An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1619


Filed: 3 January 2006

                                Richmond County    
                                Nos. 02 CRS 50461
v .                                 02 CRS 2675            &nbs p;       

    Appeal by defendant from judgment entered 9 September 2004 by Judge Chris Collier in Richmond County Superior Court. Heard in the Court of Appeals 13 September 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Edwin L. Gavin, for the State.

    Jeffrey Evan Noecker for defendant-appellant.

    CALABRIA, Judge.

    Boyd Bostick (“defendant”) appeals a judgment resentencing him for convictions for both possession of cocaine and attaining habitual felon status asserting the trial court erred in not ordering a competency hearing. We affirm.
    After a trial in Richmond County Superior Court, the jury found defendant guilty of felonious possession of cocaine and attaining habitual felon status. Defendant was sentenced to a minimum of 180 months and a maximum of 225 months in the North Carolina Department of Correction. However, the trial court miscalculated defendant's prior record level. Since a previous conviction for misdemeanor larceny had been voluntarily dismissedby the State, the one record point on the Prior Record Level Worksheet associated with this conviction should not have been included. In State v. Bostick, 165 N.C. App. 544, 600 S.E.2d 900 (2004)   (See footnote 1)  (hereinafter Bostick I   (See footnote 2)  ), the judgment entered against defendant was vacated and the case was remanded for resentencing. After properly calculating defendant's prior record level by excluding the misleading larceny point, defendant was sentenced to a minimum of 133 months and a maximum of 169 months in the North Carolina Department of Correction. Defendant gave notice of appeal.
    Defendant asserts the trial court erred in failing to hold, sua sponte, a competency hearing prior to or during defendant's resentencing hearing. “[A] trial court has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent.” State v. Young, 291 N.C. 562, 568, 231 S.E.2d 577, 581 (1977) (citation omitted) (emphasis added). Additionally, N.C. Gen. Stat. § 15A-1001, in pertinent part, provides:
        (a) No person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings,or to assist in his defense in a rational or reasonable manner. This condition is hereinafter referred to as “incapacity to proceed.”

N.C. Gen. Stat. § 15A-1001(a) (2003).
    Whether or not a defendant has the mental capability to proceed involves determining “whether [the defendant] has the capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to co-operate with his counsel to the end that any available defense may be interposed.” State v. Propst, 274 N.C. 62, 70, 161 S.E.2d 560, 566 (1968) (citation omitted); State v. Jackson, 302 N.C. 101, 104, 273 S.E.2d 666, 669 (1981). Consequently, “a trial judge is required to hold a competency hearing when there is a bona fide doubt as to the defendant's competency even absent a request.” State v. Staten, __ N.C. App. __, __, 616 S.E.2d 650, 654-55 (2005). Factors affecting a bona fide doubt inquiry include any irrational behavior by the defendant, his trial demeanor, and any earlier medical opinion regarding the defendant's mental capacity to stand trial. State v. Snipes, __ N.C. App. __, __, 608 S.E.2d 381, 384 (2005); State v. McRae, 139 N.C. App. 387, 390, 533 S.E.2d 557, 559 (2000), disc. review denied, 358 N.C. 548, 599 S.E.2d 911 (2004).
    Defendant exhibited actions and behaviors substantiating the mental capacity to proceed. First, defendant stated he understood he was to be resentenced after initially not being as certain. Second, defendant expressed a desire for the resentencing hearing to proceed. Third, defendant inquired as to what his “new”sentence would be if the hearing proceeded. Fourth, defendant agreed with the trial court that his prior sentence was miscalculated and further added he knew he was to be resentenced in accordance with the subsequent, accurate recalculation. This satisfies the requirements set forth in Propst, supra. Defendant's admission that he understood he was present for resentencing, coupled with his curiosity regarding his new sentence, and his further comprehension that his prior sentence was in error, leads us to believe defendant fully understood both his legal position and the nature of the proceedings against him such that he could assist his counsel in a rational and effective means. Although during the resentencing hearing defendant rambled and complained about irrelevant matters that occurred prior to his jury trial, after a full review of the transcript, we conclude defendant was “accurately oriented regarding his present circumstances,” State v. Heptinstall, 309 N.C. 231, 236, 306 S.E.2d 109, 112 (1983), and engaged in rational behavior.
    We hold the trial court did not err by not holding a competency hearing, sua sponte, as there was no evidence the defendant lacked the capacity to proceed.
    Judges Wynn and Levinson concur.
    Report per Rule 30(e).

Footnote: 1
     This case was an unpublished opinion reported pursuant to N.C.R. App. P. 30(e).
Footnote: 2
     A more detailed account of the facts that led to defendant's arrest and subsequent conviction can be found in State v. Bostick I.

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