Opinion
No. COA11–1337.
2012-05-15
STATE of North Carolina v. Carl Edward WILEY.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Leslie Rawls for defendant-appellant.
Appeal by defendant from judgment entered 11 May 2011 by Judge Ronald E. Spivey in Buncombe County Superior Court. Heard in the Court of Appeals 1 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Leslie Rawls for defendant-appellant.
STEELMAN, Judge.
After review of the Anders filing by appellate counsel, and defendant's own submission, we conclude that this appeal is frivolous.
Carl Edward Wiley (“defendant”) was found guilty of habitual misdemeanor assault (a felony), and of being an habitual felon. On 11 May 2011, the trial court sentenced defendant to 131–167 months imprisonment.
Defendant appeals.
Counsel appointed to represent defendant on appeal has been 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. Appellate counsel has shown to the satisfaction of this Court that she 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 by providing defendant with the documents necessary for him to do so.
On 9 January 2012, defendant filed written arguments with this Court. Defendant's first argument is that the State improperly reinstated the charges without providing him adequate written notice of reinstatement. Defendant was initially found incompetent to stand trial, and the State dismissed the charges with leave to re-file. The State subsequently re-filed the charges after defendant was found competent. Defendant claims that because the reinstatement section of the voluntary dismissal form was not signed by the prosecutor, he did not receive adequate written notice of reinstatement of the charges pursuant to N.C. Gen.Stat. § 15A–1009 (2011). Under similar circumstances, however, we previously held that to preserve this issue for appeal a defendant must object to the lack of written notice at the time of arraignment. See State v. Viera, 189 N.C.App. 514, 519, 658 S.E.2d 529, 532 (2008) (decided pursuant to N.C. Gen.Stat. § 15A–932 (2007)). The record in this case does not indicate that defendant ever objected to a lack of written notice. Defendant has waived appellate review of this issue.
Defendant's second argument is that he received ineffective assistance from trial and appellate counsel. Defendant does not allege any specific instances of ineffective assistance. To prove a claim of ineffective assistance of counsel, a defendant must show the following:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984)). As to defendant's failure to object to the lack of written notice of reinstatement of the charges, we note that defendant has failed to make any showing that he was prejudiced by trial counsel's failure to object. In fact, the record demonstrates that defendant, through counsel, was prepared for trial and was able to obtain an acquittal as to one of the charges. After reviewing the record and the proposed issues discussed in appellate counsel's brief, we do not detect any prejudicial instance of ineffective assistance of trial or appellate counsel.
Defendant's final argument is a non-specific request that this Court review the case to determine whether his Fourth or Fifth Amendment rights were violated. In accordance with Anders, we have fully examined the record and transcript to determine whether any issues of arguable merit appear or whether the appeal is wholly frivolous. We conclude that the appeal is wholly frivolous.
DISMISSED IN PART, NO ERROR IN PART. Chief Judge MARTIN and Judge THIGPEN concur.
Report per Rule 30(e).