State v. Atkins
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1242 NORTH CAROLINA COURT OF APPEALS Filed: 29 July 2014 STATE OF NORTH CAROLINA v. Mecklenburg County Nos. 11 CRS 210032-37 DORAN ARTHUR ATKINS Appeal by defendant from judgments entered 15 February 2013 by Judge Paul G. Gessner in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 March 2014. Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. Paul M. Green, for defendant-appellant. CALABRIA, Judge. Doran Arthur Atkins ( defendant ) appeals from judgments entered upon jury verdicts finding him guilty of first degree rape, second degree sex offense, and first degree kidnapping. We find no error. I. Background -2In homeless February shelter 2011, in Mary 1 Charlotte, stayed North at a Salvation Carolina. Army Defendant, Mary s boyfriend, stayed at a men s shelter about a mile away. On the evening of 26 February 2011, Mary and defendant walked to a Shell station in Mecklenburg County. They argued, reconciled, and started walking when defendant shoved Mary into an alleyway, hit her in the head, unsuccessfully tried and choked her with his hands. to escape, but defendant Mary threatened her life with a broken bottle and choked her several times with his belt until she lost consciousness. He also forced her to perform fellatio twice and forced her to have intercourse while the belt remained around her neck. The next morning, defendant accompanied Mary to the Shell station, but warned her that he would kill her if she tried to contact law enforcement. While at the Shell station, Mary asked a man to contact law enforcement for her because she had been kidnapped, raped, and beaten. Shortly afterwards, Officer Amy Aquino ( Officer Aquino ) of the Charlotte-Mecklenburg Police Department ( CMPD ) arrived and detained defendant. CMPD Officer Brian Koll also arrived and assisted Officer Aquino. Mary 1 was transported to the hospital, and a sexual assault We use a pseudonym both to protect the victim s privacy and for ease of reading. -3evidence collection kit was taken. Defendant was arrested and subsequently charged with first degree rape, two counts of first degree sex offense, first degree kidnapping, assault by strangulation, and assault on a female. On 13 August 2012, defendant filed a motion to dismiss for lack of a speedy trial. After a hearing on 22 August 2012, the trial court denied defendant s motion. Defendant s 2013. case was subsequently tried on 11 February The jury returned verdicts finding defendant guilty of first degree rape, first degree sexual offense, second degree sexual offense, first degree kidnapping, strangulation, and assault on a female. assault by The State submitted a Prior Record Level Worksheet for sentencing purposes. According to the State, defendant had six points for three prior Class I felonies South from out-of-state Carolina. convictions Defendant s counsel in West expressly Virginia and stipulated to defendant s prior convictions and that defendant qualified as a Level III for sentencing. Defendant s counsel did not object to classifying the out-of-state offenses as Class I felonies. The sexual female. trial offense, court arrested assault by judgment for strangulation, the and first assault degree on a Defendant was sentenced to a minimum of 317 months to a -4maximum of 390 months for the first degree rape offense; a minimum of 96 months to a maximum of 125 months for the second degree sexual offense; and a minimum of 96 months to a maximum of 125 months for the first degree kidnapping offense. All of defendant s sentences were to be served in the custody of the Division of Adult Correction. Defendant appeals. II. Speedy Trial Defendant argues that the trial court erred in denying his motion to dismiss for lack of a speedy trial. The standard of review for an We disagree. alleged constitutional violation is de novo. State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009). The Sixth Amendment to the United States Constitution guarantees the right to a speedy trial. U.S. Const. Amend. VI. Additionally, the North Carolina Constitution provides defendants with the right to a speedy trial. Const., art.1, sec. 18. N.C. When reviewing speedy trial claims, we employ the same analysis under both the Sixth Amendment and Article I. State v. Washington, 192 N.C. App. 277, 282, 665 S.E.2d 799, 803 (2008). The United States Supreme Court devised balancing test analyzing speedy trial cases. a four-factor Id. (citing Barker v. Wingo, 407 U.S. 514, 530, 33 L.Ed.2d 101, 116-17 (1972)). -5The Barker factors are (1) the length of delay, (2) the reason for the delay, (3) defendant s assertion of his right to a speedy trial, and (4) prejudice to the defendant. Id. No one factor is dispositive in determining whether the accused has been deprived of his right to a speedy trial. Id. If the balancing test reveals a defendant s right to a speedy trial was violated, the remedy is dismissal. Id. at 298, 665 S.E.2d at 812. In the instant case, defendant was arrested on 27 February 2011 and indicted on 7 March 2011. On 13 August 2012, defendant filed lack a motion Defendant s to motion dismiss was heard for on 22 of a August speedy 2012. trial. Thus, defendant s incarceration prior to the hearing on his motion to dismiss was approximately 17 months. Although the United States Supreme Court has not set out a definite period for which a delay will acknowledged be that deemed delays presumptively approaching one prejudicial, year will it is suffice. Doggett v. United States, 505 U.S. 647, 651 n.1, 120 L.Ed.2d 520, 528 n.1 (1992). See also State v. Webster, 337 N.C. 674, 679, 447 S.E.2d 349, 351 (1994) (sixteen month delay enough to trigger examination of the other factors); State v. Pippin, 72 N.C. App. 387, 391, 324 S.E.2d 900, 904 (1985) (fourteen month -6delay between arrest and motion to dismiss granted). Since defendant timely asserted his right to a speedy trial and the pre-trial delay in this case was in excess of one year, we must determine both the reason for the delay and whether the delay was prejudicial to the defendant. A. Reason for Delay Some [t]he delay between constitutional arrest and guarantee trial does is not inevitable outlaw and good-faith delays which are reasonably necessary for the State to present its case. State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251, 255 (2003) (citation omitted). [A] defendant has the burden of showing that the delay was caused by the neglect or willfulness of the prosecution[,] [which may be rebutted fully explaining the reasons for the delay. 172 N.C. App. 759, 764, 617 S.E.2d 97, 101 Spivey, 357 N.C. at 119, 579 S.E.2d at 255). with] evidence State v. Dorton, (2005) (quoting In addition, this Court has held that trying older cases is an appropriate method of determining the order in which to dispose of cases. Id. at 764, 617 S.E.2d at 101. In Spivey, the defendant s case was delayed four and onehalf years because the court docket was clogged with murder cases. Spivey, 357 N.C. at 119, 579 S.E.2d at 255. According -7to its policy, [t]he district attorney[ s office] dealt with the cases in chronological order, beginning with the oldest. Id. at 120, 579 S.E.2d at 255. The Court held that since the delay was caused by neutral factors, the defendant failed to present any evidence that the delay was caused by the State s neglect or willfulness. Id. at 121, 579 S.E.2d at 256. In the instant case, defendant argued at the hearing that the only reason for the delay was the prosecution s failure to call the case statistics for from trial. the office Defendant of the presented Trial Court evidence of Administrator regarding courtroom usage and the Mecklenburg County District Attorney s policy alternating weeks. of hearing Defendant adult rape cases specifically in argued teams that on the District Attorney s office s strategy of splitting the assistant district attorneys ( ADAs ) into teams and rotating their court appearances for adult rape cases was a misuse of courtroom time that denied defendants their rights to speedy trial. The State rebutted defendant s arguments with evidence regarding hearing cases in chronological order, as well as the arrest dates of twelve of the cases that preceded defendant s arrest date. The State also presented evidence regarding case assignments and reports. Defendant s case was assigned to Ms. -8Pendergrass, an ADA who was hospitalized on medical leave for several months. received the Prior to her medical leave, the State had not DNA collection kit. report from Mary s sexual assault evidence The DNA report was necessary for the State to present its case at defendant s trial. Since Ms. Pendergrass was on medical leave, another formerly retired ADA, Mr. Cook, was hired to assist with her caseload during the time she was gone. The DNA report from Mary s sexual assault evidence collection kit and the substitution of another ADA for one on medical leave were both neutral factors. explanation regarding the District Therefore, the State s Attorney s policy scheduling cases was an appropriate reason for the delay. addition, the State s delay while waiting for evidence for In and substituting an ADA can both be considered good faith delays. Defendant has failed to show that the State neglected or willfully delayed his trial. B. Prejudice to Defendant The purposes of the right to a speedy trial are: (1) to prevent oppressive anxiety and concern pretrial of the incarceration; accused; and (2) (3) possibility that the defense will be impaired. to to minimize limit the Dorton, 172 N.C. App. at 765, 617 S.E.2d at 101 (citing Barker, 407 U.S. at 532, -933 L.Ed.2d at 118). [T]he test for prejudice is whether significant evidence or testimony that would have been helpful to the defense was lost due to delay. State v. Hammonds, 141 N.C. App. 152, 162-63, 541 S.E.2d 166, 174-75 (2000) (citation omitted). In Hammonds, prejudiced in the part defendant by the argued death of that the his defense State s was principal investigator while his trial was delayed for over four years. Id. at 163, 541 S.E.2d at 175. However, the State presented evidence at trial through other investigators who testified to the same events and observations sought by [the] defendant[.] Id. at 163, 541 S.E.2d at 175. not condone the length of Therefore, while this Court did the delay, the State presented evidence regarding the same events and observations sought by defendant. that the Id. at 163-64, 541 S.E.2d at 175. defendant was not prejudiced State s principal investigator. by the The Court held death of the Id. In the instant case, defendant does not argue that his pretrial incarceration was oppressive or that he had any anxiety or particular concerns mother s testimony. except for his concerns regarding his Specifically, defendant s mother could have testified regarding Mary s credibility and that Mary had used -10crack cocaine. At trial, Mary testified as the State s witness, and the evidence she presented included some of the same information defendant contends would have been his mother s testimony. According to Mary, she had been dating defendant for two years and they engaged in consensual sexual intercourse. She also testified that she loved defendant and that they had expressed that love for one another just prior to the assault. Mary also admitted to using crack cocaine three days before the assault occurred. Susan Lewis-Kafuko defendant s sister, ( Lewis-Kafuko ), testified on defendant s a friend behalf. of Lewis- Kafuko testified that she had spent the afternoon of 26 February 2011 with Mary and defendant. witnessed the couple express During that time, Lewis-Kafuko love towards one another and discuss their plans of moving in together and establishing a family together. Both Mary and Lewis-Kafuko testified to the same events and observations testimony. sought Moreover, by defendant Mary had regarding first-hand his knowledge mother s of the events that occurred, while defendant s mother only had firsthand knowledge of their relationship and was not a witness to -11the events that led to defendant s arrest. Furthermore, defendant does not dispute Mary s testimony on appeal. defendant fails to dispute Mary s testimony or Since show how his mother s testimony would have been helpful to his defense, the loss of his mother s testimony did not prejudice his defense. In balancing all of the Barker factors, neither the reason for the delay nor the prejudice to the defendant weighs against the State. Therefore, we hold that the trial court did not err in denying defendant s motion to dismiss for lack of a speedy trial. III. Sentencing Defendant calculating contends also his the argues prior that record out-of-state the trial level. charges court erred Specifically, used in this in defendant calculation should have been considered misdemeanors rather than felonies. We disagree. The standard of review for the determination of a prior record level is de novo. State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009). A determination regarding a defendant s prior record level must be supported by competent evidence. [A] Id. at 633, 681 S.E.2d at 804. conviction occurring in a jurisdiction other than -12North Carolina jurisdiction is in classified which the as a Class offense I occurred felony if the classifies the offense as a felony. N.C. Gen. Stat. § 15A-1340.14(e) (2013). The State is not required to show that the [out-of-state] offenses were substantially similar to North Carolina offenses [if] the prosecution only classifie[s] the convictions at the default level, Class I. State v. Hinton, 196 N.C. App. 750, 755, 675 S.E.2d 672, 675-76 (2009) (citation omitted). If the State submits a felony conviction from another jurisdiction under the default classification of a Class I felony, it has met its burden and [is] required to prove nothing further in support of that classification. State v. Threadgill, ___ N.C. App. ___, ___, 741 S.E.2d 677, 681 (2013). However, [i]f the offender proves by the preponderance of the evidence that an offense classified as a felony in the other jurisdiction is substantially similar to an offense that is a misdemeanor in North Carolina, the conviction is treated as that class of misdemeanor for assigning prior record level points. N.C. Gen. Stat. § 15A-1340.14(e). The State must prove, by a preponderance of the evidence, that the prior convictions exist and the offender before the court is the person previously convicted. N.C. Gen. Stat. § -1315A-1340.14(f) (2013). Acceptable methods of proving prior convictions include presenting copies of records maintained by the Division of Criminal Information ( DCI ) and stipulating to the existence of these offenses. Id. In the instant case, defendant contends that an out-ofstate shoplifting offense and weapons offense should have been classified as misdemeanors because the equivalent North Carolina offenses are misdemeanors. However, defendant presented no evidence to show that these offenses were substantially similar to any North Carolina offenses. The State presented copies of records maintained by DCI showing that defendant s out-of-state offenses were Defendant s felonies counsel the in their stipulated according to prior defendant had a Therefore, the offenses Prior that respective defendant jurisdictions. had record level worksheet, Record Level III were properly for classified six points and that sentencing. as default Class I felonies. Defendant s final contention is that his counsel s stipulation to the existence of these felony convictions was ineffective assistance of counsel. However, defendant fails to explain how this stipulation satisfies the two-part test set forth in State v. Braswell. See Braswell, 312 N.C. 553, 562, -14324 S.E.2d 241, 248 (1985) (holding the defendant must show counsel s performance was deficient . . . [and] the deficient performance prejudiced the defense. ). Therefore, this argument is without merit. IV. Conclusion Although this Court does not condone the State s delay, neither the reason for the delay nor the alleged prejudice to the defendant denied defendant his right to a speedy trial. Therefore, the trial court did not err in denying defendant s motion to dismiss. In addition, the State presented sufficient evidence of defendant s prior record level, stipulated to defendant s prior record level. trial court did not err in sentencing No error. Chief Judge MARTIN and Judge McGEE concur. Report per Rule 30(e). counsel Accordingly, the defendant Record Level III. and as a Prior
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