State v. CreasonState v. Creason
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Defendant was convicted of possession of marijuana with intent to sell and deliver, possession of cocaine with intent to sell and deliver, and knowingly maintaining a dwelling to keep/sell marijuana. After the jury found defendant guilty of the above charges, they were then asked to determine whether defendant was a habitual felon. Defendant was found to be a habitual felon and appealed his convictions to this Court. The facts leading to defendant’s arrest and conviction will be discussed only to the extent necessary to understand defendant’s assignments of error.
In his first assignment of error, defendant contends the trial court erred by failing to dismiss the habitual felon indictment. Defendant argues that, because he
Initially, we note that defendant failed to include the first habitual felon indictment in the record and has therefore made no showing that the two habitual felon convictions of which he complains were based upon the same predicate offenses. Defendant failed to comply with Rule 9(a)(3)(i) (1996) of the Rules of Appellate Procedure, thus subjecting this assignment of error to dismissal. However, even if the record in this case were complete, the issue brought forward by defendant has been squarely decided by this Court in State v. Smith, 112 N.C. App. 512, 517, 436 S.E.2d 160, 162 (1993). In that case, the defendant argued that “once certain underlying convictions are used to convict an individual as an habitual felon, those same convictions may not be used again to enhance another conviction.” Id. Disagreeing with defendant’s argument, the Court held:
[T]he Supreme Court described the habitual felon process in State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977), by stating once an individual “who has already attained the status of an habitual felon is indicted for the commission of another felony, that per son may then be also indicted in a separate bill as being an habitual felon.” This implies that being an habitual felon is a status, that once attained is never lost. If the legislature had wanted to require the State to show proof of three new underlying felonies before a new habitual felon indictment could issue, then the legislature could have easily stated such. We will not rewrite the statute.
Id. As the argument raised by defendant in the instant case has been previously addressed by this Court and held to have no merit, this assignment of error is overruled.
In his second assignment of error, defendant contends the trial court erred in failing to dismiss all of the indictments against him in this case on the ground that conviction on those charges constitutes Double Jeopardy. Defendant’s residence was searched on 4 September 1992 in connection with the above listed drug offenses. Pursuant to the North Carolina Controlled Substance Tax Act,
Defendant, relying on the United States Supreme Court opinion, Dept. of Revenue v. Kurth Ranch, 511 U.S. -, 128 L.Ed.2d 767 (1994), maintains that conviction on the drug charges for which he was indicted in this case, following the assessment of the controlled substance tax on the drugs in his possession at the time of the search of his residence, constitutes double punishment for the same offenses in violation of the Double Jeopardy Clause.
This issue has recently been addressed by this Court in State v. Ballenger, 123 N.C. App. 179, 472 S.E.2d 572 (1996). In that case the majority held that unlike the Montana controlled substance tax reviewed by the United States Supreme Court in Kurth Ranch, the North Carolina Controlled Substance Tax did not contain unusual features which marked it as a punitive sanction rather than a tax. The majority in Ballenger held that, because the North Carolina tax did not contain the same punitive characteristics as the Montana tax, it did not rise to the level of a second punishment violative of the Double Jeopardy Clause. We note that the instant case involves the Controlled Substance Tax Act as it existed in Ballenger. That Act was later amended by repeal of some statutes and addition or modification of others. Though this panel was divided in Ballenger, all members of this Court are now bound by the majority opinion in that case. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 382, 379 S.E.2d 30, 36 (1989). Accordingly, we hold that conviction following assessment of the controlled substance tax did not constitute Double Jeopardy in this case, and defendant’s assignment of error is overruled.
A defendant who seeks to suppress evidence upon a ground specified in
In his final assignment of error, defendant contends the trial court erred in admitting evidence of a prior conviction as a basis for the habitual felon charge. At trial, defendant objected to the use of a previous conviction for uttering a forged bank check claiming that he did not have counsel or that counsel was ineffective, thereby invalidating that conviction. After reviewing the file from that case, the trial judge found that defendant was represented by an attorney; therefore, his constitutional rights relating to representation were not violated and defendant’s objection to the use of the conviction was denied. From that denial, defendant appeals.
When appealing the use of a prior conviction as a partial basis for a habitual felon indictment, inquiries are permissible only to determine whether the State gave defendant proper notice that he was being prosecuted for some substantive felony as a recidivist, pursuant to the procedure provided in
While this is a question of first impression, we are guided by the holdings in State v. Notes, 12 N.C. App. 676, 184 S.E.2d 409 (1971) and State v. Stafford, 114 N.C. App. 101, 440 S.E.2d 846, motion to dismiss allowed, disc. review denied, 336 N.C. 614, 447 S.E.2d 410 (1994). In Stafford, the defendant was charged with habitual impaired driving, which was based upon three prior impaired driving convictions. The defendant attempted to collaterally attack one of the previous convictions on the ground that it was invalid because the record in that case did not show that the defendant pled guilty “voluntarily and understanding^” as required under Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274 (1969). Stafford, 114 N.C. App. at 103, 440 S.E.2d at 847. This Court held that the defendant could not collaterally attack the validity of a prior DWI conviction. Id. at 104, 440 S.E.2d at 847.
Similarly, in
Notes,
the defendant attempted to collaterally attack the original judgment, which suspended his sentence in an appeal from the revocation of that suspension, again based upon
Boykin.
This Court held that defendant could not collaterally attack the original judgment in the second proceeding. The Court stated that the proper procedure for adjudication of claimed deprivations of constitutional rights after trial
In summary, we hold being a habitual felon is a status, that once attained, is never lost. In this case, the three underlying convictions used to establish defendant’s habitual felon status in another substantive conviction could be used in this case to establish defendant’s status as a habitual felon. Secondly, we hold that, in accordance with
State v. Ballenger
123 N.C. App. at 184, 472 S.E.2d at 575, conviction following assessment under the North Carolina Controlled Substance Tax Act does not constitute Double Jeopardy. Thirdly, we hold defendant waived his right to seek suppression of evidence seized pursuant to a search warrant by failing to include an affidavit containing facts to support his motion to suppress in accordance with
No error.
Chief Judge ARNOLD and Judge MARTIN, John C. concur.