STATE v. CLYBURN, 159 N.C. App. 467 (2003)

583 S.E.2d 428

No. COA03-64North Carolina Court of Appeals
Filed 5 August 2003 This case not for publication

Union County Nos. 01 CRS 52150, 02 CRS 3709 AKA.

Appeal by defendant from judgment entered 22 July 2002 by Judge Sanford L. Steelman in Superior Court, Union County. Heard in the Court of Appeals 21 July 2003.

Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State.
Hosford Hosford, P.L.L.C., by Sofie W. Hosford, for defendant appellant.

McGEE, Judge.

Defendant pled guilty to felony possession of cocaine and habitual felon status. The trial court sentenced defendant to 105 to 135 months’ imprisonment.

Counsel appointed to represent defendant on appeal has filed a brief pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, reh’g denied, 388 U.S. 924, 18 L.Ed.2d 1377 (1967), stating that counsel is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal. Defendant’s counsel requests that this Court conduct our own review of the record for possible prejudicial error. Counsel has filed documentation with our Court showing her compliance with the requirements of Anders and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising defendant of his right to file written arguments with our Court and providing him with a copy of the documents pertinent to his appeal.

Defendant has filed two pro se documents with this Court. His “Motion for Appropriate Relief” raises issues within his appeal of right and is, therefore, treated as written arguments under Anders. Defendant’s second filing is styled a “Notice of Appearance As Pro Se Litiga[nt] And Dismissal of Counsel” and seeks to discharge his appellate attorney in order that his pro se arguments may be heard. Because pro se arguments are permitted in a counseled Anders appeal, we dismiss this filing.

Defendant first argues his habitual felon indictment is fatally defective because it does not allege the substantive felony with which he was charged. Our Supreme Court has determined that a habitual felon indictment need not allege the substantive felony. State v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 864 (1995) (“[A] requirement that the habitual felon indictment specifically refer to the predicate substantive felony is not supported by the plain wording of the statute.”). Defendant next challenges the use of his prior convictions for driving while impaired in 1985 and 1994 in calculating his prior record level. Under the Structured Sentencing Act as amended in 1997, each prior conviction for driving while impaired under N.C. Gen. Stat. § 20-138.1 results in one prior record point. The trial court properly assigned one point for each of defendant’s driving while impaired convictions. Moreover, because the provisions of N.C. Gen. Stat. § 15A-1340.14(b)(5) were enacted before defendant committed a felony offense on 14 June 2001, the use of these prior convictions to enhance his sentence does not violate the constitutional stricture dealing with ex post facto laws. See Gryger v. Burke, 334 U.S. 728, 732, 92 L.Ed. 1683, 1687 (1948); State v. Todd, 313 N.C. 110, 117-18, 326 S.E.2d 249, 253 (1985).

In accordance with Anders and Kinch, we have fully examined the record to determine whether any issues of arguable merit appear therein. We find no error and conclude that the appeal is frivolous.

No error; motion for appropriate relief is denied; and defendant’s “Notice” filing is dismissed.

Judges HUDSON and GEER concur.

Report per Rule 30(e).