Opinion
No. COA15-632
04-19-2016
STATE OF NORTH CAROLINA v. KELLY ANNETTE HUNICHEN
Attorney General Roy Cooper, by Assistant Attorney General Yvonne B. Ricci, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Johnston County, Nos. 13 CRS 147, 2639; 12 CRS 57233-34 Appeal by defendant from judgment entered 16 October 2014 by Judge Claire V. Hill in Johnston County Superior Court. Heard in the Court of Appeals 17 November 2015. Attorney General Roy Cooper, by Assistant Attorney General Yvonne B. Ricci, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant. BRYANT, Judge.
Where the trial court's unchallenged findings of fact are sufficient to support its conclusion of law that defendant failed to meet her burden of proof to establish she was not represented by counsel when she pled guilty to Driving While Impaired, we affirm the trial court's denial of defendant's motion to suppress.
On 22 November 2012, defendant Kelly Annette Hunichen was arrested in Johnston County for Driving While Impaired and Driving While License Revoked. Defendant was also charged with possession of up to one-half ounce of marijuana, possession of drug paraphernalia (a glass smoking pipe), assault on a law enforcement officer inflicting physical injury, and simple possession of a Schedule IV Controlled Substance.
On 29 January 2013, indictments were issued against defendant on charges of driving while impaired and driving while license revoked, as well as, assault on a law enforcement officer inflicting serious injury, possession of up to one-half ounce of marijuana, possession of drug paraphernalia, and simple possession of a Schedule IV Controlled Substance. Then, on 12 November 2013 and again on 21 July 2014, superseding indictments were issued against defendant on the charge of habitual impaired driving, leading to dismissal of the DWI indictment. The 21 July 2014 indictment charging habitual impaired driving stated that on 22 November 2012, defendant did unlawfully, willfully and feloniously drive a motor vehicle on a highway in Johnston County while subject to an impairing substance in violation of N.C. Gen. Stat. § 20-138.1. The indictment further stated that
The charge of driving while impaired was dismissed when defendant was charged with habitual impaired driving in a superseding indictment.
defendant's conduct was felonious in that within ten years of the date of this offense, . . . defendant had previously been convicted of driving while impaired on November 5, 2007 in Johnston County District Court in File number 07 CR 055650; . . . defendant had previously been convicted of driving while impaired on December 15, 2008 in Wake County District Court in File number 08 CR 065850; and . . . defendant had previously been convicted of driving while
impaired on September 21, 2009 in Johnston County District Court in File number 08CR 055946.
On 29 September 2014, the State gave notice of intent to prove the existence of aggravating and grossly aggravating factors in its prosecution for habitual impaired driving: that defendant had three or more convictions involving impaired driving which occurred within seven years before the date of the current offense; and that at the time of the current offense, defendant was driving with a revoked license, due to an impaired driving revocation.
On 14 October 2014, defendant filed a motion to suppress a prior conviction as an aggravating factor because a conviction for impaired driving entered in Duplin County District Court in file number 08 CR 50755 had been "vacated and set aside." Defendant attached to her motion an Order for Appropriate Relief entered in Duplin County District Court on 22 September 2014 by the Honorable Louis F. Foy, Jr., District Court Judge presiding. In Judge Foy's order, he found that on the date defendant had been convicted, defendant was confined to a correctional facility and had not been transported to court for the trial; defendant's trial counsel entered a plea of guilty to the charge of driving while impaired. But, the court record did not contain defendant's waiver of appearance or authorization to enter a guilty plea to the charge of driving while impaired. Judge Foy, accordingly, vacated the conviction for driving while impaired and set aside the judgment imposed. In the instant case, the trial court granted defendant's motion to suppress as an aggravating factor the DWI conviction entered in Duplin County.
Also on 14 October 2014, defendant filed a separate Motion to Suppress Prior Conviction for Sentencing Purposes, a DWI conviction entered in Wake County District Court, file number 08 CR 65850. The motion alleged that at the time of her conviction "[she] was indigent; had no counsel; and did not waive her right to counsel." In support of her motion, defendant attached an affidavit averring that in Wake County District Court case number 08 CR 65850, she was charged with the offense of DWI, as well as driving while license revoked and careless and reckless driving. She stated that on 22 September 2008, she had been informed an attorney from the Wake County Public Defender's office would be appointed to represent her on the charges. At the time of her 15 December 2008 trial, defendant was incarcerated due to a probation revocation. She avers she was transported to Wake County for the trial, but her court appointed attorney never appeared, "never communicated with me, visited me or advised me in any manner." Defendant pled guilty to the DWI.
This DWI conviction was used to support the habitual impaired driving indictment. --------
Defendant's motion to suppress the Wake County DWI conviction was heard on 14 October 2014, before the Honorable Claire Hill, Johnston County Superior Court Judge presiding. A written order denying defendant's motion to suppress was entered on 5 November 2014, in accordance with Judge Hill's oral ruling, rendered at the close of the 14 October hearing. In her 14 October ruling, Judge Hill concluded that "defendant has not met the burden of preponderance of the evidence to show that . . . [she] was not represented by counsel. . . . Therefore, [defendant's] Motion to Suppress this conviction out of Wake County, 08-CR-65850, is denied."
On 16 October 2014, defendant entered an Alford plea to the charge of habitual impaired driving. Pursuant to the Alford plea, the trial court dismissed the charges of simple possession of marijuana, possession of drug paraphernalia, simple possession of a Schedule IV controlled substance, driving while license revoked, and assault on a law enforcement officer. Defendant preserved her right to appeal from the denial of her motion to suppress. In accordance with the plea agreement, the trial court entered judgment against defendant on the charge of habitual impaired driving and sentenced defendant to an active term of 12 to 24 months. Defendant appeals.
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On appeal, defendant argues that the trial court erred in denying her motion to suppress for sentencing purposes her 15 December 2008 DWI conviction entered in Wake County District Court. Specifically, defendant challenges two of the court's findings of fact and three conclusions of law. Defendant contends that evidence of her 2008 Wake County DWI conviction should be suppressed and that, as a consequence, her current conviction for habitual impaired driving should be vacated. We disagree.
Pursuant to North Carolina General Statutes, section 15A-980, "[a] defendant has the right to suppress the use of a prior conviction that was obtained in violation of his right to counsel . . . ." N.C. Gen. Stat. § 15A-980(a) (2015). "To prevail, [she] must prove that at the time of the conviction [she] was [(1)] indigent, [(2)] had no counsel, and [(3)] had not waived [her] right to counsel." Id. § 15A-980(c). A defendant has the burden of proving the requirements of section 15A-980(a) by preponderance of the evidence. Id.
In reviewing the denial of a motion to suppress our Court is strictly limited to a determination of whether the court's findings are supported by competent evidence, even if the evidence is conflicting, and in turn, whether those findings support the court's conclusions of law. If so, the trial court's conclusions of law are binding on appeal.State v. Brown, 217 N.C. App. 566, 571, 720 S.E.2d 446, 450 (2011) (citations and quotation marks omitted).
Defendant does not challenge the trial court's conclusion that at the time of the 2008 Wake County DWI conviction, defendant was indigent and did not waive her right to counsel. The dispositive issue is whether defendant met her burden of proof to show that she was not represented by counsel.
First, we generally note the pertinent unchallenged findings of fact in the trial court's order denying defendant's motion to suppress. Defendant's first court date for her driving while impaired case was scheduled for 22 September 2008, in Wake County District Court. On 22 September 2008, defendant filed an affidavit of indigency and qualified for court appointed counsel. On 3 November, the trial court entered an order granting defendant a continuance, and noting that defendant was represented by James Little of the Wake County Public Defender's Office. In another finding of fact, the trial court noted "[t]hat on November 3, 2008, Attorney for Defendant, James Little signed a certification that he had received [d]iscovery in . . . [d]efendant's case." The case was continued until 15 December 2008. Defendant was present in Wake County District Court on 15 December 2008, and the court calendar reflected the name of defendant's court appointed attorney next to defendant's. "The name James Little [was] preprinted on the calendar . . . and Mr. Little's name [was] not . . . marked through or amended on the printed on the [sic] calendar." "Defendant was convicted after pleading guilty to Driving While Impaired in file number 08CR 065850 on December 15, 2008 . . . ." "On 22 December 2008, an order was signed for payment by the [trial judge] for court appointed services, in the amount of $142.50." Judge Hill further found that in reference to the judgment entered against defendant in case file number 08 CR 65850, "the attorney for . . . Defendant is not written in, however [sic] the box is clearly marked 'appointed.' " Further pertinent findings were:
33. That a fee application was prepared by James Little, court appointed counsel.
34. That the application was marked as the original charge, "DWI," for disposition, it was marked as "Guilty plea before trial" and for judgment and sentencing, "Active sentence, 6 to 12 months."
35. That the disposition date of December 15, 2008 is also marked.
36. That the judgment reflects that [the trial judge] is the name of the judge setting the fee and that it was prepared on December 22, 2008.
37. That Mr. Little claimed 1.9 hours for $142.50, which was signed by [the trial judge] on January 9, 2009.
On appeal, defendant challenges two of the trial court's findings of fact:
3. That on September 22, 2008, Defendant completed an Affidavit of Indigency, qualified for court appointed counsel and was appointed James Little of the Wake [C]ounty Public Defender's Office.Defendant challenges finding of fact number 3 by arguing that there was no evidence presented that James Little was appointed to represent defendant on 22 September 2008: Specifically, defendant points to the Assignment of Counsel form that did not list a specific attorney, only the Wake County Public Defender's Office.
29. That [the trial judge] sometimes prepares his own judgments, however, the supervising Wake County clerk who testified in this case recognized that the handwritten judgment was prepared by the courtroom clerk, not [the trial judge].
However, defendant does not contest the findings that show that on 3 November 2008, James Little, an attorney with the Wake County Public Defender's Office, filed a motion to continue on defendant's behalf and filed a separate certificate confirming that he had received discovery, nor does she contest that an order was signed for payment for court appointed services to Mr. Little, in the amount of $142.50, which included services for DWI, a guilty plea, and noted the exact sentence defendant received. Defendant's argument that there was no evidence James Little was appointed to represent her on 22 September is without merit, in light of the otherwise unchallenged findings of fact.
As to finding of fact 29, defendant challenges only a portion of the finding: "[T]he handwritten judgment was prepared by the courtroom clerk, not [the trial judge]." Defendant argues that the evidence indicates only that the courtroom clerk entered the prosecutor's name on the judgment, but does not indicate who filled out the remainder of the judgment. Again, we find this portion of defendant's argument to be without merit.
Defendant also challenges the following conclusions of law:
1. That the Defendant has not shown by preponderance of the evidence that at the time of Defendant's conviction, Wake [C]ounty [D]istrict Court conviction of Driving [W]hile [I]mpaired in file 08CR 065850, that all three factors existed, as required pursuant to N.C.G.S. 15A-980 [("Right to suppress use of certain prior convictions obtained in violation of right to counsel")].
2. That as shown through court documents, . . . Defendant was indigent but there is no evidence that Defendant had no counsel and waived her right to court appointed counsel.
4. That . . . Defendant has not met the burden of preponderance of the evidence to show that . . . Defendant was not represented by counsel in the Wake County district court case, file 06CR 065850.
In considering defendant's challenges to the trial court's conclusions, we restate our standard of review: "[O]ur Court is strictly limited to a determination of . . . whether those findings support the court's conclusions of law." Brown, 217 N.C. App. at 571, 720 S.E.2d at 450 (citation and quotation marks omitted).
The majority of the facts in the order denying suppression are unchallenged and tend to support the trial court's conclusion "[t]hat . . . [d]efendant has not met the burden of preponderance of the evidence to show that . . . [she] was not represented by counsel in the Wake [C]ounty [D]istrict [C]ourt case, file 08CR 065850."
We note that even in defendant's brief to this Court, defendant sets out "findings suggesting counsel was present."
##6-8: James Little signed court documents on 11/3/08Nevertheless, defendant argues that her appointed counsel did not represent her on 15 December 2008, and that the trial court erred in concluding otherwise. Yet, as we acknowledge herein, some of the evidence before the trial court was contradictory, especially defendant's testimony as to her recollection of not having representation by counsel. However, the burden of proof to put forth evidence of a lack of representation by counsel is on defendant, and the weight and credibility of the evidence is to be determined by the trial court. See Assoc. Indus. Contractors, Inc. v. Fleming Eng'g, Inc., 162 N.C. App. 405, 416, 590 S.E.2d 866, 874 (2004) ("[The] determination of the weight and credibility of evidence was the responsibility of the trial court as the fact finder." (citation omitted)); State v. Pugh, 138 N.C. App. 60, 67, 530 S.E.2d 328, 333 (2000) ("When the trial court is the trier of fact, the court is empowered to assign weight to the evidence presented at the trial as it deems appropriate." (citation and quotation marks omitted)).
##14, 33-37: A fee application was submitted by James Little one week after hearing and signed by the trial judge more than three weeks after the hearing.
#31: The box for "appointed" was marked in the space for defense counsel on judgment.
##20, 40: Little's name appeared in print as counsel for [defendant] on the court calendar for December 15, 2008, and it was not marked out.
##38-39: The court calendar for December 15, 2008 has handwritten notes on [defendant's] plea and sentence.
On the record before this Court, there were sufficient findings of fact to support the trial court's conclusion that defendant failed to meet her burden of proof to establish she was not represented by counsel when she pled guilty to DWI in Wake County District Court on 15 December 2008, as recorded in file number 08 CR 65850. Defendant's motion to suppress was properly denied. The judgment and order of the trial court is
AFFIRMED.
Judge GEER and McCULLOUGH concur.
Report per Rule 30(e).