Converted WP file 051598-1

Appeal by defendant from judgments entered 29 September 2004 by Judge Marcus L. Johnson in Mecklenburg County Superior Court. Heard in the Court of Appeals 21 August 2006.

Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State.

Gregory A. Newman for defendant-appellant.

CALABRIA, Judge.

    Charles Carson (“defendant”) appeals from convictions of first degree burglary, felonious larceny after breaking and entering, assault on a government official, and resisting a public officer. We find no error.
    Since the arguments presented on appeal do not relate to the underlying facts of this case, in the interest of judicial economy, we include only that information necessary to the resolution of the issues presented. On 9 February 2004, the Mecklenburg County grand jury indicted defendant on charges of first degree burglary,misdemeanor larceny, assault on a government official, and resisting a public officer. Later on 1 March 2004, the grand jury returned a superseding indictment for charges of first degree burglary and larceny after breaking and entering. On 29 September 2004, a jury found defendant guilty of all four offenses. The trial court imposed consecutive sentences with a combined term of 126 months to 161 months in the North Carolina Department of Correction for the burglary and larceny offenses. After consolidating the two remaining offenses for judgment, the trial court imposed a consecutive sentence of 150 days. Defendant appeals.
    In defendant's brief, defense counsel states “[a]fter a repeated and close examination of the record, [] and research and review of the relevant North Carolina and U.S. Supreme Court case law, defense counsel is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal.” Thus, counsel asks this Court “to conduct a full examination of the record on appeal for any possible error(s) and to determine whether any justiciable issue has been overlooked by counsel on behalf of the Defendant.”
    By letter dated 13 March 2006, defendant's counsel informed defendant that in his opinion there was no error in defendant's trial and that defendant could file his own arguments in this Court if he so desired. Copies of the transcript and record were sent to defendant. On 11 April 2006, defendant filed arguments in this Court. Pursuant to this Court's order of 16 May 2006, appellatecounsel subsequently filed copies of the DCI report and the sentencing worksheet.
    Based on the foregoing, we hold that defendant's counsel has substantially complied with the holdings in 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, 331 S.E.2d 665 (1985). Pursuant to Anders and Kinch, we must determine from a full examination of all the proceedings whether the appeal is wholly frivolous. Upon review of the entire record, the assignments of error noted in the record, and defendant's arguments, we find the appeal to be wholly frivolous.
    Defendant argues he received ineffective assistance of both trial and appellate counsel. Although defendant claims trial counsel improperly admitted his guilt during closing arguments, the transcript shows he had earlier agreed during questioning by the trial court that his trial counsel could concede his identity as the perpetrator. Defendant next describes two instances where he claims trial counsel should have introduced additional evidence to support his claim of voluntary intoxication. As an initial matter, our appellate courts generally do not second-guess trial counsel's decisions regarding trial tactics and strategy, such as decisions regarding what evidence to present. See State v. Lowery, 318 N.C. 54, 67-69, 347 S.E.2d 729, 738-39 (1986). After finding that there was insufficient evidence to support an instruction on voluntary intoxication, the trial court asked defense counsel “again if you are still intending not to put on any evidence.” Defense counselaffirmed that decision following an off-the-record discussion with defendant. When the trial court then inquired of defendant if that was his decision, defendant responded “[t]hat is my decision.” Because “[a] defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct[,]” N.C. Gen. Stat. § 15A-1443(c) (2005), defendant's claim of ineffective assistance of trial counsel is without merit.
     Defendant next argues his appellate counsel's eighteen-month delay in perfecting his appeal and his subsequent decision to file an Anders appeal resulted in ineffective assistance of counsel. The record shows that approximately fourteen months elapsed between defendant's conviction and the filing of the record on appeal by appellate counsel, with the majority of the delay occurring between the time of delivery of the transcript and service of the proposed record on appeal upon opposing counsel. Defendant advanced no reason for appellate counsel's delay and has not suggested any possible prejudice that he suffered as a result. Although defendant asserts he contacted the North Carolina State Bar about appellate counsel failing to keep him adequately informed of the status of his appeal, he provided no support for this assertion. He has shown no prejudice as a result of the delay.
    Defendant also provided no basis for his claims that appellate counsel had a conflict of interest and filed an Anders brief “to mask his errors.” Defendant did not elaborate upon either the alleged conflict of interest or the errors which were allegedly “masked.” We further note that appellate counsel did not representdefendant at trial. Because petitioner has not shown deficient performance by either trial or appellate counsel which prejudiced his defense, see State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985), his claims of ineffective assistance of counsel are overruled.
    As for petitioner's claim that the trial court erred by not giving his requested instruction on voluntary intoxication, he “must show that . . . substantial evidence supported the omitted instruction.” State v. White, 77 N.C. App. 45, 52, 334 S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985). Upon review of the record, such an instruction is not “supported by a reasonable view of the evidence.” Id. Accordingly, the trial court did not err by declining to give the requested instruction.
    Defendant next contends a 1975 breaking and entering conviction and a 1998 possession of marijuana conviction should not have been used in determining his prior record level. Upon review of the transcript and the sentencing worksheet, it is clear the trial court properly assigned two prior record points for defendant's 1975 conviction for the class H felony of breaking and entering. The trial court did not utilize the 1998 conviction for the class 3 misdemeanor of possession of marijuana in finding defendant to be at prior record level IV. Defendant also argues the use of his convictions under the Fair Sentencing Act in determining his prior record level under the Structured Sentencing Act is an ex post facto violation. The applicable provisions of the Structured Sentencing Act, N.C. Gen. Stat. § 15A-1340.10 etseq. (2005), however, were enacted almost ten years prior to the date of defendant's offenses. He, therefore, has not been punished more severely than was allowed under the law in effect at the time he committed his present offenses. See State v. Mason, 126 N.C. App. 318, 324, 484 S.E.2d 818, 821 (1997), cert. denied, 354 N.C. 72, 553 S.E.2d 208 (2001).
    While defendant contends there was insufficient evidence that he entered the victims' home with the intent to commit larceny, the State introduced substantial evidence of his entry and subsequent flight from the victims' home. Because no evidence of contrary intent was shown, the intent to commit a larceny could be inferred from the evidence that defendant broke into the dwelling at night and fled upon being discovered. See State v. Salters, 65 N.C. App. 31, 34, 308 S.E.2d 512, 515 (1983), disc. review denied, 310 N.C. 479, 312 S.E.2d 889 (1984).
    In his final argument, defendant contends the trial court erred by giving an Allen charge, see N.C. Gen. Stat. § 15A-1235(c) (2005), after the jury foreman reported that the jury had reached an impasse. The decision of whether to give the jury such an instruction is clearly within the trial court's discretion. See State v. Fernandez, 346 N.C. 1, 22, 484 S.E.2d 350, 363 (1997). Having considered the circumstances under which the trial court made the instructions and the probable impact of those instructions on the jury, we find that those instructions merely served as a catalyst for further deliberations and were not prejudicial. We hold defendant received a fair trial, free from prejudicial error.    No error.
    Chief Judge MARTIN and Judge JACKSON concur.
    Report per Rule 30(e).

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