Opinion
No. COA04-496
Filed 5 April 2005 This case not for publication
Appeal by defendant from judgments entered 17 December 2003 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 2 March 2005.
Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State. McCotter, Ashton Smith, P.A., by Rudolph A. Ashton, III, for defendant-appellant.
Lenoir County, Nos. 00 CRS 9560, 00 CRS 50957.
Gregory Allen Gant ("defendant") appeals from judgments entered after a resentencing hearing held pursuant to this Court's mandate in State v. Gant, 154 N.C. App. 742, 572 S.E.2d 874 (2002) (unpublished). We affirm the trial court's judgments.
I. Background
In Gant, this Court held that defendant received a trial free from error and upheld defendant's convictions of three robbery counts and three counts of being an habitual felon. Id. We reversed defendant's sentence and remanded for a new hearing regarding defendant's prior record level because the trial court "improperly used the same three felonies [used to establish his status as an habitual felon] to calculate defendant's prior record level under the Structured Sentencing Act." Id.
The matter was called for hearing before the trial court at approximately 2:45 p.m. on 17 December 2003. At that time, defendant's appointed counsel moved for a continuance of the resentencing hearing until after the Supreme Court had issued its opinion regarding whether possession of cocaine constituted a felony. See State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004); see also State v. Sneed, 358 N.C. 538, 599 S.E.2d 365 (2004). The trial court denied defendant's motion. Shortly thereafter, defense counsel recognized he had a conflict of interest in representing defendant because of his prior dealings with one of the victims. The trial court dismissed counsel and appointed new counsel. Defendant's new attorney met with him for approximately one hour before the hearing reconvened at 4:00 p.m. His new attorney did not renew the earlier motion to continue.
The trial court found defendant had a prior record level of III, the same prior record level previously found. The trial court further found that defendant had seven points, instead of eight initially found by the trial court. The trial court sentenced defendant within the presumptive range to two consecutive active terms of 105 to 135 months. Defendant appeals.
II. Issues
The issues on appeal are whether the trial court erred by: (1) denying defendant's request for a continuance; (2) using a possession of cocaine conviction as a prior felony; and (3) calculating defendant's prior record level.
III. Motion to Continue
Defendant contends the trial court erred by denying his motion to continue his resentencing hearing because his newly appointed counsel was afforded approximately one hour to prepare for the hearing. We hold that the trial court did not abuse its discretion in not continuing defendant's sentencing hearing.
"The decision to grant or deny a continuance rests within the discretion of the trial court. . . . When a motion for a continuance is based on a constitutional right, the issue presented is an issue of law and the trial court's conclusions of law are fully reviewable on appeal." State v. Burr, 341 N.C. 263, 294, 461 S.E.2d 602, 618-19 (1995) (internal citations and quotations omitted), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526, stay granted and remanded, 343 N.C. 753, 472 S.E.2d 337 (1996), cert. granted and remanded, 348 N.C. 695, 511 S.E.2d 652 (1998), disc. rev. denied, 352 N.C. 677, 545 S.E.2d 439 (2000). Constitutional issues not raised and determined in the trial court will not be considered for the first time on appeal. State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988).
Defendant presents no persuasive argument to show the trial court abused its discretion in denying his motion to continue pending the Supreme Court's ruling in Jones and Sneed. As defendant has failed to show any abuse of discretion and our review of the record indicates none, we hold the trial court did not err in denying defendant's motion to continue on this basis.
Defendant contends the trial court erred by failing to continue the hearing to allow defendant's newly appointed counsel adequate time to prepare. Defendant concedes his new defense counsel failed to renew the prior motion made by previous defense counsel, which was not based on need, or request a continuance for more time to prepare. Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure states:
In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion. Any such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be made the basis of an assignment of error in the record on appeal.
N.C.R. App. P. 10(b)(1) (2004). As counsel for defendant did not move for a continuance, express any need for more time, or object to the hearing, his assignment of error is not properly before us. This assignment of error is dismissed.
IV. Possession of Cocaine as a Felony
Defendant's brief concedes that his prior conviction for possession of cocaine can serve as an underlying felony to support an habitual felon conviction. See Jones, 358 N.C. at 473, 598 S.E.2d at 125; see also Sneed, 358 N.C. at 538, 599 S.E.2d at 365. However, defendant citing Blakely v. Washington, argues the trial court erred by using this conviction to support the habitual felon conviction. ___ U.S. ___, 159 L. Ed. 2d 403 (2004), rehearing denied, ___ U.S. ___, 159 L. Ed. 2d 851. We disagree.
In Blakely, the Supreme Court held that because the facts supporting a sentence in the "exceptional range" were neither admitted by petitioner nor found by a jury, the elevated sentence violated his Sixth Amendment right to trial by a jury. Id. at ___, 159 L. Ed. 2d at 403. Further, Blakely requires submission to a jury and proof beyond a reasonable doubt of any fact that increases the penalty for a crime other than the fact of a prior conviction. Id.
Here, defendant was sentenced in the presumptive range based on prior convictions and his habitual felon status was submitted to and determined by a jury. Blakely is inapplicable to the facts at bar. Defendant's argument that his Sixth Amendment right to trial by a jury was violated is without merit. This assignment of error is overruled.
V. Prior Record Level
Defendant contends the trial court erred by calculating his prior record level using a common law robbery conviction that was consolidated into one judgment with another common law robbery conviction used to establish his status as being an habitual felon. We disagree.
Defendant's brief concedes that this Court's holding in State v. Truesdale, 123 N.C. App. 639, 473 S.E.2d 670 (1996) is contrary to his argument. In Truesdale, this Court held that nothing in the Habitual Felons Act or the Structured Sentencing Act prohibits use of one conviction obtained in a single calendar week to establish habitual felon status and using another separate conviction obtained the same week to determine prior record level. 123 N.C. App. at 642, 473 S.E.2d at 672. In State v. McCrae, we found no error where two counts of assault with a deadly weapon were consolidated for judgment and one was used to establish habitual felon status and the other to determine defendant's prior record level. 124 N.C. App. 664, 665, 478 S.E.2d 210, 211 (1996), disc. rev. denied, 345 N.C. 645, 483 S.E.2d 715 (1997). We held, "consolidated offenses for judgment means only that [those] convictions are consolidated for the purpose of rendering judgment." Id. at 665, 478 S.E.2d at 211.
Although acknowledging our holding in Truesdale, defendant "respectfully contends that the use of two convictions out of one incident should not be allowed to both habitualize the defendant and increase his prior record level." Defendant concedes this argument is contrary to our holdings in Truesdale and McCrae. The Court of Appeals is bound by prior precedents of this Court. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 383-84, 379 S.E.2d 30, 36-37 (1989); see State v. Brown, 146 N.C. App. 299, 301, 552 S.E.2d 234, 235 (2001), disc. rev. denied and appeal dismissed, 354 N.C. 576, 559 S.E.2d 186, cert. denied, 535 U.S. 1102, 152 L. Ed. 2d 1061 (2002). This assignment of error is overruled.
VI. Enhanced Judgment
Defendant contends that, although one of his armed robbery convictions was properly enhanced to Class C due to his habitual felon status, the remaining two convictions should not have been enhanced. He argues all three armed robberies occurred at the same time and place, and his habitual felon status rested upon the same three predicate felonies. We disagree.
Where multiple persons are robbed of personal property at gunpoint at a single location and time, the "armed robbery of each person [is] a separate and distinct offense." State v. Lewis, 28 N.C. App. 212, 213, 220 S.E.2d 408, 409 (1975), disc. rev. denied and appeal dismissed, 289 N.C. 300, 222 S.E.2d 701 (1976). Further, an underlying conviction previously used to convict a defendant of being an habitual felon may be used again to enhance another conviction as an habitual felon without the requirement that the State prove three new or different underlying felonies before a new habitual felon indictment can issue. State v. Smith, 112 N.C. App. 512, 517, 436 S.E.2d 160, 162 (1993).
Defendant argues his commission of three robberies on one date, 10 August 2000, should be considered as one occurrence, not as separate and distinct offenses. Following this Court's reasoning in Lewis, this argument is without merit. 28 N.C. App. at 213, 220 S.E.2d at 409. Each of defendant's convictions constitute "a felony" under the Habitual Felon Act. N.C. Gen. Stat. § 14-7.2, et. seq. (2003). This assignment of error is overruled.
VII. Conclusion
In his brief, defendant specifically abandons his assignments of error five and seven and they are dismissed. Defendant failed to show the trial court abused its discretion in denying defendant's motion for a continuance. The trial court did not err in using defendant's prior conviction of felony possession of cocaine to support the habitual felon judgment or in calculating defendant's prior record level. Defendant's three armed robbery convictions were "separate and distinct" offenses and are sufficient to support the enhanced sentence as an habitual felon. Defendant was sentenced in the presumptive range, and a jury found him to be an habitual felon. The trial court's judgment is affirmed.
Affirm.
Judges McGEE and GEER concur.
Report per Rule 30(e).