsequent opinions relying on Hargett’s interpretation of Canady, was without



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                                   Opinion of the Court



authority to “overrule” prior cases of this Court, filed after Canady, that consistently

held Rule 10(a)(1) applied during sentencing hearings. In re Civil Penalty, 324 N.C.

at 384, 379 S.E.2d at 37.

      Second, and more definitively, any conflict between this Court and our

Supreme Court must be resolved in favor of our Supreme Court. Although this Court

has cited Canady at least forty times, many of which involve that opinion’s analysis

of Rule 10, our Supreme Court has only cited Canady three times, and two of those

citations did not involve Rule 10 whatsoever. The single Supreme Court opinion

citing Canady concerning Rule 10 is a civil case, which cites Canady for the general

proposition that the purpose of Rule 10(a)(1) is to preclude appeal from issues that

were not first brought to the attention of the trial court. Reep v. Beck, 360 N.C. 34,

36–37, 619 S.E.2d 497, 499–500 (2005).

      Contrary to the Hargett line of cases from this Court, our Supreme Court has

continuously enforced the requirements of Rule 10(a)(1) with respect to sentencing

hearings post-Canady, and has never applied Canady in order to circumvent Rule

10(a)(1) in sentencing hearings. For example, in State v. Golphin, 352 N.C. 364, 533

S.E.2d 168 (2000), our Supreme Court held that multiple alleged errors at sentencing

had not been preserved for appellate review as required by Rule 10(a)(1). First, our

Supreme Court refused to review two defendants’ arguments that their sentencing




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                                       Opinion of the Court



hearings should not have been joined because the defendants had not objected at trial.

The Court discussed one of the defendant’s failure to object in the following manner:

               [Defendant] Tilmon never actually renewed his prior
               motion to sever, nor did he object to joinder of the cases for
               sentencing. Therefore, the trial court never ruled on this
               issue. Tilmon’s purported efforts, during the sentencing
               phase, to revive his previous motion to sever were
               insufficient to satisfy N.C. R. App. P. 10 to preserve
               appellate review of this issue.

Id. at 460–61, 533 S.E.2d at 231;7 Id. at 463, 533 S.E.2d at 232; Id. at 464, 533 S.E.2d

at 233; Id. at 465, 533 S.E.2d at 234; Id. at 481, 533 S.E.2d at 243; see also, e.g., State

v. Augustine, 359 N.C. 709, 731, 616 S.E.2d 515, 531 (2005); State v. Roache, 358 N.C.

243, 326, 595 S.E.2d 381, 433 (2004); State v. Walters, 357 N.C. 68, 91, 588 S.E.2d

344, 358 (2003); State v. Davis, 353 N.C. 1, 20, 539 S.E.2d 243, 257 (2000) (citation

omitted) (the “defendant failed to make an objection at [the sentencing hearing] on

constitutional grounds. This failure to preserve the issue results in waiver. N.C. R.

App. P. 10(b)(1)”); State v. Smith, 352 N.C. 531, 557–58, 532 S.E.2d 773, 790 (2000);

State v. McNeil, 350 N.C. 657, 681, 518 S.E.2d 486, 501 (1999); State v. Thomas, 350

N.C. 315, 363, 514 S.E.2d 486, 515 (1999); State v. Flippen, 349 N.C. 264, 276, 506

S.E.2d 702, 710 (1998).




7We note that our Supreme Court cited this section of Golphin in Reep, 360 N.C. at 37, 619 S.E.2d at
500, in the same analysis in which it cited Canady, further bolstering the argument that our Supreme
Court has never interpreted Canady in the same manner as Hargett.

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                                        STATE V. MEADOWS

                                         Opinion of the Court



        This Court has declined to follow Hargett based upon that opinion’s conflict

with opinions of our Supreme Court in at least two prior occasions. In State v.

Williams, in declining to address a double jeopardy issue to which the defendant had

failed to object at sentencing, this Court recognized:

                Hargett . . . is inconsistent with numerous Supreme Court
                cases holding that a double jeopardy argument cannot be
                raised for the first time on appeal. See, e.g., State v. Davis,
                364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010) (“To the extent
                defendant relies on constitutional double jeopardy
                principles, we agree that his argument is not preserved
                because [c]onstitutional questions not raised and passed on
                by the trial court will not ordinarily be considered on
                appeal.”). Because we are bound to follow the Supreme
                Court, we hold that defendant’s argument is not preserved.

State v. Williams, 215 N.C. App. 412, 425, 715 S.E.2d 553, 561 (2011) (citations

omitted); see also Flaugher, 214 N.C. App. at 388, 713 S.E.2d at 590 (Hargett is

inconsistent with Supreme Court cases holding that a defendant cannot raise a

sentencing-based constitutional argument for the first time on appeal – because the

defendant failed to raise double jeopardy issue at sentencing, issue was not preserved

for appellate review). “Because we are bound to follow the Supreme Court,” our

Supreme Court’s unabated application of Rule 10(a)(1) to sentencing hearings post-

Canady must control over opinions of this Court holding otherwise. Williams, 215

N.C. App. at 425, 715 S.E.2d at 561.8


8 We note that Supreme Court opinions filed subsequent to Canady call into question even the more
limited reading of its holding. State v. Thompson, 359 N.C. 77, 107, 604 S.E.2d 850, 871 (2004) (failure



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                                          Opinion of the Court



                                2. Failure to Continue Sentencing

        Defendant’s first two arguments – that the trial court erred in Defendant’s

sentencing because a judge different from the one who presided over the trial issued

the sentence, and the sentencing judge improperly “overruled” a prior order of the

trial judge – are essentially arguments that the trial court erred in failing to continue

sentencing until the original trial court judge was available to conduct the sentencing

hearing. We do not address Defendant’s arguments because they have not been

preserved for appellate review.

        When Defendant presented for sentencing, her counsel indicated Defendant

was ready and prepared to proceed. Defendant did not request a continuance, nor

did she make any objection to the commencement of sentencing. When the trial court

asked at the conclusion of sentencing if Defendant’s counsel had any questions,

Defendant’s counsel responded: “None from the defense.”                        Our Supreme Court

rejected a similar argument in State v. Call, in which the “defendant contend[ed] the

trial court committed reversible error by failing to exercise its discretion when it

declined to continue defendant’s capital sentencing proceeding.” State v. Call, 353


to object to two of seven aggravating factors resulted in those two aggravating factors not being
preserved for appellate review pursuant to Rule 10(a)(1)); State v. Bell, 359 N.C. 1, 30–31, 603 S.E.2d
93, 113–14 (2004) (failure to object to submission of certain aggravating circumstances at sentencing
violated Rule 10(a)(1) and issue was not preserved for appellate review); State v. Tirado, 358 N.C. 551,
598–99, 599 S.E.2d 515, 546 (2004) (citations omitted) (the defendant “did not object, as required by
Rule 10[(a)](1) of the Rules of Appellate Procedure, to the trial court’s submission of any of these three
aggravating circumstances, either alone or in combination with one another. Under these
circumstances, we review for plain error”).



                                                 - 31 -
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                                         Opinion of the Court



N.C. 400, 415, 545 S.E.2d 190, 200 (2001). Our Supreme Court refused to review the

defendant’s argument because

                 [t]he record . . . demonstrates that defendant neither
                 requested a continuance nor objected to the trial court’s
                 response to the prosecutor’s suggested course of action.9
                 Thus, the trial court was never called upon by defendant to
                 exercise its discretion, and defendant has failed to preserve
                 this issue for appellate review. See N.C. R. App. P.
                 10[(a)](1); State v. Smith, 352 N.C. 531, 557-58, 532 S.E.2d
                 773, 790 (2000). Accordingly, this [argument] is rejected.

Call, 353 N.C. at 415-16, 545 S.E.2d at 200-01.

          We hold that Defendant has waived any argument that the sentencing hearing

should not have been conducted at that particular time, or in front of that particular

judge, by failing to either object to the commencement of the hearing, or request a

continuance thereof. Id. at 415-16, 545 S.E.2d at 200-01. This argument is without

merit.

                                      3. Eighth Amendment

          Defendant argues that imposition of “consecutive sentences of 70 to 93 months

on a 72-year-old first offender for a single drug transaction” violated Defendant’s

Eighth Amendment right that her sentence to be proportional to her crime.

Defendant argues that her failure to object to her sentence at the sentencing hearing




9   The prosecutor had suggested a continuance.

                                                  - 32 -
                                 STATE V. MEADOWS

                                  Opinion of the Court



did not serve to waive her right to appellate review based upon the Hargett line of

cases interpreting Canady.

      We have determined that the Hargett line of cases are in conflict with

controlling precedent, and cannot serve to mitigate Defendant’s failure to object at

trial as required by Rule 10(a)(1). Therefore, Defendant has waived appellate review

of the alleged constitutional violation by failing to object at sentencing. Davis, 353

N.C. at 20, 539 S.E.2d at 257; Flippen, 349 N.C. at 276, 506 S.E.2d at 710 (“Defendant

further waived review of any constitutional issue by failing to raise a constitutional

issue at the sentencing proceeding.”); Freeman, 185 N.C. App. at 413-14, 648 S.E.2d

at 881 (Eighth Amendment argument that sentence was grossly disproportionate to

the crime was abandoned because the defendant failed to object at trial).

                                4. Abuse of Discretion

      Defendant argues that the trial court abused its discretion in sentencing her

to two consecutive sentences, and only consolidating the third conviction for

sentencing. Defendant argues that this issue was preserved, even absent objection,

pursuant to Hargett and its progeny. To the extent Defendant failed to preserve this

issue pursuant to Rule 10(a)(1), it has been waived.

      Assuming, arguendo, this issue was preserved at trial, we reject Defendant’s

argument.    At sentencing, Defendant argued for consolidated sentences in the

mitigated range. The mandated sentence for trafficking in more than four but less



                                         - 33 -
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                                   Opinion of the Court



than fourteen grams of opium is a minimum of seventy months and a maximum of

ninety-three months. N.C. Gen. Stat. § 90-95(h)(4)(a.) (2015). The trial court may

only deviate from N.C.G.S. § 90-95(h)(4)(a.) if the defendant to be sentenced has

provided law enforcement “substantial assistance” in identifying, arresting or

convicting others who have participated in the crime for which the defendant is

convicted.    N.C.G.S. § 90-95(h)(5).    Defendant was given the seventy months

minimum, ninety-three months maximum sentence required by statute for each of

her three trafficking convictions. However, although Defendant requested that each

sentence run concurrently, the trial court ordered that two of Defendant’s sentences

run concurrently, but that those two sentences run consecutive to the third

conviction.

              “When multiple sentences of imprisonment are imposed on
              a person at the same time . . . the sentences may run either
              concurrently or consecutively, as determined by the court.”
              N.C. Gen. Stat. § 15A–1354(a) (2009). The trial court has
              the discretion to determine whether to impose concurrent
              or consecutive sentences.

State v. Nunez, 204 N.C. App. 164, 169–70, 693 S.E.2d 223, 227 (2010). A sentence

within the provided statutory range will be presumed correct unless “‘the record

discloses that the [trial] court considered irrelevant and improper matter in

determining the severity of the sentence[.]’” State v. Johnson, 320 N.C. 746, 753, 360

S.E.2d 676, 681 (1987) (citations omitted).        In the present case, the trial court

sentenced Defendant to a minimum of 140 months, which is seventy months less than


                                          - 34 -
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                                   Opinion of the Court



the 210 months allowed by statute. Defendant has failed to show that the sentence

imposed constituted an abuse of discretion. This argument is without merit.

                                    III. Conclusion

      We hold that (1) Defendant was not denied effective assistance of counsel

because any errors made by Defendant’s counsel did not result in prejudice sufficient

to sustain an IAC claim; (2) the holdings in Hargett and its progeny that “[o]ur

Supreme Court [in Canady] has held that an error at sentencing is not considered an

error at trial for the purpose of N.C. Rule 10[(a)](1)[,]” Hargett, 157 N.C. App. at 92,

577 S.E.2d at 705, are contrary to prior opinions of this Court, and contrary to both

prior and subsequent holdings of our Supreme Court, and do not constitute binding

precedent; (3) Defendant has failed to preserve her sentencing arguments for

appellate review as required by Rule 10(a)(1); and (4) Defendant’s argument that the

trial court abused its discretion fails, even assuming it was preserved for appellate

review.

      NO ERROR.

      Judge STROUD concurs.

      Judge MURPHY concurs in the result only.




                                          - 35 -
