Opinion
No. COA12–1067.
2013-03-5
STATE of North Carolina v. William Joseph FARMER.
Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State. Gerding Blass, PLLC, by Danielle Blass, for Defendant.
Appeal by Defendant from Judgments signed 11 April 2012 by Judge Mark E. Klass in Cabarrus County Superior Court. Heard in the Court of Appeals 14 February 2013. Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State. Gerding Blass, PLLC, by Danielle Blass, for Defendant.
STEPHENS, Judge.
Evidence and Procedural History
On 30 January 2011, Officer M.J. Greer (“Officer Greer”) was patrolling in the Concord Mills district of Cabarrus County. Around 4:00 a.m., he watched a Dodge pickup truck make a left turn and travel onto the wrong side of the road and into oncoming traffic. Officer Greer stopped the vehicle and asked for the driver's registration and license. Defendant William Joseph Farmer (“Defendant”) was later identified as the driver of the vehicle.
When Officer Greer approached the truck, Defendant presented with red and glassy eyes, slurred speech, and an odor of alcohol. Officer Greer requested that Defendant perform a number of field sobriety tests and, as a result, determined that Defendant was “appreciably impair[ed].” Defendant was arrested for driving while impaired (“DWI”).
Afterward, Defendant was taken to the Cabarrus County jail where Officer Greer informed him of his rights. Around 5:00 a.m., Defendant took a breath test, which showed that he had an alcohol content of 0.12. Defendant was charged with DWI and taken to the magistrate, who revoked his Class A, commercial driver's license (“CDL”) for thirty days pursuant to N.C. Gen.Stat. § 20–16.5 (2011).
Defendant filed a motion to dismiss the DWI charge on 12 March 2012, citing to “double jeopardy, equal protection & due process.” The motion to dismiss alleged that Defendant's CDL was the basis of his employment and his sole means of support. It further alleged that the North Carolina Department of Motor Vehicles (“DMV”) had sent Defendant a letter on 1 February 2011, informing him that he was “immediately disqualified from possessing a CDL for one year” pursuant to N.C. Gen.Stat. § 20–17.4(a)(7) (2011), which prohibits an individual from driving a commercial motor vehicle for one year when that person has received a civil license revocation under section 20–16.5. Defendant's trial counsel argued that the DWI case, which could result in “additional” criminal penalties against Defendant, violated the prohibition against double jeopardy as contained in the constitutions of the United States and the State of North Carolina because Defendant had already been punished by the State via the DMV's one-year disqualification of Defendant's CDL. Counsel failed to argue the motion at trial, however, and did not seek a ruling from the trial court on the motion to dismiss.
Defendant also filed a motion to suppress the evidence obtained from Officer Greer's stop and arrest of him. That motion is not raised on this appeal.
The letter was not included in the record on appeal.
On 11 April 2012, Defendant was found guilty of DWI and sentenced to sixty days in prison. That sentence was suspended, and Defendant was placed on probation for twelve months. Defendant appeals.
Discussion
I. Ineffective Assistance of Counsel
Defendant makes two arguments on appeal. First, Defendant contends that his trial attorney provided ineffective assistance of counsel (“IAC”) by filing a pre-trial motion on the issue of double jeopardy, but failing to either argue that issue at trial or seek a ruling from the trial court on the motion. Second, Defendant asserts that, notwithstanding the issue of IAC, the case should be remanded to the trial court for correction of a clerical error. We address these arguments in the order they are presented.
To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and quotation marks omitted), cert. denied,549 U.S. 867, 166 L.Ed.2d 116 (2006). In addition, we note that “[d]ecisions concerning which defenses to pursue ... are not generally second-guessed by [the appellate] Court.” State v. Prevatte, 356 N.C. 178, 236, 570 S.E.2d 440, 472 (2002), cert. denied,538 U.S. 986, 155 L.Ed.2d 681 (2003).
In order for Defendant to show that his trial attorney's actions were objectively unreasonable, he must “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689, 80 L.Ed.2d 674, 694–95 (1984) (citation omitted). When grappling with that presumption, the United States Supreme Court has instructed us that “[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Id.
Despite the presumption against a finding of IAC, Defendant contends here that his trial counsel's performance fell below an objective standard of reasonableness. In support of his assertion, Defendant contends “[t]here can be no tactical or strategic advantage to failing to argue for dismissal based on double jeopardy .” Defendant neither points to information in the record nor provides further argument in his brief to support this contention.
We are bound by the record presented on appeal. State v. Gillis, 158 N.C.App. 48, 55, 580 S.E.2d 32, 37–38 (2003) (citation omitted) (“[T]his Court is bound on appeal by the record on appeal as certified and can judicially know only what appears in it.”). In addition, we have stated with regard to claims of IAC that we are limited in our review to those cases in which “the cold record reveals that no further investigation is required.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L.Ed.2d 162 (2002). We note that, “[b]ecause of the nature of IAC claims, defendants likely will not be in a position to adequately develop many IAC claims on direct appeal.” Id. at 167,557 S.E.2d at 525. “[S]hould the reviewing court determine that IAC claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's right to reassert them during a subsequent [motion for appropriate relief (“MAR”) ] proceeding.” Id.; see also State v. Stroud, 147 N.C.App. 549, 553, 557 S.E.2d 544, 547 (2001) (citation omitted) (“In general, claims of [IAC] should be considered through motions for appropriate relief and not on direct appeal.”).
In this case, the record is lacking on the question of whether the conduct of defendant's trial counsel fell below an objective standard of reasonableness and was thus deficient. Defendant provides no evidence to support his assertion that trial counsel served in an objectively unreasonable way, and we find nothing in the record to confirm or negate that point. Because of the nature of IAC claims and the extent to which they rely on questions of sound trial strategy and subjective decision-making, we dismiss this issue without prejudice to Defendant's ability to file an MAR in the trial court and, thereby, further pursue his claim of IAC.
We are mindful that both Defendant and the State devote a substantial portion of their briefs to the issue of double jeopardy. Both parties point out that the same issue was raised in State v. McKenzie, ––– N.C.App. ––––, 736 S.E.2d 591 (2013), which was pending in this Court and had not been decided either at the time of Defendant's DWI trial or when the parties filed their briefs on appeal. In McKenzie, we determined that the defendant's CDL disqualification by the DMV, coupled with criminal prosecution by the State, violated the prohibition against double jeopardy. Id. at ––––, 736 S.E.2d at 598 (“[P]rosecution for DWI subsequent to license disqualification under N.C. Gen.Stat. § 20–17.4 constitutes impermissible double jeopardy.”). The issue before us, however, is whether Defendant's trial counsel provided IAC by failing to argue and obtain a ruling on the double jeopardy issue in the trial court. For the reasons already stated, that issue must be factually developed and determined, if at all, pursuant to an MAR, particularly in light of the fact that McKenzie had not been decided at the time of the proceedings below in this case.
II. The Clerical Error
Lastly, Defendant argues that the trial court erred in its final disposition by placing him on supervised probation instead of unsupervised probation. Though the final judgment lists Defendant as subject to twelve (12) months supervised probation, the transcript clearly indicates that Defendant was “placed on un supervised probation for 12 months.” (Emphasis added). The State concedes this point in its brief and even notes that “[t]he record does not reflect that the trial court intended that defendant be placed on supervised probation, wherein the court twice said that the defendant was to be placed on unsupervised probation.” We agree.
Accordingly, we remand this case to the trial court to correct the clerical error found on the 11 April 2012 judgment and place Defendant on unsupervised probation.
DISMISSED IN PART AND REMANDED. Judges STROUD and DILLON concur.
Report per Rule 30(e).