              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-776

                               Filed: 15 March 2016

Wake County, Nos. 14 CRS 206568; 14 CRS 1819

STATE OF NORTH CAROLINA

             v.

KIM SYDNOR, Defendant.


      Appeal by defendant from judgment entered 19 November 2014 by Judge

Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals

16 December 2015.


      Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn J.
      Thomas, for the State.

      WARD, SMITH & NORRIS, P.A., by Kirby H. Smith, III, for defendant.


      ELMORE, Judge.


      Kim Sydnor (defendant) was found guilty of assault on a female, habitual

misdemeanor assault, and attaining the status of an habitual felon. The trial court

sentenced defendant to a term of 88 to 118 months imprisonment and ordered him to

pay $5,000.00 in restitution. After review, we vacate defendant’s sentence and the

trial court’s award of restitution, and we remand for resentencing and a new hearing

on restitution.

                                  I. Background
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                                  Opinion of the Court



      On 22 March 2014, Wake County sheriff’s deputies were called to the home of

Willie Brown where they found Joynita Sydnor with injuries to her face. Ms. Sydnor

told the deputies that she and her husband, defendant, had gotten into an argument

when defendant hit her in the face. The deputies interviewed Mr. Brown and another

witness at the scene, Nellie Jernigan, who corroborated Ms. Sydnor’s statement.

After speaking with the deputies, Ms. Sydnor was transported to WakeMed Hospital

in Raleigh and treated for her injuries. A warrant for defendant’s arrest was issued

thereafter.

      On 24 June 2014, the Wake County Grand Jury returned a four-count

indictment against defendant. Counts one and three charged defendant with the

principal misdemeanor offenses of assault on a female and simple assault,

respectively, and counts two and four charged defendant with habitual misdemeanor

assault. Each count of habitual misdemeanor assault alleged that defendant had

previously been convicted of two assault offenses: (1) misdemeanor assault on a

female on 14 August 2000, and (2) felony assault inflicting serious bodily injury on 30

May 2007. Defendant was charged in a separate indictment for attaining the status

of an habitual felon based on three prior felony convictions: (1) sale of counterfeit

controlled substances on 10 August 2000; (2) possession of cocaine on 14 March 2003;

and (3) assault inflicting serious bodily injury on 30 May 2007.




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                                  Opinion of the Court



      The case came to trial on 17 November 2014 in Wake County Superior Court.

The jury found defendant guilty of assault on a female, and not guilty of simple

assault. Defendant stipulated that his two prior assault convictions, as alleged in the

principal indictment, rendered him eligible to be prosecuted for habitual

misdemeanor assault. Defendant also pleaded guilty to habitual felon status based

on the three prior felony convictions alleged in the habitual felon indictment.

      At sentencing, the trial court calculated thirteen prior record points, resulting

in a prior record level IV. The court sentenced defendant as an habitual felon,

elevating the habitual misdemeanor assault conviction from a Class H to a Class D

felony, and imposed an active sentence of 88 to 118 months imprisonment with credit

for 236 days served. The trial court also ordered defendant to pay $5,000.00 in

restitution to WakeMed for Ms. Sydnor’s unpaid medical bills. Defendant timely

appeals.

                                   II. Discussion

A. Habitual Felon Status

       Defendant first argues that the habitual felon indictment against him was

fatally defective because the State used the same conviction, felony assault inflicting

serious bodily injury, to support habitual felon status and to enhance the assault on

a female charge to habitual misdemeanor assault. Defendant contends, therefore,

that the trial court had no jurisdiction to sentence him as an habitual felon.



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                                   Opinion of the Court



       “[W]here an indictment is alleged to be invalid on its face, thereby depriving

the trial court of its jurisdiction, a challenge to that indictment may be made at any

time, even if it was not contested in the trial court.” State v. Wallace, 351 N.C. 481,

503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). This

Court “review[s] the sufficiency of an indictment de novo.” State v. McKoy, 196 N.C.

App. 650, 652, 675 S.E.2d 406, 409 (2012).

      Pursuant to North Carolina’s Habitual Felon Act, “[a]ny person who has been

convicted of or pled guilty to three felony offenses . . . is declared to be an habitual

felon and may be charged as a status offender pursuant to this Article.” N.C. Gen.

Stat. § 14-7.1 (2015). To put the defendant on notice “that he is being prosecuted for

some substantive felony as a recidivist,” State v. Allen, 292 N.C. 431, 436, 233 S.E.2d

585, 588 (1977), the principal felony and habitual felon status must be charged in

separate indictments, N.C. Gen. Stat. § 14-7.3 (2015). The habitual felon indictment

must include “the three prior felony convictions relied on by the State . . . .” State v.

Cheek, 339 N.C. 725, 729, 453 S.E.2d 862, 865 (1995); see also N.C. Gen. Stat. § 14-

7.3 (2015) (setting forth the requirements for a valid habitual felon indictment). Upon

conviction of the principal felony and, subsequently, attaining habitual felon status,

the defendant “must . . . be sentenced and punished as an habitual felon . . . .” N.C.

Gen. Stat. § 14-7.2 (2015). Habitual felon status “is not a crime in and of itself,” State

v. Kirkpatrick, 345 N.C. 451, 454, 480 S.E.2d 400, 402 (1997), but a “status justifying



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                                   Opinion of the Court



an increased punishment for the principal felony.” State v. Priddy, 115 N.C. App.

547, 549, 445 S.E.2d 610, 612 (1994) (citation omitted).

      North Carolina’s habitual misdemeanor assault statute, which is partly

recidivist in nature, provides as follows:

             A person commits the offense of habitual misdemeanor
             assault if that person violates any of the provisions of G.S.
             14-33 and causes physical injury, or G.S. 14-34, and has
             two or more prior convictions for either misdemeanor or
             felony assault . . . . A person convicted of violating this
             section is guilty of a Class H felony.

N.C. Gen. Stat. § 14-33.2 (2015).            Unlike habitual felon status, “habitual

misdemeanor assault ‘is a substantive offense and a punishment enhancement (or

recidivist, or repeat-offender) offense.’ ” State v. Carpenter, 155 N.C. App. 35, 49, 573

S.E.2d 668, 677 (2002) (quoting State v. Vardiman, 146 N.C. App. 381, 385, 552

S.E.2d 697, 700 (2001), cert. denied, 537 U.S. 833, 154 L. Ed. 2d 51 (2002)). The

statute treats the defendant’s prior assault convictions as elements of habitual

misdemeanor assault. It does not, however, “ ‘impose punishment for [these] previous

crimes,’ ” but instead “ ‘imposes an enhanced punishment’ for the latest offense.”

Vardiman, 146 N.C. App. at 385, 552 S.E.2d at 700 (quoting State v. Smith, 139 N.C.

App. 209, 214, 533 S.E.2d 518, 521 (2000)); see also Carpenter, 155 N.C. App. at 48,

573 S.E.2d at 676–77 (citing prior decisions that note similarities between habitual

misdemeanor assault statute and habitual impaired driving statute).




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                                  Opinion of the Court



      Although the habitual felon statute and the habitual misdemeanor assault

statute have both survived constitutional challenges based on double jeopardy, see

State v. Todd, 313 N.C. 110, 117–18, 326 S.E.2d 249, 253 (1985) (holding habitual

felon statute constitutional); Carpenter, 155 N.C. App. at 50, 573 S.E.2d at 678

(holding habitual misdemeanor assault statute constitutional), our decisions have

recognized limitations on using the same prior convictions to support an habitual

offense and to increase a defendant’s prior record level at sentencing.

      A prior conviction used to establish habitual felon status, for example, may not

also be used to determine a defendant’s prior record level at sentencing. N.C. Gen.

Stat. § 14-7.6 (2015); State v. Wells, 196 N.C. App. 498, 502–03, 675 S.E.2d 85, 88

(2009); State v. Miller, 168 N.C. App. 572, 575–76, 608 S.E.2d 565, 567 (2005); State

v. Lee, 150 N.C. App. 701, 703–04, 564 S.E.2d 597, 598–99 (2002); State v. Bethea,

122 N.C. App. 623, 626, 471 S.E.2d 430, 432 (1996). As we explained in State v.

Bethea,

             there are two independent avenues by which a defendant’s
             sentence may be increased based on the existence of prior
             convictions. A defendant’s prior convictions will either
             serve to establish a defendant’s status as an habitual felon
             pursuant to G.S. 14-7.1 or to increase a defendant’s prior
             record level pursuant to G.S. 15A-1340.14(b)(1)–(5). G.S
             14-7.6 establishes clearly, however, that the existence of
             prior convictions may not be used to increase a defendant’s
             sentence pursuant to both provisions at the same time.


Bethea, 122 N.C. App. at 626, 471 S.E.2d at 432.


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                                  Opinion of the Court



      Likewise, a prior conviction used to support the offense of habitual impaired

driving may not also be used to increase a defendant’s prior record level. State v.

Gentry, 135 N.C. App. 107, 111, 519 S.E.2d 68, 70–71 (1999) (“We believe it is

reasonable to conclude that that same legislature did not intend that the convictions

which elevate a misdemeanor driving while impaired conviction to the status of the

felony of habitual driving while impaired, would then again be used to increase the

sentencing level of the defendant.”).

      In addition, a conviction for habitual misdemeanor assault may “not be used

as a prior conviction for any other habitual offense statute.” N.C. Gen. Stat. § 14-

33.2; State v. Shaw, 224 N.C. App. 209, 212, 737 S.E.2d 596, 598 (2012) (“A prior

habitual misdemeanor assault conviction may not . . . be utilized as a predicate felony

for the purpose of establishing that a convicted defendant has attained habitual felon

status.”). Cf. State v. Holloway, 216 N.C. App. 412, 414–15, 720 S.E.2d 412, 413–14

(2011) (holding that a defendant convicted of the principal felony of habitual

misdemeanor assault may be sentenced as an habitual felon).

      This Court has held, however, that the same prior conviction may be used to

support an habitual misdemeanor offense and habitual felon status. In State v.

Misenheimer, 123 N.C. App. 156, 157, 472 S.E.2d 191, 192, cert. denied, 344 N.C. 441,

476 S.E.2d 128 (1996), the defendant was indicted for felony habitual impaired

driving and for attaining habitual felon status. The defendant argued that two of his



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                                    Opinion of the Court



prior convictions could not be used simultaneously to support the habitual impaired

driving conviction and to enhance his sentence as an habitual felon. Id. We first

noted that, pursuant to N.C. Gen. Stat. § 14-7.6, a court may not enhance a

defendant’s felony level to Class C “on the grounds he is an habitual felon” and also

place a defendant “in a higher presumptive range because of his prior record level,

when the increased presumptive range is based upon the same convictions which

make him an habitual felon.” Id. at 157–58, 472 S.E.2d at 192. We concluded,

however, that there was no similar statutory prohibition against using the

defendant’s prior convictions as elements of habitual impaired driving and to

establish his status as an habitual felon. Id. at 158, 472 S.E.2d at 192–93.

      We reaffirmed our holding from Misenheimer in State v. Glasco, 160 N.C. App.

150, 585 S.E.2d 257 (2003). In Glasco, the defendant argued that his constitutional

protection against double jeopardy was violated because “the court used the offense

of possession with intent to sell and deliver cocaine to support both the underlying

substantive felony (the ‘felon’ portion of the offense of felon in possession of a firearm)

and the habitual felon indictment.” Id. at 160, 585 S.E.2d at 264. We rejected this

argument, explaining that “[o]ur courts have determined that elements used to

establish an underlying conviction may also be used to establish a defendant’s status

as a habitual felon.” Id. (citing Misenheimer, 123 N.C. App. at 158, 472 S.E.2d at

192–93).



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                                  STATE V. SYDNOR

                                  Opinion of the Court



      Applying our decisions from Misenheimer and Glasco to the case sub judice, we

conclude that the trial court had jurisdiction to sentence defendant as an habitual

felon. Defendant’s prior conviction for felony assault inflicting serious bodily injury

was alleged as a predicate offense to support the indictment charging him with

habitual misdemeanor assault.      That the same offense, felony assault inflicting

serious bodily injury, was also used as a predicate felony to establish defendant’s

status as an habitual felon does not render the indictment defective.

      The trial court did err, however, in calculating defendant’s prior record level.

In Section I of the sentencing worksheet, the court assigned four points for a single

“Prior Felony Class E or F or G Conviction.” The only Class E, F, or G felony

conviction listed in Section V of the worksheet was defendant’s 30 May 2007

conviction for “Assault Inflicting Serious Bodily Injury.” Because that same offense

was used to support the habitual misdemeanor assault conviction and establish

defendant’s status as an habitual felon, it could not also be used to determine

defendant’s prior record level at sentencing. N.C. Gen. Stat. § 14-7.6; Gentry, 135

N.C. App. at 111, 519 S.E.2d at 70–71. Had the conviction been properly excluded,

defendant would have been sentenced at a prior record level III instead of IV.

Accordingly, we vacate defendant’s sentence and remand for resentencing.

B. Restitution




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                                  STATE V. SYDNOR

                                  Opinion of the Court



       Defendant next argues that the trial court erred in ordering defendant to pay

$5,000.00 in restitution because the amount of the award was not supported by

competent evidence.

       A trial court’s entry of an award of restitution is deemed preserved for

appellate review under N.C. Gen. Stat. § 15A-1446(d)(18) even without a specific

objection. State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010); State v.

Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (citing State v. Reynolds,

161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003)).

      “[T]he amount of restitution recommended by the trial court must be supported

by evidence adduced at trial or at sentencing.” State v. Wilson, 340 N.C. 720, 726,

459 S.E.2d 192, 196 (1995) (citing State v. Daye, 78 N.C. App. 753, 756, 338 S.E.2d

557, 560, aff’d per curiam, 318 N.C. 502, 349 S.E.2d 576 (1986)); see also N.C. Gen.

Stat. § 15A-1340.36(a) (2015) (“The amount of restitution must be limited to that

supported by the record . . . .”). Where “there is some evidence as to the appropriate

amount of restitution,” the award will not be disturbed on appeal. State v. Hunt, 80

N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986). Our North Carolina Supreme Court

has explained that

             [i]n applying this standard our appellate courts have
             consistently engaged in fact-specific inquiries rather than
             applying a bright-line rule. Prior case law reveals two
             general approaches: (1) when there is no evidence,
             documentary or testimonial, to support the award, the
             award will be vacated, and (2) when there is specific


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                                   Opinion of the Court



                testimony or documentation to support the award, the
                award will not be disturbed.

State v. Moore, 365 N.C. 283, 285, 715 S.E.2d 847, 849 (2011).

      Moore, however, was one of those cases which, “like many others, [fell] in

between” the two approaches outlined above. Id. In Moore, the trial court ordered

the defendant to pay an aggrieved property owner $39,332.49 in restitution based on

the owner’s testimony that estimated repairs to her property “totaled ‘thirty-

something thousand dollars.’ ” Id. Our Supreme Court rejected the State’s argument

that the testimony was sufficient to support an award “anywhere between $30,000.01

and $39,999.99.” Id. at 285–86, 715 S.E.2d at 849. The Court held that “there was

‘some evidence’ to support an award of restitution; however, the evidence was not

specific enough to support the award of $39,332.49.” Id.

      Like the victim’s testimony in Moore, here Ms. Syndor’s testimony provides

“some evidence” to support a restitution award but is too vague to support the award

of $5,000.00.    The only evidence of the cost of Ms. Sydnor’s medical treatment was

her own testimony that her medical bills were “over $5,000,” but she was “not sure”

whether they were more than $6,000.00.             Contrary to the State’s position, her

testimony establishes only that her medical bills were in excess of $5,000.00. To hold

that this evidence is sufficient to support the $5,000.00 award would be to hold any

award more than $5,000.00 sufficient, as well. Therefore, we vacate the award and

remand to the trial court for a new hearing to determine the amount of Ms. Sydnor’s


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                                  Opinion of the Court



WakeMed hospital bills, and to calculate an amount of restitution supported by the

evidence. See Moore, 365 N.C. at 286, 715 S.E.2d at 849–50 (remanding “to determine

the amount of damage proximately caused by defendant’s conduct and to calculate

the correct amount of restitution”).

                                  III. Conclusion

      Although defendant’s prior offense of assault inflicting serious bodily injury

may be used to support convictions of habitual misdemeanor assault and habitual

felon status, it may not also be used to determine defendant’s prior record level. In

addition, our review of the record shows that Ms. Sydnor’s testimony was too vague

to support the award of restitution. We vacate defendant’s sentence and the trial

court’s award of restitution, and we remand for resentencing and a new hearing on

restitution.

      VACATED IN PART AND REMANDED.

      Judges CALABRIA and ZACHARY concur.




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