A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-229


Filed: 2 April 2002


     v .                                 Durham County
                                        No. 95CRS24833< br> SEAN GREENE

    Appeal by defendant from judgment entered 31 October 2000 by Judge Henry Hight and order entered 7 December 2000 by Judge Orlando F. Hudson, Jr., in Durham County Superior Court. Heard in the Court of Appeals 21 January 2002.

    Attorney General Roy Cooper, by Special Deputy Attorney General Gayl M. Manthei, for the State.

    Lisa Miles for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Sean Greene was tried before a jury at the 30 October 2000 Criminal Session of Durham County Superior Court after being indicted on one count of trafficking by possession of a Schedule I controlled substance, one count of trafficking by transportation of a Schedule I controlled substance, one count of possession with intent to sell or deliver a Schedule I controlled substance, and one count of felonious possession of a Schedule I controlled substance. Evidence for the State showed that Special Agent William Weis was a twenty-one-year veteran of the State Bureau of Investigation (SBI) and served as supervisor of the narcotics task force. Agent Weis performed drug interdictions attrain stations, bus stops, and airports.
    On 29 August 1995, Agent Weis received information that a man named Sean Greene was transporting drugs on an Amtrak train travelling from New York City to Durham, North Carolina. Upon inquiry at the Amtrak ticket office, Agent Weis confirmed that an individual named Sean Greene was on the Amtrak manifest printout. The printout revealed that Sean Greene bought a one-way cash ticket from New York City to Durham approximately fourteen minutes before the Amtrak train departed, did not check any baggage, and did not leave a call-back number on his reservation information. Based on these facts and his experience, Agent Weis believed Greene fit the profile of a drug courier. Agent Weis ran a background check on Sean Greene. The search revealed no prior criminal history in the State of North Carolina.
    Agent Weis, accompanied by Officer Billy Gregory of the Durham Police Department, was at the Amtrak Station when defendant's train arrived. Both officers were dressed in plain clothes and did not display any weapons. The officers approached defendant, identified themselves as law enforcement officers, and asked to speak to defendant. Defendant agreed. At the officers' request, defendant produced his Amtrak ticket stub and his driver's license, both of which identified him as Sean Greene. After returning the items, the officers asked defendant if they could look into his bags and pat him down. Defendant “readily agreed” to a search of his bags and to a pat-down search of his person.
    The officers directed defendant to the shelter area of theAmtrak platform; defendant picked up his bags and followed the officers without incident. Neither bag contained contraband. Agent Weis then performed a pat-down search of defendant. Agent Weis found no contraband on defendant's body, but noticed that defendant was wearing heavy work boots that could contain contraband. Upon touching the boot, Agent Weis felt a hard object inside, which he suspected was either a weapon or contraband. He immediately stopped the search and asked defendant if he could look inside his boot. Defendant agreed to a search of his work boots and took his right boot off himself; the officers discovered "a small, cylindrical tinfoil wrap" therein. The officers immediately told defendant what they found, handcuffed him, and placed him under arrest. Upon examination of the other boot, the officers discovered three more tinfoil packages. The officers sent the contraband to the SBI lab, where forensic chemist Wendy Cook determined that the substance was heroin.
    Defendant was indicted on 2 October 1995 on one count of trafficking by possession of a Schedule I controlled substance, one count of trafficking by transportation of a Schedule I controlled substance, one count of possession with intent to sell or deliver a Schedule I controlled substance, and one count of felonious possession of a Schedule I controlled substance. The case was dismissed with leave by the State on 17 December 1996, and was reinstated for trial on 23 December 1999. The case was heard by a jury at the 30 October 2000 Criminal Session of Durham County Superior Court. The jury found defendant guilty of trafficking inheroin by possession, trafficking in heroin by transportation, and possession of heroin. The trial court arrested judgment on the possession of heroin conviction, and the remaining counts were consolidated for sentencing. Defendant was sentenced to 225-279 months' imprisonment and was ordered to pay a $1,000,000.00 fine. Judgment was entered, and defendant gave notice of appeal of the judgment in open court. On 2 November 2000, the trial court appointed the Appellate Defender to perfect the appeal. Thereafter, on 12 December 2000, the trial court entered an order relieving the Appellate Defender of responsibility for the appeal and appointed Ms. Lisa Miles to perfect defendant's appeal.
    On 17 November 2000, defendant filed a pro se motion for appropriate relief (MAR). In his motion, defendant recounted pertinent aspects of his case. He stated that he was originally represented by Assistant Public Defender Phyllis Tranchese. On 17 March 2000, Ms. Tranchese filed a motion to suppress physical evidence (the heroin) on the ground that the evidence was seized in violation of defendant's federal and state constitutional rights. Ms. Tranchese included an affidavit in support of the motion. Thereafter, Attorney Robert Harris took over defendant's case and made appearances on his behalf. On 20 September 2000, Mr. Harris filed his own motion to suppress the physical evidence against defendant. Like Ms. Tranchese's motion, this motion alleged that defendant's constitutional rights were violated. By order dated 7 December 2000, the trial court denied defendant's MAR without conducting a hearing. Defendant appeals from both the judgmententered 31 October 2000, and from the trial court's order dated 7 December 2000.
    Defendant's sole assignment of error is that the trial court erred in summarily denying his pro se MAR without conducting an evidentiary hearing. More specifically, defendant argues the evidence taken from him during the pat-down search was obtained in violation of the Fourth Amendment of the United States Constitution. He also argues that he received ineffective assistance of counsel, because Ms. Tranchese did not timely file defendant's motion to suppress. For the reasons set forth herein, we disagree with defendant's arguments, affirm the denial of defendant's MAR, and discern no error in the trial.
    Defendant's MAR questions the manner in which his attorneys tried to suppress the physical evidence prior to his trial. Ultimately, the physical evidence was introduced at trial, entered into evidence, and defendant was convicted of multiple drug charges. Defendant asserts that the evidence was initially obtained in violation of the Fourth Amendment to the United States Constitution. The Fourth Amendment states:
            The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

U.S. Const. Amend. IV (1791). The Fourth Amendment is applicable to the states through the Due Process Clause of the FourteenthAmendment. State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994); see also N.C. Const. Art. I, § 20.
    N.C. Gen. Stat. § 15A-976(b) (1999) states:
            (b)     If the State gives notice not later than 20 working days before trial of its intention to use evidence and if the evidence is of a type listed in G.S. 15A-975(b), the defendant may move to suppress the evidence only if its motion is made not later than 10 working days following receipt of the notice from the State.

    While it is true that a defendant may file an MAR, we agree with the State that defendant has waived appellate review of the dismissal of his pretrial motion to suppress because he did not object to the evidence at trial. In State v. Grooms, 353 N.C. 50, 66, 540 S.E.2d 713, 723 (2000), our Supreme Court stated:
        We have also held that a pretrial motion to suppress, a type of motion in limine, is not sufficient to preserve for appeal the issue of admissibility of evidence. See State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000). Thus, defendant's pretrial motion to suppress and motion in limine are not sufficient to preserve for appeal the question of the admissibility of the State's DNA evidence; and defendant waived appellate review of this issue by failing to object during trial to the admission of the DNA evidence. Additionally, while defendant's assignment of error includes plain error as an alternative, he does not specifically argue in his brief that there is plain error in the instant case. Accordingly, defendant's argument is not properly before this Court. See N.C.R. App. P. 10(c)(4); Golphin, 352 N.C. at 405, 533 S.E.2d at 198-99; State v. McNeil, 350 N.C. 657, 681, 518 S.E.2d 486, 501 (1999), cert. denied, [529] U.S. [1024], 146 L. Ed. 2d 321 (2000).

Therefore, in the present case, our review is limited todefendant's federal constitutional claim and his claim of ineffective assistance of counsel.
    We note that the trial court was not required to consider defendant's pro se MAR at all, because a defendant can choose "to appear in propria persona or, in the alternative, by counsel. There is no right to appear both in propria persona and by counsel." State v. Parton, 303 N.C. 55, 61, 277 S.E.2d 410, 415 (1981), disavowed on other grounds by State v. Freeman, 314 N.C. 432, 333 S.E.2d 743 (1985). The record indicates that defendant was represented by counsel for purposes of his appeal; therefore, there was no requirement that defendant's pro se MAR be considered by the trial court.
    However, the trial court did consider defendant's MAR, and entered the following order for summary dismissal on motion for appropriate relief:
            THIS MATTER was heard upon a Motion of Appropriate Relief filed 17th day of November [2000], by the above-named defendant, Sean Green [sic]. The Court, having considered the allegations contained in the motion and the case files, finds that the motion sets forth no probable grounds for the relief requested, either in law or in fact.

            THE COURT concludes that there are no probable grounds for relief; and,

                IT IS THEREFORE ORDERED that the motion is denied; and, the defendant's failure to assert any other grounds in his motion shall be subject to being treated in the future as a BAR to any other claims, assertions, petitions, or motions that he might hereafter file in this case, pursuant to N.C.G.S. 15A-1419[.]
    N.C. Gen. Stat. § 15A-1420 (1999) sets forth the guidelines and procedure for a motion for appropriate relief. According to N.C. Gen. Stat. § 15A-1420(c)(1),
        Any party is entitled to a hearing on questions of law or fact arising from the motion and any supporting or opposing information presented unless the court determines that the motion is without merit. The court must determine, on the basis of these materials and the requirements of this subsection, whether an evidentiary hearing is required to resolve questions of fact. Upon the motion of either party, the judge may direct the attorneys for the parties to appear before him for a conference on any prehearing matter in the case.

(Emphasis added.) Our cases have reiterated that no hearing is required if the trial court determines that the MAR is without merit. State v. McHone, 348 N.C. 254, 257-58, 499 S.E.2d 761, 762- 63 (1998).
    In the present case, defendant's pro se MAR contained numerous allegations of unfairness and prejudice, concluding with the following prayer for relief:
            WHEREFORE Defendant Sean Greene respectfully prays this Court to grant the following relief.

                    1.    That an evidentiary hearing be held before the trial Judge.

                            2.    That defendant's conviction be vacated.

                            3.    That a new trial be ordered; and

                    4.    That other and further relief as this court deems just and proper be granted.
The trial court considered the facts of defendant's case, applied the law, and determined that “the motion sets forth no probable grounds for the relief requested, either in law or in fact.” With this statement, the trial court determined that defendant's MAR was without merit; therefore, a hearing was not required. See N.C. Gen. Stat. § 15A-1420(c)(1). We are mindful that
            [w]hen reviewing a trial court's order on a motion for appropriate relief, the findings of fact made by the court are binding if they are supported by competent evidence and may be disturbed only upon a showing of a manifest abuse of discretion. State v. Pait, 81 N.C. App. 286, 288-89, 343 S.E.2d 573, 575 (1986). However, the trial court's conclusions of law are fully reviewable on appeal. State v. Brooks, 337 N.C. 132, 141, 446 S.E.2d 579, 585 (1994).

State v. Johnson, 126 N.C. App. 271, 273, 485 S.E.2d 315, 316 (1997).
    En route to making its determination, the trial court also considered defendant's assertion that he received ineffective assistance of counsel from Ms. Tranchese, the Assistant Public Defender who first dealt with defendant's case. Defendant maintains that his pro se MAR set forth a meritorious claim, since Ms. Tranchese did not file a motion to suppress until 17 March 2000, five years after she knew the State would introduce the seized evidence. Defendant also argues his pro se MAR was sufficient to put the trial court on notice of the specifics of his complaint.
    "A strong presumption exists that a counsel's conduct falls within the range of reasonable professional assistance." State v.Frazier, 142 N.C. App. 361, 367, 542 S.E.2d 682, 687 (2001). Here, the State served notice of its intent to use the physical evidence (the heroin) on 15 November 1995. Defendant did not appear at his scheduled 13 November 1995 court date, and was unavailable during the time Ms. Tranchese would have filed a motion to suppress evidence. Defendant did not return to North Carolina until he was apprehended in New York in November 1999.
    Based upon these facts and our examination of the record, we agree with the State that Ms. Tranchese's failure to timely file a motion was likely reasonable, given the fact that defendant failed to appear for a scheduled court date and had apparently left the jurisdiction before the date the motion was to be filed. We do not believe defendant can successfully assert a claim of ineffective assistance of counsel when his attorney's action was thwarted by his own misconduct. Assuming defendant's MAR also alleges that his trial attorney (Mr. Harris) was ineffective, we note that a failure to object to admissible evidence is not a ground upon which defendant can assert a successful allegation of ineffective assistance of counsel. “A counsel's failure to object to evidence which is in fact admissible does not amount to deficient representation.” Frazier, 142 N.C. App. at 368, 542 S.E.2d at 687. See also State v. Lee, 348 N.C. 474, 492-93, 501 S.E.2d 334, 346 (1998).
    Finally, even if the trial court's summary denial of defendant's MAR was erroneous, defendant here cannot show that a different result would have been reached had his MAR been granted. See N.C. Gen. Stat. § 15A-1443(a) (1999) ; and State v. Garner, 136 N.C. App. 1, 7, 523 S.E.2d 689, 694 (1999).
    It is apparent from the undisputed facts set forth earlier that the encounter between defendant and the officers resulted in a consensual search of defendant's bags and of his person. The trial court need not make findings of fact when there is not a material conflict in the evidence. See State v. Lovin, 339 N.C. 695, 706, 454 S.E.2d 229, 235 (1995); and State v. Nowell, 144 N.C. App. 636, 643, 550 S.E.2d 807, 812 (2001).
    After careful consideration of the record and the arguments presented by the parties, we conclude that the trial court did not err in denying defendant's pro se MAR without conducting a hearing. In the trial court's judgment entered 31 October 2000 and in the trial court's order dated 7 December 2000, we find
    No error.
    Chief Judge EAGLES and Judge CAMPBELL concur.
    Report per Rule 30(e).

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