State v. George ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-62
Filed 18 July 2023
Wayne County, Nos. 18 CRS 55019, 21 CRS 51204
STATE OF NORTH CAROLINA
v.
MARCUS D. GEORGE
Appeal by Defendant from Judgments entered 3 May 2022 by Judge William
W. Bland in Wayne County Superior Court. Heard in the Court of Appeals 23 May
2023.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Nicholas R. Sanders.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine
Jane Allen, for Defendant-Appellant; and Marcus D. George, pro se.
HAMPSON, Judge.
Factual and Procedural Background
Marcus D. George (Defendant) appeals from Judgments entered 3 May 2022
upon Defendant’s guilty plea to Possession with Intent to Sell and Deliver Heroin,
Possession with Intent to Sell and Deliver Cocaine, and two counts of Resisting a
Public Officer. The Record before us tends to reflect the following:
STATE V. GEORGE
Opinion of the Court
On 3 May 2022, pursuant to a plea arrangement, Defendant entered guilty
pleas to Possession with Intent to Sell and Deliver Heroin, Possession with Intent to
Sell and Deliver Cocaine, and two counts of Resisting a Public Officer.
The State provided a factual basis, stating in relevant part: On 8 December
2018, Deputy Mitchell with the Wayne County Sheriff’s Office observed a Jeep driven
by Defendant make a left turn without executing a turn signal. Deputy Mitchell did
not initiate his blue lights but followed the vehicle until the vehicle parked in front
of a residential property. Defendant did not exit the vehicle upon parking. Deputy
Mitchell approached the vehicle and asked for permission to search the vehicle;
Defendant consented. In the center console, Deputy Mitchell found a clear plastic
bag that contained a brown substance that he believed to be heroin based on his
training and experience. Deputy Mitchell attempted to detain Defendant, but
Defendant ran away. Defendant was ultimately apprehended and arrested.
Defendant stipulated the brown substance was heroin.
On 12 April 2021, around 12:51 a.m., officers with the Goldsboro Police
Department noticed an individual walking in the middle of the road. One of the
officers exited his patrol vehicle and approached the individual identified as
Defendant. The officer asked for consent to search Defendant, and he consented. The
officer located a large bulge in Defendant’s pocket. Defendant began to reach for the
bulge, and when the officer did not allow him to reach into his pocket, Defendant
“pushed off” and ran. Defendant was apprehended and detained. Several bags
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STATE V. GEORGE
Opinion of the Court
containing a powdered substance were found in his pockets. Defendant stipulated
the powdered substance was cocaine.
When asked by the trial court, Defendant offered nothing as to the factual
basis. The trial court accepted Defendant’s plea and consolidated the charges into
two Judgments entered 3 May 2022. The trial court orally sentenced Defendant to
two consecutive sentences of 20 to 33 months each.1
Acting consistently with the requirements set forth in Anders v. California,
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99,
331 S.E.2d 665 (1985), Defendant’s appellate counsel advised Defendant of his right
to file written arguments with this Court and provided Defendant with the
documents necessary for him to do so. She then filed an Anders brief with this Court
stating she was unable to find any meritorious issues for appeal, complied with the
requirements of Anders, and asked this Court to conduct an independent review of
the record to determine if there were any identifiable meritorious issues therein.
Defendant filed a pro se “Supplemental Brief” on 6 March 2023.
Issues
The dispositive issues on appeal are whether: (I) the trial court erred in failing
to institute a competency hearing sua sponte; (II) the Record is sufficient to review
1The written Judgment entered on 3 May 2022 in 18 CRS 55019 imposed a sentence of 20 to 22 months
of imprisonment. On 20 June 2022, the Department of Corrections identified the discrepancy between
the Written Judgment and oral sentencing. On 28 June 2022, the trial court entered an amended
Judgment imposing a sentence of 20 to 33 months of imprisonment.
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STATE V. GEORGE
Opinion of the Court
Defendant’s ineffective assistance of counsel (IAC) claims on direct review; and (III)
our independent review of the Record reveals any further issues.
Analysis
I. Lack of Competency Hearing
In his pro se brief, Defendant contends the trial court erred in failing to order
a mental examination of Defendant. We disagree.
N.C. Gen. Stat. § 15A-1002 provides in relevant part:
The question of the capacity of the defendant to proceed may be
raised at any time on motion by the prosecutor, the defendant,
the defense counsel, or the court. The motion shall detail the
specific conduct that leads the moving party to question the
defendant’s capacity to proceed. When the capacity of the
defendant to proceed is questioned, the court shall hold a hearing
to determine the defendant’s capacity to proceed.
N.C. Gen. Stat. § 15A-1002(a), (b)(1) (2021). The trial court has a “constitutional duty
to institute, sua sponte, a competency hearing if there is substantial evidence before
the court indicating the accused may be mentally incompetent.” State v. Heptinstall,
309 N.C. 231, 236, 306 S.E.2d 109, 112 (1983) (citations and quotation marks
omitted).
In the case sub judice, the capacity of Defendant was not questioned by any
party. Further, in accepting Defendant’s plea, the trial court extensively inquired as
to Defendant’s mental capacity and understanding of the proceedings. The trial court
engaged in the following colloquy with Defendant:
[THE COURT:] Are you able to hear and understand me?
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STATE V. GEORGE
Opinion of the Court
[DEFENDANT]: Yes, sir.
THE COURT: Do you understand that you have the right to
remain silent and that any statement you make may be used
against you?
[DEFENDANT]: Yes, sir.
THE COURT: At what grade level can you read and write?
[DEFENDANT]: Twelfth.
THE COURT: Did you graduate high school?
[DEFENDANT]: Yes, sir.
THE COURT: Are you now consuming -- using or consuming
alcohol, drugs, narcotics, medicines, including prescribed
medications, pills or any other substances?
[DEFENDANT]: Just medicine.
THE COURT: And the medicine I see you said something about
yesterday. Whatever medication you take --
[DEFENDANT]: Yes, sir.
THE COURT: Does that help you function better or does it impair
your ability to think clearly in any way.
[DEFENDANT]: No, it helps me function better.
THE COURT: It’s helpful. All right. So do you believe your mind
is clear and do you understand the nature of the charges and do
you understand every element of the charge?
[DEFENDANT]: For the most part.
THE COURT: Well, um . . . you probably need to do a little better
than that, um . . . are you --
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STATE V. GEORGE
Opinion of the Court
[DEFENDANT]: Well, you said we were going to talk about that,
you know.
THE COURT: Well, I am, but let -- let’s see . . . well, what are you
-- let’s just touch on that real quick. You’re pleading to possession
with intent to sell and deliver heroin. Do you have any question
about what that is?
[DEFENDANT]: No, sir (negative indication).
THE COURT: Okay. You’re pleading to resisting a public officer.
Any question about what that is?
[DEFENDANT]: (Negative indication).
THE COURT: You’re pleading to possession with intent to sell
and deliver cocaine. Do you have any question about what that
mean, that charge means?
[DEFENDANT]: (Negative indication).
THE COURT: And you’re charged again with resisting a public
officer in that case. And of course we’ll go through the factual
basis on these, but as you look at that do you understand what
those charges are, because that’s what you’re pleading to in
particular, do you understand the nature of the charges and what
they’re about, possession with intent to sell and deliver controlled
substance, and do you understand every element of these
charges?
(No audible response from [Defendant])
THE COURT: Is that yes? You feel good about that?
[DEFENDANT]: Yes, sir.
THE COURT: In your review with him, [defense counsel], do you
think he does?
[DEFENSE COUNSEL]: Yes, your Honor.
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STATE V. GEORGE
Opinion of the Court
On the Record before us, there is no indication Defendant lacked the capacity to enter
his plea. Thus, there was not “substantial evidence before the court indicating the
accused may be mentally incompetent.” Id. Therefore, the trial court did not err in
failing to institute a competency hearing sua sponte. Consequently, we affirm the
trial court’s Judgments.
II. Ineffective Assistance of Counsel
Defendant also raises various IAC claims. In general, claims of IAC should be
considered through motions for appropriate relief and not on direct appeal. See State
v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) (“The accepted practice
is to raise claims of ineffective assistance of counsel in post-conviction proceedings,
rather than direct appeal.”); State v. Ware, 125 N.C. App. 695, 697, 482 S.E.2d 14, 16
(1997) (dismissing the defendant’s appeal because issues could not be determined
from the record on appeal and stating that to “properly advance these arguments
defendant must move for appropriate relief pursuant to G.S. 15A-1415”). A motion
for appropriate relief is preferable to direct appeal because in order to
defend against ineffective assistance of counsel allegations, the
State must rely on information provided by defendant to trial
counsel, as well as defendant’s thoughts, concerns, and demeanor.
[O]nly when all aspects of the relationship are explored can it be
determined whether counsel was reasonably likely to render
effective assistance. Thus, superior courts should assess the
allegations in light of all the circumstances known to counsel at
the time of representation.
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STATE V. GEORGE
Opinion of the Court
State v. Buckner, 351 N.C. 401, 412, 527 S.E.2d 307, 314 (2000) (citations and
quotation marks omitted). “IAC claims brought on direct review will be decided on
the merits when the cold record reveals that no further investigation is required, i.e.,
claims that may be developed and argued without such ancillary procedures as the
appointment of investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131,
166, 557 S.E.2d 500, 524 (2001) (citations omitted). However, “should 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 MAR proceeding.” Id. at 167, 557 S.E.2d at 525 (citation
omitted).
In order to prevail on an IAC claim, Defendant “must show that counsel’s
representation fell below an objective standard of reasonableness” and “that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688,
694, 104 S.Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); see also State v.
Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985) (adopting Strickland
standard for IAC claims under N.C. Const. art. I, §§ 19, 23). Here, we are unable to
decide Defendant’s IAC claim based on the “cold record” on appeal. Fair, 354 N.C. at
166, 557 S.E.2d at 524 (citation omitted). We thus conclude, “further development of
the facts would be required before application of the Strickland test[.]” State v. Allen,
360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citation omitted). Therefore, we
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STATE V. GEORGE
Opinion of the Court
dismiss any IAC claims, without prejudice, to permit Defendant to pursue a motion
for appropriate relief in the trial court.
III. Independent Review
Our review of the Record on Appeal reveals a discrepancy in the Information
in file number 18 CRS 55019 alleging Possession of Heroin with Intent to Sell and
Deliver and Resist, Delay, or Obstruct a Public Officer. Specifically, in the Record
before us, on the last page of the Information containing the Prosecutor’s signature
and Defendant’s signature waiving his right to indictment the file number
“18CR55019” is manually crossed out and replaced by a handwritten file number
which is not entirely legible but includes “18 CRS __8079.”2 While this may be a
scrivener’s error, our independent review of the Record at least reveals this potential
issue of whether Defendant validly waived his right to indictment by a grand jury
specifically in file number 18 CRS 55019. See State v. Willis, 285 N.C. 195, 201, 204
S.E.2d 33, 37 (1974) (the trial court “acquires jurisdiction of the offense by valid
information, warrant, or indictment.”); see also N.C. Const. art. I, §. 22 (“Except in
misdemeanor cases initiated in the District Court Division, no person shall be put to
answer any criminal charge but by indictment, presentment, or impeachment. But
any person, when represented by counsel, may, under such regulations as the General
Assembly shall prescribe, waive indictment in noncapital cases.”); N.C. Gen. Stat. §
2The Information itself contains a number of handwritten revisions including the file number listed
on the other pages. These other pages, however, all reflect the file number 18 CRS 55019.
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STATE V. GEORGE
Opinion of the Court
15A-642(c) (2021) (“Waiver of indictment must be in writing and signed by the
defendant and his attorney. The waiver must be attached to or executed upon the
bill of information.”). Consequently, we remand this matter to the trial court to
ensure and clarify there is, in fact, a valid Information, including waiver of
indictment, in file number 18 CRS 55019.
Conclusion
Accordingly, for the foregoing reasons, we affirm the trial court’s Judgments
and dismiss any claims for ineffective assistance of counsel without prejudice to
Defendant’s right to file a motion for appropriate relief in the trial court.
Additionally, this matter is remanded to the trial court to ensure a valid Bill of
Information was, in fact, filed in 18 CRS 55019 including Defendant’s waiver of
indictment.
AFFIRMED IN PART; DISMISSED WITHOUT PREJUDICE IN PART;
REMANDED.
Judges FLOOD and RIGGS concur.
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