State v. Limani ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
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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
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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.
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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.
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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).
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“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,
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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
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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.
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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
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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).