An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-1157

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Duplin County

Nos. 08 CRS 51563, 51567

LISTON TURNER

Appeal by Defendant from judgment entered 28 February 2013

by Judge W. Douglas Parsons in Superior Court, Duplin County. 

Heard in the Court of Appeals 29 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Elizabeth J. Weese, for the State.

Law Office of Margaret C. Lumsden PLLC, by Margaret C. 

Lumsden, for Defendant-Appellant.

McGEE, Judge.

Liston Turner (“Defendant”) appeals from a judgment entered 

on resentencing. Defendant raises as errors the trial court’s 

determination that Defendant was a prior record level VI 

offender and the habitual felon sentence imposed. We affirm the 

judgment.
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A jury found Defendant guilty of breaking and/or entering, 

larceny pursuant to breaking and/or entering, and possession of 

stolen goods on 29 April 2009. Defendant subsequently pleaded

guilty to attaining habitual felon status. At Defendant’s 

sentencing hearing, the trial court found that Defendant had six

prior Class H or I felony convictions resulting in twelve points 

and seven prior Class A1 or 1 misdemeanor convictions resulting 

in seven points, for a total of nineteen points and a 

corresponding prior record level VI. The trial court arrested 

judgment on the possession of stolen goods conviction, 

consolidated the remaining convictions for judgment, and 

sentenced Defendant to 168 to 211 months in prison. This Court 

found no error on appeal. State v. Turner, ___ N.C. App. ___, 

723 S.E.2d 583 (2012) (COA 11-1205) (unpublished) (Turner I).

Defendant subsequently filed a motion for appropriate 

relief (MAR) with the trial court. Defendant argued, in part, 

that his prior record level was incorrectly calculated. The 

trial court denied the MAR. Defendant then filed a petition for 

writ of certiorari with this Court seeking review of the order 

denying his MAR. By order filed 23 January 2013, this Court 

allowed the petition, stating: “It appearing that [Defendant] 

was incorrectly sentenced as a Prior Record Level VI felon (6 
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rather than 7 misdemeanor points) the judgment [] is remanded 

for resentencing.” 

The trial court held a resentencing hearing on 28 February 

2013. The State introduced a new sentencing worksheet.

Specifically, the State presented evidence of one point for a 

Class 1 misdemeanor conviction for possession of drug 

paraphernalia in Duplin County on 19 December 2006, and one 

point for the fact that “the elements of the present offense are 

included in any prior offense[.]” Based on the new worksheet, 

the trial court concluded Defendant had twenty prior record 

points and was a prior record level VI. Defendant was 

resentenced as an habitual felon to 168 to 211 months in prison.

Defendant first contends the trial court erred in 

resentencing him as a prior record level VI. Defendant asserts 

this Court’s “decision that [D]efendant should be sentenced at 

record level V was law of the case binding on the trial judge at 

resentencing[.]” We disagree.

“For all intents and purposes the resentencing hearing is 

de novo as to the appropriate sentence.” State v. Mitchell, 67 

N.C. App. 549, 551, 313 S.E.2d 201, 202 (1984). “[T]he 

resentencing court must take its own look at the evidence[.]” 
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State v. Daye, 78 N.C. App. 753, 756, 338 S.E.2d 557, 560, aff’d

per curiam, 318 N.C. 502, 349 S.E.2d 576 (1986).

Defendant misinterprets this Court’s 23 January 2013 order. 

Contrary to Defendant’s assertion, this Court did not order the 

trial court to resentence Defendant at a prior record level V. 

Rather, this Court determined that Defendant’s prior sentencing 

worksheet showed Defendant had six, not seven, prior misdemeanor 

convictions and remanded the case for resentencing. The trial 

court subsequently held a resentencing hearing in accordance 

with this Court’s order. As a de novo proceeding, the trial 

court evaluated the new sentencing worksheet. The trial court 

did not err in holding a de novo resentencing hearing, 

determining Defendant had twenty prior record level points, and 

sentencing Defendant at a prior record level VI.

Defendant also contends his sentence as an habitual felon 

violates his right against cruel and unusual punishment because 

the sentence was grossly disproportionate to the crime. We 

disagree.

“This Court and the North Carolina Supreme Court have 

consistently rejected Eighth Amendment challenges to habitual 

felon sentences.” State v. Cummings, 174 N.C. App. 772, 776, 

622 S.E.2d 183, 185-86 (2005). Similarly, our appellate courts 
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have previously held that a sentence imposed within the 

presumptive range of the Structured Sentencing Act does not 

violate the Eighth Amendment. See State v. Evans, 162 N.C. App. 

540, 544, 591 S.E.2d 564, 567 (2004) (“North Carolina courts 

have consistently held that when a punishment does not exceed 

the limits fixed by the statute, the punishment cannot be 

classified as cruel and unusual in a constitutional sense.”). 

“[T]his Court has on several occasions affirmed the sentence of 

a defendant as an habitual felon where the defendant was 

convicted of an underlying Class H or Class I felony.” State v. 

Clifton, 158 N.C. App. 88, 95-96, 580 S.E.2d 40, 46 (2003)

(upholding a sentence of two consecutive terms of 168 to 211 

months’ active imprisonment).

In this case, Defendant was sentenced to 168 to 211 months’

imprisonment not only because of the two Class H felonies 

committed in 2008, but also due to his significant criminal 

history. The trial court did not err in sentencing Defendant as 

an habitual felon.

Affirmed.

Judges ELMORE and DAVIS concur.

Report per Rule 30(e).