An unpublished opinion of the North Carolina Court of Appeals does not constitute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 1 4

- 437 NORTH CAROLINA COURT OF APPEALS Filed: 2 December 2014

STATE OF NORTH CAROLINA

v. Rutherford County No s . 12 CRS 52994 & 13 CRS 927 WILLIAM TODD SCRUGGS

Appeal by d efendant from judgment entered 9 October 2013 by Judge J. Thomas Davis in Rutherford County Superior Court. Heard in the Court of Appeals 24 September 2014
. Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell , for the State. Anne Bleym an, for defendant

- appellant.

STEELMAN , Judge.
The trial court properly charged the jury on the statutory requirement that d efendant’s violation of a domestic violence prot ective order must be knowing. D efendant was not entitled to the requested jury instruction on intent. Where d efendant has no righ t to appeal i ssues regarding his guilty plea, those arguments are dismissed.- 2

- I. Factual & Procedural History William Todd Scruggs (“ d efendant ”) and S andra Scruggs Mulray (“Sandra”) were married, but separated on 16 June 2010
. On the day before the separation, 15 June 2010, d efendant assaulted Sandra and threatened to kill her
. Following this incident, d e fendant moved out of their marital residence and
Sandra obtained a one - year domestic violence protective order against d efendant , which was valid from 28 June 2010 until 28 June 2011
. The domestic violence protective order required that d efendant “not assault, threaten, abuse, follow, harass (by telephone, visiting the home or workplace or other means) , or interfere with [Sandra]” and that d efendan t “stay away ” from Sandra’s residence.
On 18 August 2010, d efendant was convicted of three separate counts of violating the dom estic violence protective
order
. The protective order was later renewed for another two
years, making the expiration date 28 June 2013
. On 14 September 2012, at approximately 8:40 p.m., Sandra and Tracer Malray (“Tracer”), Sandra’s then boyfriend , arrived
at S andra ’s residence
. As Sandra and Tracer walked to the front door of the residence , they observed a truck suddenly turn i ts headlights off and come to a stop on the road in front of the- 3

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residence
. Sandra recogn ized the truck as belonging to
d efendant
. A male voice from the truck started shouting obscenities at Sandra including: “[y] ou effed up. I am going to kick your ass”; “[y]ou F

- ing whore”; and “[t] his ain’t over, Sandra.” Sandra identified the voice as being that of
d efendant
. The truck remained stopped on the road for two or three minutes, revving its engine and spinning its tires before it drove a way. After the truck left, Sandra called 911 and spoke with Deputy Thomas Keever of the Rutherford County Sheriff’s Department. Several days later, Deputy Keever spoke with
d efendant over the telephone
. Defendant told Deputy Keever that he had been drinking on the night in question when “he saw the
mother fucker standing out in the yard” and then proceeded to
ask “ where was his bitch, slut, whore was at.” On 22 April 2013, d efendant was ind icted by the Rutherford County grand j ury fo r felonious ly violating a domestic violence protective order , 1 and for attaining the status of an habitual
felon
. On 7 October 2013, d efendant’s case was tried before Judge Davis and a jury
. Defendant stipulated to the three prior

1 N.C. Gen. Stat . § 50B

- 4.1(f) provides that a knowing violation of a valid protective order becomes a felony when the defendant has previously been convicted of two offenses under chapter 50B
.- 4
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violations of the domestic violence protective order. 2 Defendant also pled guilty to attaining the status of a n habitual felon.
O n 9 October 2013, d efendant was found guilty of violating a domestic violence protective order
. Defendant wa s sentenced as

a n habitual felon to a n active prison term of 84 to 113 months
. Defendant appeals.
II . Jury Instruction s In his first argument, d efendant argues the trial court
should have instructed the jury in accordance with d efendant’s requested instruction on intent because intent is a substantive or material feature of the crime of violating a domestic violence protective order. We disagree.
A. Standard of Review “Assignments of error challenging the trial court’s decisions regarding jury instructions are reviewed de novo [.] ” State v. Osorio , 196 N.C. App. 458, 4 66, 675 S.E.2d 144, 149 (2009).
T his Court reviews jury instructions contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed. The party asserting

2 By admitting the prio r violations of the domestic violence protective order, d efendant avoided having the State introduce evidence of the prior offenses before the jury. See N.C. Gen. Stat. § 15A

- 928.- 5
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error bears the burden of showing that the jury was misled or that the verdict was affect ed by the instruction. Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury. State v. Blizzard , 169 N.C. App. 285, 296

– 97, 610 S.E.2d 245, 253 (2005) ( internal quotation marks, brackets, and ellipses omitted) (quoting Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002) )
. B. Analysis
N.C. G en . S tat. § 50B

- 4.1 provides that it i s a criminal offense for a person to “ knowingly violate [] a valid protective
order ” entered pursuant to chapter 50B
. With respect to this
offense , t he trial court instructed the jury :
For you to find the defendant guilty o f this offense, the State must prove three things beyond a reasonable doubt: First, that a valid domestic violence protective order had been issued pursuant to North Carolina law; second, that the defendant violated the valid domestic violence protective d omestic order by stopping in front of the residence of Sandra Lynn Scruggs and yelling at her; [and] third, that the defendant did so knowingly.
The instruction given by the trial court substantively and accurately conveyed to the jury what constitutes the offense of violating a valid protective order under N.C. Gen. Stat. § 50B

4.1
. Defendant argues that intent is a substantive or material- 6

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feature of violating a protective order , and contends that the trial court should have given the inst ruction on in tent requested by d efendant. However, N.C. Gen. Stat. § 50B

- 4.1 only requires that a defendant must have knowingly violated a valid protective order. The trial court correctly charged the jury that they must find that d efendant knowingly violated the domestic violence protective order.
Further , even if the trial court had given the requested instruction on intent, it would not have changed the outcome of the trial
. Defendant’s requested instruction would have informed the jury that intent “must ordina rily be proved by circumstances from which it may be inferred.” N.C.P.I. Crim. 120.10. The circumstances present in this case show that d efendant parked his truck on the road in front o f Sandra’s residence while shouting obscenities at her. It strains credibility that a jury could examine d efenda nt’s actions and
conclude that d efendant did not have the intent to violate the terms of the valid protective order. Defendant did not simply drive by Sandra’s residence. Instead, he parked his car on the
road in front of Sandra’s residence , and repeatedly yelled threats and obscenities at her
. Give n d efendant’s conduct and the clear provisions of the protective order, there is no- 7
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reasonable likelihood that a jury would have found that the State failed to prov e an intent to violate the order. Defendant
cannot demonstrate that the jury’s verdict was affected by the trial court’s refusal to give d efendant’s r equested instruction on intent. Defendant’s argument is without merit.

III. Habitual Felon Guilty Plea In his second, third , and fourth arguments, d efendant contends that the trial court erred in accepting his plea of guilty to habitual felon status; and sentencing him as a n habitual felon because : ( 1) there was no t a sufficient factual basis for the plea ; ( 2) the trial court failed to inform
d efendant of the maximum possible or the mandatory minimum
sentence that he coul d receive , and theref ore the plea was not an informed choice ; and ( 3) that the status of habitual felon violates d efendant’s constitutional right to be free from cruel and unusual punishment. We disagree. “[U]nder N.C.G.S. § 15A

- 1444(e), a defendant who has entered a plea of guilty is not entitled to appellate review as a matter of right, unless the defendant is appealing sentencing issues or the denial of a motion to suppress, or the defendant
has made an unsucces sful motion to withdraw the guilty plea.”- 8

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State v. Pimental , 153 N.C. App. 69, 73, 568 S. E.2d 867, 870 (2002). N one of d efendant’s claims regarding his guilty plea involve an issue that is entitled to appellate review and a ll of d efendant’s arguments rega rding his guilty plea are dismissed.
Defendant has filed a petition for a writ of certiorari
. In our discretion we deny d efendant’s petition for writ of certiorari
. Even assuming arguendo that these issues were properly before this court , d efendant’s arguments are without merit. Defendant asserts that there was not a sufficient fa ctual basis for his guilty plea
. This assertion is based solely upon the argument that the allegations contained in the indictment were the sole factual basis for the plea. However, this claim is belied by the record. At the close of the State’s evidence , d efendant elected to admit his prior convictions of violating a domestic violence protective order
. At this time, d efendant also pled guilty t o having obtained the status of an habitual
felon. The trial court went over the three prior felonies that were the basis for the habitual felon charge as follows: THE COURT: At this time, too, I need to know whether your client is going to admit, deny, o r remain silent as to the habitual felon status and admit the guilt as to that status set out in that indictment
. . . consisting of a conviction on March 20, 1991 for felony to sell marijuana, and file No. 91 CRS 1017, and the date of that occurrence of that offense was November 6 of 1990.- 9

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The second felony that is alleged in the indictment was a felony attempted possession of a firearm by a convicted felon. It’s in file No. 10 CRS 52176, conviction date of that was August 18, 2010, and the occurrence date of that offense was June 15 of 201 0. The third felony conviction that is alleged in the indictment, it is a felony offense of domestic violence protective order violation. The file No. 11 CRS 52549, conviction date of September 29, 2011, the occ urrence date of July 31, 2011. Is your c lient going to admit the guilt as to those matters, also? ([ Defendant’s counsel] nods head up and down.) THE COURT: We will need a separate transcript for those, also, that needs to be prepared. I will go over the transcript with him in that regard.
A plea transcript was subsequently prepared, and d efendant pled guilty before the trial court. The only elements of the offense of habitual felon status were the three prior felony convictions. See N.C. Gen. Stat. § 14

- 7.1 ( 2013 ). Since the trial court ha d just gone over the three prior felonies with
d efendant, the trial court stopped the prosecutor from enumerating the three prior felonies as a f actual basis for the plea, and referred to the three felonies set forth in the indictment. We hold that the State presented a sufficient factual basis for d efendant’s plea to being an habitual felon. Defendant’s assertion that his plea was not valid because- 10

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he was not informed of the sentence he was facing is undermined by the prior decisions of this Court . “W hen reviewing the validity of a defendant’s plea, our courts have declined t o adopt a technical, ritualistic approach to determining whether or not the plea was voluntary and intelligent
. I nstead , we review the totality of the circumstances and determine whether

non - compliance with the statute either affected defendant’s decision to plead or undermined the plea’s validity. ” State v.
Szucs , 207 N.C. App. 694, 701

- 702, 701 S.E.2d 362, 367

- 368 (2010) (internal citation and quotation marks omitted) ; s ee also State v. Williams , 133 N.C. App. 326, 515 S.E.2d 80 (1999). While discussing the State’s pre - trial plea offer with
d efendant , the trial court informed d efendant that “[i]f you are found guilty you could have to

– assuming a Class D felony, assuming a level 4

– you could have to serve as much as a 97 month minimum, 129 month maximum term”, which d efendant stated he understood. When d efendant later decided to plead guilty to having obt ained a n habitual fel on status , the trial court asked d efendant if he understood that a n habitual felon status would increase his potential punishment for feloniously violating a protective order from a Class H to a C lass D felony
. Defendant stated he understood the consequences of his plea
. Although- 11

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d efendant’s plea transcript form is blank where the maximum and minimum sentences should be set forth , this does not invalidate his plea. Under the totality of the circumstances, we hold that d efendant was aware of the direct consequences of his guilty plea and he entered into the plea voluntarily and understandingly
. 3 Finally, d efendant asserts that habitual felon status violates his constitutional rights to be free from cruel and unusual punishment . However, this assertion contradicts well

established precedent
. Defendant acknowledges that our Supreme Court has repeatedly rejected arguments contesting the constitutionality of habitual felon status
. See e.g. , State v. Todd , 313 N.C. 110, 326 S.E.2d 249 (1985 )
. This Court does not have the authority to overrule decisions of our Su preme Court of North Carolina. Defendant’s argument s are without merit.
NO ERROR. Judges CALABRIA and McCULLOUGH concur. Report per Rule 30(e ).

3 In the written transcript of d efendant’s plea, he swore under oath that he was aware of the maximum punishment, that his lawyer ha d explained the charges to him, that the plea was freely and voluntarily entered, and that he acknowledged that the recited terms of his plea arrangement were correct .