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									NO. COA04-1338                            DISTRICT TWENTY-ONE

                   NORTH CAROLINA COURT OF APPEALS
                     *******************************

STATE OF NORTH CAROLINA                   )
                                          )
              V.                          )   From Forsyth
                                          )
DONALD WAYNE MCGEE                        )

               *****************************
              DEFENDANT-APPELLANT‟S BRIEF
   PETITION FOR WRIT OF CERTIORARI IN THE ALTERNATIVE
               *****************************

                        QUESTIONS PRESENTED

   I.      WAS THE SUPERIOR COURT WITHOUT JURISDICTION TO
           ACCEPT MR. MCGEE‟S ADMISSION THAT HE WAS AN
           HABITUAL FELON?

   II.     WAS THE ACTIVE SENTENCE IMPOSED ON MR. MCGEE
           PURSUANT TO THE HABITUAL FELON ACT GROSSLY
           DISPORPORTIONATE FOR THE OFFENSE OF POSSESSING
           ONLY 0.3 GRAM OF COCAINE?

                       STATEMENT OF THE CASE

         Donald Wayne McGee was arrested for Driving While License

Revoked and Felonious Possession of Cocaine on January 6, 2003. Mr.

McGee was indicted on January 5, 2004, for Driving While License

Revoked, Felonious Possession of Cocaine and being a Habitual Felon. A

superceding indictment was issued as to Mr. McGee‟s Habitual Felon status

on February 9, 2004.
                                       2


      Mr. McGee was tried before a jury on the charges of Driving While

License Revoked and Felonious Possession of Cocaine at the April 27

through April 28, 2004, Criminal Sessions of the Superior Court of Forsyth

County, the Honorable Edwin Wilson presiding. Mr. McGee was found

guilty of the charges of Driving While License Revoked and Possession of

Cocaine. Mr. McGee admitted to his status as a Habitual Felon pursuant to a

plea bargain where he would receive a mitigated sentence of not less than

105 months nor more than 135 months. Mr. McGee was sentenced pursuant

to the plea arrangement on April 28, 2004 to a consolidated and mitigated

active term of imprisonment of 105 months minimum, 135 months

maximum in the North Carolina Department of Correction.

      Mr. McGee gave Notice of Appeal in open court on April 28, 2004.

   STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

      This is an appeal from the final judgment of the superior court

pursuant to N.C.G.S. § 7A-27(b). In the event that this Court finds that the

issues raised herein are not properly before it on appeal, Mr. McGee

respectfully requests that this brief be treated in the alternative as a petition

for writ of certiorari. N.C.G.S. § 15A-1444(e).
                                     3


                     STATEMENT OF THE FACTS

      While Officer J.W. Adkins of the Forsyth County Sheriff‟s

Department was driving on Old Walkertown Road in Forsyth County at

approximately noon on January 6, 2003, he “immediately noticed” that

Donald McGee was driving a truck that passed him in the opposite direction.

Adkins was able to positively identify Mr. McGee even though:

          Both vehicles traveled past each other at speeds between 35 to
           40 miles per hour, i.e., a combined speed of 70 miles per hour.
           V.I Tp. 35; V.I Tp. 47; V.I Tp. 100.

          He saw Mr. McGee at this time for approximately a second or
           two, V.I Tp. 48; V.I Tp. 100.

          He concluded Mr. McGee was the driver after “just a very
           quick glimpse”. V.I Tp. 49.

          Thomas Robinson, the owner of the truck, and Mr. McGee have
           similar facial features. V.I Tp. 51; V.I Tp. 100.

Adkins had known Mr. McGee for about four years. Adkins believed that

Mr. McGee had no driver‟s license on this day. Adkins turned around and

pursued the truck. Adkins did not immediately pull over the truck because

he “was aware of Mr. McGee‟s history and [he] thought at the time to

initiate a vehicle stop would endanger the citizens of the county”. He

followed the truck for a “couple of blocks” where it was parked near a car

wash and a restaurant. V.I Tp. 34; V.I Tpp. 36-37; V.I Tp. 47; V.I Tp. 102.
                                     4


       Adkins approached Mr. McGee when he got out of the truck. Adkins

asked Mr. McGee to produce a driver‟s license; Mr. McGee was not able to

do so.1   Mr. McGee was subsequently arrested at the scene.         Adkins

recovered from a watch pocket in Mr. McGee‟s jeans a clear plastic bag

containing a “very small amount” of white powder [State‟s Exhibit 1]. V.I

Tpp. 38-40; V.I Tp. 51.

       Crystal Nicole McGee, Mr. McGee‟s sister, and Thomas Robinson,

the owner of the truck and Ms. McGee‟s boyfriend, testified to the

following:

     Ms. McGee drove Mr. McGee to the carwash to help Mr. Robinson
      clean his truck. V.I Tpp. 80-1; V.I Tpp. 90-1.

     Mr. Robinson had driven the truck on Walkertown Road in order to
      meet Ms. McGee at the car wash. V.I Tpp. 90-1.

     Mr. McGee and Mr. Robinson were wearing white tee-shirts that day
      and are similar in physical appearance. V.I Tpp. 87-8; V.I Tp. 93.

     The group met at the carwash around noon. V.I Tp. 84.

     Ms. McGee and Mr. Robinson left Mr. McGee at the carwash with the
      truck while they purchased cleaning supplies. V.I Tp. 82; V.I Tp. 85;
      V.I Tp. 92.

     Ms. McGee and Mr. Robinson returned to the carwash 30 to 45
      minutes later to find the truck and Mr. McGee gone. V.I Tp. 83; V.I
      Tp. 92.
1
 Mr. McGee stipulated that his driver‟s license was revoked. V.I Tp. 33;
V.I Tp. 77.
                                       5



     Ms. McGee and Mr. Robinson did not know what Mr. McGee did
      during their absence from the carwash. V.I Tp. 94; V.I Tp. 112.

      Dr. Shirley A. Brinkley, an expert in forensic chemistry, opined that

the white powder [State‟s Exhibit 1] was 0.3 gram of the Schedule II

controlled substance, cocaine. Dr. Brinkley testified that this was a “small

amount” of cocaine and agreed that it would be about 1/84 th the size of a

sugar cube.2 V.I Tp. 55; V.I Tp. 58; V.I Tp. 60.

                                ARGUMENT

      I.     THE    SUPERIOR   COURT    WAS    WITHOUT
             JURISDICTION   TO  ACCEPT    MR.   MCGEE’S
             ADMISSION THAT HE WAS AN HABITUAL FELON.

              Assignments of Error Nos. 6 and 11, Rpp. 57, 58.

      Donald McGee was convicted of possession of a very small amount of

powder cocaine, 1/84th the size of a sugar cube, that was discovered after his

arrest for driving while license revoked. Mr. McGee was sentenced to

prison for a maximum of 11 years and 3 months after the prosecution, his

lawyer and the trial court failed to recognize that the Habitual Felon




2
 Dr. Brinkley agreed that one ounce of cocaine is about the size of a sugar
cube and that one gram of cocaine is approximately 1/28th the size of an
ounce of cocaine. The amount of cocaine in State‟s Exhibit 1 was 0.3 gram,
or “a little less than a third of 1/28th of the size of a sugar cube”, (V.I Tp.
60), i.e. approximately 1/84th the size of a sugar cube.
                                     6


indictment did not correctly allege the essential elements required for the

indictment; to wit:

      The indictment incorrectly alleged that one of Mr. McGee‟s prior
       convictions was entered in superior court; and

      Two of the three prior convictions alleged in the indictment
       overlapped in time.

Mr. McGee therefore contends that the trial court was without jurisdiction to

accept his admission and sentence him as an habitual felon. 3       State v.

Bullock, 154 N.C.App. 234, 244-5, 574 S.E.2d 17, 23-4 (2002).

A.     There is a Fatal Variance Between the Habitual Felon Indictment and
       the Evidence for One of Mr. McGee‟s Three Prior Felony
       Convictions.

       The superceding habitual felon indictment in Mr. McGee‟s case

alleged speeding to elude arrest, “98 CRS 46258”, as one of his three prior

felony convictions. The indictment further alleged that the speeding to elude

arrest conviction was obtained in the “Superior Court of Forsyth County,

North Carolina”. Rp. 7.




3
  Mr. McGee‟s admission to being an habitual felon does not waive any
defect to the Habitual Felon indictment. State v. Hawkins, 110 N.C.App.
837, 841, 431 S.E.2d 503, 506 (1993), overruled on other grounds by State
v. Cheek, 339 N.C. 725, 729, 453 S.E.2d 862, 864 (1995). A defendant may
challenge jurisdiction in an Habitual Felon indictment at any time. State v.
King, 353 N.C. 457, 467, 546 S.E.2d 575, 585 (2001).
                                      7


    State‟s Exhibit No. 3, Court records that were admitted into evidence to

support Mr. McGee‟s prior felony conviction for speeding to elude arrest,

however, shows the following:

     The identity of the court of conviction is the Forsyth County District
      Court, not the Forsyth County Superior Court as alleged in the
      Habitual Felon indictment;

     The actual file number of this case is “98 CR 46258”, not “98 CRS
      46258” as alleged in the Habitual Felon indictment. Rpp. 37-9.4

Mr. McGee submits that this is a fatal variance between the habitual felon

indictment and the supporting evidence.       The trial court therefore was

without jurisdiction to sentence him as an habitual felon. State v. Bullock,

154 N.C.App. at 244-5, 574 S.E.2d at 23-24.

       North Carolina General Statute Section 14-7.3, Charge of habitual

felon, requires, in pertinent part:

       An indictment which charges a person with being an habitual felon
       must set forth the date that prior felonies were committed, the name of
       the state or other sovereign against whom said felonies were
       committed, the dates that pleas of guilty were entered to or
       convictions returned in said felony offenses, and the identity of the
       court wherein said pleas or convictions took place.




4
 The criminal judgment in 98 CR 46258 was entered by Judge “W.
Graham”, who is Forsyth County District Court Judge William T. Graham.
Rp. 39; Judicial Directory, The North Carolina Court System,
http://www.nccourts.org.
                                     8


(Emphasis added). North Carolina General Statute Section 14-7.3 therefore

specifically requires the identity of the court where the plea or conviction

tool place be designated.

       An indictment must allege all of the essential elements of the crime

sought to be charged. State v. Courtney, 248 N.C. 447, 451, 103 S.E.2d 861,

864 (1958). An Habitual Felon indictment must correctly allege the identity

of the court in which the plea or conviction occurred. See State v. Cheek,

338 N.C. 725, 729-30, 453 S.E.2d 862, 865 (1995)(discussing what

constitutes a proper habitual felon indictment under N.C.G.S. § 14-7.3). The

correct identity of the trial court where the previous felony conviction was

entered is an essential element of the habitual felon charge and cannot be

treated as irrelevant or as surplusage. See State v. Taylor, 280 N.C. 273,

276, 185 S.E.2d 677, 680 (1972)(“allegations beyond the essential elements

of the crime sought to be charged are irrelevant and may be treated as

surplusage”). There is no room for judicial construction and the courts must

construe the statute using its plain meaning. Cheek, 339 N.C. at 728, 453

S.E.2d at 864.

   The Habitual Felon indictment in Mr. McGee‟s case does not correctly

identity the court of conviction, i.e., the district court, as mandated by

statute.   Accordingly, Mr. McGee‟s habitual felon judgment should be
                                     9


arrested, State v. Bullock, 154 N.C.App. at 244-5, 574 S.E.2d at 23-4; see

State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985)(discussing

statutory mandate doctrine), and the case be remanded to the trial court for

resentencing of Mr. McGee as a Class I felon for simple possession of 0.3

gram of cocaine.     See N.C.G.S. § 90-95(d)(2)(punishment for simple

possession of cocaine).

   B. The Superior Court Lacked Jurisdiction to Sentence Mr. McGee as an
      Habitual Felon Since Two of the Three Prior Felonies Overlapped in
      Time.

      As to the prior felony convictions used to establish habitual felon

   status:

       Mr. McGee was found “guilty as charged” by a jury, in absentia,
        on April 15, 1998 of felonious possession of stolen all terrain
        vehicles [“ATVs”]. Prayer for judgment was continued until Mr.
        McGee was apprehended. Rpp. 29-34.

       Mr. McGee subsequently was arrested on or about October 13,
        1998 for felony speeding to elude arrest. Rpp. 38-9.

       Mr. McGee was sentenced by the superior court to prison on
        November 4, 1998 for possession of the stolen ATVs. Rp. 35-6.

       Mr. McGee pled guilty to felony speeding to elude arrest on
        January 28, 2000 in the district court through a Bill of Information
        and was placed on intensive probation. Rpp. 38-40.

       Mr. McGee was imprisoned on August 30, 2001 after pleading
        guilty in the superior court to felony larceny, possession of a
        Schedule I controlled substance, felony maintaining a place for
        controlled substances and possession of cocaine. Rpp. 18-27.
                                       10



The following illustration summarizes the events regarding the first two of

Mr. McGee‟s three prior felony convictions that are alleged in the Habitual

Felon indictment:

   FELONY NO. 1     [Possession of Stolen Goods]
ARREST VERDICT                    SENTENCED
12/1/1997 4/15/1998               11/4/1998

                          FELONY NO. 2            [FLEE TO ELUDE]
                          ARREST                    PLEA/SENTENCE
                          10/13/1998                1/28/2000

This illustration shows that Mr. McGee‟s first felony conviction, possession

of stolen goods, was not final until after he was arrested for the second

felony of speeding to elude arrest. Since these two convictions overlap in

time, the indictment failed to allege the required three non-overlapping prior

felony convictions. Mr. McGee contends that the trial court therefore was

without jurisdiction to sentence Mr. McGee as an habitual felon. State v.

Bullock, 154 N.C.App. at 244-5, 574 S.E.2d at 23-4.

      North Carolina General Statute Section 14-7.1, Persons defined as

habitual felons, provides in pertinent part:

      Any person who has been convicted of or pled guilty to three felony
      offenses in any federal court or state court in the United States of
      combination thereof is declared to be an habitual felon. For the
      purpose of this Article, a felony offense is defined as an offense which
      is a felony under the laws of the state or other sovereign wherein a
      plea of guilty was entered or a conviction was returned regardless of
      the sentence actually imposed…The commission of a second felony
                                       11


      shall not fall within the purview of this Article unless it is committed
      after the conviction of or plea of guilty to the first felony…

(Emphasis added).      North Carolina General Statute Section 14-7.1 was

enacted in 1967 and last amended in 1971. Mr. McGee was sentenced as a

Class C felon pursuant to the Structured Sentencing laws enacted by the

General Assembly and made effective in 1994.

      Since the legislature did not amend the requirements for what

constitutes an habitual felon in 1994, Mr. McGee contends that the definition

of “prior conviction” for the purpose of Structured Sentencing is not

applicable.5   Some guidance on the issue of what constitutes a “prior

conviction” for non-Structured Sentencing matters can be gleaned from Britt

v. N.C. Sheriff’s Education and Training Standards Commission, 348 N.C.

573, 576, 501 S.E.2d 75, 77 (1998), where our Supreme Court held that “a

plea may amount to a „conviction‟ despite the issuance of a prayer for

judgment continued.” The Supreme Court‟s language in Britt suggests that,

for habitual felon purposes, a “prior conviction” does not necessarily occur

at the time the guilty verdict is entered. North Carolina General Statute


5
 This Court has held in State v. Canellas, ___ N.C.App. ____, 596 S.E.2d
889, 892 (2004) and State v. Hatcher, 136 N.C.App. 524, 527, 524 S.E.2d
815, 817 (2000) that a verdict of guilty is sufficient for a “prior conviction”
for the purpose of assessing criminal history points under Structured
Sentencing where prayer for judgment was continued in a prior criminal
case.
                                       12


Section 14-7.1 therefore should be strictly construed in accordance with the

law prevailing prior to enactment of North Carolina Structured Sentencing

laws. See Cheek, 339 N.C. at 728, 453 S.E.2d at 864 (strict construction of

statutes).

       This Court held in the pre-Structured Sentencing case of State v.

Benfield, 76 N.C.App. 453, 456, 333 S.E.2d 753, 756 (1985) that a “prior

conviction” occurs where a defendant “has been adjudged guilty of or has

entered a plea of guilty or no contest to a criminal charge, and judgment has

been entered thereon and the time for appeal has expired.” Until judgment

is entered, there is no prior conviction. Id.

       Mr. McGee‟s prior convictions for possession of stolen goods and

speeding to elude arrest overlap: judgment in the possession of stolen goods

case was not entered until November 4, 1998 which date was after Mr.

McGee committed the crime of speeding to elude arrest.          Under these

circumstances, the Habitual Felon indictment alleges only two prior felony

convictions, State v. Benfield, 76 N.C.App. at 456, 333 S.E.2d at 756, which

does not comport with the statutory definition of an habitual felon as set

forth in N.C.G.S. § 14-7.1. The habitual felon judgment should be arrested

and Mr. McGee‟s case remanded for a new sentencing hearing. State v.

Bullock, 154 N.C.App. at 244-5, 574 S.E.2d at 23-4.
                                     13




         II.     MR. MCGEE’S ACTIVE SENTENCE IMPOSED
                 PURSUANT TO THE HABITUAL FELON ACT WAS
                 GROSSLY   DISPORPORTIONATE    FOR  THE
                 OFFENSE OF POSSESSING ONLY 0.3 GRAM OF
                 COCAINE.

                      Assignment of Error No. 9, Rp. 57.

      Mr. McGee was sentenced to an active term of imprisonment of 105

months minimum, 135 months maximum, for possessing 0.3 gram of

powder cocaine. The State‟s own expert, Dr. Brinkley, testified that this

was a “small amount” of cocaine and agreed that it would be about 1/84 th the

size of a sugar cube.    V.I Tp. 60. Mr. McGee contends that a minimum

active sentence of 9 years and a maximum active sentence of 11 years 3

months is grossly disproportionate for the crime of possessing a very small

amount of powder cocaine.

      The Eighth Amendment to the United States Constitution provides:

               Excessive bail shall not be required, nor excessive fines
               imposed, nor cruel and unusual punishments inflicted.

      The predicate felony for which Mr. McGee was sentenced as an

habitual felon was the crime of possessing 0.3 gram of powder cocaine

seized from his pants pocket. There was no evidence that Mr. McGee

possessed cocaine for anything other than personal use. Mr. McGee‟s prior

criminal record includes convictions for possession of a Schedule I
                                      14


controlled substance, possession of cocaine, and possession of drug

paraphernalia. Rp. 26; Rp. 44. Clearly, Mr. McGee suffers from drug

addiction.

      Mr. McGee is being punished as an habitual felon for possessing

apparently a user-amount of drugs while being a drug addict. This Court has

held that:

      The primary purpose of the habitual felon statute is to deter repeat
      offenders and, at some point in the life of one who repeatedly
      commits criminal offenses serious enough to be punished as felonies,
      to segregate that person from the rest of society for an extended period
      of time. In sentencing an habitual felon, the duration of the sentence
      is not based on the defendant‟s most recent offense but on his past
      criminal conduct as well.

State v. Aldridge, 76 N.C.App. 638, 640, 334 S.E.2d 107, 108 (1985).

However a drug addict, by definition, is unable to be deterred from using

controlled substances.6 Punishing drug addicts as habitual felons for simply

possessing drugs is not rationally related to the legitimate governmental

interest of deterrence.7 See State v. Haskins, 160 N.C.App. 349, 353-4, 585

S.E.2d 766, 769-70 (2003)(constitutional analysis of criminal statute).


6
  An “addict” is defined as “[a]ny individual who habitually uses any
narcotic drug…as to have lost the power of self-control[.]” Black‟s Law
Dictionary, 5th Ed. (1979).
7
   The General Assembly even recognizes that addiction to the drug of
alcohol, i.e., alcoholism, is a complete defense to the criminal charge of
being drunk and disruptive in a public place. N.C.G.S. § 14-445.
                                     15


      This Court has held that only in exceedingly unusual non-capital cases

will sentences imposed be so grossly disproportionate as to violate the

Eighth amendment‟s proscription against cruel and unusual punishment.

State v. Clifton, 158 N.C.App. 88, 94, 580 S.E.2d 40, 45 (2003). As applied

in Mr. McGee‟s case, a sentence of nine years to more than eleven years of

imprisonment for possession of a very small amount of powder cocaine for

apparent personal use is cruel and unusual punishment.        Mr. McGee‟s

habitual felon judgment should be arrested and he should be resentenced as a

Class I felon. See State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701

(1983)(sentence vacated and remanded for resentencing after proportionality

review).

                             CONCLUSION

      For the reasons set forth herein, Mr. McGee is entitled to have

judgment arrested on his nine-year to eleven-year-three-month active

sentence for simple possession of a very small amount of powder cocaine.

Mr. McGee‟s sentence was improperly enhanced under the Habitual Felon

Act and should be remanded for resentencing as a Class I felon.
                             16




Respectfully submitted, this the _____ day of November, 2004.




                  ______________________________
                  Brian Michael Aus
                  PO Box 1345
                  Durham, NC 27702
                  (919) 688-3704

                  ATTORNEY FOR DEFENDANT-APPELLANT
                                     17


   CERTIFICATE OF COMPLIANCE WITH N.C.R.App.P. 28(j)(2)

      Undersigned counsel hereby certifies that this brief is in compliance
with N.C.R.App.P. 28(j)(2) in that it is printed in 14 point Times New
Roman font and contains no more than 8750 words in the body of the brief,
footnotes and citations included, as calculated by the word-processing
software used to prepare the brief, Microsoft Word.




                                _______________________________
                                Brian Michael Aus



              CERTIFICATE OF FILING AND SERVICE

       Undersigned counsel hereby certifies that he filed the original of the
foregoing brief by mailing it this day to the Clerk of the Court of Appeals,
and that he has served the foregoing brief upon all parties to the appeal by
mailing a copy thereof by United States Mail, first class postage affixed
thereto to counsel for the State of North Carolina:

      Richard Slipsky
      Special Deputy Attorney General
      PO Box 629
      Raleigh, NC 27602-0629.


      This the ______ day of November, 2004.




                                _____________________________
                                Brian Michael Aus

								
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