An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA 13

- 1157 NORTH CAROLINA COURT OF APPEALS Filed: 20 May 2014

STATE OF N O R TH CAROLINA

v. Duplin County No s . 08 CRS 51563, 515 67 LISTON TURNER

Appeal by D efendant 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 o f Margaret C. Lumsden PLLC, by Margaret C. Lumsden , for D efendant

- A ppellant.

McGEE , Judge.

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

on rese ntencing. Defendant raises as error s the trial court’ s determination that Defendant was a prior record level V I offender and the habitual felon sentence imposed
. We affirm the judgment.- 2
-

A jury found D efendant guilty of breaking and /or entering, larceny pursuant to bre aking and /or entering, and possession of stolen goods on 29 April 2009
. Defendant subsequently ple a d ed guilty to attaining habitual felon status. At D efendant’ s sentencing hearing , the trial court found that D efendant had six prior Class H or I felony conviction s resulting in tw elve 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 V I . The trial court arrested judgment on the possession of stolen goods conviction, consolidated the remaining convictions for judgm ent, and sentenced D efendant 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- 1205) (unpublished) ( Turner I ).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 s eeking review of the order denying his MAR. By order filed 23 January 2013, this Court allowed the petition , stating : “ I t appearing that [ D efendant] was incorrectly sentenced as a Prior Record Level VI felon (6- 3
-

rather than 7 misdemeanor points) the judgment [] is remanded for re sentencing.”
T he trial court held a re sentencing hearing on 28 February 2013. T he State introduced a new sentencing worksheet
. Specifically, t he State presented evidence of one point for a Class 1 misdemeanor convictio n 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 D efendant had twe nty prior record points and was a prior record level V I . Defendant was resentenced as an habitual felon to 16 8 to 21 1 months in prison
. D efendant first contends t he trial court erred in resentencing him as a prior record level VI. Defendant asserts this Court’s “ decision that [D] e fendant should be sentenced at

r ecord l evel V w as law of the case binding on the trial judge at resentencing[.]” We disagree.

“ For all intents and purposes the resentencing hearing is de novo a s to the appropriate sentence.” St ate v. Mitchell , 67 N.C. App. 549, 551, 313 S.E. 2d 201 , 202 (1984 ). “[T] he

resen tencing court must take its own look at the evidence [.] ”- 4
-

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 D efendant’s assertion, t his Court did not order the trial court to resentence D efendant at a prior record level V . Rather, this Court determined that D efendant ’s prior sentencing worksheet showed D efendant had six , not seven , prior misdemeanor convictions and remanded the case for resentencing. T he 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
. T he trial court did not err in holding a de novo resentencing hearing, determining D efendant had twenty prior re cord level points, and sentencing D efendant a t a prior record level V I . Defendant also contends his sentence as a n 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 challeng es to habitual felon sentences.” State v. Cummings , 174 N.C. App. 772, 776, 622 S.E.2d 183, 185

- 86 (2005)
. Similarly, o ur appellate courts- 5
-

have previously held that a sentence imposed within the presumptive range of the Structured Sente ncing Act does not violate the Eighth Amendment. See State v. Evans , 162 N.C. App. 540, 54 4, 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 c annot be classified as cruel and unu sual in a constitutional sense.” ).

“ [T]his Court has on several occasions affirmed the sentence of a defendant as a n 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 consecu tive terms of 168 to 211 months ’ active imprisonment )
. In this case , D efendant was sentenced to 168 to 211 months ’ imprisonment not only because of the two Cl ass H felonies committed in 2008 , but als o 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).