State v. Sydnor

• Decision Date: 15 March 2016
• Docket Number: No. COA15–776.,COA15–776.
• Citation: 246 N.C.App. 353,782 S.E.2d 910
• Parties: STATE of North Carolina v. Kim SYDNOR, Defendant.
• Court: North Carolina Court of Appeals

246 N.C.App. 353

782 S.E.2d 910

STATE of North Carolina

v.Kim SYDNOR, Defendant.

No. COA15–776.

Court of Appeals of North Carolina.

March 15, 2016.

Attorney General, Roy Cooper, by Special Deputy Attorney General, Kathryn J. Thomas, for the State.

Ward, Smith & Norris, P.A., by Kirby H. Smith, III, New Bern, for defendant.

ELMORE, Judge.

Kim Sydnor (defendant) was found guilty of assault on a female, habitual misdemeanor assault, and attaining the status of an habitual felon. The trial court sentenced defendant to a term of 88 to 118 months imprisonment and ordered him to pay $5,000.00 in restitution. After review, we vacate defendant's sentence and the trial court's award of restitution, and we remand for resentencing and a new hearing on restitution.

I. Background

On 22 March 2014, Wake County sheriff's deputies were called to the home of Willie Brown where they found Joynita Sydnor with injuries to her face. Ms. Sydnor told the deputies that she and her husband, defendant, had gotten into an argument when defendant hit her in the face. The deputies interviewed Mr. Brown and another witness at the scene, Nellie Jernigan, who corroborated Ms. Sydnor's statement. After speaking with the deputies, Ms. Sydnor was transported to WakeMed Hospital in Raleigh and treated for her injuries. A warrant for defendant's arrest was issued thereafter.

On 24 June 2014, the Wake County Grand Jury returned a four-count indictment against defendant. Counts one and three charged defendant with the principal misdemeanor offenses of assault on a female and simple assault, respectively, and counts two and four charged defendant with habitual misdemeanor assault. Each count of habitual misdemeanor assault alleged that defendant had previously been convicted of two assault offenses: (1) misdemeanor assault on a female on 14 August 2000, and (2) felony assault inflicting serious bodily injury on 30 May 2007. Defendant was charged in a separate indictment for attaining the status of an habitual felon based on three prior felony convictions: (1) sale of counterfeit controlled substances on 10 August 2000; (2) possession of cocaine on 14 March 2003; and (3) assault inflicting serious bodily injury on 30 May 2007.

The case came to trial on 17 November 2014 in Wake County Superior Court. The jury found defendant guilty of assault on a female, and not guilty of simple assault. Defendant stipulated that his two prior assault convictions, as alleged in the principal indictment, rendered him eligible to be prosecuted for habitual misdemeanor assault. Defendant also pleaded guilty to habitual felon status based on the three prior felony convictions alleged in the habitual felon indictment.

At sentencing, the trial court calculated thirteen prior record points, resulting in a prior record level IV. The court sentenced defendant as an habitual felon, elevating the habitual misdemeanor assault conviction from a Class H to a Class D felony, and imposed an active sentence of 88 to 118 months imprisonment with credit for 236 days served. The trial court also ordered defendant to pay $5,000.00 in restitution to WakeMed for Ms. Sydnor's unpaid medical bills. Defendant timely appeals.

II. Discussion

A. Habitual Felon Status

Defendant first argues that the habitual felon indictment against him was fatally defective because the State used the same conviction, felony assault inflicting serious bodily injury, to support habitual felon status and to enhance the assault on a female charge to habitual misdemeanor assault. Defendant contends, therefore, that the trial court had no jurisdiction to sentence him as an habitual felon.

"[W]here an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court." State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 498 (2000). This Court "review[s] the sufficiency of an indictment de novo. " State v. McKoy, 196 N.C.App. 650, 652, 675 S.E.2d 406, 409 (2009).

Pursuant to North Carolina's Habitual Felon Act, "[a]ny person who has been convicted of or pled guilty to three felony offenses ... is declared to be an habitual felon and may be charged as a status offender pursuant to this Article." N.C. Gen.Stat. § 14–7.1 (2015). To put the defendant on notice "that he is being prosecuted for some substantive felony as a recidivist," State v. Allen, 292 N.C. 431, 436, 233 S.E.2d 585, 588 (1977), the principal felony and habitual felon status must be charged in separate indictments, N.C. Gen.Stat. § 14–7.3 (2015). The habitual felon indictment must include "the three prior felony convictions relied on by the State...." State v. Cheek, 339 N.C. 725, 729, 453 S.E.2d 862, 865 (1995) ; see also N.C. Gen.Stat. § 14–7.3 (2015) (setting forth the requirements for a valid habitual felon indictment). Upon conviction of the principal felony and, subsequently, attaining habitual felon status, the defendant "must ... be sentenced and punished as an habitual felon...." N.C. Gen.Stat. § 14–7.2 (2015). Habitual felon status "is not a crime in and of itself," State v. Kirkpatrick, 345 N.C. 451, 454, 480 S.E.2d 400, 402 (1997), but a "status justifying an increased punishment for the principal felony." State v. Priddy, 115 N.C.App. 547, 549, 445 S.E.2d 610, 612 (1994) (citation omitted).

North Carolina's habitual misdemeanor assault statute, which is partly recidivist in nature, provides as follows:

A person commits the offense of habitual misdemeanor assault if that person violates any of the provisions of G.S. 14–33 and causes physical injury, or G.S. 14–34, and has two or more prior convictions for either misdemeanor or felony assault.... A person convicted of violating this section is guilty of a Class H felony.

N.C. Gen.Stat. § 14–33.2 (2015). Unlike habitual felon status, "habitual misdemeanor assault ‘is a substantive offense and a punishment enhancement (or recidivist, or repeat-offender) offense.’ " State v. Carpenter, 155 N.C.App. 35, 49, 573 S.E.2d 668, 677 (2002) (quoting State v. Vardiman, 146 N.C.App. 381, 385, 552 S.E.2d 697, 700 (2001), cert. denied, 537 U.S. 833, 123 S.Ct. 142, 154 L.Ed.2d 51 (2002) ). The statute treats the defendant's prior assault convictions as elements of habitual misdemeanor assault. It does not, however, " ‘impose punishment for [these] previous crimes,’ " but instead " ‘imposes an enhanced punishment’ for the latest offense." Vardiman, 146 N.C.App. at 385, 552 S.E.2d at 700 (quoting State v. Smith, 139 N.C.App. 209, 214, 533 S.E.2d 518, 521 (2000) ); see also Carpenter, 155 N.C.App. at 48, 573 S.E.2d at 676–77 (citing prior decisions that note similarities between habitual misdemeanor assault statute and habitual impaired driving statute).

Although the habitual felon statute and the habitual misdemeanor assault statute have both survived constitutional challenges based on double jeopardy, see State v. Todd, 313 N.C. 110, 117–18, 326 S.E.2d 249, 253 (1985) (holding habitual felon statute constitutional); Carpenter, 155 N.C.App. at 50, 573 S.E.2d at 678 (holding habitual misdemeanor assault statute constitutional), our decisions have recognized limitations on using the same prior convictions to support an habitual offense and to increase a defendant's prior record level at sentencing.

A prior conviction used to establish habitual felon status, for example, may not also be used to determine a defendant's prior record level at sentencing. N.C. Gen.Stat. § 14–7.6 (2015) ; State v. Wells, 196 N.C.App. 498, 502–03, 675 S.E.2d 85, 88 (2009) ; State v. Miller, 168 N.C.App. 572, 575–76, 608 S.E.2d 565, 567 (2005) ; State v. Lee, 150 N.C.App. 701, 703–04, 564 S.E.2d 597, 598–99 (2002) ; State v. Bethea, 122 N.C.App. 623, 626, 471 S.E.2d 430, 432 (1996). As we explained in State v. Bethea,

there are two independent avenues by which a defendant's sentence may be increased based on the existence of prior convictions. A defendant's prior convictions will either serve to establish a defendant's status as an habitual felon pursuant to G.S. 14–7.1 or to increase a defendant's prior record level pursuant to G.S. 15A–1340.14(b)(1)–(5). G.S 14–7.6 establishes clearly, however, that the existence of prior convictions may not be used to increase a defendant's sentence pursuant to both provisions at the same time.

Bethea, 122 N.C.App. at 626, 471 S.E.2d at 432.

Likewise, a prior conviction used to support the offense of habitual impaired driving may not also be used to increase a defendant's prior record level. State v. Gentry, 135 N.C.App. 107, 111, 519 S.E.2d 68, 70–71 (1999) ("We believe it is reasonable to conclude that that same legislature did not intend that the convictions which elevate a misdemeanor driving while impaired conviction to the status of the felony of habitual driving while impaired, would then again be used to increase the sentencing level of the defendant.").

In addition, a conviction for habitual misdemeanor assault may "not be used as a prior conviction for any other habitual offense statute." N.C. Gen.Stat. § 14–33.2 ; State v. Shaw, 224 N.C.App. 209, 212, 737 S.E.2d 596, 598 (2012) ("A prior habitual misdemeanor assault conviction may not ... be utilized as a predicate felony for the purpose of establishing that a convicted defendant has attained habitual felon status."). Cf. State v. Holloway, 216 N.C.App. 412, 414–15, 720 S.E.2d 412, 413–14 (2011) (holding that a defendant convicted of the principal felony of habitual misdemeanor assault may be sentenced as an habitual felon).

This Court has held, however, that the same prior conviction may be used to support an habitual misdemeanor offense and habitual felon status. In State v. Misenheimer, 123 N.C.App. 156, 157, 472 S.E.2d 191, 192, cert. denied, 344 N.C. 441, 476 S.E.2d 128 (1996), the defendant was indicted for felony habitual impaired driving...