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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. TROY WILLIAM CHIVERS
Filed: 21 November 2006
1. Sentencing--prior record level--calculation
The trial court did not err in a resisting a law enforcement officer, eluding arrest, failure
to stop at a stop sign, and attaining the status of an habitual felon case by sentencing defendant as
a prior level IV offender, because: (1) although defendant failed to object during defendant's
sentencing phase as required by N.C. R. App. P. 10(b)(1), an error at sentencing is not considered
an error at trial for the purpose of Rule 10(b)(1); (2) the State sufficiently proved by certified
copies of court records or by defendant's admissions three Class H felonies in convictions 90
CRS 004796, 92 CRS 061415, and 98 CRS 11637, plus three Class A1 or Class 1 misdemeanors
for convictions 89 CR 002999, 98 CR 010899, and 97 CR 064306; (3) although the trial court
incorrectly attributed to defendant five instead of three misdemeanor points, the number of
defendant's points admitted or proven total nine which is a prior record level of IV; and (4)
defendant was not prejudiced by the trial court's failure to properly calculate defendant's prior
record level when defendant was correctly sentenced as a prior record level IV offender.
2. Constitutional Law--effective assistance of counsel--conflict of interest
The trial court did not err by denying defense counsel's motion to withdraw based upon
an asserted conflict of interest, because defendant failed to argue at trial or on appeal, and the
record failed to show, that the trial court's denial of the motion resulted in ineffective assistance
Appeal by defendant from judgment entered 29 April 2005 by
Judge James U. Downs in Buncombe County Superior Court. Heard in
the Court of Appeals 30 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Amanda P. Little, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant-appellant.
Troy William Chivers (defendant) appeals from judgments
entered after a jury found him to be guilty of resisting a law
enforcement officer, eluding arrest, failure to stop at a stopsign, and attaining the status of an habitual felon. We find no
The State's evidence tended to show on 28 October 2004, North
Carolina State Highway Patrol Trooper Zeb Stroup (Trooper Stroup)
sat inside his stationary patrol vehicle while he investigated
vehicles for registration violations and observed seatbelt
compliance. Trooper Stroup observed a gray minivan driven by
defendant, checked the license plate displayed, and discovered the
required liability insurance coverage had lapsed. When defendant
stopped his vehicle at a red light, Trooper Stroup drove his
vehicle behind defendant's vehicle. After defendant turned right
at the light, Trooper Stroup followed and activated his blue
lights. Defendant failed to stop his vehicle. While Trooper
Stroup pursued defendant's vehicle through a lightly traveled
residential area, he observed defendant remove his seatbelt, run a
stop sign, travel left of center, and reach the speed of forty
miles per hour. During the pursuit, the vehicles reached a maximum
speed of eighty-five miles per hour.
Defendant drove his vehicle onto a gravel road and exited his
vehicle. Defendant ran and Trooper Stroup followed on foot. After
traveling approximately 100 yards, Trooper Stroup overtook
defendant, wrestled him to the ground, and subdued him.
Defendant apologized to Trooper Stroup and stated he had fled
because he was afraid [Trooper Stroup would] take him to jail for
his [revoked driver's] license. Trooper Stroup testified theentire chase, both in the vehicles and on foot, took about three
On 7 February 2005, a grand jury indicted defendant for: (1)
driving left of center; (2) reckless driving to endanger; (3)
driving while license revoked; (4) no liability insurance; (5)
speeding; (6) resisting a public officer; (7) fleeing or eluding
arrest; (8) failure to wear a seatbelt; and (9) failure to stop at
a stop sign. The grand jury also indicted defendant as an habitual
felon based upon allegations he had previously been convicted of:
(1) breaking and entering on 6 February 1992; (2) breaking and
entering on 13 January 1993; and (3) breaking and entering a motor
vehicle on 5 January 1999.
Defendant testified and admitted to virtually all the evidence
presented except the speed of the vehicles. Defendant also called
two witnesses who testified his minivan probably could not attain
a speed of eighty-five miles per hour. The jury found defendant
guilty of: (1) reckless driving; (2) driving while license
revoked; (3) resisting a law enforcement officer; (4) exceeding the
legal speed limit; (5) eluding arrest; and (6) failure to stop at
Defendant's trial for attaining the status of an habitual
felon followed. The jury found defendant guilty of attaining the
status of an habitual felon. The trial court arrested judgment on
defendant's convictions for: (1) driving while license revoked;
(2) speeding; and (3) reckless driving. The trial courtconsolidated the charges and sentenced defendant to an active term
of 133 months minimum and 169 months maximum. Defendant appeals.
Defendant argues the trial court erred by: (1) sentencing him
as a prior record level IV offender and asserts the State failed to
prove his prior record points and convictions and (2) denying
defense counsel's motion to withdraw based upon a conflict of
III. Defendant's Sentence
 Defendant argues he is entitled to a new sentencing
hearing because the trial court erred in sentencing him as a prior
record level IV offender. Defendant asserts the State failed to
prove his convictions and prior record points equal level IV. We
A. Standard of Review
When a defendant assigns error to the sentence imposed by the
trial court our standard of review is whether [the] sentence is
supported by evidence introduced at the trial and sentencing
hearing. State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682,
B. Motion to Dismiss
The State argues that defendant failed to preserve this issue
for review because he failed to object during the defendant's
sentencing phase as required by Rule 10(b)(1) of the North Carolina
Rules of Appellate Procedure. Our Supreme Court has held that an
error at sentencing is not considered an error at trial for thepurpose of Appellate Rule 10(b)(1). State v. Canady, 330 N.C. 398,
402, 410 S.E.2d 875, 878 (1991). The State's argument is
C. Proving Prior Convictions
Defendant's prior convictions may be proven in one of four
(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, the Division of Motor Vehicles,
or of the Administrative Office of the
Courts[;] [or] (4) Any other method found by
the court to be reliable.
N.C. Gen. Stat. § 15A-1340.14(f) (2005).
The burden rests on the State to prove a prior conviction
exists and that the individual before the court is the same person
named in the prior conviction by a preponderance of the evidence.
State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742
(2002). The State fails to satisfy its burden of proving
defendant's prior record level by merely submitting a prior record
level worksheet to the trial court. State v. Miller, 159 N.C. App.
608, 614-15, 583 S.E.2d 620, 624 (2003), aff'd per curiam, 358 N.C.
133, 591 S.E.2d 520 (2004); see State v. Jeffrey, 167 N.C. App.
575, 580, 605 S.E.2d 672, 675 (2004) (the State failed to prove the
defendant's prior record level by only submitting the prior record
level worksheet listing the defendant's purported convictions). An
otherwise unsupported worksheet tendered by the State establishing
a defendant's prior record level is not even sufficient to meet the
catchall provision found in N.C. Gen. Stat. § 15A-1340.14(f)(4),even if uncontested by a defendant. State v. Riley, 159 N.C. App.
546, 556-57, 583 S.E.2d 379, 387 (2003).
The State offered a prior record level worksheet into evidence
during the sentencing phase of defendant's trial. The worksheet
contained the following offenses: (1) 90 CRS 004796 - three counts
of felony breaking and entering and larceny, one count of
forgery/attempting uttering; (2) 92 CRS 061415 - one count of
felony breaking and entering and larceny; (3) 93 CR 062241 - two
counts of misrepresentation to obtain employment security benefits,
two counts of misrepresentation to prevent employment security
benefits; (4) 97 CR 064306 - one count of possession of drug
paraphernalia; (5) 98 CR 010899 - one count of misdemeanor
possession of stolen goods; (6) 98 CRS 11637 - one count of felony
larceny after breaking and entering, one count of breaking and
entering a motor vehicle, three counts of felony possession of
stolen goods, and two counts of breaking and entering and larceny;
(7) 89 CR 002999 - one count of possession of drug paraphernalia;
and (8) one count of misdemeanor larceny in Michigan on 24 March
1987. The prosecutor asserted these prior convictions equal eleven
points, and defendant should be sentenced as a prior record level
At defendant's sentencing hearing, the following colloquy
State: Judge, I have removed the convictions
that were used for the purpose of habitual
felon. However, on those days there were
multiple convictions, so the points for what
he was convicted on those days still makes him
a Record Level 4. Does defendant stipulate towhat I'm handing up to his Honor, the contents
of the gold sheet showing eleven points,
making him a Record Level 4?
Defense Counsel: I don't believe he can
stipulate to that.
. . . .
Court: Do you have any evidence to offer
that's contrary to that?
Defense Counsel: No, we don't.
Court: Then excluding the specific felonies
for which he was found guilty of and used as
an underlying support for elevating this
felony to the level of being an habitual
felon, the Court finds and concludes that the
defendant is a Record Level 4 for sentencing
Defendant did not stipulate at sentencing to the prior record
level worksheet the State tendered. In addition to tendering the
worksheet, the State presented certified copies of the following
court records: (1) 90 CRS 004796 - three counts of felony breaking
and entering and larceny, one count of forgery/attempting uttering;
(2) 92 CRS 061415 - one count of felony breaking and entering and
larceny; and (3) 98 CRS 11637 - one count of felony larceny after
breaking and entering and one count of breaking and entering a
motor vehicle. Defendant admitted the following convictions: (1)
89 CR 002999 - one count of possession of drug paraphernalia; (2)
98 CR 010899 - one count of misdemeanor possession of stolen goods;
and (3) 97 CR 064306 - one count of possession of drug
Excluding the three convictions alleged in defendant's
habitual felon indictment, the State proved, either by defendant'sadmissions or by certified copies of court records, the following
convictions: (1) 90 CRS 004796 - two counts of felony breaking and
entering and three counts of larceny, one count of
forgery/attempting uttering; (2) 92 CRS 061415 - one count of
larceny; (3) 98 CRS 11637 - one count of felony larceny after
breaking and entering; (4) 89 CR 002999 - one count of possession
of drug paraphernalia; (5) 98 CR 010899 - one count of misdemeanor
possession of stolen goods; and (6) 97 CR 064306 - one count of
possession of drug paraphernalia.
Under N.C. Gen. Stat. § 15A-1340.14(d), [f]or purposes of
determining the prior record level, if an offender is convicted of
more than one offense in a single superior court during one
calendar week, only the conviction for the offense with the highest
point total is used. The State sufficiently proved three Class H
felonies in convictions 90 CRS 004796, 92 CRS 061415, and 98 CRS
11637. The State also proved three Class A1 or Class 1
misdemeanors for convictions 89 CR 002999, 98 CR 010899, and 97 CR
The trial court incorrectly attributed to defendant five
instead of three misdemeanor points. The number of defendant's
points admitted or proven total nine. Nine points show defendant
accumulated a prior record level of IV. N.C. Gen. Stat. § 15A-
1340.14(c) (the prior record level for felony sentencing is level
IV for at least nine, but not more than fourteen points). With
nine prior record points, defendant was correctly sentenced as a
prior record level IV under N.C. Gen. Stat. § 15A-1340.14. Id. Although the trial court failed to properly calculate defendant's
prior record level, defendant was not prejudiced. Defendant's
assignment of error is overruled.
IV. Defense Counsel's Motion to Withdraw
 Defendant argues the trial court erred by denying defense
counsel's motion to withdraw based upon an asserted conflict of
interest. We disagree.
At the trial court's hearing on defense counsel's motion to
withdraw, counsel argued he must be allowed to withdraw because of
a conflict of interest. The conflict arose from counsel's opinion
that he needed to file a motion for appropriate relief challenging
one of the three guilty-pled convictions underlying defendant's
habitual felon charge. One of defense counsel's colleagues in the
Buncombe County Public Defender's Office had represented defendant
on the conviction subject to the motion for appropriate relief.
Defense counsel argued that a conflict existed because he would
have to file a motion for appropriate relief against one of his
N.C. Gen. Stat. § 15A-144 (2005) states, The court may allow
an attorney to withdraw from a criminal proceeding upon a showing
of good cause. Rule 1.7, Comment 4 of the North Carolina State
Bar Revised Rules of Professional Conduct (2006) states, [i]f a
conflict arises after representation has been undertaken, the
lawyer ordinarily must withdraw from the representation, unless the
lawyer has obtained the informed consent of the client[.] Rule
1.7, Comment 5 of the North Carolina State Bar Revised Rules ofProfessional Conduct (2006) states, Unforeseeable developments .
. . might create conflicts in the midst of representation . . . .
The withdrawing lawyer must seek court approval where necessary and
take steps to minimize harm to the clients.
A. Defendant's Right to Counsel
The accused in a criminal prosecution is constitutionally
guaranteed a right to counsel under the United States and North
Carolina Constitutions. U.S. Const. amend. VI; N.C. Const. art. I,
. 23. This Federal constitutional guarantee is binding on the
states through the Fourteenth Amendment. Powell v. Alabama, 287
U.S. 45, 71, 77 L. Ed. 158, 172 (1932); Gideon v. Wainwright, 372
U.S. 335, 342, 9 L. Ed. 2d 799, 804 (1963). [T]he right to
counsel is the right to the effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692
The right to effective assistance of counsel includes the
'right to representation that is free from conflict of interest.'
State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996)
(quoting Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230
(1981)). This Court has stated, '[d]efense counsel [have] an
ethical obligation to avoid conflicting representations' and to
promptly inform the trial court when conflict arises, as they are
most often in the position to recognize situations in which a
conflict of interest may arise. State v. Hardison, 126 N.C. App.
52, 55, 483 S.E.2d 459, 460-61 (1997) (quoting Cuyler v. Sullivan,
446 U.S. 335, 346, 64 L. Ed. 2d 333, 345 (1980)).
If the possibility of conflict is raised
before the conclusion of trial, the trial
court must take control of the situation. A
hearing should be conducted to determine
whether there exists such a conflict of
interest that the defendant will be prevented
from receiving advice and assistance
sufficient to afford him the quality of
representation guaranteed by the sixth
State v. James, 111 N.C. App. 785, 791, 433 S.E.2d 755, 758 (1993)
(internal quotations and citations omitted).
The United States Supreme Court has stated, prejudice is
presumed when counsel is burdened by an actual conflict of
interest. Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696. In
Cuyler, the United States Supreme Court held:
a defendant who shows that a conflict of
interest actually affected the adequacy of his
representation need not demonstrate prejudice
in order to obtain relief. But until a
defendant shows that his counsel actively
represented conflicting interests, he has not
established the constitutional predicate for
his claim of ineffective assistance.
446 U.S. at 349-50, 64 L. Ed. 2d at 347 (internal citations
omitted). The Court explained that prejudice is presumed because
it is difficult to measure the amount of prejudice attributable to
the conflict. Id. at 349, 64 L. Ed. 2d at 347.
Given the obligation of counsel to avoid
conflicts of interest and the ability of trial
courts to make early inquiry in certain
situations likely to give rise to conflicts .
. . it is reasonable for the criminal justice
system to maintain a fairly rigid rule of
presumed prejudice for conflicts of interest.
Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696. If a defendant
demonstrates that counsel actively represented conflictinginterests and that an actual conflict of interest adversely
affected his lawyer's performance prejudice is presumed. Id.
'In order to establish prejudicial error arising from the
trial court's denial of a motion to withdraw, a defendant must show
that he received ineffective assistance of counsel.' State v.
Bailey, 145 N.C. App. 13, 22, 548 S.E.2d 814, 820 (2001) (quoting
State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d 486, 495, cert.
denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999)). To establish
ineffective assistance of counsel, a defendant must satisfy a
two-prong test which was promulgated by the United States Supreme
Court in Strickland[.] Id. The test requires:
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.
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693.
During defense counsel's motion to withdraw, the following
Defense: [I]n going over the plea transcript
with him . . . [defendant] stated that he had
never been advised of certain immigration and
deportation rights, and while he was in
federal custody he was charged with illegal
re-entry of the country and the matter was
dismissed. The fact that he was never advised
was borne out in my review of the older court
files on the underlying habitual felon, and
this is potentially his only means to
collaterally attack the underlying felonies of
the habitual felon.
Court: What about an MAR?
Defense: It would be an MAR against Faye
Burner and Calvin Hill.
Court: That's got nothing to do with this
Defense: It's a[n] habitual felon.
Court: That's a separate action. You can't
attack that in the course of this case.
Defense: That's one of his primary means of
defending this case would be to knock out one
of the prior felony convictions.
Court: It's an entirely separate action. He's
charged with something here, and then if he's
convicted of that, then the State goes through
the litany of what he's been convicted of in
the past. In the meantime, if he files a
motion for appropriate relief, that's an
entirely different thing. What's that got to
do with this case?
Defense: That's my contention, that --
Court: Your attack of those previous judgments
would be absolutely irrelevant in these
matters, in my opinion.
Defense: Not unless one of those was set
N.C. Gen. Stat. § 15A-1415(b) (2005) states:
The following are the only grounds which the
defendant may assert by a motion for
appropriate relief made more than 10 days
after entry of judgment:
(1) The acts charged in the criminal pleading
did not at the time they were committed
constitute a violation of criminal law.
(2) The trial court lacked jurisdiction over
the person of the defendant or over the
(3) The conviction was obtained in violation
of the Constitution of the United States or
the Constitution of North Carolina.
(4) The defendant was convicted or sentenced
under a statute that was in violation of the
Constitution of the United States or the
Constitution of North Carolina.
(5) The conduct for which the defendant was
prosecuted was protected by the Constitution
of the United States or the Constitution of
(7) There has been a significant change in
law, either substantive or procedural, applied
in the proceedings leading to the defendant's
conviction or sentence, and retroactive
application of the changed legal standard is
(8) The sentence imposed was unauthorized at
the time imposed, contained a type of sentence
disposition or a term of imprisonment not
authorized for the particular class of offense
and prior record or conviction level was
illegally imposed, or is otherwise invalid as
a matter of law. However, a motion for
appropriate relief on the grounds that the
sentence imposed on the defendant is not
supported by evidence introduced at the trial
and sentencing hearing must be made before the
(9) The defendant is in confinement and is
entitled to release because his sentence has
been fully served.
Defense counsel asserted a conflict with filing a motion for
appropriate relief seeking to vacate a prior conviction in which
another Buncombe County Public Defender represented defendant.
Defense counsel argued he needed to file a motion for appropriate
relief asserting ineffective assistance of counsel against priorcounsel in an earlier conviction due to prior counsel's failure to
discuss immigration consequences before defendant pled guilty.
Defendant's argument is without merit.
Defendant failed to argue at trial or on appeal that the trial
court's denial of defense counsel's motion to withdraw resulted in
ineffective assistance of counsel. Defendant has failed to argue
or show whether the trial court's denial of defense counsel's
motion to withdraw resulted in ineffective assistance of counsel at
bar. This assignment of error is dismissed.
The trial court's incorrect calculation of defendant's
conviction points did not prejudice him. Defendant's prior
convictions he admitted and the State proved totaled nine points.
Defendant was correctly sentenced as a prior record level IV
Defendant failed to argue and the record does not show he
received ineffective assistance of counsel as a result of the trial
court's denial of defense counsel's motion to withdraw. This
assignment of error is dismissed. Defendant received a fair trial,
free from prejudicial errors he preserved, assigned, and argued.
No Prejudicial Error.
Chief Judge MARTIN and Judge CALABRIA concur.
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