Opinion
No. COA15-924
04-19-2016
STATE OF NORTH CAROLINA v. JACKIE JAMES BRADY, Defendant.
Attorney General Roy A. Cooper, III, by Associate Attorney General Marie Hartwell Evitt, for the State. Russell J. Hollers, III, for the Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Randolph County, No. 11CRS 54236, 12CRS000029 Appeal by Defendant from judgment entered 8 April 2015 by Judge John O. Craig, III, in Randolph County Superior Court. Heard in the Court of Appeals 26 January 2016. Attorney General Roy A. Cooper, III, by Associate Attorney General Marie Hartwell Evitt, for the State. Russell J. Hollers, III, for the Defendant. DILLON, Judge.
Jackie James Brady ("Defendant") appeals from a judgment entered upon a guilty plea. For the following reasons, we affirm in part and dismiss in part, remanding the matter for correction of a clerical error.
I. Background
The evidence at trial tended to show the following: In 2011, police obtained a search warrant for the search of Defendant's home. Evidence supporting the issuance of the warrant consisted largely of hearsay testimony from a confidential informant and an anonymous tip that Defendant was selling drugs out of his home. Police executed the warrant to search Defendant's home, whereupon they discovered approximately fourteen (14) grams of cocaine in a tennis shoe.
On 6 February 2012, a grand jury indicted Defendant for possession with intent to sell or deliver cocaine, felony possession of cocaine, and attaining the status of an habitual felon. Defendant moved to suppress the evidence obtained from the search. The matter came on for trial in Randolph County Superior Court. On the first day of trial, the court summarily denied Defendant's motion to suppress. On the second day of trial, Defendant pleaded guilty to possession with intent to sell or deliver cocaine, preserving his right to appeal the trial court's denial of his motion to suppress. Following the court's pronouncement of a sentence Defendant entered notice of appeal in open court.
II. Analysis
Defendant makes three arguments on appeal, which we address in turn.
A. Motion to Suppress
Defendant first argues that the trial court erred in denying his motion to suppress where no probable cause existed to support the search warrant. Specifically, Defendant contends that the information relied upon by the magistrate in support of the probable cause determination was stale. However, Defendant failed to preserve this specific argument for our review; and, therefore, we do not reach its merits.
At the suppression hearing before the trial court, Defendant did not argue that the evidence relied upon by the magistrate in issuing the warrant was stale. Rather, he argued that the confidential informant's information was insufficiently reliable as a matter of law to support the trial court's determination on probable cause. The trial court summarily denied Defendant's motion to suppress without making specific findings.
We note that Defendant did not request an evidentiary hearing on the matter before the trial court, instead conceding that the issue could be resolved without one. Under N.C. Gen. Stat. § 15A-977, while the trial judge ruling on a motion to suppress is generally required to "set forth . . . his findings of facts and conclusions of law," see id. § 15A-977(f), the judge may also summarily deny the motion, i.e., without first hearing evidence outside the presence of the jury, where either (1) "[t]he motion does not allege a legal basis for [] [itself]," or (2) the supporting affidavit "does not as a matter of law support the ground alleged," see id. § 15A-977(c). However, our Supreme Court has held that a written determination on a motion to suppress, though the better practice, is not required under the statute. State v. Oates, 366 N.C. 264, 268, 732 S.E.2d 571, 574 (2012). Moreover, "[a]lthough the statute's directive is in the imperative form, only a material conflict in the evidence-one that potentially affects the outcome of the suppression motion-must be resolved by explicit factual findings that show the basis for the trial court's ruling." State v. Bartlett, 368 N.C. 309, 312, 776 S.E.2d 672, 674 (2015). Therefore, "[w]hen there is no conflict in the evidence, the trial court's findings can be inferred from its decision." Id.
In the present case, while addressing Defendant's argument, the trial court explained in its colloquy with defense counsel that the information from the informant, who had provided the officer with truthful information in the past, naming places and people the officer knew to be involved in the drug trade, corroborated the officer's own knowledge, which implied that the information was reliable. Although the court did not enter findings or conclusions in support of its ruling on the motion, the court's finding on the question of the reliability of the information provided by the confidential informant can be inferred from the court's decision denying the motion. See id.
On appeal, however, Defendant presents a somewhat different challenge to the trial court's probable cause determination, arguing that the information from the confidential informant and the anonymous tip were both stale at the time the probable cause determination was made and, therefore, could not support it. Nevertheless, as Defendant concedes in his appellate brief, North Carolina law does not permit a criminal defendant "to advance a particular theory in the course of challenging the denial of a suppression motion on appeal when the same theory was not advanced in the court below." State v. Hernandez, 227 N.C. App. 601, 608, 742 S.E.2d 825, 829 (2013). See also N.C. R. App. P. 10(a)(1) ("[T]o preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling . . . [and] obtain a ruling upon the [] request, objection, or motion."). Therefore, Defendant's failure to raise this "staleness" argument at the trial level precludes our review of it now for the first time on appeal.
B. Ineffective Assistance of Counsel
Defendant next argues that he received ineffective assistance of counsel based on his trial counsel's failure to raise what he asserts would have been a successful challenge to the trial court's probable cause determination. Specifically, Defendant contends that no valid tactical reason supported the decision by his trial counsel to challenge the probable cause determination on reliability rather than staleness grounds, and that this decision prejudiced him because the staleness argument would have prevailed. However, we hold that Defendant's ineffective assistance of counsel claim is premature and, therefore, we dismiss it.
Generally speaking, "claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal." State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). Furthermore, ineffective assistance of counsel claims will only be decided on direct appeal where the cold record reveals "that no further investigation [into them] is required[.]" State v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881 (2004). Therefore, when an ineffective assistance of counsel claim is brought on direct appeal for the first time and our review of the record reveals that the claim is premature, i.e., further investigation is necessary to decide it, we will dismiss it without prejudice, "allowing [the] defendant to bring [it] pursuant to a subsequent motion for appropriate relief in the trial court." Id. at 123, 604 S.E.2d at 881.
In the present case, our review of the record does not reveal any information upon which to base a determination that the decision by Defendant's counsel to proceed on the reliability theory rather than the staleness theory constituted constitutionally deficient assistance of counsel, as Defendant now alleges. Indeed, Defendant does not direct our attention to any such information, instead arguing generally that it is obvious the staleness argument would have been successful where the reliability argument was not. However, it is not so clear to us that this is correct, although as discussed previously, we do not reach the merits of the staleness argument. What is clear is from the record is that following robust argument on the motion to suppress by Defendant's experienced trial counsel, the court denied the motion. Thus, it being unclear whether Defendant's ineffective assistance of counsel claim has any merit, we decline to decide it in the present appeal. Accordingly, the argument is dismissed without prejudice to Defendant's right to assert it in a subsequently filed motion for appropriate relief.
C. Habitual Felon Status
Defendant finally argues that the trial court lacked subject matter jurisdiction to enter the judgment upon his guilty plea to possession of cocaine with intent to sell or deliver and attaining the status of an habitual felon where the court entered a written judgment only on the status and not on the substantive crime. We disagree with Defendant's jurisdictional argument. We do agree, however, that the trial court's judgment contains a clerical error, which appears to be an inadvertent mistake, in the entry of the appropriate file numbers and charges on the judgment form. Accordingly, we remand the case for correction of this clerical error.
Under North Carolina law, being an habitual felon is a status rather than a crime, see State v. Patton, 342 N.C. 633, 635, 466 S.E.2d 708, 710 (1996), and as such, cannot, standing alone, support a criminal sentence, see State v. Taylor, 156 N.C. App. 172, 175, 576 S.E.2d 114, 116 (2003). However, where there is an error in a judgment in which the trial court inadvertently omits the case number from the substantive crime and lists the habitual felon case number instead, the mistake is a clerical error that can be corrected on remand. State v. McBride, 173 N.C. App. 101, 110-11, 618 S.E.2d 754, 760-61 (2005). Moreover, while we cannot, "under the guise of [] amendment . . . , correct a judicial error," where the error complained of "result[s] from a minor mistake or inadvertence" it is merely clerical, and can be corrected. State v. Jarman, 140 N.C. App. 198, 202-03, 535 S.E.2d 875, 878-79 (2000).
In the present case, Defendant pleaded guilty to possession of cocaine with intent to sell or deliver and to attaining the status of an habitual felon after the jury had been empaneled, shortly before trial was to begin. However, after the presentation of the factual basis for Defendant's plea on the substantive charge and the court's finding that the factual basis supported the plea, the court stated that it was accepting the plea and arresting judgment at that point "until further proceedings . . . pertaining to the habitual felon status." Perhaps not understanding the court's somewhat unusual usage of the term "arrest" in the plea colloquy on the substantive charge, from the judgment form in the record on appeal it appears that the clerk mistakenly included only the charge and file number from the habitual felon indictment and not the substantive charge as well, on which the court had indicated it was "arresting" judgment until after completing the plea colloquy on the habitual felon status. Nevertheless, after concluding separate plea colloquies on the status and the substantive crime, the court sentenced Defendant in the mitigated range for the substantive crime as an offender who had attained the status. Therefore, we hold that the omission of the substantive crime from the judgment form in the record on appeal constitutes a clerical error and was not a jurisdictional defect. On remand, we direct the trial court to correct this error "to make its records speak the truth." State v. Cannon, 244 N.C. 399, 403, 94 S.E.2d 339, 342 (1956).
III. Conclusion
For the reasons stated herein, we affirm the trial court's denial of Defendant's motion to suppress, we dismiss Defendant's claim for ineffective assistance of counsel, and we remand for correction of a clerical error in the judgment.
AFFIRMED IN PART; DISMISSED IN PART; AND REMANDED.
Judges BRYANT and ZACHARY concur.
Report per Rule 30(e).