Opinion
No. COA12–866.
2013-04-2
STATE of North Carolina v. John Antonio MAYHEW.
Attorney General Roy Cooper, by Assistant Attorney General LaShawn S. Piquant, for the State. Franklin E. Wells, Jr., for defendant-appellant.
Appeal by defendant from judgment entered 17 November 2011 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 March 2013. Attorney General Roy Cooper, by Assistant Attorney General LaShawn S. Piquant, for the State. Franklin E. Wells, Jr., for defendant-appellant.
BRYANT, Judge.
Where the trial court allowed a police officer to testify based on his recollection of defendant's statements made after being read his Miranda rights, we hold no error. Where defendant was sentenced within the aggravated range and as a habitual felon, we hold no error.
On 20 May 2010, undercover Charlotte–Mecklenburg Police Officer Thomas Wishon arranged to buy crack cocaine from defendant John Antonio Mayhew. A short time after Wishon and defendant exchanged money and cocaine, uniformed officers arrested defendant. Wishon identified defendant as the man who sold him the cocaine. Wishon spoke to defendant after the arrest and advised him of his Miranda rights. Defendant waived those rights and spoke to Wishon. Another officer was also present when defendant made his statement. Defendant told Wishon that he was the only person that he had sold drugs to that night. Defendant also stated that he normally sold “dime rocks,” or about .1 grams of crack cocaine.
Prior to trial, defendant filed a motion in limine seeking to exclude his self-incriminating statement to Wishon. During trial, defendant objected to Wishon's testimony about his statement and sought to exclude that testimony. The trial court permitted Wishon to testify about his recollection of defendant's statement. A second officer who was present when defendant made the statement also testified to her recollection of defendant's statement.
The jury found defendant guilty of sale of cocaine, delivery of cocaine, possession with intent to sell or deliver cocaine, and having attained habitual felon status. The State voluntarily dismissed the possession with intent to sell or deliver charge, and the trial court arrested judgment on the delivery conviction. As an aggravating sentencing factor, the jury found that during the ten-year period prior to the instant offense, defendant had been found in willful violation of probation. The trial court sentenced defendant to an aggravated-range term of 98 to 127 months imprisonment. Defendant appeals.
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On appeal, defendant raises the following questions: whether the trial court erred by (I) permitting the State to introduce evidence of defendant's statements; and (II) sentencing defendant in the aggravated range.
I
Defendant contends the trial court erred when it permitted officers to testify about the statement he made to Wishon. We disagree.
Generally, a defendant's written confession is not admissible against him at trial unless “it was read over to or by [the defendant], or was translated to him, and signed or otherwise admitted by him to be correct.” State v. Walker, 269 N.C. 135, 139, 152 S.E.2d 133, 137 (1967) (quotation marks and citations omitted). See also State v. Spencer, 192 N.C.App. 143, 152–53, 664 S.E.2d 601, 607 (2008). It is permissible, however, for the State to offer the testimony of a police officer relating his recollection of a defendant's self-incriminating statements, and for the officer to “refer to a memorandum prepared by [that officer] for the purpose of refreshing his recollection as to statements made by defendant.” State v. Greenlee, 22 N.C.App. 489, 491, 206 S .E.2d 753, 754 (1974) (citation omitted).
Here, the trial court properly permitted the two officers “to testify as to their recollections of the statements made by the defendant.” In fact, the officers testified about their own recollections and did not read defendant's written statement or their notes to the jury. Accordingly, we hold the trial court properly overruled defendant's objection to the officers' testimony.
II
Next, defendant argues that the trial court erred by sentencing him in the aggravated range and as an habitual felon. Specifically, defendant contends that it was error to sentence him in the aggravated range where the aggravating factor, that defendant had been found within the past ten years to be in willful violation of the conditions of probation, was premised upon probation imposed and revoked as a result of two of the felonies used toward establishing defendant's habitual felon status. We disagree.
Pursuant to North Carolina General Statutes, section 15A1340.16, the following is an aggravating factor:
The defendant has, during the 10–year period prior to the commission of the offense for which the defendant is being sentenced, been found by a court of this State to be in willful violation of the conditions of probation imposed pursuant to a suspended sentence or been found by the Post–Release Supervision and Parole Commission to be in willful violation of a condition of parole or post-release supervision imposed pursuant to release from incarceration.
N.C. Gen.Stat. § 15A–1340.16(d)(12a) (2011). See State v. McLean, 74 N.C.App. 224, 229, 328 S.E.2d 451, 455 (1985) (“[The] [d]efendant was in fact on probation for a prior [felony conviction]. This fact is unrefuted. Accordingly, it is not error for the trial court to base a factor in aggravation upon evidence that defendant is in fact on probation as long as the finding of such a factor in aggravation is reasonably related to sentencing.” (citation omitted)).
By statute, an habitual felon is defined as any person who has been convicted of three prior felony offenses. N.C. Gen.Stat. § 14–7.1 (2011). Generally, the State may not use evidence necessary to prove an element of the offense to prove an aggravating sentencing factor. SeeN.C. Gen.Stat. § 15A–1340.16 (a2) (2011). However, “[b]eing an habitual felon is not a crime but is a status the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence.” State v. Thomas, 82 N.C.App. 682, 683, 347 S.E.2d 494, 495 (1986) (quotation marks and citation omitted).
In this case, the State presented sufficient evidence of three prior felony convictions to support the jury's verdict finding defendant guilty of having attained habitual felon status. Defendant's probation violation, used to aggravate his sentence, is not one of the offenses used to support his habitual felon status, nor is habitual felon status a substantive offense. See McLean, 74 N.C.App. 224, 328 S.E.2d 451. The cases cited by defendant in his brief do not support his argument otherwise. Accordingly, we find no error.
No error. Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).