An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1071 NORTH CAROLINA COURT OF APPEALS Filed: 17 June 2014 STATE OF NORTH CAROLINA
Pender County v. No. 11 CRS 52835, 12 CRS 542
ROBERT LEVITICUS MCKOY
Appeal by defendant from judgments entered 2 May 2013 by
Judge Arnold O. Jones, II, in Pender County Superior Court.
Heard in the Court of Appeals 18 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General Jill F. Cramer, for the State.
The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr., for Defendant.
ERVIN, Judge.
Defendant Robert Leviticus McKoy appeals from a judgment
sentencing him to a term of 89 to 119 months imprisonment based
upon his convictions for felonious speeding to elude arrest,
reckless driving, possession of drug paraphernalia, driving
while license revoked, and having attained the status of an
habitual felon and from a judgment finding him responsible for
driving left of center without requiring him to pay additional
court costs. On appeal, Defendant contends (1) that the trial -2- court erred by sentencing him as an habitual felon despite the
fact that he was neither found guilty of nor pled guilty to
having attained habitual felon status; allowing Defendant to be
convicted of felonious speeding to elude arrest based upon the
use of reckless driving and driving while license revoked as
aggravating circumstances and then separately sentencing him
based upon his convictions for reckless driving and driving
while license revoked; denying his motions to dismiss the
felonious speeding to elude arrest charge for insufficiency of
the evidence; allowing the jury to consider whether Defendant
drove more than fifteen miles per hour in excess of the speed
limit in determining whether he was guilty of felonious speeding
to elude arrest; failing to describe the manner in which
Defendant allegedly drove in a careless and reckless manner in
the course of instructing the jury; and allowing the jury to
consider the issue of Defendant’s guilt of reckless driving and
(2) that he received constitutionally deficient representation
from his trial counsel. After careful consideration of
Defendant’s challenges to the trial court’s judgments in light
of the record and the applicable law, we conclude that the
judgment that the trial court entered based upon Defendant’s
convictions for felonious speeding to elude arrest, reckless
driving, possession of drug paraphernalia, driving while license -3- revoked, and having attained the status of an habitual felon
should be vacated and that this case should be remanded to the
Pender County Superior Court for resentencing.
I. Factual Background
A. Substantive Facts
1. State’s Evidence
Detective Lazaro Ramos worked as a narcotics detective for
the Pender County Sheriff’s Office. On 30 December 2011,
Detective Ramos was traveling north on Highway 117 in an
unmarked Ford Explorer after having gotten off of work. At
approximately 1:46 p.m., Detective Ramos drove past Defendant,
who was entering Highway 117 from Interstate 40 while driving a
red Jeep Cherokee. Detective Ramos noticed Defendant when
Defendant’s vehicle, which he recognized as the result of having
viewed a photograph that had been given to him by Sergeant Lisa
Fields of the Burgaw Police Department, began slowing down.1 As
Detective Ramos continued to observe Defendant, he noticed that
Defendant was behaving evasively and began wondering why
Defendant was trying to avoid him.
As Detective Ramos and Defendant both slowed down, the two
drivers were able to see each other. After Defendant exited 1 Sergeant Fields had shown the vehicle’s photograph to Detective Ramos, who had responsibility for drug-related investigations, because she was looking into Defendant’s activities. -4- Highway 117 to the right and approached the stop sign at the end
of the exit ramp, he appeared to be about to make a right turn.
While Detective Ramos passed over the overpass and continued on
the highway, Defendant continued to creep toward the stop sign.
Upon reaching the stop sign, Defendant made a sharp left turn
rather than turning right as Detective Ramos expected.
After making this observation and crossing the overpass,
Detective Ramos turned around. Once he had turned around,
Detective Ramos activated his blue lights and siren, informed
the 911 dispatch center that he was trying to catch up with
Defendant’s vehicle, and increased his speed to 100 miles per
hour in order to accomplish that goal. Although Detective Ramos
had difficulty catching up with Defendant, he continued to
pursue him.2
After pursuing Defendant for some distance, Detective Ramos
regained visual contact with Defendant. At that point,
Detective Ramos observed Defendant “fishtailing” and watched him
cross over the double yellow line as he attempted to pass other
vehicles in a blind curve. As he came closer to Defendant,
Detective Ramos ran the tags on the vehicle that Defendant was
2 At the time that the chase began, Detective Ramos knew Defendant as Rob Base. When Sergeant Fields heard Detective Ramos radio that he was attempting to stop a red Jeep driven by a Rob Base, she provided him with Defendant’s real name. -5- driving and discovered that it was registered to an individual
named Mack Douglas Smith.3
After a pursuit of less than a mile, Defendant entered a
residential area in which one of his sisters lived. As he did
so, he cut through the yard of a residence in order to avoid
colliding with a vehicle that was leaving the subdivision. Upon
entering a cul de sac, Defendant drove up a driveway and through
back yards associated with various homes. Eventually, Defendant
collided with a tree and fled on foot. A search of the area for
Defendant proved unsuccessful. A search of Defendant’s vehicle
resulted in the seizure of cigar papers and a digital scale,
items that Detective Ramos believed to be drug paraphernalia.
Defendant subsequently surrendered to investigating officers.
Allen Monteith, a driver’s license examiner with the North
Carolina Division of Motor Vehicles, testified that Defendant’s
license was suspended at the time of the incident. In addition,
Detective Ramos testified that Defendant’s name had been written
on the back of the registration card associated with the Jeep
Cherokee. Although Detective Ramos did not have specific
knowledge of the reason that Defendant’s name had been written
3 Mr. Smith had purchased the vehicle for Defendant using money that Defendant had provided to him for that purpose in recognition of the fact that Defendant did not have a license. The insurance applicable to Defendant’s vehicle had been procured in the name of his sister. -6- on the back of the vehicle’s registration card, he testified
that the name of an individual who is stopped for driving
without a license or is unable to present valid identification
information is frequently written on the registration card
associated with the vehicle that the individual has been
driving.
2. Defense Evidence
Jonnisia McKoy, Defendant’s older sister, testified that
Defendant, who was accompanied by his girlfriend, had been
visiting her in Raleigh on 30 December 2011. Due to their
family tradition of spending New Year’s Eve in their home
church, Ms. McKoy and Defendant left Raleigh to return to Pender
County early in the evening of 30 December 2011. In support of
her testimony, receipts evidencing certain purchases that
Defendant had made in Raleigh on 29 December 2011 were admitted
into evidence.
B. Procedural Facts
On 30 December 2011, a warrant for arrest charging
Defendant with felonious speeding to elude arrest and reckless
driving was issued. On 27 February 2012, the Pender County
grand jury returned bills of indictment charging Defendant with
felonious speeding to elude arrest, reckless driving, speeding
100 miles per hour in a 55 mile per hour zone, driving left of -7- center, possession of drug paraphernalia, driving while license
revoked, and resisting, delaying, and obstructing a public
officer. On 26 March 2012, the Pender County grand jury
returned a bill of indictment alleging that Defendant had
attained the status of an habitual felon.
The charges against Defendant came on for trial before
Judge Paul L. Jones and a jury at the 25 June 2012 criminal
session of the Pender County Superior Court. During the course
of Defendant’s initial trial, Judge Jones dismissed the reckless
driving charge due to deficiencies in the relevant indictment.
Defendant’s first trial ended in a mistrial after the jury
failed to reach a unanimous verdict.
The charges against Defendant came on for trial a second
time before the trial court and a jury at the 30 April 2013
criminal session of the Pender County Superior Court. At the
conclusion of the State’s evidence, the trial court allowed
Defendant’s motion to dismiss the resisting, delaying, and
obstructing a public officer charge. On 2 May 2013, the jury
returned a verdict finding Defendant guilty of or responsible
for felonious speeding to elude arrest, reckless driving,
driving left of center, possession of drug paraphernalia, and
driving while license revoked and finding Defendant not guilty
of speeding 100 miles per hour in a 55 mile per hour zone. At -8- the conclusion of the ensuing sentencing hearing, the trial
court consolidated Defendant’s convictions for felonious fleeing
to elude arrest, reckless driving, possession of drug
paraphernalia, and driving while license revoked for judgment;
concluded that Defendant should be sentenced as an habitual
felon; and entered a judgment ordering that Defendant be
imprisoned for a term of 89 to 119 months. In addition, the
trial court ordered that Defendant not be assessed any
“additional court costs” in connection with his conviction for
driving left of center. Defendant noted an appeal from the
trial court’s judgments.
II. Legal Analysis
A. Speeding to Elude Arrest
In his brief, Defendant contends that the trial court erred
by denying his motion to dismiss the felonious speeding to elude
arrest charge. More specifically, Defendant contends that the
record, when viewed in the light most favorable to the State,
did not contain sufficient evidence to support a determination
that Detective Ramos was lawfully performing an official duty at
the time he attempted to stop Defendant. Defendant’s contention
has merit.4
4 In its brief, the State contends that Defendant failed to properly preserve his challenge to the sufficiency of the evidence to support his conviction for felonious speeding to -9- 1. Standard of Review
In considering whether to grant a motion to dismiss for
insufficiency of the evidence, the trial court must determine
“‘whether there is substantial evidence (1) of each essential
element of the offense charged and (2) that [the] defendant is
the perpetrator of the offense.’” State v. Bradshaw, 366 N.C.
90, 93, 728 S.E.2d 345, 347 (2012) (quoting State v. Lynch, 327
N.C. 210, 215, 393 S.E.2d 811, 814 (1990)). “Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. In conducting
the required analysis, the “trial court must consider the
evidence in the light most favorable to the State, drawing all
reasonable inferences in the State’s favor.” Id. at 92, 728
S.E.2d at 347 (internal quotation marks omitted) (quoting State
v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594 (2009)). “All
elude arrest for purposes of appellate review on the grounds that Defendant’s trial counsel failed to address the sufficiency of the evidence to support a determination that Detective Ramos was acting lawfully at the time that he began to pursue Defendant when she moved to dismiss the speeding to elude arrest charge. However, given that the record reflects that Defendant moved to dismiss the felonious speeding to elude arrest charge “based on the evidence [considered] in the light most favorable to the State” at the conclusion of the State’s evidence and “submit[ted] to the Court the same arguments [] used before for each charge” when he moved to dismiss the felonious speeding to elude arrest charge at the conclusion of all of the evidence, we conclude that Defendant properly preserved his challenge to the speeding to elude arrest charge for purposes of appellate review. -10- evidence, competent or incompetent, must be considered,” with
“[a]ny contradictions or conflicts in the evidence [to be]
resolved in favor of the State, and [with any] evidence
unfavorable to the State” eliminated from consideration. Id. at
93, 728 S.E.2d at 347. We review a challenge to the denial of a
motion to dismiss for insufficiency of the evidence using a de
novo standard of review. State v. Smith, 186 N.C. App. 57, 62,
650 S.E.2d 29, 33 (2007).
2. Sufficiency of the Evidence
According to N.C. Gen. Stat. § 20-141.5(a), it is “unlawful
for any person to operate a motor vehicle on a street, highway,
or public vehicular area while fleeing or attempting to elude a
law enforcement officer who is in the lawful performance of his
duties.” Although a violation of N.C. Gen. Stat. § 20-141.5 is
ordinarily a Class 1 misdemeanor, the commission of that offense
becomes a Class H felony if the defendant, in the course of his
or her flight, speeds “in excess of 15 miles per hour over the
legal speed limit,” N.C. Gen. Stat. § 20-141.5(b)(1);
“[r]eckless[ly] driv[es] as proscribed by [N.C. Gen. Stat. §]
20-140,” § 20-141.5(b)(3); or “[d]riv[es] when [his or her]
driv[er’]s license is revoked.” N.C. Gen. Stat. § 20-
141.5(b)(5). As a result, an individual’s guilt for purposes of
N.C. Gen. Stat. § 20-141.5 hinges upon the extent to which the -11- defendant attempts to flee from a law enforcement officer who is
attempting to lawfully perform his or her official duties.
State v. Sinclair, 191 N.C. App. 485, 489-90, 663 S.E.2d 886,
870 (2008) (citing State v. Anderson, 40 N.C. App. 318, 322, 253
S.E.2d 48, 51 (1979)) (stating that, in the event that the
detention of the defendant was “unlawful, there was insufficient
evidence that [the officer] was discharging or attempting to
discharge a duty of his office” for the purpose of determining
the defendant’s guilt of resisting, delaying, or obstructing a
public officer).
“A police officer may effect a brief investigatory seizure
of an individual where the officer has reasonable, articulable
suspicion that a crime may be underway.” State v. Barnard, 184
N.C. App. 25, 29, 645 S.E.2d 780, 783 (2007) (citing Terry v.
Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889,
906 (1968)), aff’d, 362 N.C. 244, 658 S.E.2d 643, cert. denied,
555 U.S. 914, 129 S. Ct. 264, 172 L. Ed. 2d 198 (2008). The
required reasonable articulable suspicion must “‘be based on
specific and articulable facts, as well as the rational
inferences from those facts, as viewed through the eyes of a
reasonable, cautious officer, guided by his experience and
training.’” Id. (quoting State v. Watkins, 337 N.C. 437, 441,
446 S.E.2d 67, 70 (1994)). A reviewing court “must consider the -12- totality of the circumstances in determining whether the officer
possessed a reasonable and articulable suspicion to make an
investigatory stop.” Id.
According to the transcript of Defendant’s second trial,
Detective Ramos saw Defendant, with whom he was familiar as the
result of previous work-related activities and whom he knew to
be under investigation by other law enforcement officers, as he
drove north on Highway 117. After observing Defendant exit upon
catching sight of him, Detective Ramos testified that he had to
drive further north on Highway 117 and cross an overpass before
he turned around, after which, as he headed south on Highway
117, he sped up to 100 mph, turned on his siren and blue lights,
contacted the dispatcher, and decided to stop Defendant. As a
result of the fact that Defendant exited Highway 117 upon
sighting Detective Ramos and the fact that Defendant made an
unexpected left turn after apparently intending to turn right,
Detective Ramos appears to have concluded that Defendant was
engaging in some type of criminal activity. We are, however,
unable to see how, given these facts, Detective Ramos had an
articulable reasonable suspicion sufficient to justify his
decision to stop Defendant.
In an attempt to persuade us to reach a contrary
conclusion, the State argues that Detective Ramos had the -13- reasonable articulable suspicion necessary to justify an
investigative detention of Defendant because (1) Defendant was
under investigation for drug-related activities, (2) Defendant
initiated an unprovoked flight after seeing Detective Ramos, and
(3) Defendant drove recklessly “during the chase.” As an
initial matter, we note that the fact that Defendant drove
recklessly once the chase began has no bearing upon the
lawfulness of Detective Ramos’ decision to pursue Defendant in
the first place given that the required “reasonable suspicion
must arise from the officer’s knowledge prior to the time of the
stop.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631
(2000). Although Detective Ramos testified that Defendant
“punche[d] it” when he turned left after leaving Highway 117, he
never described any illegality in the manner in which Defendant
made that left turn. Simply put, the fact that Defendant
attempted to avoid Detective Ramos without engaging in any
independently unlawful conduct does not provide any
justification for a decision to conduct an investigative
detention given that an individual has a right, if he or she
chooses to exercise it, to avoid contact with law enforcement
officers. State v. Canty, __ N.C. App. , __, 736 S.E.2d 532,
537 (2012) (stating that “[n]ervousness, failure to make eye
contact with law enforcement, and a relatively small reduction -14- in speed is ‘conduct falling within the broad range of what can
be described as normal driving behavior’” (quoting State v.
Peele, 196 N.C. App. 668, 674, 675 S.E.2d 682, 687, disc. review
denied, 363 N.C. 587, 683 S.E.2d 384 (2009))), disc. review
denied, 366 N.C. 578, 739 S.E.2d 850 (2013); Sinclair, 191 N.C.
App. at 489, 663 S.E.2d at 870 (stating that, “[i]f the
encounter was consensual, [the defendant] was at liberty ‘to
disregard the police and go about his business’” (quoting
Florida v. Bostic, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115
L. Ed. 2d 389, 398 (1991))). Finally, the mere fact that
Defendant was under investigation by the local law enforcement
community does not tend to show that Detective Ramos had the
reasonable articulable suspicion necessary to justify an
investigative detention given that the record contains no
evidence tending to show what Defendant was alleged to have done
or the strength of the evidence tending to show that Defendant
was involved in unlawful conduct. Thus, none of the
justifications for Detective Ramos’ decision to conduct an
investigative detention of Defendant offered in the State’s
brief have any merit.
The ultimate deficiency in Detective Ramos’ decision to
detain Defendant was the absence of any indication that any sort
of specific criminal activity was “underway.” See Barnard, 184 -15- N.C. App. at 29, 645 S.E.2d at 783. In order for an officer to
conduct a valid investigative detention, there must be some
nexus between the suspicious behavior in which the defendant has
engaged and the crime for which the officer seeks to detain the
defendant. See Canty, __ N.C. App. at __, 736 S.E.2d at 537
(stating that, although slowed speed “tends to be a factor in
reasonable suspicion for impaired driving,” “[i]mpaired driving
. . . was not the offense for which the officers testified that
they pulled over [the defendant]”). A careful review of the
record developed in the trial court demonstrates that Detective
Ramos never provided any explanation for his decision to detain
Defendant and none appears to us from our view of the transcript
of Defendant’s second trial. As a result, given that the record
provides no justification for Detective Ramos’ decision to
pursue and initiate an investigative detention of Defendant, we
conclude that the trial court erred by failing to allow
Defendant’s motion to dismiss the speeding to elude arrest
charge at the conclusion of all of the evidence and that the
trial court’s judgment sentencing Defendant based upon his
conviction for felonious speeding to elude arrest should be
vacated.5
5 Our decision that the trial court should have allowed Defendant’s motion to dismiss the speeding to elude arrest charge for insufficiency of the evidence renders many of -16- B. Reckless Driving Conviction
In addition, Defendant contends that the trial court erred
by allowing the jury to convict him for reckless driving and by
entering judgment based upon his reckless driving conviction
given that the trial court lacked jurisdiction to proceed
against him on the basis of that reckless driving charge. In
support of this assertion, Defendant contends that the
challenged trial court decisions overlook the fact that the
reckless driving charge had been dismissed during his first
trial, so that there was no reckless driving charge pending
against him when this case was called for trial at the 30 April
Defendant’s remaining arguments moot. For example, Defendant’s contention that the trial court’s decision to enter judgment against him on the basis of his separate convictions for driving while license revoked and reckless driving despite the fact that these same offenses were used to enhance the speeding to elude arrest charge from a misdemeanor to a felony hinges upon a decision to uphold his felonious speeding to elude arrest conviction. Similarly, Defendant’s contention that the trial court erred by allowing the jury to find that he was guilty of felonious speeding to elude arrest on the grounds that he drove 100 miles per hour in a 55 mile per hour zone is rendered moot by our decision to invalidate his felonious speeding to elude arrest conviction and by the jury’s decision to acquit him of the speeding charge that had been lodged against him. Finally, although our decision that the record did not contain sufficient evidence to support Defendant’s conviction for felonious speeding to elude arrest obviates the necessity for us to address Defendant’s challenge to the trial court’s decision to sentence him as an habitual felon, we do note that the trial court erred by accepting Defendant’s admission to having attained habitual felon status without complying with the procedures for accepting a guilty plea set out in N.C. Gen. Stat. § 15A-1022(a). -17- 2013 criminal session of the Pender County Superior Court. Once
again, we conclude that Defendant’s contention has merit.
“Art. I, sec. 12 of our Constitution requires a bill of
indictment, unless waived, for all criminal actions originating
in the Superior Court,” with “a valid bill [being] necessary to
vest the court with authority to determine the question of guilt
or innocence.” State v. Bissette, 250 N.C. 514, 515, 108 S.E.2d
858, 859 (1959). As a result of the fact that the record
clearly reflects that the indictment purporting to charge
Defendant with reckless driving was dismissed during the course
of Defendant’s first trial and that the State never obtained
another indictment charging Defendant with reckless driving,
there was no valid indictment upon which Defendant could have
been tried for reckless driving at the 30 April 2013 criminal
session of the Pender County Superior Court. As a result, the
trial court erred by allowing Defendant to be tried for and
convicted of reckless driving at his second trial.
In seeking to persuade us to reach a different result with
respect to this issue, the State argues that, to the extent that
Defendant is attempting to argue that his reckless driving
conviction should be invalidated on double jeopardy grounds,
Defendant is not entitled to rely on such a contention because
he failed to raise it in the court below. In the alternative, -18- the State contends that Defendant’s conviction was valid because
the record contains a bill of indictment purporting to charge
Defendant with reckless driving. However, we do not find either
of these arguments persuasive.
As an initial matter, we do not understand Defendant’s
argument to rest on double jeopardy considerations. Instead,
Defendant clearly contends that the trial court lacked
jurisdiction to try him for reckless driving in light of the
fact that the record is devoid of a viable indictment charging
him with having committed that offense. According to well-
established principles of North Carolina law, “the issue of a
court’s jurisdiction over a matter may be raised at any time,
even for the first time on appeal or by a court sua sponte.”
State v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622
(2008). Finally, the mere presence of an indictment containing
the dismissed charge in the record does not suffice to establish
the trial court’s jurisdiction over the dismissed charge since
the continued presence of the indictment, which charges offenses
that have not been dismissed in addition to the charge that has
been dismissed, in the record does not in any way undercut the
earlier dismissal decision or reinstate the dismissed charge.
See, e.g., State v. Austin, 31 N.C. App. 20, 26-27, 228 S.E.2d
507, 512 (1976) (stating that, as “[d]efendant Thorne points -19- out, and the State concedes, . . . the indictment against him in
Case No. 75CR3585, which was returned as a true bill on 15 April
1975, was dismissed by the trial court on motion of defendant
prior to arraignment,” so that “the judgment entered in that
case must be vacated”). As a result, Defendant’s conviction for
reckless driving and judgment entered against Defendant based
upon that conviction must be vacated.6
III. Conclusion
Thus, for the reasons stated above, we conclude that the
trial court erred by denying Defendant’s motion to dismiss the
speeding to elude arrest charge that had been lodged against him
for insufficiency of the evidence, a determination that
undermines the validity of Defendant’s conviction for having
attained the status of an habitual felon, and by allowing the
jury to convict Defendant of reckless driving and by entering
judgment against Defendant based upon his conviction for
reckless driving.7 As a result, given that Defendant has not
6 In light of our decision to overturn the judgment stemming from Defendant’s reckless driving conviction for jurisdictional reasons, we need not address Defendant’s challenge to the validity of the trial court’s instructions with respect to the issue of Defendant’s guilt of reckless driving. 7 As we noted at the beginning of this opinion, Defendant also contended in his brief that he received constitutionally deficient representation from his trial counsel, with this contention predicated on the manner in which his trial counsel responded to the introduction of various certificates showing -20- challenged the validity of his convictions for driving while
license revoked or possession of drug paraphernalia or the trial
court’s judgment based upon the jury’s decision to find him
responsible for driving left of center, the trial court’s
judgment based upon his convictions for felonious speeding to
that Detective Ramos had completed various courses of instruction, the manner in which his trial counsel cross- examined Mr. Monteith concerning Defendant’s prior driving history, his trial counsel’s failure to object to the trial court’s instructions with respect to the reckless driving charge, and his trial counsel’s failure to make an adequate sentencing presentation. As a result of our decision to vacate Defendant’s speeding to elude arrest and reckless driving convictions and to remand this case to the Pender County Superior Court for resentencing, Defendant’s contentions relating to his trial counsel’s handling of the certificates awarded to Detective Ramos, his trial counsel’s failure to object to the trial court’s reckless driving instructions, and his trial counsel’s alleged failure to make an effective sentencing presentation have been rendered moot. Although we do not believe that our decision has mooted Defendant’s challenge to the manner in which his trial counsel cross-examined Mr. Monteith, we do not believe that there is any likelihood that Defendant would have been acquitted of driving while license revoked and possession of drug paraphernalia and found not responsible for driving left of center had the jury not heard the additional evidence concerning Defendant’s prior driving history elicited during the cross-examination of Mr. Monteith. State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000) (stating that a convicted criminal defendant is not entitled to relief on ineffective assistance of counsel grounds in the absence of a showing “that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error” (citing Strickland v. Washington, 466 U.S. 668, 691-96, 104 S. Ct. 2052, 2066-69, 80 L. Ed. 2d 674, 696-99 (1984))), cert. denied, 531 U.S. 1117, 121 S. Ct. 868, 148 L. E. 2d 780 (2001). As a result, Defendant is not entitled to any relief from his remaining convictions based upon the ineffective assistance of counsel claim asserted in his brief. -21- elude arrest, reckless driving, driving while license revoked,
and possession of drug paraphernalia should be, and hereby is,
vacated and this case should be, and hereby is, remanded to the
Pender County Superior Court for resentencing and the entry of a
new judgment based upon Defendant’s convictions for driving
while license revoked and possession of drug paraphernalia.
VACATED IN PART, NO ERROR IN PART, AND REMANDED FOR
RESENTENCING.
Judges MCGEE and STEELMAN concur.
Report per Rule 30(e).