An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-437
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 2 December 2014


STATE OF NORTH CAROLINA

      v.                                      Rutherford County
                                              Nos. 12 CRS 52994 & 13 CRS 927
WILLIAM TODD SCRUGGS



      Appeal by defendant from judgment entered 9 October 2013 by

Judge   J.   Thomas     Davis    in   Rutherford     County     Superior     Court.

Heard in the Court of Appeals 24 September 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Teresa M. Postell, for the State.

      Anne Bleyman, for defendant-appellant.


      STEELMAN, Judge.


      The trial court properly charged the jury on the statutory

requirement that defendant’s violation of a domestic violence

protective order must be knowing.             Defendant was not entitled to

the requested jury instruction on intent.                  Where defendant has

no   right   to   appeal    issues    regarding     his    guilty    plea,    those

arguments are dismissed.
                                        -2-
                          I. Factual & Procedural History

      William     Todd     Scruggs     (“defendant”)     and   Sandra        Scruggs

Mulray (“Sandra”) were married, but separated on 16 June 2010.

On   the   day    before    the     separation,   15    June   2010,    defendant

assaulted Sandra and threatened to kill her.                    Following this

incident, defendant moved out of their marital residence and

Sandra obtained a one-year domestic violence protective order

against defendant, which was valid from 28 June 2010 until 28

June 2011.       The domestic violence protective order required that

defendant    “not    assault,       threaten,   abuse,    follow,      harass   (by

telephone, visiting the home or workplace or other means), or

interfere with [Sandra]” and that defendant “stay away” from

Sandra’s residence.

      On    18   August     2010,     defendant   was    convicted      of     three

separate counts of violating the domestic violence protective

order.     The protective order was later renewed for another two

years, making the expiration date 28 June 2013.

      On 14 September 2012, at approximately 8:40 p.m., Sandra

and Tracer Malray (“Tracer”), Sandra’s then boyfriend, arrived

at Sandra’s residence.         As Sandra and Tracer walked to the front

door of the residence, they observed a truck suddenly turn its

headlights off and come to a stop on the road in front of the
                                          -3-
residence.          Sandra     recognized       the      truck        as     belonging     to

defendant.      A     male     voice   from        the   truck        started       shouting

obscenities at Sandra including: “[y]ou effed up. I am going to

kick your ass”; “[y]ou F-ing whore”; and “[t]his ain’t over,

Sandra.”       Sandra        identified      the      voice      as        being   that     of

defendant.     The truck remained stopped on the road for two or

three minutes, revving its engine and spinning its tires before

it drove away.

    After the truck            left, Sandra called 911                     and   spoke with

Deputy     Thomas     Keever     of    the      Rutherford            County       Sheriff’s

Department.         Several     days   later,         Deputy     Keever          spoke    with

defendant over the telephone.             Defendant told Deputy Keever that

he had been drinking on the night in question when “he saw the

mother fucker standing out in the yard” and then proceeded to

ask “where was his bitch, slut, whore was at.”

    On 22 April 2013, defendant was indicted by the Rutherford

County grand jury for feloniously violating a domestic violence

protective order,1 and for attaining the status of an habitual

felon.     On 7 October 2013, defendant’s case was tried before

Judge Davis and a jury.          Defendant stipulated to the three prior



1
  N.C. Gen. Stat. § 50B-4.1(f) provides that a knowing violation
of a valid protective order becomes a felony when the defendant
has previously been convicted of two offenses under chapter 50B.
                                     -4-
violations of the domestic violence protective order.2             Defendant

also pled guilty to attaining the status of an habitual felon.

On 9 October 2013, defendant was found guilty of violating a

domestic violence protective order.          Defendant was sentenced as

an habitual felon to an active prison term of 84 to 113 months.

      Defendant appeals.

                          II. Jury Instructions

      In his first argument, defendant argues the trial court

should have instructed the jury in accordance with defendant’s

requested instruction on intent because intent is a substantive

or   material   feature   of   the   crime   of    violating   a    domestic

violence protective order.      We disagree.

                          A. Standard of Review

      “Assignments   of    error     challenging     the   trial     court’s

decisions regarding jury instructions are reviewed de novo[.]”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009).

      This Court reviews jury instructions contextually and
      in its entirety. The charge will be held to be
      sufficient if it presents the law of the case in such
      manner as to leave no reasonable cause to believe the
      jury was misled or misinformed. The party asserting

2
  By admitting the prior violations of the domestic violence
protective order, defendant avoided having the State introduce
evidence of the prior offenses before the jury.  See N.C. Gen.
Stat. § 15A-928.
                                  -5-
       error bears the burden of showing that the jury was
       misled or that the verdict was affected by the
       instruction. Under such a standard of review, it is
       not enough for the appealing party to show that error
       occurred in the jury instructions; rather, it must be
       demonstrated that such error was likely, in light of
       the entire charge, to mislead the jury.

State v. Blizzard, 169 N.C. App. 285, 296–97, 610 S.E.2d 245,

253    (2005) (internal   quotation   marks,   brackets,   and   ellipses

omitted) (quoting Bass v. Johnson, 149 N.C. App. 152, 160, 560

S.E.2d 841, 847 (2002)).

                              B. Analysis

       N.C. Gen. Stat. § 50B-4.1 provides that it is a criminal

offense for a person to “knowingly violate[] a valid protective

order” entered pursuant to chapter 50B.          With respect to this

offense, the trial court instructed the jury:

       For you to find the defendant guilty of this offense,
       the State must prove three things beyond a reasonable
       doubt:   First,   that   a  valid  domestic  violence
       protective order had been issued pursuant to North
       Carolina law; second, that the defendant violated the
       valid domestic violence protective domestic order by
       stopping in front of the residence of Sandra Lynn
       Scruggs and yelling at her; [and] third, that the
       defendant did so knowingly.

       The instruction given by the trial court substantively and

accurately conveyed to the jury what constitutes the offense of

violating a valid protective order under N.C. Gen. Stat. § 50B-

4.1.    Defendant argues that intent is a substantive or material
                                             -6-
feature of violating a protective order, and contends that the

trial     court      should     have    given       the        instruction       on     intent

requested by defendant.           However, N.C. Gen. Stat. § 50B-4.1 only

requires that a defendant must have knowingly violated a valid

protective order.            The trial court correctly charged the jury

that    they     must    find    that    defendant         knowingly          violated       the

domestic violence protective order.

       Further, even if the trial court had given the requested

instruction on intent, it would not have changed the outcome of

the     trial.        Defendant’s       requested         instruction           would    have

informed the jury that intent “must ordinarily be proved by

circumstances from which it may be inferred.”                                N.C.P.I. Crim.

120.10.        The    circumstances          present      in    this    case     show     that

defendant parked his truck on the road in front of Sandra’s

residence      while     shouting       obscenities            at    her.       It    strains

credibility that a jury could examine defendant’s actions and

conclude that defendant did not have the intent to violate the

terms of the valid protective order.                      Defendant did not simply

drive by Sandra’s residence.                 Instead, he parked his car on the

road    in   front      of   Sandra’s    residence,            and    repeatedly        yelled

threats and obscenities at her.                    Given defendant’s conduct and

the    clear     provisions     of     the    protective            order,    there     is   no
                                        -7-
reasonable likelihood that a jury would have found that the

State failed to prove an intent to violate the order.                      Defendant

cannot demonstrate that the jury’s verdict was affected by the

trial court’s refusal to give defendant’s requested instruction

on intent.

    Defendant’s argument is without merit.

                       III. Habitual Felon Guilty Plea

    In     his      second,    third,   and     fourth       arguments,    defendant

contends that the trial court erred in accepting his plea of

guilty   to    habitual       felon   status;    and     sentencing       him    as   an

habitual felon because: (1) there was not a sufficient factual

basis    for   the    plea;     (2)   the   trial   court       failed     to    inform

defendant      of   the   maximum     possible    or     the    mandatory       minimum

sentence that he could receive, and therefore the plea was not

an informed choice; and (3) that the status of habitual felon

violates defendant’s constitutional right to be free from cruel

and unusual punishment.          We disagree.

    “[U]nder         N.C.G.S.    §    15A-1444(e),       a     defendant    who       has

entered a plea of guilty is not entitled to appellate review as

a matter of right, unless the defendant is appealing sentencing

issues or the denial of a motion to suppress, or the defendant

has made an unsuccessful motion to withdraw the guilty plea.”
                                     -8-
State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870

(2002).     None of defendant’s claims regarding his guilty plea

involve an issue that is entitled to appellate review and all of

defendant’s arguments regarding his guilty plea are dismissed.

Defendant has filed a petition for a writ of certiorari.                In our

discretion we deny defendant’s petition for writ of certiorari.

    Even    assuming      arguendo   that   these    issues   were   properly

before    this   court,   defendant’s      arguments   are    without   merit.

Defendant asserts that there was not a sufficient factual basis

for his guilty plea.         This assertion is based solely upon the

argument that the allegations contained in the indictment were

the sole factual basis for the plea.                However, this claim is

belied by the record.         At the close of the State’s evidence,

defendant elected to admit his prior convictions of violating a

domestic violence protective order.             At this time, defendant

also pled guilty to having obtained the status of an habitual

felon.    The trial court went over the three prior felonies that

were the basis for the habitual felon charge as follows:

    THE COURT: At this time, too, I need to know whether
    your client is going to admit, deny, or remain silent
    as to the habitual felon status and admit the guilt as
    to that status set out in that indictment . . .
    consisting of a conviction on March 20, 1991 for
    felony to sell marijuana, and file No. 91 CRS 1017,
    and the date of that occurrence of that offense was
    November 6 of 1990.
                                       -9-


    The second felony that is alleged in the indictment
    was a felony attempted possession of a firearm by a
    convicted felon.    It’s in file No. 10 CRS 52176,
    conviction date of that was August 18, 2010, and the
    occurrence date of that offense was June 15 of 2010.

    The third felony conviction that is alleged in the
    indictment, it is a felony offense of domestic
    violence protective order violation. The file No. 11
    CRS 52549, conviction date of September 29, 2011, the
    occurrence date of July 31, 2011.

    Is your client going to admit the guilt as to those
    matters, also?

    ([Defendant’s counsel] nods head up and down.)

    THE COURT: We will need a separate transcript for
    those, also, that needs to be prepared.      I will go
    over the transcript with him in that regard.

    A plea transcript was subsequently prepared, and defendant

pled guilty before the trial court.              The only elements of the

offense of habitual felon status were the three prior felony

convictions.     See N.C. Gen. Stat. § 14-7.1 (2013).                 Since the

trial court had just gone over the three prior felonies with

defendant,     the    trial    court       stopped    the    prosecutor        from

enumerating the three prior felonies as a factual basis for the

plea,   and   referred   to    the   three     felonies     set   forth   in   the

indictment.      We   hold    that   the     State   presented    a   sufficient

factual basis for defendant’s plea to being an habitual felon.

    Defendant’s assertion that his plea was not valid because
                                         -10-
he was not informed of the sentence he was facing is undermined

by   the   prior   decisions       of   this    Court.      “When    reviewing   the

validity of a defendant’s plea, our courts have declined                          to

adopt a technical, ritualistic approach to determining whether

or not the plea was voluntary and intelligent.                         Instead, we

review the totality of the circumstances and determine whether

non-compliance      with     the    statute     either    affected     defendant’s

decision to plead or undermined the plea’s validity.”                       State v.

Szucs,     207   N.C.    App.    694,   701-702,    701     S.E.2d   362,    367-368

(2010) (internal citation and quotation marks omitted); see also

State v. Williams, 133 N.C. App. 326, 515 S.E.2d 80 (1999).

While      discussing      the     State’s      pre-trial     plea     offer     with

defendant, the trial court informed defendant that “[i]f you are

found guilty you could have to – assuming a Class D felony,

assuming a level 4 – you could have to serve as much as a 97

month minimum, 129 month maximum term”, which defendant stated

he understood.          When defendant later decided to plead guilty to

having obtained an habitual felon status, the trial court asked

defendant if he understood that an habitual felon status would

increase his potential punishment for feloniously violating a

protective order from a Class H to a Class D felony.                     Defendant

stated he understood the consequences of his plea.                          Although
                                      -11-
defendant’s plea transcript form is blank where the maximum and

minimum sentences should be set forth, this does not invalidate

his plea.      Under the totality of the circumstances, we hold that

defendant was aware of the direct consequences of his guilty

plea    and     he     entered      into     the    plea     voluntarily    and

understandingly.3

       Finally,      defendant    asserts    that   habitual     felon   status

violates his constitutional rights to be free from cruel and

unusual punishment.         However, this assertion contradicts well-

established precedent.           Defendant acknowledges that our Supreme

Court    has      repeatedly      rejected     arguments      contesting   the

constitutionality of habitual felon status. See e.g., State v.

Todd, 313 N.C. 110, 326 S.E.2d 249 (1985).                 This Court does not

have the authority to overrule decisions of our Supreme Court of

North Carolina.

       Defendant’s arguments are without merit.

       NO ERROR.

       Judges CALABRIA and McCULLOUGH concur.

       Report per Rule 30(e).



3
  In the written transcript of defendant’s plea, he swore under
oath that he was aware of the maximum punishment, that his
lawyer had explained the charges to him, that the plea was
freely and voluntarily entered, and that he acknowledged that
the recited terms of his plea arrangement were correct.
