State v. Atkins ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1242
NORTH CAROLINA COURT OF APPEALS
Filed: 29 July 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 11 CRS 210032-37
DORAN ARTHUR ATKINS
Appeal by defendant from judgments entered 15 February 2013
by Judge Paul G. Gessner in Mecklenburg County Superior Court.
Heard in the Court of Appeals 17 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen N. Bolton, for the State.
Paul M. Green, for defendant-appellant.
CALABRIA, Judge.
Doran Arthur Atkins (“defendant”) appeals from judgments
entered upon jury verdicts finding him guilty of first degree
rape, second degree sex offense, and first degree kidnapping.
We find no error.
I. Background
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In February 2011, “Mary”1 stayed at a Salvation Army
homeless shelter in Charlotte, North Carolina. Defendant,
Mary’s boyfriend, stayed at a men’s shelter about a mile away.
On the evening of 26 February 2011, Mary and defendant walked to
a Shell station in Mecklenburg County. They argued, reconciled,
and started walking when defendant shoved Mary into an alleyway,
hit her in the head, and choked her with his hands. Mary
unsuccessfully tried to escape, but defendant threatened her
life with a broken bottle and choked her several times with his
belt until she lost consciousness. He also forced her to
perform fellatio twice and forced her to have intercourse while
the belt remained around her neck.
The next morning, defendant accompanied Mary to the Shell
station, but warned her that he would kill her if she tried to
contact law enforcement. While at the Shell station, Mary asked
a man to contact law enforcement for her because she had been
kidnapped, raped, and beaten. Shortly afterwards, Officer Amy
Aquino (“Officer Aquino”) of the Charlotte-Mecklenburg Police
Department (“CMPD”) arrived and detained defendant. CMPD
Officer Brian Koll also arrived and assisted Officer Aquino.
Mary was transported to the hospital, and a sexual assault
1
We use a pseudonym both to protect the victim’s privacy and for
ease of reading.
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evidence collection kit was taken.
Defendant was arrested and subsequently charged with first
degree rape, two counts of first degree sex offense, first
degree kidnapping, assault by strangulation, and assault on a
female. On 13 August 2012, defendant filed a motion to dismiss
for lack of a speedy trial. After a hearing on 22 August 2012,
the trial court denied defendant’s motion.
Defendant’s case was subsequently tried on 11 February
2013. The jury returned verdicts finding defendant guilty of
first degree rape, first degree sexual offense, second degree
sexual offense, first degree kidnapping, assault by
strangulation, and assault on a female. The State submitted a
Prior Record Level Worksheet for sentencing purposes. According
to the State, defendant had six points for three prior Class I
felonies from out-of-state convictions in West Virginia and
South Carolina. Defendant’s counsel expressly stipulated to
defendant’s prior convictions and that defendant qualified as a
Level III for sentencing. Defendant’s counsel did not object to
classifying the out-of-state offenses as Class I felonies.
The trial court arrested judgment for the first degree
sexual offense, assault by strangulation, and assault on a
female. Defendant was sentenced to a minimum of 317 months to a
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maximum of 390 months for the first degree rape offense; a
minimum of 96 months to a maximum of 125 months for the second
degree sexual offense; and a minimum of 96 months to a maximum
of 125 months for the first degree kidnapping offense. All of
defendant’s sentences were to be served in the custody of the
Division of Adult Correction. Defendant appeals.
II. Speedy Trial
Defendant argues that the trial court erred in denying his
motion to dismiss for lack of a speedy trial. We disagree.
The standard of review for an alleged constitutional
violation is de novo. State v. Graham, 200 N.C. App. 204, 214,
683 S.E.2d 437, 444 (2009). The Sixth Amendment to the United
States Constitution guarantees the right to a speedy trial. U.S.
Const. Amend. VI. Additionally, the North Carolina Constitution
provides defendants with the right to a speedy trial. N.C.
Const., art.1, sec. 18. “When reviewing speedy trial claims, we
employ the same analysis under both the Sixth Amendment and
Article I.” State v. Washington, 192 N.C. App. 277, 282, 665
S.E.2d 799, 803 (2008).
The United States Supreme Court devised a four-factor
balancing test analyzing speedy trial cases. Id. (citing Barker
v. Wingo, 407 U.S. 514, 530, 33 L.Ed.2d 101, 116-17 (1972)).
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The Barker factors are (1) the length of delay, (2) the reason
for the delay, (3) defendant’s assertion of his right to a
speedy trial, and (4) prejudice to the defendant. Id. No one
factor is dispositive in determining whether the accused has
been deprived of his right to a speedy trial. Id. If the
balancing test reveals a defendant’s right to a speedy trial was
violated, the remedy is dismissal. Id. at 298, 665 S.E.2d at
812.
In the instant case, defendant was arrested on 27 February
2011 and indicted on 7 March 2011. On 13 August 2012, defendant
filed a motion to dismiss for lack of a speedy trial.
Defendant’s motion was heard on 22 August 2012. Thus,
defendant’s incarceration prior to the hearing on his motion to
dismiss was approximately 17 months. Although the United States
Supreme Court has not set out a definite period for which a
delay will be deemed presumptively prejudicial, it is
acknowledged that delays approaching one year will suffice.
Doggett v. United States, 505 U.S. 647, 651 n.1, 120 L.Ed.2d
520, 528 n.1 (1992). See also State v. Webster, 337 N.C. 674,
679, 447 S.E.2d 349, 351 (1994) (sixteen month delay enough to
trigger examination of the other factors); State v. Pippin, 72
N.C. App. 387, 391, 324 S.E.2d 900, 904 (1985) (fourteen month
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delay between arrest and motion to dismiss granted). Since
defendant timely asserted his right to a speedy trial and the
pre-trial delay in this case was in excess of one year, we must
determine both the reason for the delay and whether the delay
was prejudicial to the defendant.
A. Reason for Delay
Some delay between arrest and trial is inevitable and
“[t]he constitutional guarantee does not outlaw good-faith
delays which are reasonably necessary for the State to present
its case.” State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251,
255 (2003) (citation omitted). “[A] defendant has the burden of
showing that the delay was caused by the neglect or willfulness
of the prosecution[,] [which may be rebutted with] evidence
fully explaining the reasons for the delay.” State v. Dorton,
172 N.C. App. 759, 764, 617 S.E.2d 97, 101 (2005) (quoting
Spivey, 357 N.C. at 119, 579 S.E.2d at 255). In addition, this
Court has held that trying older cases “is an appropriate method
of determining the order in which to dispose of cases.” Id. at
764, 617 S.E.2d at 101.
In Spivey, the defendant’s case was delayed four and one-
half years because the court docket was “clogged with murder
cases.” Spivey, 357 N.C. at 119, 579 S.E.2d at 255. According
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to its policy, “[t]he district attorney[’s office] dealt with
the cases in chronological order, beginning with the oldest.”
Id. at 120, 579 S.E.2d at 255. The Court held that since the
delay was caused by “neutral factors,” the defendant “failed to
present any evidence that the delay was caused by the State’s
neglect or willfulness.” Id. at 121, 579 S.E.2d at 256.
In the instant case, defendant argued at the hearing that
the only reason for the delay was the prosecution’s failure to
call the case for trial. Defendant presented evidence of
statistics from the office of the Trial Court Administrator
regarding courtroom usage and the Mecklenburg County District
Attorney’s policy of hearing adult rape cases in teams on
alternating weeks. Defendant specifically argued that the
District Attorney’s office’s strategy of splitting the assistant
district attorneys (“ADAs”) into “teams” and rotating their
court appearances for adult rape cases was a misuse of courtroom
time that denied defendants their rights to speedy trial.
The State rebutted defendant’s arguments with evidence
regarding hearing cases in chronological order, as well as the
arrest dates of twelve of the cases that preceded defendant’s
arrest date. The State also presented evidence regarding case
assignments and reports. Defendant’s case was assigned to Ms.
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Pendergrass, an ADA who was hospitalized on medical leave for
several months. Prior to her medical leave, the State had not
received the DNA report from Mary’s sexual assault evidence
collection kit. The DNA report was necessary for the State to
present its case at defendant’s trial. Since Ms. Pendergrass
was on medical leave, another formerly retired ADA, Mr. Cook,
was hired to assist with her caseload during the time she was
gone. The DNA report from Mary’s sexual assault evidence
collection kit and the substitution of another ADA for one on
medical leave were both neutral factors. Therefore, the State’s
explanation regarding the District Attorney’s policy for
scheduling cases was an appropriate reason for the delay. In
addition, the State’s delay while waiting for evidence and
substituting an ADA can both be considered good faith delays.
Defendant has failed to show that the State neglected or
willfully delayed his trial.
B. Prejudice to Defendant
The purposes of the right to a speedy trial are: (1) to
prevent oppressive pretrial incarceration; (2) to minimize
anxiety and concern of the accused; and (3) to limit the
possibility that the defense will be impaired. Dorton, 172 N.C.
App. at 765, 617 S.E.2d at 101 (citing Barker, 407 U.S. at 532,
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33 L.Ed.2d at 118). “[T]he test for prejudice is whether
significant evidence or testimony that would have been helpful
to the defense was lost due to delay.” State v. Hammonds, 141
N.C. App. 152, 162-63, 541 S.E.2d 166, 174-75 (2000) (citation
omitted).
In Hammonds, the defendant argued that his defense was
prejudiced in part by the death of the State’s principal
investigator while his trial was delayed for over four years.
Id. at 163, 541 S.E.2d at 175. However, the State presented
evidence at trial through other investigators who “testified to
the same events and observations sought by [the] defendant[.]”
Id. at 163, 541 S.E.2d at 175. Therefore, while this Court did
not condone the length of the delay, the State presented
evidence regarding the same events and observations sought by
defendant. Id. at 163-64, 541 S.E.2d at 175. The Court held
that the defendant was not prejudiced by the death of the
State’s principal investigator. Id.In the instant case, defendant does not argue that his pre-
trial incarceration was oppressive or that he had any anxiety or
particular concerns except for his concerns regarding his
mother’s testimony. Specifically, defendant’s mother could have
testified regarding Mary’s credibility and that Mary had used
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crack cocaine.
At trial, Mary testified as the State’s witness, and the
evidence she presented included some of the same information
defendant contends would have been his mother’s testimony.
According to Mary, she had been dating defendant for two years
and they engaged in consensual sexual intercourse. She also
testified that she loved defendant and that they had expressed
that love for one another just prior to the assault. Mary also
admitted to using crack cocaine three days before the assault
occurred.
Susan Lewis-Kafuko (“Lewis-Kafuko”), a friend of
defendant’s sister, testified on defendant’s behalf. Lewis-
Kafuko testified that she had spent the afternoon of 26 February
2011 with Mary and defendant. During that time, Lewis-Kafuko
witnessed the couple express love towards one another and
discuss their plans of moving in together and establishing a
family together.
Both Mary and Lewis-Kafuko testified to the same events and
observations sought by defendant regarding his mother’s
testimony. Moreover, Mary had first-hand knowledge of the
events that occurred, while defendant’s mother only had first-
hand knowledge of their relationship and was not a witness to
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the events that led to defendant’s arrest. Furthermore,
defendant does not dispute Mary’s testimony on appeal. Since
defendant fails to dispute Mary’s testimony or show how his
mother’s testimony would have been helpful to his defense, the
loss of his mother’s testimony did not prejudice his defense.
In balancing all of the Barker factors, neither the reason
for the delay nor the prejudice to the defendant weighs against
the State. Therefore, we hold that the trial court did not err
in denying defendant’s motion to dismiss for lack of a speedy
trial.
III. Sentencing
Defendant also argues that the trial court erred in
calculating his prior record level. Specifically, defendant
contends the out-of-state charges used in this calculation
should have been considered misdemeanors rather than felonies.
We disagree.
The standard of review for the determination of a prior
record level is de novo. State v. Bohler, 198 N.C. App. 631,
633, 681 S.E.2d 801, 804 (2009). A determination regarding a
defendant’s prior record level must be supported by competent
evidence. Id. at 633, 681 S.E.2d at 804.
“[A] conviction occurring in a jurisdiction other than
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North Carolina is classified as a Class I felony if the
jurisdiction in which the offense occurred classifies the
offense as a felony.” N.C. Gen. Stat. § 15A-1340.14(e) (2013).
The State is “not required to show that the [out-of-state]
offenses were ‘substantially similar’ to North Carolina offenses
[if] the prosecution only classifie[s] the convictions at the
default level, Class I.” State v. Hinton, 196 N.C. App. 750,
755, 675 S.E.2d 672, 675-76 (2009) (citation omitted). If the
State submits a felony conviction from another jurisdiction
under the default classification of a Class I felony, it has
“met its burden and [is] required to prove nothing further in
support of that classification.” State v. Threadgill, ___ N.C.
App. ___, ___, 741 S.E.2d 677, 681 (2013). However, “[i]f the
offender proves by the preponderance of the evidence that an
offense classified as a felony in the other jurisdiction is
substantially similar to an offense that is a misdemeanor in
North Carolina, the conviction is treated as that class of
misdemeanor for assigning prior record level points.” N.C. Gen.
Stat. § 15A-1340.14(e).
The State must prove, by a preponderance of the evidence,
that the prior convictions exist and the offender before the
court is the person previously convicted. N.C. Gen. Stat. §
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15A-1340.14(f) (2013). Acceptable methods of proving prior
convictions include presenting copies of records maintained by
the Division of Criminal Information (“DCI”) and stipulating to
the existence of these offenses. Id.
In the instant case, defendant contends that an out-of-
state shoplifting offense and weapons offense should have been
classified as misdemeanors because the equivalent North Carolina
offenses are misdemeanors. However, defendant presented no
evidence to show that these offenses were substantially similar
to any North Carolina offenses. The State presented copies of
records maintained by DCI showing that defendant’s out-of-state
offenses were felonies in their respective jurisdictions.
Defendant’s counsel stipulated that defendant had six points
according to the prior record level worksheet, and that
defendant had a Prior Record Level III for sentencing.
Therefore, the offenses were properly classified as default
Class I felonies.
Defendant’s final contention is that his counsel’s
stipulation to the existence of these felony convictions was
ineffective assistance of counsel. However, defendant fails to
explain how this stipulation satisfies the two-part test set
forth in State v. Braswell. See Braswell, 312 N.C. 553, 562,
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324 S.E.2d 241, 248 (1985) (holding “the defendant must show
counsel’s performance was deficient . . . [and] the deficient
performance prejudiced the defense.”). Therefore, this argument
is without merit.
IV. Conclusion
Although this Court does not condone the State’s delay,
neither the reason for the delay nor the alleged prejudice to
the defendant denied defendant his right to a speedy trial.
Therefore, the trial court did not err in denying defendant’s
motion to dismiss. In addition, the State presented sufficient
evidence of defendant’s prior record level, and counsel
stipulated to defendant’s prior record level. Accordingly, the
trial court did not err in sentencing defendant as a Prior
Record Level III.
No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).