State v. Farrior

EAGLES, Judge. Defendant brings forward two assignments of error. After careful review, we remand for resentencing. I. Defendant argues that the trial court erred by failing to instruct the jurors that they were not compelled to infer constructive possession of the stolen articles found in the vehicle merely because defendant exercised control over the vehicle. “A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict.” N.C. R. App. P. 10(b)(2). Here, defendant neither requested the trial court to give a particular instruction on constructive possession nor objected to the instructions given. However, defendant argues that despite his failure to request a particular instruction or object to the instructions given, it was plain error for the court not to give the following instruction: [432] A person has constructive possession of an article if he does not have it on his person, but is aware of its presence and has both the power and intent to control its disposition or use. A person’s awareness of the presence of the article and his power and intent to control its disposition or use may be shown by direct evidence or may be inferred from the circumstances. If you find beyond a reasonable doubt that articles were found in a certain vehicle, that the defendant exercised control over that vehicle whether or not he owned it this would be a circumstance from which you may infer that the defendant was aware of the presence of the articles and had the power and intent to control their disposition or their use. You must understand that you are not compelled to infer that the defendant was aware of the presence of the articles. The “plain error” rule provides that an appellate court may review an alleged error not preserved for appellate review if the error affects a substantial right. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). However, our Supreme Court has emphasized that courts should apply the plain error rule “cautiously and only in the exceptional case where ... it can be said that the claimed error is ... so prejudicial. . . that justice cannot have been done.” Odom at 660, 300 S.E.2d at 378, quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L.Ed.2d 513 (1982). Here, the trial court instructed the jury as follows: A person has constructive possession of an article if he does not have it on his person, but is aware of its presence and has both the power and intent to control its disposition or use. A person’s awareness of the presence of the article and his power and intent to control it’s [sic] disposition or use may be shown by direct evidence or may be inferred from the circumstances. If you find beyond a reasonable doubt that articles were found in a certain vehicle, that the defendant exercised control over that vehicle whether or not he owned it this would be a circumstance from which you may infer that the defendant was aware of the presence of the articles and had the power and intent to control their disposition or use. The trial court also instructed the jury that the State had to prove the defendant’s guilt beyond a reasonable doubt. We find that the trial court’s instructions adequately informed the jury that they were not compelled to infer that the defendant was aware of the presence of the articles and that the instructions adequately informed the jury [433] that the State retained the burden of proof. Accordingly, we hold that the trial court committed no “plain error.” This assignment of error fails. II. Defendant also argues that he is entitled to have his plea of guilty to being an habitual felon set aside because the indictment failed to refer to any substantive felony for which the defendant was currently charged. We first determine whether this Court has jurisdiction to address defendant’s argument. Pursuant to G.S. 15A-1444(a1), a defendant who has entered a plea of guilty to a felony is not entitled to appeal as a matter of right unless his sentence exceeds the pre- . sumptive term set by G.S. 15A-1340.4. However, he may petition this Court for review of the issue by writ of certiorari. Here, defendant petitioned this Court for writ of certiorari in his brief filed 23 February 1994. In our discretion we grant defendant’s petition for writ of certiorari and will consider the assignments of error brought forward. When the State charges a defendant as an habitual felon, the' habitual felon indictment must refer to the underlying substantive felony. State v. Hawkins, 110 N.C. App. 837, 840, 431 S.E.2d 503, 506 (1993), citing State v. Moore, 102 N.C. App. 434, 438-39, 402 S.E.2d 435, 437 (1991). Otherwise, “the ‘defendant [does] not have sufficient notice of [the] particular charge against him.’ ” Hawkins at 840, 431 S.E.2d at 506, quoting Moore at 438, 402 S.E.2d at 437. Here, the habitual felon indictment did not refer to any underlying felony with which defendant was charged. Accordingly, defendant’s indictment as an habitual offender was fatally flawed and the trial court erred in enhancing defendant’s sentence on that basis. (“[Being] an habitual felon is a status rather than a crime, [so] the only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which [the defendant] allegedly committed while in that status.” State v. Oakes, 113 N.C. App. 332, 337, 438 S.E.2d 477, 480 (citation omitted), review denied, 336 N.C. 76, 445 S.E.2d 43 (1994)). We vacate the judgment and remand this matter for resentencing in accordance with Chapter 15A of the North Carolina General Statutes. We note that “the State may elect... to try defendant as an habitual felon upon a subsequent indictment proper in form, and in accordance with procedures approved in State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977).” State v. Hawkins, 110 N.C. App. 837, 843, 431 [434] S.E.2d 503, 507 (1993). (But cf. State v. Oakes, 113 N.C. App. 332, 438 S.E.2d 477 (1994). When allowing the State to seek a second indictment alleging habitual felon status, “the critical issue is whether defendant had notice of the allegation of habitual felon status at the time of his plea to the underlying substantive felony charge.” Oakes at 339, 438 S.E.2d at 481). Vacated and remanded for resentencing. Judge ORR concurs. Judge McCRODDEN concurred prior to 15 December 1994.