An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                  NO. COA14-25

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 15 July 2014


STATE OF NORTH CAROLINA

      v.                                    Caldwell County
                                            Nos. 08 CRS 51489—90
DANNY RAY ANDERSON



      On writ of certiorari to review judgments entered 16 May

2011 by Judge Robert C. Ervin in Caldwell County Superior Court.

Heard in the Court of Appeals 30 June 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Nicholaos G. Vlahos, for the State.

      Franklin E. Wells, Jr., for defendant-appellant.


      BRYANT, Judge.


      Where defendant has a prior conviction for possession of a

firearm by a felon, that conviction may be used to both elevate

defendant’s     sentencing     status     and   to    increase     defendant’s

sentencing level.
                                             -2-
       On 2 June 2008, defendant was indicted for first-degree

murder and possession of a firearm by a felon.                            The possession

of a firearm by a felon indictment alleged that defendant had

previously pled guilty to the Class F felony of possessing a

weapon of mass destruction in Burke County on 15 October 2003.

       In the instant matter, the State’s evidence tended to show

the    following.        On    23    May   2008,     defendant      and    his   landlord

argued after defendant received an eviction notice.                              The next

day,    the     two    had    another      argument,       during    which       defendant

retrieved a rifle from his basement residence.                       Defendant waived

the rifle around, yelled at his landlord, and then shot his

landlord in the head.

       During     trial,       the     State       introduced       into     evidence      a

certified       copy     of    defendant’s         Burke      County       judgment      for

possession of a weapon of mass destruction.                         On 16 May 2011, a

jury    found    defendant       guilty      of    second-degree       murder      and   of

possession of a firearm by a felon.

       Following       the    return    of   the     jury’s    verdicts,      the     trial

court    conducted      a     sentencing      hearing.        The    State    offered      a

sentencing       worksheet       listing       defendant’s      prior       convictions.

Among the convictions listed was the 2003 felony possession of a

weapon of mass destruction conviction, which the State used to
                                              -3-
support the charge of possession of a firearm by a felon.                             The

trial court assigned four points for the felony possession of a

weapon of mass destruction conviction, and one point each for

the four Class 1 misdemeanors.                    The trial court found defendant

to be a prior level III based upon the eight prior record level

points.    Defendant was sentenced, as a prior record level III,

to 220 to 273 months for the second-degree murder conviction;

and as a prior record level III to 15 to 18 months for the

possession       of    a    firearm    by     a     felon   conviction.       Defendant

appeals.

                             ______________________________

      In   his    sole      argument     on       appeal,   defendant     contends    the

trial court erred in sentencing him as a prior record level III

for possession of a firearm by a felon.                     Citing State v. Gentry,

135 N.C. App. 107, 519 S.E.2d 68 (1999), defendant argues it is

unfair to use his 2003 felony conviction to establish both an

element of his possession of a firearm by a felon conviction and

to   calculate        his   prior     record      level.     We   disagree;    for,    as

acknowledged by defendant, we rejected this exact argument in

State v. Best, 214 N.C. App. 39, 713 S.E.2d 556, disc. review

denied, 365 N.C. 361, 718 S.E.2d 397 (2011).
                                    -4-
      In Gentry, this Court concluded that a defendant’s prior

record level for sentencing for habitual driving while impaired

(“DWI”) may not be calculated using previous DWI convictions

because they were the same convictions upon which her habitual

DWI charge was based.      Gentry, 135 N.C. App. at 111, 519 S.E.2d

at 70 (“[O]ur legislature recognized the basic unfairness and

constitutional restrictions on using the same convictions both

to   elevate   a   defendant’s    sentencing    status    to   that   of   an

habitual felon, and then to increase his sentencing level.”).

      In Best, this Court noted that “[we have] been unwilling to

apply   the    logic   utilized    in     [Gentry]   to   cases    involving

convictions for possession of a firearm by a convicted felon.”

Best,   214 N.C. App. at     52, 713 S.E.2d at 565.               This Court

reasoned:

            [G]iven that the mere possession of a
            firearm, unlike driving while impaired, is
            not a criminal offense, the sort of “double-
            counting” condemned   in Gentry, in which an
            act   already   declared   to    constitute   a
            criminal offense is punished more severely
            based on the defendant’s prior record,
            simply   does  not   occur    when   the   same
            conviction is utilized to both establish the
            defendant’s guilt of the underlying offense
            and to calculate his prior record level
            utilized in sentencing him for that offense.

Id. at ___, 713 S.E.2d at 566.
                                        -5-
       Nevertheless, defendant asks this Court to apply the logic

of Gentry to his case and direct the trial court to resentence

him as a prior record level II.            We are unable to do so and hold

that Best is controlling.              See In re Civil Penalty, 324 N.C.

373, 384, 379 S.E.2d 30, 37 (1989) (“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.”

(citations omitted)).             Because possession of a firearm by a

felon       is   a    substantive    offense      rather       than       a   sentencing

enhancement, defendant’s 2003 conviction was not improperly used

to    “to    elevate      [his]   sentencing     status    .    .     .   and   then   to

increase his sentencing level.”                Gentry, 135 N.C. App. at 111,

519    S.E.2d        at   70.     Accordingly,    the     trial       court     properly

sentenced defendant as a level III offender.

       No error.

       Judges STROUD and HUNTER, Robert N., Jr., concur.

       Report per Rule 30(e).
