Opinion
No. COA10-867
Filed 7 June 2011 This case not for publication
Appeal by defendant from judgment entered 5 April 2010 by Judge James L. Baker in Buncombe County Superior Court. Heard in the Court of Appeals 13 December 2010.
Attorney General Roy Copper, by Assistant Attorney General John W. Congleton, for the State. Daniel F. Read, for Defendant.
Buncombe County File No. 09 CRS 662, 60984-88, 60991, 61772-73, 706185-86, 706188, 706190.
Defendant Kevin Marshall Stepp appeals from judgments sentencing him to a minimum term of 168 months and a maximum term of 211 months imprisonment in the custody of the North Carolina Department of Correction based upon his convictions for assault on a governmental official with a deadly weapon, two counts of felonious possession of stolen property, three counts of misdemeanor stolen property, identify theft, feloniously attempting to elude a law enforcement officer, speeding, failing to stop for a light or siren, reckless driving, resisting a public officer, assault on a governmental official, and providing fictitious information to a law enforcement officer, and a concurrent term of 120 days imprisonment in the custody of the North Carolina Department of Correction based upon his conviction for driving while impaired. On appeal, Defendant contends that the trial court erred by declining to allow his trial counsel to withdraw and appoint another attorney to represent him and by including a third degree burglary conviction for which Defendant was convicted as a convicted youthful offender under South Carolina law in calculating his prior record level. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we find no basis for disturbing Defendant's conviction.
I. Factual Background
On 2 November 2009, the Buncombe County grand jury returned bills of indictment charging Defendant with two counts of felonious possession of stolen property (a four wheeler and a Dodge truck), three counts of misdemeanor possession of stolen property (a Tennessee license plate; a Virginia license plate; and a digital camera, global positioning system, and computer bag), assault on a governmental official with a deadly weapon, identity theft, feloniously attempting to elude an officer, speeding, failure to stop for a light or siren, no operator's license, reckless driving, resisting an officer, assault on a government official, providing fictitious information to a law enforcement officer, and having attained the status of an habitual felon. On 7 December 2009, the Buncombe County grand jury returned a superseding indictment charging Defendant with having attained the status of an habitual felon. On 29 March 2010, Defendant's court-appointed counsel, Emmet Carney, filed a motion seeking leave to withdraw.
The cases against Defendant came on hearing before the trial court at the 5 April 2010 criminal session of the Buncombe County Superior Court. After conferring with Defendant, Mr. Carney withdrew his motion to withdraw as counsel. Defendant acknowledged that he consented to the withdrawal of Mr. Carney's motion and stated that he was ready to proceed while represented by Mr. Carney. At that point, Defendant pled guilty to driving while impaired, feloniously attempting to elude arrest, speeding, failure to stop for a light or siren, no operator's license, reckless driving, resisting a public officer, assaulting a government official, providing fictitious information to a law enforcement officer, two counts of felonious possession of stolen property, three counts of misdemeanor possession of stolen property, assaulting a government official with a deadly weapon, identity theft, and having attained the status of an habitual felon. Defendant entered these guilty pleas pursuant to a plea agreement with the State in which it was agreed that Defendant would stipulate to being a Level VI offender for felony sentencing purposes; that all of the non-impaired driving charges would be consolidated for judgment, with Defendant to be sentenced as an habitual felon; that Defendant would be sentenced to a minimum term of 168 months and a maximum term of 211 months imprisonment in the custody of the North Carolina Department of Correction; and that Defendant's impaired driving sentence would be served concurrently with his other sentences. In accordance with the plea agreement, the trial court accepted Defendant's guilty pleas and determined that Defendant had accumulated 19 prior record points and should be sentenced as a Level VI offender; that Defendant had attained habitual felon status and should be sentenced as a Class C felon pursuant to N.C. Gen. Stat. § 14-7.6; that the non-impaired driving charges to which Defendant had entered guilty pleas should be consolidated for judgment; that Defendant should be imprisoned for a minimum term of 168 months and a maximum term of 211 months in the custody of the North Carolina Department of Correction based on those convictions; and that Defendant should be sentenced to a concurrent term of 120 days imprisonment in the custody of the North Carolina Department of Correction based on his impaired driving conviction. On 7 April 2010, Defendant noted an appeal from the trial court's judgments to this Court.
II. Legal Analysis A. Motion to Withdraw as Defendant's Counsel
On appeal, Defendant argues that the trial court erred by "not allowing the motion to withdraw and removing [Mr. Carney] and substituting a new attorney where the uncontradicted evidence was that [Mr. Carney] and Defendant were in a situation of clear conflict." According to Defendant, the trial court's failure to allow Mr. Carney's request to withdraw and appoint new counsel to represent him "infringed" upon his Sixth and Fourteenth Amendment right to "have the [a]ssistance of [c]ounsel for his [defense.] U.S. Const. amend. VI. As a result, Defendant requests us to vacate the trial court's judgment and remand these cases for further proceedings. We do not find Defendant's argument persuasive, given that the trial court never ruled upon, much less denied, Mr. Carney's withdrawal motion. On the contrary, our reading of the record reveals that, while Mr. Carney initially sought permission to withdraw from his representation of Defendant and presented an argument in support of his motion, he subsequently withdrew this motion after conferring with Defendant.
According to the information contained in the record, the trial court informed Defendant, after hearing Mr. Carney's argument in support of his request to withdraw, that it would hear Defendant "as to anything [he] wish[ed] to say about [his] attorney's motion to withdraw." At that point, Defendant spoke briefly, explaining that he and Mr. Carney had "got[ten] off on the wrong foot to start with." After the trial court inquired as to whether Defendant believed that the situation could be corrected, Defendant said, "That is up to [Mr. Carney]." The trial court then addressed Mr. Carney, stating that:
. . . . I'm going to hold your motion open, then. Let me let you speak to [Defendant]. He's saying now it's up to you. Let's see if you all can reconcile your differences and continue your representation, based on what [Defendant] has told me today. I'm not denying your motion, I'm just holding it open. When you can, sir, speak to [Defendant] again to see if this can be worked out in the situation that he's facing now and I'll hear you further on your motion, and I'll hold that open briefly.
After making that statement, the trial court recessed the proceedings in Defendant's case without taking action on Mr. Carney's withdrawal motion.
Following a nearly four hour recess, during which Defendant and Mr. Carney conferred, Mr. Carney informed the trial court that he wished to withdraw his motion to withdraw. At that point, the following exchange occurred:
[Court]: All right. Thank you. [Defendant], your attorney has withdrawn his motion to withdraw. Do you understand that? Are you ready to proceed with your attorney, then, sir, in whatever capacity is about to be presented?
[Def.]: Yes, sir.
[Court]: Very well. The motion [is] to be considered withdrawn, then. The Court did not rule on the motion earlier, so no ruling will be made.
During the ensuing plea colloquy, Defendant responded in the affirmative when the trial court asked, "are you satisfied with your attorney's legal services?"
According to N.C.R. App. P. 10(a)(1):
In order to 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 the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection, or motion.
Given Mr. Carney's explicit withdrawal of his withdrawal motion, the trial court's statement that it was not ruling on Mr. Carney's withdrawal motion, and Defendant's expressions of support for the withdrawal of Mr. Carney's withdrawal motion and satisfaction with the work performed on his behalf by Mr. Carney, it is clear to us that the trial court never ruled on Mr. Carney's motion seeking leave to withdraw as counsel for Defendant. As a result of the absence of any decision by the trial court denying Mr. Carney's withdrawal motion, there is nothing for us to review on appeal. N.C.R. App. P. 10(a)(1). Although Defendant urges us to "address [the] issue by writ of certiorari," his argument to this effect is equally unavailing, since the issuance of a writ of certiorari is simply a device for permitting appellate review in situations when no appeal as of right exists, and not a device that permits the appellate courts to rule on questions that were never decided by the trial court. N.C.R. App. P. 21(a)(1) (stating that "[t]he writ of [ certiorari] may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review . . . of an order of the trial court denying a motion for appropriate relief"). Thus, we decline to address Defendant's claim arising from Mr. Carney's withdrawal motion and deny his certiorari petition.
B. Sentencing
Secondly, Defendant argues that the trial court erred by "counting [his] South Carolina Youthful Offender Act convictions toward his record level points, and thereby punishing him as a level VI offender." We do not find this argument persuasive either.
As we have already noted, Defendant entered a negotiated plea of guilty to numerous offenses and stipulated that he should be treated as a Level VI offender and sentenced as an habitual felon on the understanding that his non-impaired driving convictions would be consolidated for judgment, that he would receive a specific sentence, and that the sentence imposed upon him in connection with his impaired driving conviction would be served concurrently with the sentence imposed upon him in connection with his non-impaired driving convictions. At the time that the trial court inquired of Defendant if the plea agreement accurately reflected his understanding of the arrangement that he had reached with the State, Defendant nodded his head affirmatively. Mr. Carney stipulated on Defendant's behalf to the prior record level calculation displayed on the sentencing worksheet that the State submitted for the trial court's consideration. The prior record level calculation to which Defendant stipulated rested, in part, on a South Carolina third degree burglary conviction, which the trial court and the parties treated as a Class H felony for structured sentencing purposes.
"The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction." State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002) (quoting N.C. Gen. Stat. § 15A-1340.14(f)). A defendant's prior convictions may be proven by stipulation or "[a]ny other method found by the court to be reliable." N.C. Gen. Stat. § 15A-1340.14(f). As a result of the fact that Defendant's trial counsel signed the prior record level worksheet using a signature block located underneath language stating that "[t]he prosecutor and defense counsel . . . stipulate to the" prior record information set out on the form and "agree with the defendant's prior record level . . . as set out" on the worksheet "based on the information herein," Defendant clearly stipulated to the existence of the convictions underlying the trial court's prior record level determination, including the South Carolina burglary conviction on which Defendant's challenge to the trial court's prior record level determination is based. State v. Hussey, 194 N.C. App. 516, 523, 669 S.E.2d 864, 868 (2008) (holding that the fact that a defendant's trial counsel signed a prior record level worksheet containing language identical to that found in the worksheet submitted for the trial court's consideration in this case constituted a valid stipulation for purposes of N.C. Gen. Stat. § 15A-1340.14(f)(1)).
In view of the fact that Class H felonies and Class I felonies are assigned an identical number of prior record points, N.C. Gen. Stat. § 15A-1340.14(b)(4), the fact that the parties stipulated that Defendant's burglary conviction should be treated as a Class H felony rather than a Class I felony did not prejudice Defendant. State v. Bohler, 198 N.C. App. 631, 638, 681 S.E.2d 801, 806-807 (2009), disc. review denied, ___ N.C. ___, 691 S.E.2d 414 (2010).
Defendant does not challenge the adequacy of the State's proof that he was convicted of the felony of third degree burglary in South Carolina on 18 April 1996. Rather, he contends that the trial court erroneously considered this conviction in calculating his prior record level on the grounds that, since Defendant was sentenced as a convicted youthful offender for this conviction, it cannot be utilized in determining Defendant's prior record level based on the fact that North Carolina juvenile adjudications cannot be included in the prior record level calculation, N.C. Gen. Stat. § 15A-1340.11(7) (defining a "prior conviction" as a "previous[] convict[ion] of a crime"), and the rule of lenity. State v. Boykin, 78 N.C. App. 572, 577, 337 S.E.2d 678, 681 (1985) (describing the "rule of lenity" as "forbid[ding] a court to interpret a statute so as to increase the penalty that it places on an individual when the Legislature has not clearly stated such an intention") (citing Albernaz v. United States, 450 U.S. 333, 342, 67 L. Ed. 2d 275, 283-84, 101 S. Ct. 1137, 1144 (1981). The fundamental problem with Defendant's argument is that it lacks any support in North Carolina law. Defendant has not, at any point in his brief, contended that his South Carolina third degree burglary conviction was anything other than a criminal conviction, and nothing in the record would support such a conclusion had Defendant made such an assertion. The authority upon which Defendant relies in his brief strongly implies that, as a matter of South Carolina law, a defendant sentenced as a convicted youthful offender has been convicted of a criminal offense rather than adjudicated to be a delinquent juvenile. State v. Standard, 351 S.C. 199, 201 n. 2 569 S.E.2d 325, 327 n. 2 (2002) (noting that, while the defendant was sentenced as a youthful offender, another participant in the crime "handled as a juvenile adjudication in family court"), cert. denied, 537 U.S. 1195, 154 L. Ed. 2d 1032, 123 S. Ct. 1255 (2003). As a result of the fact that the record supports the trial court's conclusion that Defendant was "convicted of a crime," N.C. Gen. Stat. § 15A-1340.11(7), when he was convicted in South Carolina for third degree burglary, and the fact that the calculation of prior record points is intended to include all adjudications that constitute prior convictions as defined in N.C. Gen. Stat. § 15A-1340.11(7), we conclude that the trial court properly included Defendant's South Carolina third degree burglary conviction in ascertaining Defendant's prior record level, so that Defendant's challenge to that calculation lacks merit.
Had Defendant engaged in the conduct which led to his South Carolina third degree burglary conviction in North Carolina, he would have been prosecuted as an adult rather than as a juvenile. N.C. Gen. Stat. § 7B-1501(7) (defining a "delinquent juvenile" as "[a]ny juvenile who, while less than 16 years of age . . . commits a crime or infraction").
Defendant also contends that South Carolina law precludes the use of convictions for which Defendant was sentenced as a convicted youthful offender to support an habitual felon allegation. Aside from the fact that we have not located any South Carolina authority that tends to support this particular assertion, determining whether a defendant has attained habitual felon status and calculating a defendant's prior record level for structured sentencing purposes are two entirely different processes.
In light of our decision to affirm the trial court's judgments, we need not address the State's motion to strike allegedly extraneous material from the record. For that reason, we dismiss the State's motion as moot.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Defendant has failed to establish that the trial court committed any errors of law during the proceedings leading to the entry of the trial court's judgments. As a result, the trial court's judgments should be, and hereby are, affirmed.
AFFIRMED.
Chief Judge MARTIN and Judge MCGEE concur.
Report per Rule 30(e).