State v Mincey
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-223 NORTH CAROLINA COURT OF APPEALS Filed: 21 August 2012 STATE OF NORTH CAROLINA v. Cleveland County Nos. 06 CRS 58033, 07 CRS 2291 HOYLE LEE MINCEY Appeal by defendant from judgment entered 15 November 2011 by Judge James L. Baker, Jr. in Cleveland County Superior Court. Heard in the Court of Appeals 6 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Robert Croom, for the State. Law Offices of John defendant-appellant. R. Mills, by John R. Mills, for MARTIN, Chief Judge. Defendant Hoyle Lee Mincey appeals from a judgment entered based upon jury verdicts finding him guilty of felonious breaking and entering, felonious larceny, felonious possession of stolen property, and having attained the status of habitual felon. conviction The trial for court felonious arrested judgment possession of on stolen defendant s property, -2consolidated defendant s remaining convictions for judgment, and sentenced defendant as a habitual felon to a term of 168 to 211 months imprisonment. Defendant gave notice of appeal in open court. Defendant now argues the trial court erred in sentencing him as a habitual felon because the indictment charging him with having attained misdemeanor convictions. the status conviction as of one habitual of the felon required alleged three a felony Defendant argues the first of the three alleged felonies in the indictment is only a misdemeanor. However, the indictment clearly alleges the offense at issue is a felony: (1) That on or about 10/3/1981 in the Superior Court of Cleveland County, the defendant was convicted of the felony offense of breaking and/or entering and larceny against the State of North Carolina, N.C.G.S. 14-54 and 14-72 with the commission date of 7/21/1981, case number 81CRS9144 . . . . The State entered into evidence a true copy of the judgment entered in file number 81 CRS 9144, which establishes that defendant entered a guilty plea to the felony offense(s) of breaking, entering and larceny in violation of N.C. Gen. Stat. ยงยง 14-54(a), -72(b). There is an error in the indictment as the judgment in file number 81 CRS 9144 was entered on 3 November 1981, rather than 3 October 1981, but at trial the trial court -3properly allowed the amendment of the indictment to correct the erroneous date of conviction. See State v. Hargett, 148 N.C. App. 688, 693, 559 S.E.2d 282, 286 (holding that an amendment to correct a conviction date on a habitual felon indictment does not constitute a substantial change to the indictment), disc. review improvidently (2002). We note allowed, that during 356 N.C. 423, discovery, 571 the S.E.2d State 583 provided defendant with a copy of a misdemeanor conviction entered in file number 81 CRS 9143 on the same day as the judgment entered in file number 81 CRS 9144, and did not provide defendant with a copy of However, the this judgment mistake entered does in not file number invalidate 81 the CRS 9144. indictment charging defendant with having attained the status of habitual felon. See State v. Bowens, 140 N.C. App. 217, 225, 535 S.E.2d 870, 875 (2000) ( The essential purpose of an habitual felon indictment is to give a defendant notice he is being charged as an habitual felon so he may prepare a defense as to having a charge of the three listed felony convictions. ), disc. review denied, 353 N.C. 383, 547 S.E.2d 417 (2001). argument is overruled. No error. Judges STEPHENS and ERVIN concur. Defendant s -4Report per Rule 30(e).
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