State v. Williams

STATE OF NORTH CAROLINA

v.DENNIS MICHAEL WILLIAMS

NO. COA10-154 0

Harnett County No. 09 CRS 53835; 53869

Harnett County No. 10 CRS 526-527

NORTH CAROLINA COURT OF APPEALS

Filed: August 16, 2011

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Appeal by Defendant from Judgments entered 12 May 2010 by Judge Lindsay R. Davis, Jr., in Harnett County Superior Court. Heard in the Court of Appeals 27 April 2011.

Attorney General Roy Cooper, by Special Deputy Attorney General James A. Wellons, for the State.

Parish & Cooke, by James R. Parish, for Defendant-appellant.

HUNTER, JR., Robert N., Judge.

Dennis Michael Williams ("Defendant") appeals from Judgments entered after return of jury verdicts finding him guilty of robbery with a dangerous weapon, attempted common law robbery, and attaining habitual felon status andhabitual violent felon status. We find no error in part, and dismiss without prejudice, in part.

I. Facts and Procedural History

On 6 August 2009 at approximately 3:30 p.m., Defendant entered the I-Mart BP service station at 501 Spring Branch Road in Dunn, North Carolina. The cashier, Judy Carolyn Miller ("Miller"), greeted Defendant, but he did not reply. Defendant shook hands with some customers and left without purchasing any items. Miller's boyfriend, Floyd Barefoot ("Barefoot"), arrived at the store to keep Miller company and planned to stay with Miller until the station closed at 10:00 p.m.

Defendant re-entered the store at approximately 9:40 p.m., approached the cash register, and stood behind another customer in line. Miller testified that after the other customer left, Defendant pulled a white sock concealing a long object from under his shirt, pointed it at Barefoot, and told him to "hit the floor." He then ordered Miller to open the cash register. Miller asked Defendant if he was joking, and he repeated his previous instructions. Defendant asked Miller to open the register a third time, and Miller pointed out the surveillance cameras in the store to Defendant. When two other customers entered the store, Defendant left without takinganything. Shortly after Defendant left the store, Miller contacted the police.

Later that evening at approximately 10:00 p.m., Defendant approached the front desk of the Hampton Inn in Dunn, North Carolina, where Linda Carol McCann ("McCann") was working alone. After all other guests left the lobby, Defendant approached McCann and asked her how much a room would cost. When she began to recite the room prices, Defendant placed something "long and shiny" cloaked in a sock on the counter. McCann then asked Defendant if he was committing a robbery, and he replied affirmatively. Defendant pointed the sock-cloaked object at McCann, who opened her cash drawer and gave it to Defendant. Defendant took the cash drawer, which contained approximately $700 in cash and $200 in gas cards, and left the premises. McCann then contacted the police and her supervisor provided the police with a surveillance video recorded during the incident.

Detective Regina Autry of the Dunn Police Department arrested Defendant on 12 August 2009. No gun was found during the arresting officer's investigation. On 13 August 2009, Defendant was declared indigent and Marshall Miller was appointed as Defendant's counsel. Although the record does not provide a reason, Defendant's first court-appointed attorney was replaced by Jeff Stall in a 15 December 2009 Order. On 22 February 2010, a Harnett County Grand Jury indicted Defendant for robbery with a dangerous weapon and attempted robbery with a dangerous weapon, pursuant to N.C. Gen. Stat. §§ 14-87 and 14-2.5, and for attaining the status of a habitual felon and violent habitual felon, pursuant to N.C. Gen. Stat. §§ 14-7.1 and 14-7.7. The State made a plea offer to Defendant, which he rejected contrary to Stall's advice.

On 15 March 2010, Stall filed a Motion to Withdraw as Counsel of Record after Defendant wrote him a letter stating he no longer wanted Stall as his attorney. On 27 April 2010, the trial court heard arguments on the Motion at a pretrial motions hearing. Stall stated he and Defendant had a "difference in opinion" regarding the law.

When asked by the trial court why he sought new counsel, Defendant claimed his counsel lied to him on several occasions. The trial court inquired further, and Defendant alleged Stall lied to him every time he visited Defendant. Defendant specifically said, "He told me he was going to get my bond reduction. He was going to come back and see me. Told me three or four different times he would come see me, do things, but he never done either one ofthem." After listening to these explanations from Stall and Defendant, the judge denied the Motion to Withdraw.

On 10 May 2010, Defendant's case came on for trial in Harnett County Superior Court. At the conclusion of the State's evidence, Defendant made a Motion to Dismiss. The trial court denied the Motion as to 09 CRS 93835, robbery with a dangerous weapon of McCann. The trial court allowed the Motion as to 09 CRS 53869, attempted robbery with a dangerous weapon of Miller and Barefoot, but allowed the case to proceed on the lesser-included offense of attempted common law robbery.

During closing arguments, which are not reported in the transcript, Defendant's counsel allegedly admitted Defendant's guilt as to the first element of robbery with a dangerous weapon. Immediately after closing arguments, the trial judge asked the jury to leave the courtroom. He then asked Defendant's counsel if he had "admitted to element number one[.]" Counsel answered that he believed he had and apologized. The trial court then asked Defendant whether he agreed with his counsel's "concession of element number one of the charge, robbery with a deadly weapon[.]" Defendant replied, "Yes, sir. I agree with that. I'm guilty of the crime, not of the robbery with a dangerous weapon." Defendant's counsel then stated he intended toconcede Defendant's guilt to common law robbery. When asked if he agreed with that decision, Defendant stated, "Yes, sir. He's the lawyer, whatever he thinks is best."

After the jury re-entered the courtroom, the judge promptly asked the jury to leave again and held an unrecorded bench conference with Defendant's attorney and the prosecutor. After the bench conference, the judge asked if he understood correctly that Defendant was choosing not to admit the charge of common law robbery. Defendant's attorney responded affirmatively. The judge then instructed the jury to disregard any arguments from Defendant's counsel that could be construed as an admission of any element of an offense. After eight minutes of deliberation, the jury returned guilty verdicts as to robbery with a dangerous weapon and attempted common law robbery. In a second phase of the trial, the jury found Defendant guilty of attaining the status of habitual felon and violent habitual felon. The trial court sentenced Defendant to life imprisonment without parole. Defendant gave oral notice of appeal in open court.

II. Jurisdiction and Standard of Review

This Court has jurisdiction over the present matter pursuant to N.C. Gen. Stat. § 7A-27(b) (2009). We examine a trial court's decision on a counsel's motion to withdrawfor abuse of discretion. State v. Skipper, 146 N.C. App. 532, 537, 553 S.E.2d 690, 693 (2001). A trial court abuses its discretion if its determination is "manifestly unsupported by reason and is so arbitrary that it could not have been the result of a reasoned decision." State v. Cummings, 361 N.C. 438, 447, 648 S.E.2d 788, 794 (2007) (citation and quotation marks omitted).

When a claim of ineffective assistance of counsel is brought on direct review, it "will be decided on the merits when 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). "[O]n direct appeal, the reviewing court ordinarily limits its review to material included in the record on appeal and the verbatim transcript of proceedings, if one is designated." Id. at 167, 557 S.E.2d at 524-25 (citation and quotation marks omitted); see N.C. R. App. P. 9(a) (2011) (stating our "review is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to this Rule 9").

The trial court's findings of fact are conclusive on appeal if they are supported by competent evidence. Powers v. Tatum, 196 N.C. App. 639, 648, 676 S.E.2d 89, 95, disc. rev. denied, 363 N.C. 583, 681 S.E.2d 784 (2009).Additionally, "findings of fact to which [the appellant] has not assigned error and argued in his brief are conclusively established on appeal." Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 603, 568 S.E.2d 305, 308 (2002). The trial court's legal conclusions receive de novo review. State v. Newman, 186 N.C. App. 382, 386, 651 S.E.2d 584, 587 (2007).

III. Analysis

On appeal, Defendant argues that he was denied effective assistance of counsel as guaranteed by the Sixth Amendment of the U.S. Constitution and Article I of the North Carolina Constitution. Specifically, Defendant first contends he was denied effective assistance of counsel when the trial court denied his attorney's 15 March 2010 Motion to Withdraw. Defendant further argues he was denied effective assistance of counsel because his attorney admitted Defendant's guilt in closing arguments. We find no error as to the first claim, and dismiss the second claim without prejudice to Defendant's right to file a motion for appropriate relief.

A. Defense Counsel's Motion to Withdraw

Defendant argues he did not receive effective assistance of counsel when the trial court denied defensecounsel's Motion to Withdraw as Counsel of Record. We disagree.

The ...