Opinion
No. COA12–986.
2013-04-2
STATE of North Carolina v. Lee Allen SHULER.
Attorney General Roy Cooper, by Associate Attorney General Adrian Dellinger, for the State. John L. Wait for defendant-appellant.
Appeal by defendant from judgment entered 30 April 2012 by Judge Marvin P. Pope in Catawba County Superior Court. Heard in the Court of Appeals 25 March 2013. Attorney General Roy Cooper, by Associate Attorney General Adrian Dellinger, for the State. John L. Wait for defendant-appellant.
BRYANT, Judge.
Where defendant failed to raise and receive a ruling on a constitutional claim before the trial court, his argument is not preserved for appellate review. Accordingly, we dismiss defendant's appeal.
Defendant Lee Ann Shuler pled guilty on 30 April 2012 to felony possession of cocaine and attaining the status of habitual felon. The plea agreement provided for sentencing of defendant at the lowest end of the mitigated range for the class of offense and defendant's prior record level. The agreement also provided that defendant reserved his right to appeal his sentence pursuant to N.C. Gen.Stat. § 15A–1444 (a2)(2)-(3). The court thereafter sentenced defendant to an active term of imprisonment for 76 to 101 months. Defendant appeals.
Defendant contends that the trial court erred by sentencing him as an habitual felon at Class C instead of Class E. He acknowledges that the court correctly sentenced him in accordance with the law in effect at the time he committed the principal felony on 6 September 2010. Nonetheless, he argues he was denied equal protection of the law under the state and federal constitutions because by virtue of the Justice Reinvestment Act of 2011, those who are adjudged habitual felons for principal felony offenses committed after 1 December 2011 receive the benefit of reclassification of habitual felon status for sentencing purposes to a felony that is four classes higher than the principal felony. See 2011 N.C. Sess. Laws 192, § 3(d)-(e).
Defendant, however, also acknowledges that similar challenges on the basis of the equal protection clause have been looked upon with disfavor by our appellate courts. See, e.g., State v. Howren, 312 N.C. 454, 457–58, 323 S.E.2d 335, 337–38 (1984) (holding equal protection clause is not violated by a statute increasing the number of breathalyzer tests which must be administered to a person suspected of driving while impaired). Defendant asks us to hold that the change of classification violated his equal protection rights.
We note that although defendant argued the revised statute was unfair to him and others who committed the same principal offense before the effective date of the amendment, he did not challenge or obtain a ruling upon the constitutionality of the statute in the court below. An appellate court is not required to consider a constitutional issue which was not raised or passed upon at trial. State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988) (citation omitted), overruled in part by State v. Hooper, 358 N.C. 122, 591 S.E.2d 514 (2004). Any review of the constitutional issue by the appellate court under this circumstance is discretionary pursuant to Appellate Rule 2 to prevent manifest injustice. State v. Wiley, 355 N.C. 592, 624, 565 S.E.2d 22, 44–45 (2002). We decline to invoke Rule 2.
As Howren makes clear, “[a] statute is not subject to the equal protection clause of the fourteenth amendment of the United States Constitution or article I § 19 of the North Carolina Constitution unless it creates a classification between different groups of people.” 312 N.C. at 457, 323 S.E.2d at 337. A statute does not violate equal protection if it treats the same group of people different ways at different times. Id. at 458, 323 S.E.2d at 338. Here, N.C. Gen.Stat. § 14–7.6 treats habitual felons in different ways depending upon the date the principal felony is committed. This does not implicate an equal protection violation. Accordingly, defendant's argument is dismissed.
Dismissed. Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).