An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-92


Filed: 6 January 2004


v .                              Lincoln County
                                 Nos. 99 CRS 3905, 6058

    Appeal by defendant from judgments entered 9 December 1999 by Judge Robert P. Johnston in Lincoln County Superior Court. Heard in the Court of Appeals 29 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General David L. Elliott, for the State.

            Appellant Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Jeffrey Leonard Shuford was found guilty of felonious larceny in a jury trial at the 8 December 1999 Criminal Session of Lincoln County. The State's evidence tended to show the following: Deana Clippard (“Clippard”) was working as a cashier at the One Stop Food Store (“One Stop”) on Maiden Highway in Lincolnton, North Carolina, in the early morning of 15 July 1999. She testified that at approximately 3:50 a.m. of that morning a black male entered the store to purchase a “Black and Mild” cigar. When Clippard opened the cash register, the man said, “give me some money,” and threw his change on the floor. As Clippard bent to pick up the change, the man reached into the register, taking whatwas later determined to be approximately $63.00. Before defendant could flee the scene, Clippard began to hit him. Clippard then pursued the assailant out of the store and observed him get into a burgundy, two-door car with the license tag # MNV-5214. A surveillance camera taped the incident and was turned over to the police. Responding officers ran the tags and learned that the car, a 1988 two-door Chevrolet, was registered in the name of Larry Scott Prather (“Scott”).
    Kelly Prather (“Prather”) testified that she was with defendant from the evening of 14 July 1999 into the morning of 15 July 1999. Defendant and Prather spent the afternoon of 14 July 1999 driving around together in her brother Scott's car. She and defendant then went to Robert Base's (“Base”) house at around 8:00 or 9:00 p.m. Along with Base, Misty Loveless (“Loveless”) was there and together the four smoked crack cocaine and drank beer. Defendant, Prather, and Loveless then went to various stores to “hustle,” exchanging stolen goods for cash. They then went to the “Hell Hole,” a location on a dead-end road of alleged “crack houses” called Railroad Street, where they went a number of different times that night to buy crack. The first and second times, they returned to Base's house to smoke it. On a third visit to the Hell Hole, the police, conducting a license check, attempted to stop the car. Loveless was driving and sped away with police chasing them until she crossed the border into South Carolina. Later they briefly returned to Base's house, and then went to the One Stop on Maiden Highway (there was another One Stop they went toearlier in the night where they purchased items legally.). Defendant left the car saying he was going in to buy a “Black and Mild” cigar. Prather estimated defendant was in the One Stop for approximately three minutes before he returned.
    Defendant was indicted by the grand jury on a charge of common law robbery on 23 August 2003. On 8 November 1999, defendant was indicted additionally for his status as an habitual felon. On 6 December 1999, the State then arraigned defendant on the substantive charge of felonious larceny instead of common law robbery and he pled not guilty. Defendant was then denied a motion for continuance on the felonious larceny charge, and on that same day a jury trial began. On 8 December 1999, a guilty verdict was returned. Defendant changed his not guilty plea for status as an habitual felon to guilty, and he was sentenced on 9 December 1999 to a term of 120-153 months, the Class C range of an habitual felon.
    Defendant filed a motion for appropriate relief before the Lincoln County Superior Court on 20 March 2000. The motion was heard on 9 April 2001, and summarily denied by Judge Gentry Caudill. On 26 September 2001, defendant filed a pro se petition for writ of certiorari before this court, seeking inter alia, direct appeal out of time of the trial court's 9 December 1999 judgment and sentence against him.
    Defendant frames his 50 assignments of error in five issues for our review. Defendant contends: (1) his statutory rights were violated when he was forced to proceed with his trial immediatelyafter the arraignment of the felonious larceny charge; (2) he is entitled to a new sentencing hearing because it was reversible error for the trial court to find him an habitual felon; (3) he was provided with ineffective assistance of counsel when his own counsel revealed to the jury he has been in custody since he was charged, and that he was being charged as an habitual felon; (4) he was denied his right to be heard through his own counsel when the court would not allow him a continuance to retain private counsel; and (5) the trial court committed reversible error when it failed to make written findings of fact and conclusions of law to support its denial of defendant's motion to suppress identification testimony. Based on the following analysis, we conclude these arguments are not supported by a reversible error.

Arraignment in Superior Court
    Defendant contends that, pursuant to N.C. Gen. Stat. § 15A-943 (2001), he was entitled to one week between his arraignment and his trial. N.C. Gen. Stat. § 15A-943 states:
            (a) In counties in which there are regularly scheduled 20 or more weeks of trial sessions of superior court at which criminal cases are heard, and in other counties the Chief Justice designates, the prosecutor must calender arraignments in the superior court on at least the first day of every other week in which criminal cases are heard. No cases in which the presence of a jury is required may be calendered for the day or portion of a day during which arraignments are calendared.

            (b) When a defendant pleads not guilty at an arraignment required by subsection (a), he may not be tried without his consent in the week in which he is arraigned.
This Court and our Supreme Court have held that violation of this statute is grounds for a new trial. See State v. Shook, 293 N.C. 315, 317, 237 S.E.2d 843, 847 (1977); State v. McCabe, 80 N.C. App. 556, 557-58, 342 S.E.2d 580, 581 (1986); and State v. Cates, 140 N.C. App. 548, 552, 537 S.E.2d 508, 511 (2000). However, this Court has held that if the superior court does not hold 20 or more criminal sessions per year, failure to provide a week between arraignment and trial is not grounds for a new trial. See State v. Sellars, 52 N.C. App. 380, 388, 278 S.E.2d 907, 914, disc. review denied, appeal dismissed, 304 N.C. 200, 285 S.E.2d 108 (1981) (where we took judicial notice of the fact that in 1979 Chatham County was not a county which held at least 20 criminal sessions).
    In this case we take judicial notice of the fact that in 1999, Lincoln County Superior Court held only 18 criminal sessions. Furthermore, we find no evidence of record, nor has defendant alleged, that in 1999 the Chief Justice designated Lincoln County Superior Court subject to N.C. Gen. Stat. § 15A-943. Therefore, we hold that defendant's assignment of error on this point is without merit.
Habitual Felon Status
    Defendant next contends he was improperly sentenced as an habitual felon. The record is clear that defendant was found guilty of felonious larceny in case number 99 CRS 3905 on 8 December 1999. Felonious larceny is a lesser included offense of common law robbery, the charge for which defendant was initially indicted. State v. Henry, 57 N.C. App. 168, 169-70, 290 S.E.2d 775,776, disc. review denied, 306 N.C. 561, 294 S.E.2d 226 (1982). The transcript is also clear that on 9 December 1999, during the second phase of the bifurcated trial and after defendant had been found guilty in the underlying larceny, defendant agreed to plead guilty to his status as an habitual felon pursuant to N.C. Gen. Stat. § 14-7.5 (2001). The agreement provided that the State would dismiss pending cases charging defendant with forgery and uttering, and the habitual felon charge in file 99 CRS 6056, and abandoned prosecution of any criminal activity that arose from his testimony in the 99 CRS 3905 trial. However, the commitment form reflects that defendant was sentenced only as an habitual felon, with no underlying charge. The judgment form, also dated 9 December 1999, stated that defendant had been found guilty of common law robbery and pled guilty to being an habitual felon.
    The law is clear that “'being an habitual felon is not a crime but is a status. The status itself, standing alone, will not support a criminal sentence. A court may not treat the violation of the Habitual Felon Act as a substantive offense.'” State v. Wilson, 139 N.C. App. 544, 552, 533 S.E.2d 865, 871, disc. review denied, appeal dismissed, 353 N.C. 279, 546 S.E.2d 394 (2000) (quoting State v. Penland, 89 N.C. App. 350, 351, 365 S.E.2d 721, 721-22 (1988)). Defendant, in this assignment of error contends he was sentenced only as an habitual felon. We disagree.
    In this case, the jury returned a verdict of guilty for felonious larceny in the 99 CRS 3905 trial. In the second phase of a bifurcated trial, defendant pled guilty to his habitual felonstatus which carried a different file number as is required. See State v. Cheek, 339 N.C. 725, 729, 453 S.E.2d 862, 864 (1995) ("trial for the substantive felony is held first, and only after defendant is convicted of the substantive felony is the habitual felon indictment revealed to and considered by the jury."). See generally State v. Patton, 342 N.C. 633, 635, 466 S.E.2d 708, 709 (1996) ("[R]equirement in § 14-7.3 that the habitual felon indictment be a separate document from the predicate felony indictment is consistent with the bifurcated nature of the trial."). This habitual felon indictment was file 99 CRS 6058. The commitment form incorrectly concludes, pursuant to his plea agreement as an habitual felon, that defendant was to be sentenced only on the 99 CRS 6058 charge. The judgment form incorrectly shows defendant was sentenced only as an habitual felon after being found guilty of “common law robbery.”
    In State v. Gell, this Court allowed the State to correct clerical errors where “the transcript fully support[ed] the State's position.” 351 N.C. 192, 218, 524 S.E.2d 332, 349, cert. denied, 531 U.S. 867, 148 L. Ed. 2d 110 (2000)(determining there was an obvious clerical error where the felony judgment findings of aggravating and mitigating factors form was inconsistent with the trial court's actual findings). In looking at the entire record and transcripts, it is clear that both the commitment form and the judgment form contain clerical errors. The transcript shows that a bifurcated trial took place, the first phase of which determined the defendant's guilt as to the underlying felonious larceny, 99CRS 3905. Pursuant to this guilty verdict, defendant pled guilty to his habitual felon status in the second phase. The court then sentenced defendant for the underlying felony, with the range of a Class C felony, as he had been adjudged (pled) an habitual felon. This is exactly in accord with how the habitual felon statute has been legally determined to operate. See State v. Todd, 313 N.C. 110, 118, 326 S.E.2d 249, 254 (1985).
    It is within our authority and inherent power to remand this case to make the records reflect the actual verdict and basis for the subsequent sentencing by the trial court. State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000). Therefore we remand, ordering the clerical errors be corrected to show the following: (1) the commitment form file number be changed to 99 CRS 3905, and show the defendant was found guilty by jury of “felonious larceny,” and box number five on the form be given an “x” to indicate that defendant was adjudged an habitual felon pursuant to N.C. Gen. Stat. § 14-7.1, et seq.; and (2) the judgment form show defendant was found guilty of the offense of “felonious larceny,” and was given a 120-153 months after a guilty plea as an habitual felon.
Ineffective Assistance of Counsel
    Defendant next contends that he received ineffective assistance of counsel. Specifically, he alleges three incidents of conduct by his counsel were deficient. During the trial, defendant's counsel informed the jury, via defendant's direct testimony, that defendant had been in custody since his arrest, andthat he was being charged as an habitual felon. Additionally, defendant claims his counsel failed to oppose the State's introduction of prior “bad acts” evidence. This last claim was not briefed by defendant, and we therefore deem that error abandoned pursuant to Rule 28 of the North Carolina Rules of Appellate Procedure.
    To obtain relief for ineffective assistance of counsel, a defendant must demonstrate that his counsel's conduct during trial fell below an objective standard of reasonableness as reflected clearly by the record. State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). In making this determination, our Supreme Court has adopted the two-prong test set out by the United States Supreme Court. This test requires the record show (1) that counsel's performance was deficient, and (2) that there is a reasonable probability that but for this deficiency, the result of the trial would have been different. Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693 (1984)).     A. Deficient Performance of the Defense Counsel
    In looking at the two issues argued in defendant's brief as to his counsel's ineffectiveness, we start from the baseline that judicial scrutiny of counsel's performance is highly deferential. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694. “Counsel is given wide latitude in matters of strategy, and the burden to show that counsel's performance fell short of the required standard is a heavy one for the defendant to bear.” State v. Fletcher, 354 N.C.455, 482, 555 S.E.2d 534, 551 (2001), cert. denied, 537 U.S. 846, 154 L. Ed. 2d 73 (2002).
    Defendant alleges he was prejudiced by his counsel when his counsel revealed to the jury that he had been in custody since his arrest, arguing that this suggested “violent tendencies” requiring detainment. However, the transcript is clear that this testimony was not specifically sought by defendant's counsel, but was actually volunteered by defendant:
        Q. Do you recall being in there and talking to her and telling her who you were, sometime earlier this year?
        A. Yes.
        Q. About when was that?
        A. I'd been confined for about 6 months, so this is probably 8 months ago.
        Q. You've been in custody since the day you where arrested?
        A. Right.

A reasonable and deferential interpretation of this exchange is that counsel is reacting to his client's revealing testimony as to his confinement, ensuring the jury does not infer that he was confined pursuant to some other charge and safeguarding any prejudice from such an inference. We see nothing deficient in counsel's reaction to his client's testimony.
    Defendant also alleges prejudice by his counsel when his counsel revealed he was being charged as an habitual felon. The language of the habitual felon statute is clear, and states in relevant part: “The indictment that the person is an habitual felon shall not be revealed to the jury unless the jury shall find that the defendant is guilty of the principal felony or other felonywith which he is charged”. N.C. Gen. Stat. § 14-7.5 (2001). The reason for this rule is to safeguard the potential prejudicial effect it may have on the defendant. In this case, the defense counsel, for no strategic reason that may be liberally construed from the trial transcript, elicited defendant's testimony that he was indicted as an habitual felon. While we find no case law, nor do we here suggest, that this is per se grounds to reverse, we hold that its potential to prejudice is sufficient to deem the defense counsel's conduct deficient, and move us to the second prong of the Strickland test on this issue.
    B.    But for the Deficiency, the Result would be Different
    In reaching the second prong of Strickland, a defendant must show that “'there is a reasonable probability that, but for counsel's ineffective performance, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence of the outcome.'” State v. Moorman, 320 N.C. 387, 399, 358 S.E.2d 502, 510 (1987) (quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698; accord, Braswell, 312 N.C. at 563, 324 S.E.2d at 248.
    As stated above, defense counsel's conduct was deficient and cannot be reasonably understood as being aligned with his client's interest. He baldly asked if defendant was indicted as an habitual felon, and in doing so violated N.C. Gen. Stat. § 14-7.5. However, due to the strength of evidence put on by the prosecution implicating defendant in the underlying charge, we conclude that defense counsel's conduct was not so prejudicial that it raised areasonable probability that but for such conduct, defendant would have been found not guilty. The State had two eyewitnesses who identified defendant as the perpetrator, a surveillance tape used by one of the eyewitnesses to substantiate her testimony, and evidence placing defendant at the scene of the crime at the time the larceny was committed.
     Defendant cites State v. Baker, 109 N.C. App. 643, 428 S.E.2d 476, disc. review denied, 334 N.C. 435, 433 S.E.2d 180 (1993), where the defense counsel made false statements of the defendant's prior convictions which then allowed the State to offer evidence of otherwise inadmissible prior convictions. The jury was later instructed, without objection by the defense counsel, that it could use the otherwise inadmissible evidence of prior convictions to impeach defendant's credibility despite the fact the evidence had been admitted for the sole purpose of dispelling the false impression created by the defense counsel. Id. at 648-49, 428 S.E.2d 479-80. In that case, the defense counsel's deficiency tainted the very credibility of the defendant, and became a focal point of the trial, calling the issue more than once to the attention of the jury. The record does not indicate such prejudice in this case.
    The quantity and weight of the State's evidence was more than sufficient for a reliable guilty verdict. Therefore, we overrule this assignment of error.

Denial of Motion for Continuance to Retain Private Counsel
    Defendant next contends that he was denied his constitutional right to be heard through his own counsel. On the day of arraignment and trial, the court denied defendant's motion for continuance to discharge his court-appointed attorney so he could retain private counsel. Defendant claims that up until that point, he did not know the State was charging him as an habitual felon, nor that the State would seek an underlying charge of felonious larceny, a crime with a lesser burden of proof than common law robbery.
    For his contention, defendant cites the United States Supreme Court case, arising from the Tennessee State court, Chandler v. Fretag, 348 U.S. 3, 99 L. Ed. 4 (1954). In Chandler, the defendant was tried for the underlying charge of house breaking and larceny, a charge carrying a sentence ranging from three to ten years. On the day of his arraignment and trial, he appeared without counsel planning to plead guilty to the indictment. At that time, the court notified him that he was also being charged as an habitual felon, carrying a mandatory life sentence with no eligibility for parole. The defendant sought a continuance to seek counsel for the habitual felon charge, but was denied. Within ten minutes, a jury found him guilty of the underlying felony and as an habitual felon. He was sentenced to life in prison without parole. Chief Justice Warren, writing for a unanimous Court, reversed the conviction of the defendant as an habitual felon. He did so on due process grounds stating, “[b]y denying petitioner any opportunity whateverto obtain counsel on the habitual criminal accusation, the trial court deprived him of due process of law as guaranteed by the Fourteenth Amendment.” Id. at 10, 99 L. Ed. at 10.
    The record and transcript show that the facts of this case are distinguishable from Chandler. Defendant had an attorney representing him at both phases of the bifurcated trial, the underlying felony charge and the habitual felon charge. Furthermore, while it is unclear whether defendant was on notice that the State was pursuing the defendant as an habitual felon, the record shows his attorney was on notice before the day of arraignment and trial. The transcript reveals that defendant's mother was serving her jury duty on the day of defendant's arraignment. Before that day they had not been speaking with each other for sometime, but as the mother realized the seriousness of the pending charges, she told defendant she would pay for a private attorney. However, no attorney had been retained.
    Our Supreme court has established clear and reasonable limits on a defendant's right to counsel of their choice, stating that “this Court has upheld the denial of a defendant's request to substitute retained counsel where he or she offered no justifiable basis for the replacement and where doing so would obstruct the orderly procedure of trial.” State v. Hyatt, 355 N.C. 642, 667-68, 566 S.E.2d 61, 78 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003). “Defendant's assertion that he wished to employ his own counsel, made as it was, on the day trial was to begin . . . was no ground for the dismissal of his court-appointed counsel.”State v. Gray, 292 N.C. 270, 281, 233 S.E.2d 905, 913 (1977). The transcript reflects that the appointed attorney in this case was one of the more experienced in Lincoln County, and neighboring counties, and that he zealously advocated the rights of his client. The basis on which defendant sought a new attorney was the seriousness of his charges, and that his mother, who had coincidently been empaneled on his jury, promised to pay for an attorney the day of trial. The transcript shows that, though the habitual felon indictment came three months after the original indictment and only a month before trial, the defendant's attorney had made him aware of the possibility of a severe sentence pursuant to habitual felon status in the early stages of representation.
     We agree with the trial court that defendant had from 16 July 1999 to the day of trial, 6 December 1999, to retain private counsel, and failure to do so was at his own peril. The court was proper in their discretion to deny a continuance on this point, and we overrule this assignment of error.
Denial of Motion to Suppress Identification Testimony
    Defendant's final contention is that the trial court committed reversible error by making only oral findings of fact as to the denial of his motion to suppress identification testimony of one of the witness at the One Stop. We conclude the trial court, after reviewing standards under State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972) for admission of identification testimony, adequately denied the motion to suppress the testimony in his oral findings.    Generally, when the competency of evidence is challenged and the trial judge conducts a voir dire to determine admissibility, the trial court should make findings of fact to show the basis of the ruling. State v. Silver, 286 N.C. 709, 213 S.E.2d 247 (1975). When there is no material conflict in the facts presented at a motion to suppress hearing, it is not error to admit the challenged evidence without making specific findings of fact on the bases of the ruling, though it is better practice to do so. These findings are implied by the admission of the challenged evidence. State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980).
    During voir dire on this issue, defendant offered no material conflicting facts against the State's identification testimony. Defendant made no clear argument as to the suggestiveness of the identification procedure, and argued only that the witness's in- court identification was suspect based on her out-of-court inconclusive identification (the day after the incident she could not decide between two persons, one being defendant, in a photographic lineup of no less than five). Defendant's argument did not raise conflict of material fact as to the identification, but went to the weight to be credited to the identification. This is an issue which the jury was properly left to decide. Thus the admission on the undisputed facts of the voir dire hearing was not error.
    On the issue of error in the record, we remand so that the record is in accord with this opinion. On all other issues we hold defendant was given a fair trial in which there was no error.    No prejudicial error in trial. Remanded for correction of clerical errors.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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