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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-1674


Filed: 1 May 2007


    v.                            Guilford County
                                Nos. 04 CRS 83342
ERNEST WADE CLENDENIN,                    04 CRS 83344

    Appeal by defendant from judgment entered 3 March 2005 by Judge L. Todd Burke in Guilford County Superior Court. Heard in the Court of Appeals 16 April 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General Joseph E. Herrin, for the State.

    Bryan Gates for defendant-appellant.

    GEER, Judge.

    Defendant Ernest Wade Clendenin appeals from his convictions for fraudulently burning a dwelling and insurance fraud. Defense counsel states that "[a]fter carefully reviewing the record in this case counsel has found the errors assigned in the record on appeal are not supported by the facts and law." Counsel asks this Court to "review the record for any prejudicial error."
    We conclude that defendant's counsel has complied with the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). Moreover, after reviewing the record, we have identified no basis for reversing defendant's convictions. Accordingly, we find no error.


    On 2 August 2004, the Guilford County grand jury indicted defendant on charges of fraudulently burning a dwelling house and insurance fraud. On 3 March 2005, a jury found defendant guilty of both charges. After consolidating the offenses for judgment and imposing a sentence of 8 to 10 months imprisonment, the trial court suspended the sentence and placed defendant on probation for 36 months. Defendant timely appealed to this Court.
    By letter dated 10 March 2006, defendant's counsel informed defendant that in his opinion there were no non-frivolous grounds for an appeal and that defendant could file his own arguments in this Court if he so desired. Counsel provided defendant with copies of the record on appeal and the brief counsel had filed with this Court. On 24 March 2006, defendant filed a letter with this Court alleging deficiencies by both his trial and appellate counsel, perjury by an expert witness, and a cover-up by his insurance company.


    Defendant's counsel has substantially complied with Anders and Kinch, and, therefore, we must determine from a full examination of all the proceedings whether the appeal is wholly frivolous. In his letter to this Court, defendant first complains that his appellate counsel did not contact his trial counsel, that his court-appointed counsel only spent 10 hours on his case, and that he "was told that they had a good investigator that could help [him] out[,]" but "[h]e never came into the picture."     Defendant's claim that his trial counsel only spent 10 hours on his case is contradicted by the transcript. Trial counsel stated after sentencing that he had spent 29 hours on the case, and defendant did not challenge this statement. Moreover, defendant has provided nothing in support of his other assertions of ineffective assistance of trial and appellate counsel, and the record is insufficient for this Court to consider those claims. See, e.g., State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) ("In order to evaluate whatever prejudice to defendant resulted from his counsel's [alleged] errors, evidence needs to be presented at a post-conviction hearing . . . .").
    Defendant next accuses an expert witness of lying on the witness stand, claims to have found proof after the trial that would prove the expert witness wrong, and asserts his "house has been torn down by the insurance company to hide anything that may come up." Even if defendant had presented material in support of these arguments, since they necessarily would require review of matters outside the record of this case, they are not properly considered by this Court in the first instance. See State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524-25 (2001) (acknowledging "the general principle that, on direct appeal, the reviewing court ordinarily limits its review to material included in the record on appeal and the verbatim transcript of proceedings, if one is designated" (internal quotation marks omitted)), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162, 122 S. Ct. 2332 (2002).     We have carefully reviewed the record for any other bases upon which defendant could present a non-frivolous appeal and have found none. Defendant received a fair trial, free from prejudicial error.

    No error.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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