STATE OF NORTH CAROLINA
v. Cumberland County
No. 99 CRS 073560
WARREN ANTWAN HOLMES
Attorney General Roy Cooper, by Assistant Attorney General
John F. Maddrey, for the State.
James R. Parish for defendant appellant.
TIMMONS-GOODSON, Judge.
On 26 January 2001, a jury found Warren Antwan Holmes
("defendant") guilty of assault with a deadly weapon inflicting
serious injury. The trial court subsequently sentenced defendant
to a term of thirty-four to fifty months' imprisonment, from which
conviction and sentence defendant now appeals.
Counsel appointed to represent defendant 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. Counsel
has also shown to the satisfaction of this Court that he has
complied with the requirements of Anders v. California, 386 U.S.
738, 18 L. Ed. 2d 493, reh'g denied, 388 U.S. 924, 18 L. Ed. 2d1377 (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 providing him with the documents
necessary for him to do so. On 19 November 2001, defendant filed
written arguments with this Court. Pursuant to Anders and Kinch,
we must determine from a full examination of all the proceedings
whether the appeal is wholly frivolous.
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Defendant presents the following two issues for review: (1)
whether the State failed to prove the essential element of
possession of a deadly weapon; and (2) whether the trial court
correctly calculated defendant's prior record level. Defendant
also asserts that he was denied effective assistance of counsel.
For the reasons stated herein, we find no error by the trial court.
Defendant first contends that the State failed to prove the
essential element of possession of a deadly weapon. Defendant
notes that on 30 November 2000, an order for joinder was entered
allowing the State to try defendant on three charges: (1)
possession of a firearm by a felon; (2) discharge of a firearm into
occupied property; and (3) assault with a deadly weapon inflicting
serious injury. Defendant asserts that the State violated the
order by not trying him on the possession of a firearm charge,
which was later dismissed. Defendant contends that, because the
possession of a firearm charge was dismissed, the State failed to
prove he possessed a deadly weapon. Defendant's argument has no
merit. Defendant appears to argue that because the State did not try
him on charges of possession of a firearm, he could not be
convicted of assault with a deadly weapon inflicting serious
injury. We disagree. The order of joinder merely required the
State to pursue all related charges in one trial. The State chose
not to pursue charges of possession of a firearm by a felon at
defendant's trial. Accordingly, the possession charge was
dismissed by the State six months after the trial. The mere fact,
however, that the State did not pursue the possession charge
against defendant did not preclude the State from presenting
evidence of defendant's possession of the firearm, nor did it
negate the State's proof of the essential element of possession of
a deadly weapon for the assault charge. The State presented
substantial evidence at trial placing defendant in possession of a
pistol that he fired several times, a bullet from which struck and
seriously injured the victim. Thus, there was sufficient evidence
of defendant's possession of a deadly weapon to sustain his
conviction for assault with a deadly weapon inflicting serious
injury. We therefore overrule defendant's first assignment of
error.
By his second assignment of error, defendant argues that his
prior record level was incorrectly calculated. Defendant contends
that he had only two prior record level points, not six, and should
have been classified as a Level II felon. Defendant also argues
that he was sentenced in the aggravated range of punishment, and
that he should have been sentenced in the presumptive range. Again, we find no merit to defendant's argument.
Defendant's prior conviction worksheet shows that defendant
had previously committed two Class H felonies and two misdemeanors.
Each felony was worth two points, and each misdemeanor was worth
one point. Thus, defendant had six prior record level points for
a prior record level of III. The trial court then correctly
sentenced defendant in the presumptive range as a Class E, Level
III felon to thirty-four to fifty months' imprisonment. See N.C.
Gen. Stat. § 15A-1340.17 (1999). We therefore overrule defendant's
second assignment of error.
Finally, defendant has filed a pro se motion for appropriate
relief with the Court alleging that his constitutional right to
effective assistance of counsel at trial was violated. We cannot
properly determine this issue on direct appeal because an
evidentiary hearing on this issue has not been held in the trial
court. See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d
719, 721 (1985) (stating that “[t]he accepted practice is to raise
claims of ineffective assistance of counsel in post-conviction
proceedings, rather than direct appeal”). Accordingly, defendant's
motion is dismissed without prejudice to his right to file a motion
for appropriate relief in the superior court based upon an
allegation of ineffective assistance of counsel. See N.C. Gen.
Stat. § 15A-1415(b)(3) (1999).
In addition to defendant's arguments, the Court has reviewed
the record for other possible prejudicial error and has found none.
Accordingly, we conclude that the appeal is wholly frivolous. No error.
Chief Judge EAGLES and Judge McCULLOUGH concur.
Report per Rule 30(e).
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