concurring.
I join in the majority opinion and concur that the habitual misdemeanor assault statute creates a substantive felony offense. This conclusion is based upon similarities between the habitual misdemeanor assault statute and the habitual impaired driving statute, and upon this court’s holding in State v. Priddy that the habitual impaired driving statute creates a substantive felony offense as opposed to a status offense. State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610, disc. review denied, 337 N.C. 805, 449 S.E.2d 751 (1994).
The habitual misdemeanor assault statute and the habitual impaired driving statute are unusual in nature in that they both purport to create a substantive recidivist felony out of conduct which would otherwise constitute a misdemeanor. For that reason, I find it prudent to take the analysis a step further to address whether a conviction under N.C. Gen. Stat. § 14-33.2 (1996) for habitual misdemeanor assault will properly serve to support an ancillary indictment under the Habitual Felons Act, N.C. Gen. Stat. §§ 14-7.1 et seq. (1993), to adjudge the defendant an habitual felon. As to the habitual impaired driving statute, this court has previously addressed this *221question in State v. Baldwin, 117 N.C. App. 713, 453 S.E.2d 193, cert. denied, 341 N.C. 653, 462 S.E.2d 518 (1995), in which we held that “a conviction for [habitual impaired driving] may serve as the basis for enhancement to habitual felon status.” Id. at 716, 453 S.E.2d at 194. Analogizing the habitual misdemeanor assault statute and the habitual impaired driving statute again allows a similar conclusion that a conviction under N.C.G.S. § 14-33.2 will indeed support an ancillary indictment under the Habitual Felons Act to adjudge the defendant an habitual felon.
However, neither this court nor our Supreme Court has directly addressed the constitutionality of either the habitual misdemeanor assault statute or the habitual impaired driving statute. In concluding that the habitual misdemeanor assault statute survives constitutional scrutiny, the majority relies upon our Supreme Court’s determination of the constitutionality of the Habitual Felons Act in State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985). While I believe that this analysis and outcome is proper given the current state of our case law, I am concerned that we may be, in a sense, comparing apples ánd oranges.
In Todd, our Supreme Court held that the Habitual Felons Act comports with constitutional guarantees of due process and equal protection. 313 N.C. at 117, 362 S.E.2d at 253 (citing Rummell v. Estelle, 445 U.S. 263, 63 L. Ed. 2d 382 (1980); Spencer v. Texas, 385 U.S. 554, 17 L. Ed. 2d 606 (1967)). In addition, the United States Supreme Court has long upheld such statutes in the face of challenges that they violate constitutional prohibitions against double jeopardy and ex post facto laws, reasoning that the defendant is being prosecuted for the present crime charged (rather than being punished again for the prior crimes), and that the punishment upon conviction for the present crime may be enhanced based on the previous convictions. See, e.g., Gryger v. Burke, 334 U.S. 728, 92 L. Ed. 1683 (1948).
Our reliance on such logic to establish the constitutionality of the habitual misdemeanor assault statute is troublesome given our efforts in the majority opinion to establish the following important distinction: That the Habitual Felons Act creates a status offense (which will not independently support a criminal sentence) and the habitual misdemeanor assault statute creates a substantive offense (which will). With respect to the Habitual Felons Act, the defendant’s prior convictions must be proven by the state in the sentencing phase, but arguably are not true elements of the offense (given that they are *222relevant only to the sentencing for the underlying principal felony). With respect to the habitual misdemeanor assault statute, however, the defendant’s prior convictions are, by statute, essential elements of the substantive offense, which offense will independently support a criminal sentence. The question arises whether the habitual misdemeanor assault statute, which is dependent on elements consisting of prior convictions, is constitutional given this distinction. The same question may be asked of the habitual impaired driving statute. Since our Supreme Court has never directly addressed this issue, perhaps this case will present an opportunity for it to do so.