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State v. McDonald7/6/2004
PUBLISHED
Gary Womack McDonald ("defendant") appeals from judgments entered after a jury found him to be guilty of: (1) assault on a female, after defendant had stipulated to the other elements of the charge of habitual misdemeanor assault ("HMA"); (2) injury to real property; and (3) resisting a public officer. Defendant also entered a guilty plea to having attained habitual felon status.
I. Background
On 8 November 2001, defendant went to Cheryl Rowland's ("Rowland") house to see his children. Rowland testified that she and defendant fought and defendant punched her in the nose, kicked her, and dragged her around the apartment. Defendant left, and Rowland called the police. Rowland filed charges against defendant for assault on a female and injury to real property. Defendant returned to Rowland's apartment in December, and she again called the police. Defendant was arrested after he attempted to flee from the police and giving them a false name.
A jury found defendant guilty of assault on a female, resisting a public officer, and injury to real property. Defendant stipulated to prior convictions that established his HMA offense and pled guilty to being an habitual felon. Defendant was sentenced to 120 to 153 months and gave notice of appeal.
II. Issues
The issues are whether the trial court erred in: (1) using the HMA offense to enhance defendant's punishment pursuant to the Habitual Felon Act; (2) imposing a sentence of 120 to 153 months for habitual misdemeanor assault as an habitual felon, arguing he was subjected to cruel and unusual punishment under the Eighth Amendment as applied to the State through the Fourteenth Amendment; and (3) using a misdemeanor conviction of possession of cocaine as one of the underlying felonies to support his status and conviction of being an habitual felon thereby causing the indictment to be invalid as a matter of law.
III. Habitual Misdemeanor Assault
Defendant contends that the trial court erred in using HMA to enhance his punishment. Defendant argues that he never entered a guilty plea to nor was convicted of HMA. He asserts that he merely stipulated to attaining the status of being an habitual misdemeanor assailant.
This Court has held that habitual misdemeanor assault and habitual driving while impaired can be considered as either a substantive offense or a sentence enhancement offense. State v. Vardiman, 146 N.C. App. 381, 385, 552 S.E.2d 697, 700 (2001), appeal dismissed, 355 N.C. 222, 559 S.E.2d 794 (2002), cert. denied, 537 U.S. 833, 154 L.Ed. 2d 51 (2002) ("Habitual impaired driving . . . is a substantive offense and a punishment enhancement (or recidivist, or repeat-offender) offense."). Applying the reasoning in Vardiman, this Court held that "habitual misdemeanor assault `is a substantive offense and a punishment enhancement . . . offense.'" State v. Carpenter, 155 N.C. App. 35, 49, 573 S.E.2d 668, 677 (2002), disc. rev. denied, 356 N.C. 681, 577 S.E.2d 896 (2003) (quoting Vardiman, 146 N.C. App. at 385, 552 S.E.2d at 700).
N.C. Gen. Stat. § 15A-928(c) (2003) states:
(c) After commencement of the trial and before the close of the State's case, the judge in the absence of the jury must arraign the defendant upon the special indictment or information, and must advise him that he may admit the previous conviction alleged, deny it, or remain silent. Depending upon the defendant's response, the trial of the case must then proceed as follows:
(1) If the defendant admits the previous conviction, that element of the offense charged in the indictment . . . is established, no evidence in support thereof may be
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