An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-872
                     NORTH CAROLINA COURT OF APPEALS

                          Filed:    21 January 2014


STATE OF NORTH CAROLINA,

      v.                                 Rowan County
                                         Nos. 11 CRS 054373, 004870
JASON WYLIE JOHNSON,
     Defendant.


      Appeal by defendant from judgment entered 20 February 2013

by Judge W. Erwin Spainhour in Rowan               County Superior Court.

Heard in the Court of Appeals 6 January 2014.


      Roy Cooper, Attorney General, by Allison                    A.    Angell,
      Assistant Attorney General, for the State.

      Richard J. Costanza, for defendant-appellant.


      MARTIN, Chief Judge.


      Defendant Jason Wylie Johnson was indicted for misdemeanor

larceny    and   felonious    breaking    or   entering     a   motor   vehicle

(principal felony).        He also was later indicted as a habitual

felon.     A jury found defendant guilty of the principal felony,

and he then entered a guilty plea to the habitual felon charge.

      The facts relevant to the issue on appeal are that Jerry
                                 -2-
Dean, a North Carolina Alcohol Law Enforcement agent, observed

defendant break into a car belonging to Jason Carey.        Agent Dean

spoke with Mr. Carey who reported that a GPS, camera, purse, and

car jack were missing from his car.      When Agent Dean confronted

defendant, he admitted to taking the items out of Mr. Carey’s

car and said that they were in his vehicle.

    During   the   charge   conference   for   the   principal   felony

trial, defendant sought to introduce into evidence a signed plea

transcript and have the court accept his guilty plea to the

habitual felon charge.      The trial court refused to accept the

signed plea transcript and defendant’s plea.         Defendant further

explained that he wanted to introduce the plea so his habitual

felon status would not be speculative, and he could inform the

jury that he faced a minimum of 66 months in prison if found

guilty of the principal felony.        The trial court again denied

defendant’s motion.

    The jury was instructed as to the elements of the principal

felony and returned a guilty verdict.          The trial court then

accepted defendant’s guilty plea to the habitual felon charge

and sentenced him to 90 to 117 months in prison.             Defendant

appeals.

                       _________________________

    Defendant asserts that during his closing argument for the
                                            -3-
principal felony trial, he should have been allowed to inform

the jury, without mentioning the word “habitual,” that if found

guilty of the principal felony he faced a minimum sentence of 66

months    in    prison      because    of   his   habitual     felon       status.     We

disagree.

    Defendant’s argument is based on N.C.G.S. § 7A-97, which

provides that “[i]n jury trials the whole case as well of law as

of fact may be argued to the jury.”                       N.C. Gen. Stat. § 7A-97

(2013).        In    this    case,    the   trial    court’s   ruling       involved    a

question of law because it refused to allow defendant to argue a

point of law to the jury which N.C.G.S. § 7A-97 allows.                              As a

result, we apply a de novo standard of review.                         See State v.

Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011).                          Under de

novo review, we “consider the matter anew and freely substitute

[our] own judgment for that of the lower tribunal.”                            State v.

Williams,      362    N.C.    628,    632–33,     669     S.E.2d    290,    294    (2008)

(internal quotation marks omitted).

    Defendant          acknowledges,        in      his    brief,    that     we     have

previously rejected similar arguments in State v. Wilson, 139

N.C. App. 544, 533 S.E.2d 865, disc. review denied, 353 N.C.

279, 546 S.E.2d 394 (2000), appeal after remand, 149 N.C. App.

233, 562 S.E.2d 304 (2002), and State v. Dammons, 159 N.C. App.

284, 583 S.E.2d 606, disc. review denied, 357 N.C. 579, 589
                                   -4-
S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 158 L. Ed. 2d 382

(2004).       Defendant,   however,      argues     that    this   case   is

distinguishable because he “effectively admitted to his habitual

felon status before closing arguments,” and he did not intend to

use the word “habitual” in his closing argument.               To determine

the merits of these distinctions, we review Wilson and Dammons.

      In Wilson, the defendant argued that he should have been

allowed to inform the jury during his closing argument at the

principal felony trial that if found guilty of the principal

felony he might face a maximum of 210 months in prison because

of his habitual felon status.       Wilson, 139 N.C. App. at 547, 533

S.E.2d at 868.    In Wilson, we concluded that the defendant could

not “argue to the jury the punishment he might receive as a[]

habitual felon if found guilty of the principal offense.”                 Id.

at 549, 533 S.E.2d at 869.          In reaching this conclusion, we

observed that a defendant does have “the right to inform the

jury of the punishment that may be imposed upon conviction of

the crime for which he is being tried.”           Id. at 548, 533 S.E.2d

at   868   (emphasis   added)   (internal   quotation      marks   omitted).

However, this principle does not stand for the proposition that

a defendant    can “inform the jury, during a              principal   felony

trial, of the possible maximum sentence which might be imposed

upon a[] habitual felon adjudication.”        Id.
                                          -5-
       We   further    noted        that,       N.C.G.S.       §     14-7.5      requires

bifurcation of the principal felony trial and the habitual felon

trial.      Id.   This bifurcation achieves three purposes.                           First,

it prevents arguments relating to habitual felon status during

the    principal      felony      trial        because      the       habitual         felon

“indictment [is] revealed to the jury only upon conviction of

the    principal    felony.”          Id.         Second,       bifurcation           avoids

potential     prejudice      “and     further        precludes        the      jury    from

contemplating what punishment might be imposed were defendant

convicted of the principal felony and subsequently adjudicated

a[]    habitual    felon.”        Id.     at    548,     533       S.E.2d   at    868–69.

Finally, bifurcation allows for two different standards of proof

in the principal felony trial and the habitual felon trial.                             Id.

at 549, 533 S.E.2d 869.

       In Dammons, the defendant sought to inform the jury during

his    closing    argument   that       if   found     guilty       of   the    principal

felony he would be sentenced as a Class C felon because of his

status as a habitual felon.             Dammons, 159 N.C. App. at 295, 583

S.E.2d at 613.      The defendant argued that his situation differed

from     Wilson   because    he     had      been    previously          adjudicated       a

habitual felon, and, as a result, he could not relitigate his

habitual felon status.            Id. at 296, 583 S.E.2d at 613.                         The

defendant in Dammons, however, did litigate his habitual felon
                                        -6-
status,    and    we   held   that    Wilson’s      holding    that   a    defendant

cannot argue the punishment he might receive if found guilty of

a principal felony precluded the defendant’s argument.                     Id.

    While defendant argues that his case is unlike Wilson and

Dammons because he “effectively admitted to his habitual felon

status before closing arguments” in the principal felony trial

by introducing a plea transcript and his plea to the habitual

felon charge, we do not find that this distinction warrants a

different       result.       In   Wilson,     we    clearly    recognized         that

N.C.G.S.    §    14-7.5   establishes     an    order   of     proceedings       which

requires that the principal felony trial take place before the

habitual felon trial.            Wilson, 139 N.C. App. at 548, 533 S.E.2d

at 868.         Therefore, defendant’s distinction is without merit

because he could not plead to the habitual felon charge before

the completion of the principal felony trial.

    Defendant          further     attempts    to     distinguish         Wilson     by

asserting that         the concern    in Wilson       was that the defendant

would reveal the existence of the habitual felon indictment to

the jury, and, in this case, defendant was not going to use the

word “habitual” in his closing argument.                While in Wilson we did

note that a habitual felon indictment is revealed to a jury only

after a defendant is found guilty of the principal felony, this

observation was used to explain that there must be a verdict in
                                     -7-
the   principal    felony   trial   before   addressing    a     defendant’s

habitual felon status.      Hence, this distinction is without merit

regardless of whether the word “habitual” is used, because the

language of N.C.G.S § 14-7.5 “logically preclude[s] argument of

issues pertaining to the habitual felon proceeding, specifically

and   particularly   including      punishment,   during   the    principal

felony   trial.”      Id.      Therefore,    defendant’s       attempts   to

distinguish his case are without merit and we find no error.

      No Error.

      Judges ERVIN and McCULLOUGH concur.

      Report per Rule 30(e).
