State v. Gentry

743 S.E.2d 235, 227 N.C. App. 583, 2013 WL 2395734, 2013 N.C. App. LEXIS 605
CourtCourt of Appeals of North Carolina
DecidedJune 4, 2013
DocketNo. COA12-1017
StatusPublished
Cited by6 cases

This text of 743 S.E.2d 235 (State v. Gentry) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gentry, 743 S.E.2d 235, 227 N.C. App. 583, 2013 WL 2395734, 2013 N.C. App. LEXIS 605 (N.C. Ct. App. 2013).

Opinion

ERVIN, Judge.

Defendant Lucas Guthrie Gentry appeals from judgments entered based upon his convictions for conspiracy to sell and deliver oxycodone, possession of oxycodone with the intent to sell or deliver, selling or delivering oxycodone, selling or delivering a controlled substance within 1000 feet of a public park, and having attained the status of an habitual felon. On appeal, Defendant argues that the trial court erred by denying his motions for the appointment of substitute counsel or, in the alternative, a continuance, and by allowing him to proceed pro se without making a proper determination that his decision to represent himself was knowingly and voluntarily made. After careful consideration of Defendant’s challenges to the trial court’s judgments in light of the [585]*585record and the applicable law, we conclude that the trial court’s judgments should remain undisturbed.

I. Factual Background

A. Substantive Facts

1. State’s Evidence

In August 2011, Sergeant John Walker of the Person County Sheriff’s Department was involved in a narcotics interdiction operation in which informants would purchase controlled substances from “high profile dealers” while equipped with hidden video cameras. On 8 August 2011, Sergeant Walker assigned an informant named Byron Moore to purchase drugs from Defendant, with whom Mr. Moore had been personally acquainted for about six months.

At a “pre-buy” meeting, Sergeant Walker provided Mr. Moore with currency for use in purchasing narcotics from Defendant and attached a miniaturized video camera to his shirt. During the “pre-buy” meeting, Mr. Moore received a phone call from Defendant, who offered to sell Mr. Moore ten pills at $12.00 each.

After receiving Defendant’s call, Mr. Moore went to Defendant’s home, which was located across the street from a public park. Sergeant Walker observed Mr. Moore arrive at Defendant’s house, park his scooter, and leave on the scooter shortly thereafter. Upon returning to Sergeant Walker’s location, Mr. Moore indicated that he had given the money to Defendant’s wife and that Defendant had handed ten pills to him.

Once he had obtained the pills from Mr. Moore, Sergeant Walker submitted them to the State Bureau of Investigation for forensic analysis. A subsequent laboratory analysis identified the pills as Oxycodone. In addition, Sergeant Walker retrieved the video camera from Mr. Moore’s person and downloaded the data stored in the camera onto a compact disk so as to create a video recording that was subsequently played for the jury.

2. Defendant’s Evidence

Heather Gentry, who had been married to Defendant for eleven years, admitted that the couple lived close to a public park. On 8 August 2011, Mr. Moore telephoned her and asked to purchase some pills. Upon reviewing the video recording that had been introduced into evidence, Ms. Gentry thought that she had observed herself, rather than Defendant, taking money from Mr. Moore in exchange for pills.

[586]*586B. Procedural History

On 10 October 2011, the Person County grand jury returned bills of indictment charging Defendant with conspiracy to sell or deliver oxycodone hydrochloride, possession of oxycodone hydrochloride with intent to sell or deliver, sale of oxycodone hydrochloride, sale of oxycodone hydrochloride within 1000 feet of a public park, and having attained the status of an habitual felon. On 13 February 2012, the Person County grand jury returned superseding indictments charging Defendant with having committed the same offenses while changing the name of the controlled substance that Defendant was alleged to have possessed and sold from “oxycodone hydrochloride” to “oxycodone.” On 21 December 2011 the State filed a notice informing Defendant that, in the event that he was convicted of a criminal offense, the State intended to prove as an aggravating factor that, during the ten year period prior to the commission of the offenses with which he was presently charged, he had “been found by a court of this State to be in willful violation of the conditions of probation[.]”

On 8 February 2012, Defendant’s appointed counsel filed a motion seeking leave to withdraw from his representation of Defendant on the grounds that Defendant “does not believe or trust his Attorney,” that Defendant “does not believe his Attorney is working in [his] best interests,” and that there “are numerous disagreements between Attorney and Defendant over the handling of these cases,” making it “[un]likely that Attorney and Defendant will be able to work together effectively to resolve these differences.” On 17 February 2012, Judge W. Osmond Smith, III, conducted a hearing concerning this motion and denied it on the grounds that, despite the fact that Defendant and his counsel had “some disagreements,” there was no indication that Defendant’s appointed counsel would be unable to provide Defendant with competent legal representation.

The charges against Defendant came on for trial before the trial court and a jury at the 20 February 2012 criminal session of the Person County Superior Court. On several occasions during the trial, Defendant expressed dissatisfaction with the representation that he was receiving from his appointed counsel. At the conclusion of all the evidence, Defendant asked permission to proceed pro se, executed a written waiver of the right to counsel, and began representing himself. On 22 February 2012, the jury returned verdicts convicting Defendant as charged. After the jury returned its verdicts, Defendant withdrew his request to represent himself, at which point his appointed counsel resumed representing Defendant.

[587]*587At the conclusion of the required separate habitual felon proceeding, the jury retired to consider the merits of the State’s allegation that Defendant had attained habitual felon status. During the jury’s deliberations with respect to this issue, Defendant entered into a stipulation admitting that, during the ten years prior to the date upon which the offenses of which he had been convicted had been committed, he had been found to have violated the terms and conditions of a probationary judgment. After the jury returned a verdict finding that Defendant had attained habitual felon status, the trial court conducted a sentencing hearing at which it found that Defendant had accumulated twelve prior record points and should be sentenced as a Level IV offender. Based upon these determinations, the trial court sentenced Defendant to a term of 96 to 125 months imprisonment based upon his conviction for sale of a controlled substance within 1000 feet of a public park and to a consecutive term of 96 to 125 months imprisonment based upon his convictions for sale and delivery of oxycodone, possession of oxycodone with the intent to sell or deliver, and conspiracy to sell or deliver oxycodone. In spite of Defendant’s stipulation to the existence of an aggravating factor, the sentences that the trial court imposed upon Defendant were within the presumptive range. Defendant noted an appeal to this Court from the trial court’s judgments.

II. Legal Analysis

A. Motion to Appoint Substitute Counsel

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Cite This Page — Counsel Stack

Bluebook (online)
743 S.E.2d 235, 227 N.C. App. 583, 2013 WL 2395734, 2013 N.C. App. LEXIS 605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gentry-ncctapp-2013.