Opinion
No. COA15–397.
01-05-2016
STATE of North Carolina v. Edwin Alexander LESTER.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel L. Spiegel, for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel L. Spiegel, for defendant-appellant.
Opinion
On writ of certiorari to review judgment entered 8 May 2013 by Judge Michael J. O'Foghludha in Wake County Superior Court. Heard in the Court of Appeals 28 December 2015.
BRYANT, Judge.
Where defendant has raised only issues which are meritless, we conclude the appeal is wholly frivolous.
On 29 March 2011, Edwin Alexander Lester, defendant, entered a gas station convenience store (“the store”) in Raleigh, North Carolina and made himself a cup of coffee. He handed the cashier, Thomas Ibiculla (“Ibiculla”), money for the coffee. When Ibiculla opened his cash register, defendant reached over the counter and took all the money in the register. Ibiculla attempted to stop him, but defendant pushed him away and fled the scene.
Investigators were able to recover a palm print from the door of the store, which was subsequently matched to defendant. As a result, defendant was arrested and subsequently indicted for common law robbery and attaining habitual felon status.
Beginning 6 May 2013, defendant was tried by a jury in Wake County Superior Court. At the close of the evidence, defendant made a motion to dismiss on the basis of insufficient evidence, and the trial court denied the motion. On 8 May 2013, the jury returned a verdict finding defendant guilty of common law robbery. Defendant then entered into a plea arrangement with the State whereby he pled guilty to attaining habitual felon status and the unrelated offenses of felony larceny and felony breaking and entering.
Defendant stipulated that he was a level IV offender. His prior convictions included offenses in Minnesota, and the State provided the trial court with Minnesota statutes demonstrating that defendant's convictions were substantially similar to North Carolina offenses. Based on defendant's stipulations and the trial court's conclusion that his Minnesota convictions were substantially similar to North Carolina felony offenses, the court sentenced defendant to an active term of 90 to 117 months of imprisonment. On 12 May 2014, defendant filed a petition for writ of certiorari seeking review of the judgment entered upon (1) the jury verdict finding him guilty of common law robbery, and (2) his plea of guilty to felony larceny, felony breaking or entering, and attaining habitual felon status. This Court allowed the petition on 22 May 2014.
Counsel appointed to represent defendant is unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal and asks that this Court conduct its own review of the record for possible prejudicial error. He has shown to the satisfaction of this Court that he has complied with the requirements of 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), by advising defendant of his right to file written arguments with this Court and providing him with the documents necessary for him to do so.
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On appeal defendant raises four issues in a brief filed pro se: whether the trial court erred (1) in not considering mitigating factors; (2) by denying defendant's motion to dismiss; (3) in instructing the jury on the definition of violence, and (4) in calculating his prior record level. We address each issue in turn.
I
Defendant first contends that the trial court erred in not considering mitigating factors. Defendant argues he qualified for eleven of the twenty-one statutory mitigating factors and that his trial attorney “mistakenly did not submit any of defendant's mitigating factors[.]” Defendant contends that the following qualify him for eleven mitigating factors: at the time of sentencing, defendant was (1) enrolled in college; (2) employed in his family business; (3) married; (4) a certified minister; and (5) a war veteran. Not only are the aforementioned “factors” numerically insufficient, but defendant also fails indicate into which category of the mitigating factors as enumerated in N.C. Gen.Stat. § 15A–1340.16 (2013), amended by 2015 N.C. Sess. Laws 2015–62, § 4(a), eff. Dec. 1, 2015, the above five “factors” fit, if any. See N.C.G.S. § 15A–1340.16(e)(1)–(21).
However, defendant does not argue that his counsel's conduct in failing to offer the above “mitigating factors” rose to the level of ineffective assistance of counsel as defined by Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674 (1984). Since defendant concedes that no mitigating factors were presented to the trial court, the court did not err by sentencing defendant in the presumptive range. See State v. Mabry, 217 N.C.App. 465, 471, 720 S.E.2d 697, 702 (2011) (“[T]he offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.” (quoting N.C. Gen.Stat. § 15A–1340.16(a) (2009))).
II
Defendant next argues that the trial court erred by denying his motion to dismiss. “Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).
“Common law robbery requires proof of four elements: (1) felonious, nonconsensual taking of (2) money or other personal property (3) from the person or presence of another (4) by means of force.” State v. Robertson, 138 N.C.App. 506, 508, 531 S.E.2d 490, 492 (2000) (citing State v. Hedgecoe, 106 N.C.App. 157, 161, 415 S.E.2d 777, 780 (1992)). Defendant argues that the State presented insufficient evidence that he utilized force when taking the money from the cash register.
“The force element required for common law robbery requires violence or fear sufficient to compel the victim to part with his property or to prevent resistance to the taking.” State v. Elkins, 210 N.C.App. 110, 113–14, 707 S.E.2d 744, 748 (2011) (internal quotation marks and citations omitted). Here, Ibiculla testified that he attempted to stop defendant, but that defendant “pushed [Ibiculla] back and he ran to the outside.” This is substantial evidence that defendant used sufficient force to prevent Ibiculla from resisting his taking of the money. Accordingly, the trial court properly denied defendant's motion to dismiss.
III
Defendant also argues that the trial court erred when it responded to the jury's request that it define the terms “violence” and “fear” by instructing the jury that they “should give those words their ordinary and common meaning.” However, defendant did not object to this instruction at trial, and as a result, this issue is not preserved for appellate review. See N .C. R.App. P. 10(a)(1) (2013).
Further, defendant does not allege plain error; therefore, we are precluded from reviewing the issue: “In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C. R.App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 172 L.Ed.2d 58 (2008).
IV
Finally, defendant challenges the calculation of his prior record level. Defendant appears to argue that (1) the jury should have determined if his prior Minnesota convictions for possession of a firearm and felony damage to property were substantially similar to North Carolina offenses, and (2) since his Minnesota convictions were more than ten years old, they could not be used towards the calculation of his prior record level. However, defendant stipulated to his prior record level, evidence of the similarity of the Minnesota convictions to the North Carolina convictions was offered to the trial court, and defendant did not challenge the calculation of his prior record level before the trial court. Therefore, defendant's arguments are not properly before us. State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) (“In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent.”); see also N.C. R.App. P. 10(a)(1).
In accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit appear therefrom or whether the appeal is wholly frivolous. Because defendant has raised only issues which are meritless, we conclude the appeal is wholly frivolous. Furthermore, we have examined the record for possible prejudicial error and have found none.
NO ERROR.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).