An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.



                               NO. COA13-1157
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


STATE OF NORTH CAROLINA

      v.                                        Duplin County
                                                Nos. 08 CRS 51563, 51567
LISTON TURNER



      Appeal by Defendant from judgment entered 28 February 2013

by Judge W. Douglas Parsons in Superior Court, Duplin County.

Heard in the Court of Appeals 29 April 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Elizabeth J. Weese, for the State.

      Law Office of Margaret C. Lumsden PLLC, by                     Margaret C.
      Lumsden, for Defendant-Appellant.


      McGEE, Judge.


      Liston Turner (“Defendant”) appeals from a judgment entered

on resentencing.        Defendant raises as errors the trial court’s

determination      that    Defendant      was    a   prior    record    level     VI

offender and the habitual felon sentence imposed.                  We affirm the

judgment.
                                      -2-
     A jury found Defendant guilty of breaking and/or entering,

larceny pursuant to breaking and/or entering, and possession of

stolen goods on 29 April 2009.              Defendant subsequently pleaded

guilty   to    attaining   habitual    felon       status.      At   Defendant’s

sentencing hearing, the trial court found that Defendant had six

prior Class H or I felony convictions resulting in twelve points

and seven prior Class A1 or 1 misdemeanor convictions resulting

in   seven    points,    for   a   total     of     nineteen     points   and    a

corresponding prior record level VI.               The trial court arrested

judgment      on   the   possession     of     stolen        goods   conviction,

consolidated       the   remaining    convictions       for      judgment,      and

sentenced Defendant to 168 to 211 months in prison.                  This Court

found no error on appeal.          State v. Turner, ___ N.C. App. ___,

723 S.E.2d 583 (2012) (COA 11-1205) (unpublished) (Turner I).

     Defendant      subsequently     filed     a    motion     for   appropriate

relief (MAR) with the trial court.             Defendant argued, in part,

that his prior record level was incorrectly calculated.                         The

trial court denied the MAR.          Defendant then filed a petition for

writ of certiorari with this Court seeking review of the order

denying his MAR.         By order filed 23 January 2013, this Court

allowed the petition, stating: “It appearing that [Defendant]

was incorrectly sentenced as a Prior Record Level VI felon (6
                                          -3-
rather than 7 misdemeanor points) the judgment [] is remanded

for resentencing.”

       The trial court held a resentencing hearing on 28 February

2013.        The    State        introduced     a   new       sentencing    worksheet.

Specifically, the State presented evidence of one point for a

Class    1      misdemeanor         conviction         for    possession      of      drug

paraphernalia in Duplin County                on    19 December 2006,            and one

point for the fact that “the elements of the present offense are

included in any prior offense[.]”                   Based on the new worksheet,

the    trial    court     concluded     Defendant       had    twenty    prior     record

points    and      was    a   prior     record      level     VI.       Defendant     was

resentenced as an habitual felon to 168 to 211 months in prison.

       Defendant         first     contends      the     trial      court     erred    in

resentencing him as a prior record level VI.                        Defendant asserts

this Court’s “decision that [D]efendant should be sentenced at

record level V was law of the case binding on the trial judge at

resentencing[.]”          We disagree.

       “For all intents and purposes the resentencing hearing is

de novo as to the appropriate sentence.”                      State v. Mitchell, 67

N.C.    App.    549,      551,    313   S.E.2d      201,      202   (1984).        “[T]he

resentencing court must take its own look at the evidence[.]”
                                         -4-
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).

      Defendant misinterprets this Court’s 23 January 2013 order.

Contrary to Defendant’s assertion, this Court did not order the

trial court to resentence Defendant at a prior record level V.

Rather, this Court determined that Defendant’s prior sentencing

worksheet showed Defendant had six, not seven, prior misdemeanor

convictions and remanded the case for resentencing.                    The trial

court    subsequently     held   a   resentencing      hearing   in   accordance

with this Court’s order.             As a de novo proceeding, the trial

court evaluated the new sentencing worksheet.                 The trial court

did     not   err   in    holding    a    de    novo   resentencing     hearing,

determining Defendant had twenty prior record level points, and

sentencing Defendant at a prior record level VI.

      Defendant also contends his sentence as an habitual felon

violates his right against cruel and unusual punishment because

the sentence was grossly disproportionate to the crime.                         We

disagree.

      “This    Court     and   the   North     Carolina   Supreme     Court   have

consistently rejected Eighth             Amendment challenges to habitual

felon sentences.”         State v. Cummings, 174 N.C. App. 772, 776,

622 S.E.2d 183, 185-86 (2005).             Similarly, our appellate courts
                                            -5-
have    previously        held       that   a     sentence       imposed        within     the

presumptive      range     of    the    Structured        Sentencing       Act      does   not

violate the Eighth Amendment.               See State v. Evans, 162 N.C. App.

540, 544, 591 S.E.2d 564, 567 (2004) (“North Carolina courts

have consistently held that when a punishment does not exceed

the    limits    fixed     by    the    statute,        the   punishment         cannot     be

classified as cruel and unusual in a constitutional sense.”).

“[T]his Court has on several occasions affirmed the sentence of

a   defendant     as     an     habitual        felon    where      the   defendant        was

convicted of an underlying Class H or Class I felony.”                               State v.

Clifton,   158     N.C.       App.    88,   95-96,      580   S.E.2d      40,       46   (2003)

(upholding a sentence of two consecutive terms of 168 to 211

months’ active imprisonment).

       In this case, Defendant was sentenced to 168 to 211 months’

imprisonment      not     only       because     of     the   two    Class      H    felonies

committed in 2008,            but also due to his significant                        criminal

history.    The trial court did not err in sentencing Defendant as

an habitual felon.

       Affirmed.

       Judges ELMORE and DAVIS concur.

       Report per Rule 30(e).
