Opinion
No. COA15-658
07-19-2016
IN THE MATTER OF: G.R., A JUVENILE
Attorney General Roy A. Cooper, III, by Assistant Attorney General Kimberly N. Callahan, for the State. Geeta N. Kapur, for juvenile-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Orange County, No. 14 JB 92 Appeal by juvenile from orders entered 16 December 2014 by Judge Joseph Buckner in District Court, Orange County. Heard in the Court of Appeals 3 December 2015. Attorney General Roy A. Cooper, III, by Assistant Attorney General Kimberly N. Callahan, for the State. Geeta N. Kapur, for juvenile-appellant. STROUD, Judge.
Juvenile appeals adjudication and disposition orders placing him on 12 months of probation for possession of a schedule VI controlled substance, marijuana. For the following reasons, we dismiss this appeal without prejudice so that juvenile may file a motion for appropriate relief with the lower court.
I. Background
On 12 November 2014, a juvenile petition was filed alleging Gabino, age 15, had possession of a schedule VI controlled substance, marijuana. Gabino's hearing began on 16 December 2014, and his attorney made a motion to continue because she had "not spoken specifically about the facts of this case to" Gabino. While it is not entirely clear from the transcript, because portions are noted as "inaudible[,]" it seems that Gabino needed an interpreter to communicate with his attorney.
A pseudonym will be used to protect the identity of the minor involved.
The only witness to testify was Anthony Desantis, a State Park Ranger. Ranger Desantis testified that he noticed Gabino had a dog without a leash and when he approached him he smelled marijuana. Ranger Desantis then asked Gabino if he could search him, to which Gabino consented. Ranger Desantis then testified that Gabino admitted he had marijuana. Ranger Desantis "found a partially burned marijuana cigarette" on the ground and an "entire marijuana cigarette" in a cigarette package, also on the ground. Ranger Desantis described where he found the marijuana as "[w]ithin [Gabino's] lungeable area." Ranger Desantis also testified that Gabino told him he did not have an ID and that he was 15 years old. At this point Ranger Desantis took Gabino in to custody and thereafter informed him of his Miranda rights.
Gabino's attorney then conducted a cross-examination that reiterated Ranger Desantis' testimony on direct. At this point Gabino's attorney renewed her motion to continue because she had "never spoken with [her] client" and she "cannot provide effective counsel[.]" The court implicitly denied the motion and then moved on to the disposition portion of the hearing.
Ultimately, in its adjudication order the court adjudicated Gabino delinquent finding that he "admitted to possession of marijuana[,]" "had marijuana . . . at his feet burnt and unburned[,]" and "the smell of marijuana was around" him. In its disposition order, the court ordered Gabino to 12 months of probation. Gabino appeals.
The portion of ellipses in this quote is unintelligible handwriting on the juvenile adjudication order.
II. Ineffective Assistance of Counsel
Gabino presents his only argument on appeal as an error on the part of the lower court in denying his motions to continue due to ineffective assistance of counsel. However, the substance of Gabino's brief actually focuses on the failures of his trial attorney. Gabino presents seven "errors" but most, if not all, are based upon the failures of Gabino's attorney, not the lower court. Gabino ultimately contends he "was denied his Sixth Amendment right of the effective assistance of counsel[.]" Therefore, despite how Gabino framed his issue on appeal, we consider the actual substance of the argument made, which is whether Gabino received effective assistance of counsel. See generally Scott v. Scott, 106 N.C. App. 379, 382, 416 S.E.2d 583, 585 (1992) ("[M]otions are properly treated according to their substance rather than their labels[.]")
The right to counsel in any proceeding in which a juvenile is alleged to be delinquent has been codified in North Carolina General Statutes, section 7B-2000.In re C.W.N., 227 N.C. App. 63, 65-66, 742 S.E.2d 583, 585 (2013) (citations, quotation marks, ellipses, brackets, and heading omitted). Furthermore, "[j]uveniles are not, after all, miniature adults. Our criminal justice system recognizes that their immaturity and vulnerability sometimes warrant protections well beyond those afforded adults." In re Stallings, 318 N.C. 565, 576, 350 S.E.2d 327, 333 (1986).
In general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal. Ineffective assistance of counsel claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required.
When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness.
Gabino first argues that he "was unable to confer with his lawyer in an hour because she had to appear in another juvenile case[.]" This contention is confirmed by the transcript as Gabino's attorney stated, "I have not spoken specifically about the facts of this case to . . . [Gabino]. So Mr. Holt began to do that while I was handling the other case, and so it became apparent that time is an issue[.]" Furthermore, presuming Gabino's counsel's statements are true, that she had not yet conferred with her client, the record also reveals that Ms. Graves was Gabino's counsel at least by 2 December 2014, so it is unclear why she failed to confer with her client during the two weeks before his hearing.
It is unclear who Mr. Holt is; perhaps, the interpreter, but we do not know.
Second, Gabino argues his attorney performed an "ineffective cross-examination of the park ranger and [demonstrated a] lack of familiarity with the facts of the case[.]" While this Court will not analyze the many possible trial strategies for conducting cross-examination, we have thoroughly read the transcript and are compelled to agree that we cannot discern how it may be helpful to Gabino to have the State's witness repeat his testimony. The entire cross-examination was merely two and a half pages and mostly consisted of Gabino's counsel retelling the facts exactly as presented by Ranger Desantis. Also, during the cross-examination Gabino's attorney failed to question Ranger Desantis about questioning, searching, and taking Gabino into custody without first informing him of his Miranda rights.
Of course, if counsel had not spoken to Gabino as she claimed, all she would know about the case would be what Ranger Desantis said during his testimony, so it would be difficult for her to formulate any questions beyond that information.
Furthermore, Gabino's attorney did not probe into Ranger Desantis' testimony that Gabino consented to the search and admitted the marijuana on the ground was his, given the fact that Gabino does not appear to be fluent in English. It is not clear from our record what language Gabino speaks, but it does appear from the transcript that Gabino needed an interpreter in order to properly confer with his attorney. The record does not indicate how Ranger Desantis was able to communicate with Gabino sufficiently for Gabino to make the statements described. Perhaps Ranger Desantis and Gabino spoke the same language; we simply do not know because it was not addressed in the record before us.
Third, Gabino contends his attorney failed "to make a motion to suppress[.]" Gabino argues that "[t]he park ranger failed to administer Miranda warnings prior to interrogating [Gabino] making it highly likely that he would incriminate himself[.]" While we will not speculate as to whether a motion to suppress would have prevailed, Ranger Desantis' own testimony states he questioned, searched, and took custody of Gabino before informing him of his Miranda rights; it would appear that there may well have been valid grounds upon which to file a motion to suppress, but if Gabino's attorney had never discussed the case with him, she would not even be able to consider filing the motion.
Fourth, Gabino contends that his attorney failed "to make a motion to dismiss[.]" Again, we will not speak to the merits of a motion to dismiss, but a motion to dismiss at the close of the State's evidence is a routine part of almost every juvenile delinquency trial. We see no potential strategic reason not to make a motion to dismiss, at least on our rather deficient record. Furthermore, here specifically, the testimony indicated only that the marijuana was found on the ground in a state park, which might be one reasonable basis for making a motion to dismiss for insufficiency of the evidence. See generally N.C. Gen. Stat. § 90-95(a)(3) (2013).
Fifth, Gabino argues that his attorney attempted to confer with him at the close of the State's evidence, but when interrupted by the court with questions, she failed to resume that conversation or request further time to do so. Gabino argues that "[s]he was not prepared to . . . call any witnesses in defense of [Gabino] nor could she properly advise him of the risks or benefits of him testifying in his own defense." Again, this contention is supported by the record. Gabino's attorney asked for a moment to speak with him; the trial court then asked if she had any witnesses. Rather than requesting the trial court give her a moment to confer with Gabino, she simply responded that she did not have any; from our reading it does not appear as if any real discussion could have transpired between Gabino and his attorney regarding the identification of potential witnesses or the possibility that he may testify on his own behalf.
While the transcript does indicate a pause for counsel to confer with her client it appears unlikely it was of any significant time period since the entire hearing from the initial calling of the case through the end of disposition took 18 minutes.
Sixth, Gabino contends his attorney "did not make a closing argument." The transcript does show that Gabino's attorney did not make a closing argument. Furthermore, Gabino's attorney did not ask to make a closing argument or to be heard in any way after the close of the State's evidence, beyond making additional requests for continuance. Certainly, closing arguments are not required and may sometimes not be useful, but we cannot make that determination on our record.
Lastly, Gabino argues that "the lack of evidence presented during the disposition hearing in totality prove that [Gabino's] lawyer ineffectively represented him[.]" Once again, the transcript, or at least the portions of the proceedings that were transcribed, verifies Gabino's assertions. Indeed, once in the disposition phase, Gabino's attorney reiterated her lack of preparedness to move forward with the case. When prompted to move along by the trial court Gabino's counsel failed to present any evidence or arguments besides those already noted.
Ultimately, Gabino contends that all of the enumerated reasons amounted to a denial of "his Sixth Amendment right of the effective assistance of counsel[.]" Here, based on the "cold record" we cannot say for certain that Gabino's "counsel's conduct fell below an objective standard of reasonableness[,]" in part because portions are missing where the transcript indicates "inaudible." C.W.N., Jr., 227 N.C. App. at 66, 742 S.E.2d at 585. But even based on the transcript that we have, Gabino has raised enough questions on appeal that we do believe "further investigation is required." Id.
Therefore, we dismiss Gabino's appeal for ineffective assistance of counsel without prejudice for Gabino to file a motion for appropriate relief with the lower court. See generally State v. Jackson, 165 N.C. App. 763, 777, 600 S.E.2d 16, 25 ("On this record, we conclude that there is inadequate evidence of ineffective assistance of counsel for our Court to review the issue on appeal. Accordingly, we dismiss defendant's ineffective assistance claim, without prejudice, so that defendant may file a motion for appropriate relief before the trial court.").
III. Conclusion
For the foregoing reasons, we dismiss without prejudice so that Gabino may file a motion for appropriate relief with the lower court.
DISMISSED.
Judges DIETZ and TYSON concur.
Report per Rule 30(e).