State v. Limani

• Court: Court of Appeals of North Carolina
• Decided: February 4, 2014
• Docket: 13-745
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-745 NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County No. 09 CRS 218285 VELI LIMANI

Appeal by defendant from order entered 10 October 2012 by

Judge Eric L. Levinson in Mecklenburg County Superior Court and

from judgment entered 10 December 2012 by Judge Christopher W.

Bragg. Heard in the Court of Appeals 10 December 2013.

Attorney General Roy Cooper, by Assistant Attorney General Oliver G. Wheeler, IV, for the State.

Don Willey for defendant.

ELMORE, Judge.

Veli Limani (defendant) appeals from the trial court’s

order denying his pretrial motion to dismiss a charge of driving

while impaired (DWI). On appeal, defendant argues that pursuant

to State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988), he was

irreparably prejudiced in the preparation of his defense by the

denial of his statutory right to timely pretrial release. -2- Because defendant failed to show any violation of a statutory

right, we find no error.

I. Factual Background

On 15 April 2009, defendant was operating a motor vehicle

when he was stopped by Officer Eric Jonasse of the Charlotte

Mecklenburg Police Department and then arrested and charged with

DWI in violation of N.C. Gen. Stat. § 20–138.1. Officer Jonasse

transported defendant to the Mecklenburg County Intake Center to

administer an intoxilyzer test. Pursuant to N.C. Gen. Stat. §

20-16.2, Officer Jonasse advised defendant of his intoxilyzer

rights, including his right to call an attorney and select a

witness to view the testing procedure, provided the test could

be performed within 30 minutes. Defendant waived his

intoxilyzer rights. The results of the analysis showed

defendant to have an alcohol concentration of 0.11.

After reviewing defendant’s paperwork, which consisted of

his criminal record, Officer Jonasse’s affidavit, and the

intoxilyzer test result, magistrate Ilona Kevorkian (magistrate

Kevorkian) completed defendant’s Conditions of Release form at

approximately 4:40 a.m. She imposed a $1,000 secured bond for

the charge of DWI and a $200 secured bond for the offense of

operating a vehicle without a license. At 4:50 a.m. magistrate -3- Kevorkian conducted a hearing with defendant to explain the

pretrial release conditions. Thereafter, defendant met with

Immigration and Customs Enforcement (ICE) from 5:25 a.m. to 5:45

a.m. and participated in a pretrial interview from 5:46 a.m. to

6:11 a.m. Defendant was released from jail at 10:40 a.m., after

having spent 1-2 hours trying to reach a third party to post

bond.

On 10 December 2012, defendant pled not guilty to DWI and

was convicted following a jury trial. Judge Christopher W.

Bragg sentenced defendant to a Level 5 DWI with a term of 60

days, suspended for 12 months. Defendant gave timely oral

notice of appeal at sentencing.

II. Standard of Review

“[T]here are three statutes that are applicable to the

issue of whether there was a substantial violation of

defendant's statutory right of access to counsel and friends.”

State v. Knoll, 322 N.C. 535, 546, 369 S.E.2d 558, 564 (1988).

First, N.C. Gen. Stat. § 15A–511(b) obligates the magistrate to

inform defendant of the charges against him, of his right to

communicate with counsel and friends, and of the general

circumstances under which he may secure his release. N.C. Gen. -4- Stat. § 15A–511(b) (2013). Additionally, the magistrate must

impose one of the following pretrial release conditions:

(1) Release the defendant on his written promise to appear.

(2) Release the defendant upon his execution of an unsecured appearance bond in an amount specified by the judicial official.

(3) Place the defendant in the custody of a designated person or organization agreeing to supervise him.

(4) Require the execution of an appearance bond in a specified amount secured by a cash deposit of the full amount of the bond, by a mortgage pursuant to G.S. 58-74-5, or by at least one solvent surety.

(5) House arrest with electronic monitoring.

N.C. Gen. Stat. § 15A-534(a) (2013).

In doing so, N.C. Gen. Stat. § 15A-534(c) provides that the

magistrate shall consider

the nature and circumstances of the offense charged; the weight of the evidence against the defendant; the defendant’s family ties, employment, financial resources, character, and mental condition; whether the defendant is intoxicated to such a degree that he would be endangered by being released without supervision; the length of his residence in the community; his record of convictions; his history of flight to avoid prosecution or failure to appear at court proceedings; and any other evidence relevant to the issue of pretrial release. -5-

N.C. Gen. Stat. § 15A-534(c) (2013).

When a defendant alleges that a substantial statutory

violation has occurred due to the magistrate’s failure to comply

with a statutory pretrial release provision, he must also

demonstrate “irreparable prejudice directly resulting from a

lost opportunity to gather[] evidence in his behalf by having

friends and family observe him and form opinions as to his

condition following arrest . . . and to prepare a case in his

own defense” before a DWI charge will be dismissed. State v.

Labinski, 188 N.C. App. 120, 124-26, 654 S.E.2d 740, 744, writ

denied, review denied, 362 N.C. 367, 661 S.E.2d 889 (2008)

(quotation and citation omitted) (alteration in original). In

cases arising under N.C. Gen. Stat. § 20–138.1(a)(2), “prejudice

will not be assumed to accompany a violation of defendant’s

statutory rights, but rather, defendant must make a showing that

he was prejudiced in order to gain relief.” Knoll, 322 N.C. at

545, 369 S.E.2d at 564. Dismissal of a charge due to a

statutory violation “is a drastic remedy which should be granted

sparingly.” State v. Rasmussen, 158 N.C. App. 544, 549, 582

S.E.2d 44, 50 (2003). -6- “When a defendant alleges he has been denied his right to

communicate with counsel, family, and friends, the trial court

must conduct a hearing on defendant’s motion to dismiss and make

findings and conclusions. On appeal, the standard of review is

whether there is competent evidence to support the findings and

the conclusions.” State v. Lewis, 147 N.C. App. 274, 277, 555

S.E.2d 348, 351 (2001) (citation omitted). Unchallenged

findings are presumed to be correct and are binding on appeal.

State v. Eliason, 100 N.C. App. 313, 315, 395 S.E.2d 702, 703

(1990). As such, we limit our review to whether the

unchallenged facts support the trial court’s conclusions of law.

Id.

III. Pretrial Motion to Dismiss

Defendant argues that he suffered irreparable prejudice

warranting the dismissal of his DWI charge when his release from

jail was delayed due to magistrate Kevorkian’s violation of N.C.

Gen. Stat. § 15A-534(c), which denied him prompt communication

with counsel, family, and friends. We disagree.

On appeal, defendant assigns error to the trial court’s

findings of fact 12, 13, and 14 but fails to argue that findings

12 and 13 are unsupported by competent evidence. Accordingly, -7- we presume that all findings of fact other than finding 14 are

supported by competent evidence. Finding 14 provides:

Magistrate E. Kevorkian, in her discretion, understood that she retained the authority and discretion to modify the conditions of release set forth on the printed release order for Defendant during and/or following her face- to-face interview of the Defendant. No modifications of the bond occurred in this matter, however, and the bond amount(s) set forth in the Conditions of Release form prior to the face-to-face interview with Defendant remained intact. Kevorkian has, on previous occasions, altered the conditions of release that may have been reflected on the Conditions of Release forms during/following the face-to-face interview of an accused.

Defendant also challenges conclusion of law 2, which

provides:

The magistrate did not violate §15A-534 Procedures for determining conditions of pretrial release, which requires conditions of release to be imposed, as there was no showing that the secured bond set was either arbitrary or involved magistrate misconduct.

Defendant specifically argues that magistrate Kevorkian

violated N.C. Gen. Stat. § 15A-534(c) when she completed the

Conditions of Release form “prior to considering all of the

mandatory statutory factors and prior to meeting with the

accused[.]” Relying on State v. Knoll, supra, defendant further -8- contends that the appropriate remedy for this statutory

violation is to vacate the DWI conviction.

On appeal, defendant does not argue that magistrate

Kevorkian neglected to interview him pursuant to N.C. Gen. Stat.

§ 15A-534(c); he merely takes issue with the timing of the

questioning. During the pretrial hearing, magistrate Kevorkian

testified that in 2009 it was common practice for her, and all

magistrates in Mecklenburg County, to complete a defendant’s

Conditions of Release form before interviewing a defendant:

[I]n DWI cases, we would process [the Conditions of Release form]. And then things would come after the interview with the defendant, like how long have you lived in the community and do you work. And if the defendant is able to [] satisfactorily answer these questions to determine that they’re not a flight risk, then I would definitely consider that into a factor. And I can modify bond then.

Further, she testified to amending “[m]aybe five[] [or]

[s]ix” of every 100 completed Conditions of Release forms after

interviewing a defendant. As such, the record contains

competent evidence to support finding of fact 14 – magistrate

Kevorkian understood that she retained authority to modify a

Conditions of Release form and had done so. -9- The record also supports the trial court’s conclusion of

law 2. First, there is no evidence in the record to suggest

that magistrate Kevorkian engaged in misconduct or set arbitrary

pretrial conditions of release. Second, N.C. Gen. Stat. § 15A-

534 does not mandate that a magistrate conduct his or her

pretrial interview of a defendant prior to setting the pretrial

release conditions. Because magistrate Kevorkian considered the

conditions of pretrial release and understood that they could be

modified, the trial court did not err in concluding that she did

not violate N.C. Gen. Stat. § 15A-534. Defendant has failed to

convince us that his statutory rights were violated.

IV. Prejudice

Assuming arguendo that defendant’s statutory rights were

violated, he has failed to demonstrate irreparable prejudice in

the preparation of his defense. Defendant argues that

magistrate Kevorkian’s statutory violation caused “unnecessary

delay in [his] release and irreparably prejudiced him” because

he was denied prompt access to family, friends, and counsel.

This argument is without merit. In the case sub judice,

defendant failed to exercise his own rights to acquire the

attendance of a sober and responsible witness to view the

intoxilyxer testing procedure, making him responsible for any -10- lost opportunity to gather evidence. See State v. Gilbert, 85

N.C. App. 594, 597, 355 S.E.2d 261, 263-64 (1987) (concluding

that defendant failed to show prejudice when record did not

contain evidence that he was denied access to family and

friends). Further, defendant spent 1-2 hours calling third

parties to secure his release from jail. Any delay in his

release or lost opportunity to gather evidence stemmed directly

from his conduct – defendant has failed to show that he was

prejudiced in order to gain relief.

V. Conclusion

Defendant has failed to make a sufficient showing of a

substantial statutory violation and of the prejudice arising

therefrom to warrant relief. Accordingly, we find no error in

the order of the trial court denying defendant’s motion to

dismiss.

No error.

Judges McGEE and HUNTER, Robert C. concur.

Report per Rule 30(e).