Opinion
No. COA16-317
10-04-2016
STATE OF NORTH CAROLINA v. PAUL EVERETTE LEACH III, Defendant.
Attorney General Roy A. Cooper III, by Assistant Attorney General Kevin G. Mahoney, for the State. Drew Nelson 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Iredell County, No. 11 CRS 52176, 52183 On a writ of certiorari from judgment entered 29 June 2015 by Judge Julia Lynn Gullett in Superior Court, Iredell County. Heard in the Court of Appeals 19 September 2016. Attorney General Roy A. Cooper III, by Assistant Attorney General Kevin G. Mahoney, for the State. Drew Nelson for defendant-appellant. STROUD, Judge.
Defendant pled guilty on or about 13 March 2013 to two counts of attempted trafficking in opium/heroin. The trial court sentenced defendant to imprisonment for 19 to 23 months. The court suspended the sentence and placed defendant on supervised probation for a period of 24 months.
On 2 June 2014, defendant's probation officer filed a violation report, alleging defendant violated terms and conditions of probation by (1) testing positive for, and admitting to the use of, marijuana; (2) failing to make timely payments of court costs; (3) failing to pay probation supervision fees; (4) failing to comply with counseling or treatment programs; and (5) committing a criminal offense, having pled guilty to two counts of failure to notify the Department of Motor Vehicles of a change in address. The trial court conducted a hearing regarding the alleged violations on 29 June 2015. Defendant admitted that he willfully violated the terms and conditions of his probation.
The summary of the evidence presented by defendant's probation officer showed that defendant testified positive for the controlled substance THC on 9 May 2013, 26 August 2013, 13 January 2014, 21 March 2014, and 30 April 2014; that defendant was ordered to pay costs in the sum of $2,519.50 at the rate of $100 per month and that defendant had fallen in arrears in the amount of $1,250.00, the last payment having been made on 12 February 2014; that defendant was in arrears in the amount of $560.00 for probation supervision fees; that defendant was referred to TASC due to the positive drug tests, and was not complying with the TASC service plan because he was missing appointments, missing group sessions and continuing to have positive drug screens; that he was charged with two counts of driving while license revoked which ultimately resulted in pleas of guilty to lesser charges of failure to notify DMV of change of address; and that the two charges were consolidated for judgment and defendant was sentenced to a 30-day term which was suspended for 12 months.
After receiving the foregoing evidence and hearing arguments of counsel, the trial court concluded that defendant, without just cause, violated valid terms and conditions of probation. The court specifically found that defendant had been convicted of two criminal offenses in violation of his probationary judgment. The court revoked probation and activated the sentence of 19 to 23 months, allowing credit for time served. The court entered judgment accordingly on or about 29 June 2015.
On or about 20 July 2015, the clerk of superior court received a handwritten letter from defendant expressing his desire to appeal. Defendant thereafter appeared in court on 23 July 2015 and entered oral notice of appeal. Given the notice of appeal was entered after expiration of the 14-day period for taking appeal in a criminal case, this Court allowed defendant's petition for writ of certiorari on 13 November 2015.
Defendant's appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967) and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985) in which he avers that "[a]fter close examination of the record and review of the relevant law, [he] is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal." Counsel requests this Court to conduct a full examination of the record for possible overlooked prejudicial error or justiciable issue. Counsel submitted the brief to assist this Court in conducting its review and identified one possible issue that may arguably support the appeal, namely whether the court properly determined that failure to notify the Department of Motor Vehicles ("DMV") of one's change of address is a criminal offense, the commission of which subjected defendant to revocation of probation and activation of the sentence pursuant to N.C. Gen. Stat. § 15A-1344 (2015). Counsel acknowledged that although failure to notify DMV of an address change is now classified as an infraction under N.C. Gen. Stat. § 20-35(a2) (2015), at the time defendant committed the violations in March and May 2013, the offense was punishable as a Class 2 misdemeanor. See 2013 Sess. Laws, c. 385, s. 4 (effective 1 December 2013, failure to notify DMV of change of address within sixty days was reclassified as an infraction); N.C. Gen. Stat. § 20-7.1(a) (2011) (licensee must notify DMV of change of address within 60 days); N.C. Gen. Stat. § 20-35(a) (2011) (violation of Uniform Driver's License Act is a Class 2 misdemeanor). Thus, this argument may not be sustained on appeal.
Counsel also attached to the brief a letter he wrote to defendant on 27 April 2016 in which he informed defendant that he was unable "to find any issues in [defendant's] case that are suitable for an appeal." He also advised defendant that he had the right to make his own arguments directly with the Court and that if defendant decided to file his own arguments, to notify this Court immediately of his decision and submit the arguments as quickly as possible. Counsel provided defendant with the mailing address of this Court, copies of the brief filed on defendant's behalf, the transcript, and the record on appeal to assist him. Defendant has not filed any written arguments with this Court and has not notified this Court of any intention to file his own arguments.
We conclude that counsel has satisfactorily complied with the procedural requirements of Anders and Kinch. Based upon our review of the record, we are unable to find any possible error that will support a meaningful argument for relief on appeal. We accordingly affirm the judgment.
AFFIRMED.
Judges TYSON and INMAN concur.
Report per Rule 30(e).