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.
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
Defendant's counsel has substantially complied with Anders
, 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.
, 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
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
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***