An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1207


Filed: 5 April 2005


         v.                        Mecklenburg County
                                No. 03 CRS 216984
ALVAN BERNARD POWELL                

    Appeal by defendant from judgment entered 7 April 2004 by Judge Charles C. Lamm, Jr., in Mecklenburg County Superior Court. Heard in the Court of Appeals 4 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State

    William B. Gibson for defendant-appellant.

    ELMORE, Judge.

    Defendant was convicted of possessing cocaine and sentenced to six to eight months imprisonment. The sentence was suspended and defendant placed on supervised probation for thirty-six months. Defendant appeals.
    Counsel appointed to represent defendant has filed an Anders brief in which he indicates he has been unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal. He asks that this Court conduct its own review of the record for possible prejudicial error. Counsel acknowledges that he has not sent to the defendant copies of the transcript of the trial, the Brief, Record on Appeal, or Appellate Information Statement. Counsel states that he has attempted to correspond withthe defendant, but has been unable to do so. Specifically, he states in his brief that he wrote defendant on 29 June 2004, but the letter was returned to sender with no forwarding address. Defendant's trial counsel, William Soukup, indicated to counsel that within two days of the conclusion of trial, defendant was taken into custody by immigration authorities. Soukup believed that defendant was later deported to his home country of Jamaica.
    This Court has stated that:
        As a general rule, the defendant must be given “the necessary documents to conduct his own review of the case,” . . . and “time . . . to raise any points [with the appellate court] that he chooses.” However, delivery of the necessary documents to the defendant is not required if the defendant's attorney has, after a diligent effort, been unable to locate the defendant and deliver the documents.

State v. Mayfield, 115 N.C. App. 725, 726-27, 446 S.E.2d 150, 152 (1994)(citations omitted).
    In the instant case, defendant's attorney has used all due diligence in attempting to notify defendant of his right to pursue his appeal pro se, and the fault of counsel's failure to so notify defendant must lie with defendant. Accordingly, defendant's counsel has fully complied with the holding in Anders, and the appeal is ripe for appellate review upon the record and briefs before us.
     In accordance with 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, 102, 331 S.E.2d 665, 667 (1985), we have fully examined the record to determine whether any issuesof arguable merit appear therefrom. We have been unable to find any possible prejudicial error and conclude that the appeal is wholly frivolous.
    No error.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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