Opinion
No. COA10-998
Filed 5 April 2011 This case not for publication
Appeal by defendant from judgments entered 1 April 2010 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 8 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State. Leslie C. Rawls for defendant-appellant.
Buncombe County Nos. 09 CRS 304, 323, 55530, 55531, 55533, and 55535.
Where defendant failed to make a constitutional argument at trial regarding the right to testify and present a defense, the issue is not properly before us. Where the record is insufficient to determine defendant's claim for ineffective assistance of counsel, we dismiss without prejudice to defendant's right to to raise this issue in a motion for appropriate relief. Where the judgment revealed a clerical error, we remand to the trial court for correction.
Facts and Procedural History
The evidence tended to show the following: Kelvin Errol Smith, defendant, and Angela Underwood (Angela), who were romantically involved, lived together in an apartment with Angela's son, Cecyll Underwood (Cecyll). In February 2009, defendant and Angela ended their relationship. In March 2009, because defendant started exhibiting violent behavior and making threats against her safety, Angela obtained a one-year domestic violence restraining order against him.
On 27 April 2009, as Angela was leaving her apartment to meet Cecyll at his school, defendant forced his way in through the door, put his hand over her mouth, and began stabbing her. As Angela was struggling to keep defendant from stabbing her, she tried to hide her phone between the cushions of her sofa in order to dial police. During defendant's attempt to get the phone away from Angela by cutting her hands, Cecyll called Angela's phone. Cecyll testified that he "could hear [Angela] in the background screaming and yelling for help." Cecyll called the police and rushed home to help his mother.
Upon arrival, Cecyll went to the front door and heard Angela yelling for help. Because defendant had locked the front door, Cecyll ran to the back, busted open a glass door, and ran into their living room. Cecyll saw defendant on top of Angela on the sofa, holding a knife. Defendant told Cecyll, "If you take another step, I'll kill her now." As defendant attempted to stab Angela again, Cecyll fought with defendant in an attempt to free his mother. During their struggle, defendant stabbed Cecyll's hand and chest. Angela and Cecyll managed to break free from defendant to run outside. They then ran into a neighbor's apartment and as they were closing the door, defendant pushed his way inside. Cecyll and defendant began wrestling again as Angela tried to run to safety in an upstairs bedroom. The struggle continued throughout different parts of the neighbor's apartment and Angela testified that she sustained stab wounds to her face, neck, hand, arm, and foot.
Deputy Christi Gallion of the Buncombe County Sheriff's Department was the first to arrive on the scene. After his arrest, defendant informed Deputy Gallion that he was a diabetic and that "he was having trouble." The fire department checked defendant's blood sugar level and transported him to a hospital. Defendant was treated for three days in a hospital, prior to being taken into formal custody.
Defendant was convicted of the following: assault with a deadly weapon with the intent to kill inflicting serious injury upon Angela, assault with a deadly weapon inflicting serious injury upon Cecyll, felonious breaking and/or entering a building occupied by Donna Bartow, violating the provisions of a valid domestic violence protective order, and felonious breaking and/or entering a building occupied by Angela. Defendant was acquitted of kidnapping Angela.
Defendant pled guilty to attaining the status of habitual felon. The jury found as an aggravating factor that defendant committed the offense while on pretrial release on another charge. The trial court found in mitigation that defendant had a positive employment history or was gainfully employed, but concluded that the aggravating factors outweighed the mitigating factors. Defendant stipulated to a prior record level of IV and was ordered to pay restitution to Angela. Defendant was sentenced to serve from 255 to 315 months for assault with a deadly weapon with intent to kill inflicting serious injury upon Angela. The trial court consolidated judgments for his other convictions and sentenced defendant to serve from 140-177 months, but erroneously included the first-degree kidnapping charge for which defendant had been acquitted. Defendant appeals.
_________________
On appeal, defendant advances three issues: (I) whether defendant was deprived of his constitutional right to testify and present a defense; (II) whether defendant was deprived of his right to effective assistance of counsel; and (III) whether the trial court committed plain error by entering judgment on a charge for which defendant had been acquitted.
I.
In defendant's first argument, he contends that the trial court, upon learning that he had been deprived of his rights to testify and present a defense, should have declared a mistrial sua sponte and set aside the verdict. Defendant argues that his constitutional rights under the Fifth and Fourteenth Amendments of the United States Constitution were violated.
"Upon motion of a party or upon his own motion, a judge may declare a mistrial if: (1) It is impossible for the trial to proceed in conformity with law[.]" N.C. Gen. Stat. § 15A-1063 (2009). "A motion for mistrial rests within the sound discretion of the trial court. Therefore, unless the [trial court's] ruling is clearly erroneous so as to amount to a manifest abuse of discretion, it will not be disturbed on appeal." Fallis v. Watauga Medical Ctr., Inc, 132 N.C. App. 43, 48, 510 S.E.2d 199, 203 (1999) (citations omitted).
After the verdict had been reached, the trial court addressed defendant regarding his guilty plea of attaining the status of habitual felon. The trial court asked defendant if he was fully satisfied with his counsel's legal services to which defendant replied in the negative. Defendant stated the following:
I had stuff to present and he did not present it to the jury. I had a defense. He didn't present it to the jury, he didn't do none of that, and see at the time of the crime that I committed with them, my sugar level was like 750. I wasn't in my right state of mind, so I pleaded insanity. He didn't present that. He didn't bring to the court an expert witness on diabetes that showed that when your sugar level is that high what state of mind you was in. I asked for the people from the hospital to come. I stayed in the hospital three days before I even went to jail, and he just didn't present it for me, and I've got a copy right here where I wrote to him. This is back in January that he didn't do nothing. I wanted to take [the] stand. He wouldn't let me take the stand.
We have previously held that "[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." State v. Sloan, 180 N.C. App. 527, 531, 638 S.E.2d 36, 39 (2006) (citations omitted). In the present case, defendant failed to make a constitutional argument at trial. "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." N.C. R. App. P. 10(a)(1) (2011). Following the above exchange, defendant made no motions or offers of proof for the record, and the trial court moved forward with the remainder of the proceedings. Further, any motion for mistrial made at sentencing would have been untimely. See State v. McKenna, 289 N.C. 668, 689, 224 S.E.2d 537, 551 (1976), judgment vacated on other grounds, 429 U.S. 912, 50 L.Ed.2d 278 (1976) (stating that a "motion for mistrial . . . made after verdict . . . c[omes] too late.") Therefore, defendant is barred from raising this issue on appeal, and this assignment of error is dismissed.
II.
In his second argument, defendant contends that he was deprived of his right to effective assistance of counsel because his attorney prevented him from exercising his right to testify, failed to present all of his available defenses, and failed to present evidence in support of mitigating factors at sentencing.
In order to be successful on a claim for ineffective assistance of counsel, defendant must fulfill two components.
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. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). "The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." State v. Reber, 182 N.C. App. 250, 259, 641 S.E.2d 742, 748 (2007) (quoting State v. Braswell, 312 N.C. 553, 563-64, 324 S.E.2d 241, 248-49 (1985)).
A claim for ineffective assistance of counsel
may be brought on direct review "when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001). If an ineffective assistance of counsel claim is prematurely brought, this Court may dismiss the claim without prejudice, allowing the defendant to reassert the claim during a subsequent motion for appropriate relief proceeding. State v. Campbell, 359 N.C. 644, 691, 617 S.E.2d 1, 30 (2005), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523, 126 S. Ct. 1773 (2006).
State v. Pulley, 180 N.C. App. 54, 69-70, 636 S.E.2d 231, 242 (2006).
Defendant brings forth many contentions regarding his counsel's representation, including failure to present a defense of diminished capacity based on high blood sugar. See defendant's statements to the trial court in Issue I, supra. However, not all of defendant's contentions are clearly developed in the record before us. "The merits of defendant's claim[s], if any, cannot be determined from the 'cold record' and require further evidentiary development." Id. at 70, 636 S.E.2d at 243. Accordingly, we dismiss defendant's assignment of error as to his ineffective assistance of counsel claim, without prejudice to defendant's right to raise this issue in a subsequent motion for appropriate relief before the trial court.
III.
Finally, defendant argues the trial court committed plain error by entering judgment on the kidnapping charge for which he had been acquitted. As a result, defendant argues, his due process rights under the North Carolina and United States Constitutions were violated.
The transcript reveals that at sentencing, the trial court sentenced defendant to serve from 255 to 315 months for assault with a deadly weapon with intent to kill inflicting serious injury upon Angela Underwood, finding that defendant's aggravating factor was outweighed by his mitigating factor. This was classified as a Class C felony, but was "elevated or enhanced to a level B2 [felony] by virtue of the fact that the jury found that he committed that offense knowingly while . . . being prohibited from such conduct under an existing Domestic Violence Protective Order." The trial court went on to state that "the remaining matters will be consolidated. . . . all of them are enhanced to the status of habitual felon Class C[,]" sentencing defendant from 140 to 177 months.
However, as evidenced by the record on the judgment sheet, defendant is correct in his contention that when the trial court consolidated charges other than the conviction for assault with a deadly weapon with intent to kill inflicting serious injury upon on Angela, it erroneously included a kidnapping conviction for which defendant had been acquitted. In the instant case, the transcript of the sentencing hearing accurately reflects the trial court's judgment, but the record reveals a clerical error. A clerical error is "an error resulting from a minor mistake or inadvertence, [especially] in writing or copying something on the record, and not from judicial reasoning or determination." State v. Taylor, 156 N.C. App. 172, 177, 576 S.E.2d 114, 117-18 (quoting State v. Jarman, 140 N.C. App. at 202, 535 S.E.2d at 878). "When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record 'speak the truth.'" State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696-97 (2008) (citation omitted). Accordingly, we remand to the trial court for correction of this clerical error.
No error in part; dismissed without prejudice in part; remanded for correction of clerical error.
Judges McGEE and BEASLEY concur.
Report per rule 30(e).