STATE OF NORTH CAROLINA
v. Forsyth County
No. 02 CRS 62914
VIRGIL TYRONE MYERS
Attorney General Roy Cooper, by Assistant Attorney General
John A. Payne, for the State
Charns & Charns, by D. Tucker Charns, for defendant-appellant.
STEELMAN, Judge.
On 27 January 2003, defendant was indicted on charges of
assault with a deadly weapon with intent to kill inflicting serious
injury and robbery with a dangerous weapon. On 23 July 2003,
defendant was convicted of assault with a deadly weapon with intent
to kill inflicting serious injury and misdemeanor larceny and was
sentenced to a term of 92 to 120 months imprisonment. Defendant
appeals.
In his first assignment of error, defendant asserts that he
received ineffective assistance of counsel because his attorney
failed to request recordation of the jury voir dire, opening
statements and closing arguments. We disagree.
To successfully assert an ineffective assistance of counselclaim, defendant must satisfy a two-prong test.
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.
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248
(1985)(quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L.
Ed. 2d 674, 693 (1984)). Here, defendant cites no error that
occurred in the unrecorded portions of the trial. Thus, even
assuming arguendo that counsel's performance was deficient for
failure to request that the proceedings be recorded, defendant
shows no prejudice. Id; See also State v. Crawford, _ N.C. App. _,
592 S.E.2d 719, 724 (2004)(trial attorney's failure to request a
recording of jury voir dire did not constitute ineffective
assistance of counsel). This assignment of error is without merit.
In his second assignment of error, defendant argues that the
trial court erred by failing to sua sponte order recordation of
closing arguments, depriving him of meaningful appellate review and
the effective assistance of appellate counsel.
We find no error. N.C. Gen. Stat. § 15A-1241(b) provides that
upon motion of any party or the court, the trial court may order
recordation of closing arguments. However, defendant cites no
authority for his argument that the trial court was required to
order the closing argument be recorded, and in fact we know ofnone. Furthermore, based on the record and defendant's failure to
specifically allege how he was prejudiced by the lack of
recordation, we hold that defendant has failed to show any error.
This assignment of error is without merit.
In his third assignment of error, defendant contends that the
trial court erred in sentencing defendant as a prior record level
II. We disagree.
Defendant argues that his counsel's stipulation was
insufficient to prove his prior record level because the trial
court made no inquiry of the defendant as to whether he understood
what it meant to stipulate. Defendant contends the trial court
should have made inquiry to determine whether he understood the
effect of his attorney's stipulation.
We find no error. N.C. Gen. Stat. § 15A-1340.14 provides that
the State bears the burden of proving by the preponderance of the
evidence that “a prior conviction exists and that the offender
before the court is the same person as the offender named in the
prior conviction.” N.C. Gen. Stat. § 15A-1340.14(f). A
defendant's prior convictions may be proven by any of the following
methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of
the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information [“DCI”], the
Division of Motor Vehicles, or of the
Administrative Office of the Courts.
(4) Any other method found by the court to be
reliable.
Id. See also State v. Riley, 159 N.C. App. 546, 556, 583 S.E.2d
379, 386 (2003).
In the instant case, counsel stipulated that defendant was a
Level II felon. Thus, defendant's prior record level was proven by
stipulation pursuant to N.C. Gen. Stat. § 15A-1340(f)(1).
Defendant cites no authority for the proposition that he must be
examined before the court can accept the stipulation, and we find
none. Accordingly, this assignment of error is without merit.
NO ERROR.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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