in the Supreme Court on 11 December 2017.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, _ N.C. App. _,
792 S.E.2d 898 (2016), reversing a judgment entered on 9
December 2015 by Judge Mark E. Powell in Superior Court,
Transylvania County, and remanding for resentencing.
H. Stein, Attorney General, by Tracy Nayer, Assistant
Attorney General, for the State-appellant.
Eldred for defendant-appellee.
case we are called upon to determine whether language in N.C.
G.S. § 90-95(e)(3) of the North Carolina Controlled
Substances Act ("the Act"), which provides that a
Class 1 misdemeanor "shall be punished as a Class I
felon[y]" when the misdemeanant has committed a previous
offense punishable under the Act, procedurally enhances
punishment for the misdemeanor offense or instead creates a
substantive felony offense. Relying on our reasoning in
State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004),
we conclude that the General Assembly intended for
subdivision (e)(3) to establish a separate felony offense
rather than merely to serve as a sentence enhancement of the
October 2014, defendant William Sheldon Howell was indicted
for several offenses alleged to have been committed on 10
October 2014, including possession with intent to sell or
deliver approximately fifteen grams of marijuana, maintaining
a dwelling used for keeping and selling marijuana, and
knowingly possessing with the intent to use drug
paraphernalia. Also on 27 October 2014, defendant was
indicted for attaining the status of habitual felon. One of
the three underlying felonies listed in the habitual felon
indictment was a 27 August 2003 conviction in Buncombe County
for felonious possession with intent to sell or deliver
marijuana. As a result of the events of 10 October 2014, on
15 June 2015, defendant was further indicted for (1)
possessing over one-half ounce but less than one and one-half
ounces of marijuana, a Class 1 misdemeanor under N.C. G.S.
§ 90-95(d)(4) of the Act, and (2) having been previously
convicted of an offense under the Act, namely, the
above-referenced August 2003 conviction in Buncombe County.
December 2015, defendant entered into a plea agreement with
the State, in which defendant would (1) plead guilty to the
N.C. G.S. § 90-95(d)(4) marijuana possession charge, (2)
acknowledge his prior convictions in violation of the Act,
and (3) admit his habitual felon status in exchange for the
State's dismissal of other pending charges. In the
Superior Court, Transylvania County, Judge Mark E. Powell
accepted defendant's plea and entered a consolidated
judgment on the charges, noting that, although the marijuana
possession charge was "a Class 1 misdemeanor, . . .
I'm treating it as a Class I felony because of the prior
conviction. And that Class I felony because of the habitual
felon status is punished as a Class E
felony." The trial court sentenced defendant to an
active term of twenty-nine to forty-seven months, suspended
the period of incarceration, and placed defendant on
supervised probation for thirty-six months.
appealed to the North Carolina Court of Appeals, where he
argued that the trial court erred by enhancing his sentence
for misdemeanor possession of marijuana to a Class I felony
due to his prior conviction under the Act and then from a
Class I felony to a Class E felony based on his habitual
felon status. In an opinion filed on 6 December 2016, the
Court of Appeals agreed, reversing and remanding the case for
resentencing. State v. Howell, __ N.C.App. __, 792
S.E.2d 898 (2016). The Court of Appeals reasoned that,
"while defendant's Class 1 misdemeanor [was]
punishable as a felony under the circumstances present here,
the substantive offense remain[ed] a Class 1
misdemeanor" and defendant's "habitual felon
[status could not] be used to further enhance a sentence that
[wa]s not itself a substantive offense." Id. at
__, 792 S.E.2d at 901.
State sought discretionary review of the Court of Appeals
decision, and this Court allowed the State's petition by
order entered on 16 March 2017. When this Court looks at a
determination of the Court of Appeals by way of discretionary
review, our task "is to determine whether there is any
error of law in the decision of the Court of Appeals and only
the decision of that court is before us for review."
State v. Brooks, 337 N.C. 132, 149, 446 S.E.2d 579,
590 (1994) (citations omitted).
State contends that, in failing to discuss and apply this
Court's opinion in Jones, the reasoning of which
the State asserts is controlling here, the Court of Appeals
erroneously determined that N.C. G.S. § 90-95(e)(3) does
not create a substantive felony offense. We agree with the
State's interpretation of the applicability of our
decision in Jones to the case at bar.
explanation of our resolution of the issue in this appeal is
facilitated by a brief review of three subsections of section
90-95 of the Act: N.C. G.S. § 90-95(a), (d), and (e).
The first subsection contains general provisions that
criminalize making, selling, delivering, and possessing
controlled substances and counterfeit controlled substances.
N.C. G.S. § 90-95(a)(1), (2) (2017). Pertinent to this
case, the third subdivision of subsection (a) makes it
unlawful "[t]o possess a controlled substance."
Id. § 90-95(a)(3) (2017).
second of the cited subsections sets forth how violations of
N.C. G.S. § 90-95(a)(3) are punished based upon what
type of controlled substance is possessed. Under N.C. G.S.
§ 90-95(d), "any person who violates G.S.
90-95(a)(3) with respect to:"
(1) A controlled substance classified in Schedule I shall be
punished as a Class I felon. However, if the controlled
substance is MDPV and the quantity of the MDPV is 1 gram or
less, the violation shall be punishable as a Class 1
(2) A controlled substance classified in Schedule II, III, or
IV shall be guilty of a Class 1 misdemeanor. If the
controlled substance exceeds four tablets, capsules, or other
dosage units or equivalent quantity of hydromorphone or if
the quantity of the controlled substance, or combination of
the controlled substances, exceeds one hundred tablets,
capsules or other dosage units, or equivalent quantity, the
violation shall be punishable as a Class I felony. If the
controlled substance is methamphetamine, amphetamine,
phencyclidine, or cocaine and any salt, isomer, salts of
isomers, compound, derivative, or preparation thereof, or
coca leaves and any salt, isomer, salts of isomers, compound,
derivative, or preparation of coca leaves, or any salt,
isomer, salts of isomers, compound, derivative or preparation
thereof which is chemically equivalent or identical with any
of these substances (except decocanized coca leaves or any
extraction of coca leaves which does not contain cocaine or
ecgonine), the violation shall be punishable as a Class I
(3) A controlled substance classified in Schedule V shall be
guilty of a Class 2 misdemeanor;
(4) A controlled substance classified in Schedule VI shall be
guilty of a Class 3 misdemeanor, but any sentence of
imprisonment imposed must be suspended and the judge may not
require at the time of sentencing that the defendant serve a
period of imprisonment as a special condition of probation.
If the quantity of the controlled substance exceeds one-half
of an ounce (avoirdupois) of marijuana or one-twentieth of an
ounce (avoirdupois) of the extracted resin of marijuana,
commonly known as hashish, the violation shall be punishable
as a Class 1 misdemeanor. If the quantity of the controlled
substance exceeds one and one-half ounces (avoirdupois) of
marijuana, or three-twentieths of an ounce (avoirdupois) of
the extracted resin of marijuana, commonly known as hashish,
or if the ...