An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1575


Filed: 19 August 2003


         v.                        Gaston County
                                Nos. 99 CRS 26768
                                    98 CRS 3993

    On writ of certiorari from judgment entered 2 May 2001 by Judge Claude S. Sitton in Superior Court, Gaston County. Heard in the Court of Appeals 4 August 2003.
    Attorney General Roy Cooper, by Special Deputy Attorney General Christine M. Ryan, for the State.

    Robert T. Newman, Sr. for defendant-appellant.

    McGEE, Judge.
    Christopher O'Neal Gordon (defendant) was convicted of possession of a firearm by a felon and being an habitual felon. The trial court sentenced defendant to 168 to 211 months' imprisonment. Defendant gave notice of appeal. Defendant's appellate counsel failed to perfect defendant's appeal and our Court granted defendant's petition for writ of certiorari on 16 October 2002 to review the judgment entered in this case.
    Nine assignments of error were listed in the record on appeal, but defendant's counsel presents no arguments in defendant's brief. In support of defendant's appeal, counsel for defendant (1) refers our Court to a motion to dismiss for speedy trial violationpreviously filed by defendant and (2) to defendant's argument at trial that there was "error since the same element the Felony Larceny conviction was used to convict [defendant] of the predicate felony (Possession of Firearm by a Felon) and to convict of the Habitual Felon charge." Defendant's counsel states that he has researched these arguments and the other assignments of error and is unable to identify any error in defendant's trial but "concedes they might arguably support" defendant's appeal.    
    Counsel 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. 2d 1377 (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 documents necessary for him to do so. Defendant has not filed any written arguments on his own behalf with this Court, and a reasonable time in which he could have done so has passed.
    The State, in response to statements of defendant's counsel that defendant was denied his constitutional right to a speedy trial under the Sixth Amendment to the U.S. Constitution and Article 1, section 18 of the N.C. Constitution, points out that defendant filed a pro se motion to dismiss for a speedy trial violation dated 1 October 2000 at a time when he was represented by counsel. The State argues that defendant did not have a right to file his motion pro se because he was represented by counsel at the time the motion was filed. Defendant had the right to appear by himself or, in the alternative, by counsel. "Having elected forrepresentation by appointed defense counsel, defendant cannot also file motions on his own behalf or attempt to represent himself. Defendant has no right to appear both by himself and by counsel." State v. Grooms, 353 N.C. 50, 61, 540 S.E.2d 713, 721 (2000), cert. denied, 534 U.S. 838, 151 L. Ed.2d 54 (2001). Defendant thus waived appellate review of this issue by failing to properly raise the constitutional issue before the trial court.
    Even assuming, arguendo, that the speedy trial issue was properly raised in the trial court, defendant's right to a speedy trial was not violated. The United States Supreme Court has set forth four factors "which courts should assess in determining whether a particular defendant has been deprived of his right" to a speedy trial under the federal constitution. Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed.2d 101, 117 (1972). These factors are: (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) whether the defendant has suffered prejudice as a result of the delay. Id. Our N.C. Supreme Court has followed the same analysis when reviewing speedy trial claims under Article I, Section 18 of the N.C. Constitution. See State v. Jones, 310 N.C. 716, 721, 314 S.E.2d 529, 532-33 (1984).
    The length of the delay is not per se determinative of whether defendant was deprived of his right to a speedy trial. See State v. Webster, 337 N.C. 674, 678, 447 S.E.2d 349, 351 (1994). The State notes in its brief that the length of delay in this case, 1,092 days, "weighs against the State." The State points out,however, that our Supreme Court recently applied the Barker factors in a case where a delay of more than four years was held not to be a constitutional violation. State v. Spivey, 357 N.C. 114, 579 S.E.2d 251 (2003).
    In examining the second factor, a defendant has the burden of showing the delay was caused by the neglect or willfulness of the State. See Webster, 337 N.C. at 679, 447 S.E.2d at 351. A defendant must first meet the burden of proof by offering prima facie evidence showing that the delay was caused by the neglect or willfulness of the State before the State offers "evidence fully explaining the reasons for the delay and sufficient to rebut the prima facie [evidence]." State v. McKoy, 294 N.C. 134, 143, 240 S.E.2d 383, 390 (1978). The record in this case shows several reasons for the delay but does not reveal that the delay resulted from willful misconduct by the State. The delay occurred in part from several instances of reassignment of counsel at defendant's request and defendant's failure to appear at an early hearing. The State requested one continuance but the record shows no other delay caused solely by the State.
    The third factor is defendant's assertion of the right to a speedy trial. Defendant asserted his right to a speedy trial in filing his pro se motion to dismiss on 1 October 2000, which was more than two years after his arraignment. The motion was promptly heard on 2 November 2000 and denied by the trial court. Defendant's failure to assert his right to a speedy trial earlier in the process does not foreclose his claim but does weigh against the contention that he was denied his constitutional right to a speedy trial. See Webster, 337 N.C. at 680, 447 S.E.2d at 352.
    The fourth factor is whether defendant suffered prejudice as a result of the delay. Since defendant was incarcerated during this period for unrelated offenses, we cannot point to his incarceration as prejudice. Defendant has not alleged any other specific prejudice to him and the record does not show defendant was in any manner prejudiced by the delay. Having considered and balanced the four required factors, we hold that defendant's constitutional right to a speedy trial was not violated.
    Defendant's counsel also states in defendant's brief to our Court that defendant contended at trial through his counsel that "there was error since the same element the Felony Larceny conviction was used to convict him of the predicate felony (Possession of Firearm by a Felon) and to convict of the Habitual Felon charge." The State argues that if defendant's contention was accepted, it would lead to the absurd result that a defendant would have
        to be convicted of four (4) separate felonies (three for the Habitual Felon count and one for the Possession of a Firearm by a Felon) before he could be convicted of Possession of a Firearm by a Felon and Habitual Felon. It is illogical to assume that the Legislature meant to make it more difficult to convict felons who illegally possess firearms of Habitual Felon status than habitual felons who commit other crimes.

We agree. Our Court in State v. Misenheimer, 123 N.C. App. 156, 472 S.E.2d 191, cert. denied, 344 N.C. 441, 476 S.E.2d 128 (1996), found that the provision in N.C. Gen. Stat. § 14-7.6 that "'[i]ndetermining the prior record level, convictions used to establish a person's status as an habitual felon shall not be used,'" applied only to the sentencing phase. Id. at 157-58, 472 S.E.2d at 192-93 (citing N.C.G.S. § 14-7.6 (2001)). This section of N.C.G.S. § 14- 7.6 did not prohibit the defendant's felony sentence in Misenheimer from being enhanced on the grounds that he was an habitual felon, when elements necessary to prove that he was an habitual felon were the same as those elements which were used to support the underlying felony. In the case before us, the prior record worksheet shows that the trial court did not use defendant's underlying felony larceny conviction in determining defendant's prior record level for the purpose of aggravating his sentence. We conclude the trial court committed no error in this case.
    In accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit appear therefrom or whether the appeal is wholly frivolous. We conclude the appeal is wholly frivolous. In reaching this conclusion, we have conducted our own examination of the record for possible prejudicial error and have found none.
    No error.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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