Opinion
No. 05-1670.
Filed August 15, 2006.
Forsyth County Nos. 03 CRS 51453-54; 04 CRS 17009.
Appeal by defendant from judgments entered 19 July 2005 by Judge Steve A. Balog in Forsyth County Superior Court. Heard in the Court of Appeals 24 July 2006.
Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State. Bruce T. Cunningham, Jr., for defendant-appellant.
Defendant was indicted on charges of felonious speeding to elude arrest, felonious possession of cocaine, and being an habitual felon. A jury found defendant guilty as charged, and the trial court entered judgments imposing concurrent sentences of 150 to 189 months imprisonment. Defendant appeals.
Prior to jury selection on 18 July 2005, defendant told the trial court that he would "like to postpone and hire my own attorney." After learning that defendant's counsel had been appointed on 1 November 2004 and that no attorney was present in court seeking to make an appearance on defendant's behalf, the trial court denied the requests. Defendant then argued that his appointed counsel was not working in his best interest. Defense counsel explained to the trial court that matters with defendant deteriorated after she prepared a stipulation for his signature which would have conceded that defendant's license was suspended on the date of the offenses. After stating that defendant had approximately nine prior driving while license revoked convictions and a driving while impaired conviction, defense counsel had suggested to defendant that it might be in his best interest to proceed in a way that the information did not get before the jury. The trial court commented upon the potential advantage of such a stipulation to defendant, but it also acknowledged that defendant would have the final decision regarding such a stipulation.
Defendant next complained that his appointed counsel "all but told me I didn't have common sense because I didn't tell my people to bring me some clothes for two days." Following its denial of defendant's motion to remove appointed counsel, the trial court asked if defendant wanted additional time to discuss a plea offer with his counsel. Defendant responded that "I can't see taking no plea. I feel like the court system is unjust by not letting me have another representative because I know [appointed counsel's] not working in my best interest period." The trial court observed that defendant was in a difficult situation and that defendant as a result was "taking it out" on his appointed counsel.
At trial, the State presented evidence tending to show the following: Shortly after midnight on 11 February 2003, Officer Michael Pearson began pursuing a vehicle which was traveling an estimated 55 m.p.h. in a 35 m.p.h. zone. The pursuit continued onto Interstate 40 at approximately 80 m.p.h. in a 60 m.p.h. zone. As the vehicle was halfway up an exit ramp, Officer Pearson saw something white come out of its passenger window and hit his windshield. The vehicle ran a red light at the top of the exit ramp at approximately 50 m.p.h., crossed the intersection, and began traveling down an entrance ramp toward Interstate 40. The driver, later identified as defendant, stopped the vehicle near the bottom of the entrance ramp, exited the vehicle, and subsequently surrendered to Officer Pearson. Another officer recovered a napkin which contained a rock of crack cocaine on the exit ramp where Officer Pearson had seen something white come out of the passenger window.
At the close of the State's evidence, defendant moved to dismiss the charges due to insufficiency of the evidence. The trial court denied the various motions to dismiss made by defendant. Defendant presented no evidence and renewed his earlier motions, which the trial court again denied. After the trial court instructed the jury, the State asked the court to clarify that the jury members did not have to unanimously agree on the same two aggravating factors for felonious operation of a motor vehicle to elude arrest. The trial court then reinstructed the jury that "all 12 of you must find at least two of the three [aggravating factors] but they don't have to be the same two." After deliberating, the jury found defendant guilty of felonious operation of a motor vehicle to elude arrest and of possession of cocaine. The State next presented evidence of defendant's habitual felon status, and defendant made a motion to dismiss at the close of the State's evidence. Following the denial of his motion, defendant presented no evidence and renewed his motion. The trial court again denied the motion and instructed the jury, and the jury subsequently found defendant guilty of being an habitual felon.
The State presented no additional evidence during sentencing and gave a copy of a sentencing worksheet to the trial court. Defendant stipulated that he was at prior record level VI, and his counsel presented arguments in support of the trial court finding three mitigating factors: (1) that he played a minor role with respect to the possession of cocaine; (2) that he had a support system in the community; and (3) that he had a good treatment prognosis with a workable plan available. Aside from asking the trial court to consider defendant's record, the State offered no aggravating factors. The trial court then sentenced defendant from the presumptive range and imposed two concurrent sentences of 150 to 189 months imprisonment.
In his first argument, defendant contends the trial court erred by denying his unequivocal request to remove defense counsel. Citing Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562 (1975), defendant argues that he had a Sixth Amendment right to represent himself and that the trial court failed to make a thorough inquiry as mandated by N.C. Gen. Stat. §§ 15A-1242 (2005). We disagree.
A defendant's implicit right to represent himself does not arise until properly asserted. State v. Williams, 334 N.C. 440, 456, 434 S.E.2d 588, 598 (1993), vacated on other grounds, 511 U.S. 1001, 128 L. Ed. 2d 42 (1994). Upon review of the transcript, it is clear that defendant initially asked for a continuance so that he could hire his own attorney. After the trial court denied his request to remove his appointed counsel, defendant complained that "the court system is unjust by not letting me have another representative because I know [appointed counsel's] not working in my best interest period." "Statements of a desire not to be represented by court-appointed counsel do not amount to expressions of an intention to represent oneself." State v. Hutchins, 303 N.C. 321, 339, 279 S.E.2d 788, 800 (1981).
Only if a defendant clearly expresses his desire to have counsel removed and to proceed pro se is the trial court obligated to make further inquiry pursuant to N.C.G.S. §§ 15A-1242 to determine if defendant understands the consequences of his decision and voluntarily and intelligently wishes to waive his right to the representation of counsel.
State v. Johnson, 341 N.C. 104, 111, 459 S.E.2d 246, 250 (1995). While defendant did express his desire to have appointed counsel removed, nothing in the record suggests that he communicated any desire on his part to proceed pro se. Accordingly, the trial court had no obligation to conduct the inquiry mandated by N.C. Gen. Stat. §§ 15A-1242. This argument is overruled.
Defendant next argues the trial court committed plain error by submitting a verdict sheet to the jury which allowed the jury to return a verdict which was not unanimous. He further asserts that State v. Funchess, 141 N.C. App. 302, 540 S.E.2d 435 (2000), is no longer good law after the U.S. Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). His argument is not persuasive.
In Funchess, this Court held that N.C. Gen. Stat. §§ 20-141.5 (2005) sought "to punish a single wrong: attempting to flee in a motor vehicle from a law enforcement officer in the lawful performance of his duties." Funchess, 141 N.C. App. at 309, 540 S.E.2d at 439. Although many of the statute's "enumerated aggravating factors are in fact separate crimes under various provisions of our General Statutes, they are not separate offenses . . ., but are merely alternate ways of enhancing the punishment for speeding to elude arrest from a misdemeanor to a Class H felony." Id. If, as the trial court did here, a "trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied." Id. at 308, 540 S.E.2d at 439 (emphasis in original) (citation omitted).
Our Supreme Court in addressing the Blakely decision held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt." State v. Allen, 359 N.C. 425, 437, 615 S.E.2d 256, 265 (2005). Here the jury, and not the trial court, found the facts as to the statutory aggravating factors (N.C. Gen. Stat. §§ 20-141.5(b)(1-8)) in this case. Those findings did not increase the sentence above the statutory maximum, but instead elevated the offense from a Class 1 misdemeanor to a Class H felony. See Allen, 359 N.C. at 437, 615 S.E.2d at 265; N.C. Gen. Stat. §§ 20-141.5(b). This assignment of error is overruled.
Defendant next attempts to argue that the trial court committed plain error by using the charge of speeding to elude arrest to trigger the application of the habitual felon act. His reliance upon plain error review is misplaced, however, for such review is only applicable to jury instructions and evidentiary rulings. See State v. Childress, 321 N.C. 226, 234, 362 S.E.2d 263, 268 (1987) (noting that "in order to invoke the plain error rule this Court must determine that the alleged error `tilted the scales' and caused the jury to reach its verdict"). Defendant did not raise this issue with the trial court and has therefore failed to properly preserve the issue for review by this Court. See N.C.R. App. P. 10(b).
In his final argument, defendant contends he was prejudiced by his failure to offer any evidence in support of the mitigating factors which he asked the trial court to find. Because his case was tried after Blakely and before the effective date of Allen, he asserts that the finding of any mitigating factor would have resulted in a mitigated range sentence. We disagree.
It is well-established that the trial court does not need to make findings of mitigating and aggravating factors when a defendant is sentenced in the presumptive range, State v. Campbell, 133 N.C. App. 531, 542, 515 S.E.2d 732, 739, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999), and defendant here was sentenced in approximately the middle of the presumptive range. In order to establish ineffective assistance of counsel, "defendant must satisfy a two-prong test" by establishing that his "counsel's performance fell below an objective standard of reasonableness[,]" and then showing "that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error." State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998). Evidence as to defendant's alleged minor role with respect to the possession of cocaine was introduced at trial, and the trial court could observe the presence of defendant's family members in the courtroom. Even if defendant had introduced additional evidence in support of the proposed mitigating factors, the trial court was not obligated to formally find those factors because it entered presumptive sentences. See State v. Allah, 168 N.C. App. 190, 197, 607 S.E.2d 311, 316, disc. review denied, 359 N.C. 636, 618 S.E.2d 232 (2005). In addition, given defendant's extensive criminal history, we find that a reasonable probability does not exist that the result would have been different absent the alleged error by counsel. See State v. Crain, 73 N.C. App. 269, 273, 326 S.E.2d 120, 123 (1985). Defendant has failed to establish ineffective assistance of counsel under the two-part test.
While Blakely dealt with the question of whether a trial court may enhance a defendant's sentence above the presumptive range by unilaterally imposing aggravating factors, see 542 U.S. at 303, 159 L. Ed. 2d at 413, the State in this case neither presented any aggravating factors nor did the trial court find any aggravating factors. The holding in Blakely is inapplicable to this case, and this assignment of error is overruled.
Defendant failed to set out his remaining assignments of error in his brief. Because he has neither cited any authority nor stated any reason or argument in support of those assignments of error, they are deemed abandoned. N.C.R. App. P. 28(b)(6).
No error.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).