State v. Farmer

738 S.E.2d 829

STATE of North Carolina

v.William Joseph FARMER.

No. COA12–1067.

Court of Appeals of North Carolina.

March 5, 2013.

Appeal by Defendant from Judgments signed 11 April 2012 by Judge Mark E. Klass in Cabarrus County Superior Court. Heard in the Court of Appeals 14 February 2013.

Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

Gerding Blass, PLLC, by Danielle Blass, for Defendant.

STEPHENS, Judge.

Evidence and Procedural History

On 30 January 2011, Officer M.J. Greer (“Officer Greer”) was patrolling in the Concord Mills district of Cabarrus County. Around 4:00 a.m., he watched a Dodge pickup truck make a left turn and travel onto the wrong side of the road and into oncoming traffic. Officer Greer stopped the vehicle and asked for the driver's registration and license. Defendant William Joseph Farmer (“Defendant”) was later identified as the driver of the vehicle.

When Officer Greer approached the truck, Defendant presented with red and glassy eyes, slurred speech, and an odor of alcohol. Officer Greer requested that Defendant perform a number of field sobriety tests and, as a result, determined that Defendant was “appreciably impair[ed].” Defendant was arrested for driving while impaired (“DWI”).

Afterward, Defendant was taken to the Cabarrus County jail where Officer Greer informed him of his rights. Around 5:00 a.m., Defendant took a breath test, which showed that he had an alcohol content of 0.12. Defendant was charged with DWI and taken to the magistrate, who revoked his Class A, commercial driver's license (“CDL”) for thirty days pursuant to N.C. Gen.Stat. § 20–16.5 (2011).

Defendant filed a motion to dismiss the DWI charge on 12 March 2012, citing to “double jeopardy, equal protection & due process.” ¹ The motion to dismiss alleged that Defendant's CDL was the basis of his employment and his sole means of support. It further alleged that the North Carolina Department of Motor Vehicles (“DMV”) had sent Defendant a letter on 1 February 2011, informing him that he was “immediately disqualified from possessing a CDL for one year” pursuant to N.C. Gen.Stat. § 20–17.4(a)(7) (2011), which prohibits an individual from driving a commercial motor vehicle for one year when that person has received a civil license revocation under section 20–16.5. ² Defendant's trial counsel argued that the DWI case, which could result in “additional” criminal penalties against Defendant, violated the prohibition against double jeopardy as contained in the constitutions of the United States and the State of North Carolina because Defendant had already been punished by the State via the DMV's one-year disqualification of Defendant's CDL. Counsel failed to argue the motion at trial, however, and did not seek a ruling from the trial court on the motion to dismiss.

On 11 April 2012, Defendant was found guilty of DWI and sentenced to sixty days in prison. That sentence was suspended, and Defendant was placed on probation for twelve months. Defendant appeals.

Discussion

I. Ineffective Assistance of Counsel

Defendant makes two arguments on appeal. First, Defendant contends that his trial attorney provided ineffective assistance of counsel (“IAC”) by filing a pre-trial motion on the issue of double jeopardy, but failing to either argue that issue at trial or seek a ruling from the trial court on the motion. Second, Defendant asserts that, notwithstanding the issue of IAC, the case should be remanded to the trial court for correction of a clerical error. We address these arguments in the order they are presented.

To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and quotation marks omitted), cert. denied,549 U.S. 867, 166 L.Ed.2d 116 (2006). In addition, we note that “[d]ecisions concerning which defenses to pursue ... are not generally second-guessed by [the appellate] Court.” State v. Prevatte, 356 N.C. 178, 236, 570 S.E.2d 440, 472 (2002), cert. denied,538 U.S. 986, 155 L.Ed.2d 681 (2003).

In order for Defendant to show that his trial attorney's actions were objectively unreasonable, he must “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689, 80 L.Ed.2d 674, 694–95 (1984) (citation omitted). When grappling with that presumption, the United States Supreme Court has instructed us that “[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Id.

Despite the presumption against a finding of IAC, Defendant contends here that his trial counsel's performance fell below an objective standard of reasonableness. In support of his assertion, Defendant contends “[t]here can be no tactical or strategic advantage to failing to argue for dismissal based on double jeopardy .” Defendant neither points to information in the record nor provides further argument in his brief to support this contention.

We are bound by the record presented on appeal. State v. Gillis, 158 N.C.App. 48, 55, 580 S.E.2d 32, 37–38 (2003) (citation omitted) (“[T]his Court is bound on appeal by the record on appeal as certified and can judicially know only what appears in it.”). In addition, we have stated with regard to claims of IAC that we are limited in our review to those cases in which “the cold record reveals that no further investigation is required.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied,535 U.S. 1114, 153 L.Ed.2d 162 (2002). We note that, “[b]ecause of the nature of IAC claims, defendants likely will not be in a position to adequately develop many IAC claims on direct appeal.” Id. at 167,557 S.E.2d at 525. “[S]hould the reviewing court determine that IAC claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's right to reassert them during a subsequent [motion for appropriate relief (“MAR”) ] proceeding.” Id.; see also State v. Stroud, 147 N.C.App. 549, 553, 557 S.E.2d 544, 547 (2001) (citation omitted) (“In general, claims of [IAC] should be considered through motions for appropriate relief and not on direct appeal.”).

In this case, the record is lacking on the question of whether the conduct...