STATE OF NORTH CAROLINA
v. Forsyth County
No. 04 CRS 60269
SAMUEL HENRY CROSBY,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Hilda Burnett-Baker, for the State.
Carol Ann Bauer, for defendant-appellant.
HUDSON, Judge.
A jury found Samuel Henry Crosby (“defendant”) guilty of
robbery with a firearm. Judgment was entered on the verdict
sentencing defendant within the presumptive range to an active
prison term of 64 to 86 months. Defendant appeals. Defendant also
filed a petition for writ of certiorari with this Court on 20
January 2006. For the reasons discussed below, we find no error
and deny defendant's writ of certiorari.
The State's evidence at trial tended to show the following:
On 19 August 2004, defendant and another man approached the
driver's side of the victim's vehicle as the victim left a
recreation center in Winston-Salem, North Carolina. Defendantasked the victim for a cigarette and the victim replied that he did
not smoke. The other man then entered the backseat of the vehicle
and defendant got in the front seat and told the victim to drive.
The victim testified that he noticed defendant “was holding . . .
one of his hands under his shirt” and it “[l]ooked like he might
have had something on him.”
Defendant pulled out a gun and pointed it toward the back of
the victim's neck. Defendant told the victim that if he said
anything, he would be shot. Defendant then took the victim's
necklace, gold nugget earrings, and a jersey. While defendant was
taking these items, the man in the backseat took the victim's
wallet. Defendant instructed the victim to “make a complete stop”
in front of a convenience store and defendant and the other man got
out and ran toward the back of the store.
Thereafter, the victim ran into the convenience store and
asked the person working at the store to call the police because he
had just been robbed. A detective with the Winston-Salem police
department interviewed defendant for approximately thirty to forty
minutes and defendant denied any involvement in the robbery. After
defendant was arrested, he waived his Miranda rights and provided
a statement in which he partially confessed. Defendant, however,
minimized his role in the crime and reversed roles with the other
man who was in the victim's car with him.
Defendant first argues that he received ineffective assistance
of counsel at sentencing. We do not agree.
A meritorious ineffective assistance of counsel claim requiressatisfaction of the familiar two-prong test established in
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, reh'g
denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984), and adopted by this
State's Supreme Court in State v. Braswell, 312 N.C. 553, 324
S.E.2d 241 (1985). First, a defendant must establish that his
counsel's performance was deficient in that it fell below an
“objective standard of reasonableness.” Braswell, 312 N.C. at
561-62, 324 S.E.2d at 248. Second, a defendant must establish that
a reasonable probability exists that but for the error, the result
of the defendant's trial would have been different. Id. at 563,
324 S.E.2d at 248. “Because of the difficulties inherent in
determining if counsel's conduct was within reasonable standards,
a court must indulge a strong presumption that counsel's conduct
falls within the broad range of what is reasonable assistance.”
State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d 334, 346
(1986)(citation omitted).
Here, defendant argues his counsel was ineffective at
sentencing because he failed to present evidence of any mitigating
factors. The following exchange occurred between the trial court
and defense counsel at sentencing:
THE COURT: Anything for sentencing purposes
from the Defense?
MR. LEONARD: Your Honor, we'd offer as a
mitigator his family support. His family is
in court today.
In particular, defendant argues his trial counsel's failure to call
his family members as witnesses to support the above statement
constituted ineffective assistance. “Ineffective assistance of counsel claims are not intended to
promote judicial second-guessing on questions of strategy and trial
tactics.” State v. Taylor, 79 N.C. App. 635, 638, 339 S.E.2d 859,
861, disc. rev. denied, 317 N.C. 340, 346 S.E.2d 146 (1986)
(quoting State v. Brindle, 66 N.C. App. 716, 718, 311 S.E.2d 692,
693-94 (1984)). Indeed, this Court has previously rejected a trial
counsel's failure to call any witnesses at the sentencing hearing
as a basis for establishing ineffective assistance of counsel. See
Taylor, 79 N.C. App. at 637, 339 S.E.2d at 861. Accordingly, we
conclude defense counsel's actions here do not fall below an
objective standard of reasonableness.
Moreover, defendant presents no argument that counsel's
alleged deficient performance prejudiced the outcome of the
proceeding. We note that in certain circumstances, the deficiency
of a counsel's performance is so great that prejudice need not be
argued. United States v. Cronic, 466 U.S. 648, 658, 80 L. Ed. 2d
657, 667 (1984). For example, in State v. Davidson, 77 N.C. App.
540, 335 S.E.2d 518 (1985), disc. review denied, 315 N.C. 393, 338
S.E.2d 882 (1986), this Court found that a defendant received
ineffective assistance at sentencing where the defense counsel
implied that defendant had provided false information, informed the
trial court of the defendant's prior conviction, and disparaged the
defendant for refusing a plea bargain. Upon review, this Court
found the counsel's statement was
altogether lacking in positive advocacy.
Counsel offered no argument in defendant's
favor, made no plea for findings of mitigating
factors, . . . failed to suggest any favorableor mitigating aspects of defendant's
background, and failed even to advocate
leniency. More significant, the representation
consisted almost exclusively of commentary
entirely negative to defendant.
Id. at 545, 335 S.E.2d at 521.
Unlike the facts of Davidson, defense counsel's performance
here is not “altogether lacking in positive advocacy.” Id.
Defendant's counsel offered as a mitigator defendant's family
support and noted the presence of defendant's family in court.
This performance by defense counsel was not so deficient that
prejudice need not be argued. With no allegation of prejudice,
defendant has failed to meet his burden under the second prong of
the test to establish ineffective assistance of counsel. See
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693. We overrule this
assignment of error.
Next, defendant contends the trial court erred in sentencing
him in the top of the presumptive range. We disagree.
Section 15A-1444(a1) of the North Carolina General Statutes
provides:
A defendant who has been found guilty . . . is
entitled to appeal as a matter of right the
issue of whether his or her sentence is
supported by evidence introduced at the trial
and sentencing hearing only if the minimum
sentence of imprisonment does not fall within
the presumptive range for the defendant's
prior record or conviction level and class of
offense. Otherwise, the defendant is not
entitled to appeal this issue as a matter of
right but may petition the appellate division
for review of this issue by writ of
certiorari.
N.C. Gen. Stat. § 15A-1444(a1)(2003) (emphasis added). Becausedefendant's minimum sentence of imprisonment falls within the
presumptive range for his prior record level and class of offense,
he is not entitled to appeal this issue as a matter of right.
Accordingly, this assignment of error is without merit.
Where a defendant is not entitled to appeal as a matter of
right the issue of whether his sentence is supported by the
evidence, Section 15A-1444(a1) of the North Carolina General
Statutes provides for a defendant to seek appellate review by a
petition for writ of certiorari. Recognizing that his right to
appeal his sentence was limited, defendant also filed a petition
for writ of certiorari requesting this Court permit appellate
review of this issue. The North Carolina Rules of Appellate
Procedure, however, limit this Court's ability to grant petitions
for writ of certiorari to the following situations: (1) defendant
lost his right to appeal by failing to take timely action; (2) the
appeal is interlocutory; or (3) to review a trial court's denial of
a motion for appropriate relief. N.C.R. App. P. 21(a)(1). In
considering Appellate Rule 21 and N.C. Gen. Stat. § 15A-1444, this
Court has reasoned that because the appellate rules prevail over
conflicting statutes, this Court is without authority to issue a
writ of certiorari except as provided in Appellate Rule 21. State
v. Nance, 155 N.C. App. 773, 775, 574 S.E.2d 692, 693-94 (2003)
(considering Appellate Rule 21 and N.C. Gen. Stat. § 15A-1444(e)).
Here, defendant's petition does not fall within any of the
“appropriate circumstances” set forth in Appellate Rule 21 and,
thus, this Court does not have the authority to issue a writ ofcertiorari. Id. at 774-75, 574 S.E.2d at 693-94. Moreover, we
find defendant's argument that the trial court erred in sentencing
him without merit. Accordingly, we deny defendant's petition for
writ of certiorari.
No error; petition for writ of certiorari denied.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***