State v. Vandyke ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-414
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Rutherford County
Nos. 04-CRS-55985, 55989-91
DENNIS ROGER VANDYKE
Defendant
Appeal by Defendant from judgment entered 7 November 2013
by Judge Wayne Abernathy in Rutherford County Superior Court.
Heard in the Court of Appeals 8 September 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Scott T. Slusser, for the State.
Charlotte Gail Blake for Defendant.
BELL, Judge.
Dennis Roger Vandyke (“Defendant”) appeals from his
convictions for assaulting a law enforcement officer with a
firearm, discharging a weapon into occupied property, felony
fleeing to elude arrest, and the related misdemeanors of driving
while his license was revoked and driving with a fictitious tag.
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On appeal, Defendant argues that (1) his trial attorney’s
stipulation to his prior felony conviction, which later became
irrelevant, deprived him of his constitutional right to
effective assistance of counsel; and (2) the trial court erred
in trying and sentencing him for the misdemeanor charges of
driving while his license was revoked and driving with a
fictitious tag after the statute of limitations for bringing
these charges had expired. After careful review, we conclude
that Defendant received a fair trial free from prejudicial
error.
Factual Background
The State presented evidence at trial tending to establish
the following facts: On 19 November 2004, Defendant went to the
office of Danielle Rogers-Berkowitz (“Dr. Rogers”), his
chiropractor, located in Forest City, North Carolina, for a
follow-up visit. When Defendant drove into the parking lot that
day, Dr. Rogers asked one of her staff members to call the
police because “[Defendant] was acting strange and had caused
some concern” at her office.
Officers Jamie Dunn (“Officer Dunn”) and Robert Davis
(“Officer Davis”) of the Forest City Police Department received
the call and reported to the scene. Officer Dunn had had
several previous encounters with Defendant and immediately
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recognized him standing outside his van. However, Officer Dunn
did not want to confront Defendant in the parking lot in the
vicinity of the general public. After a few minutes, Defendant
entered his vehicle and began to drive out of the parking lot.
At this point, Officer Dunn notified Officer Davis that
Defendant was leaving the parking lot and coming toward his
location.
Officer Davis decided to stop Defendant’s van because its
license plate belonged to a different vehicle that was not
registered in Defendant’s name. When Defendant refused to pull
over, Officer Davis activated his siren and pursued Defendant.
The chase ultimately ended near Defendant’s home on Atlas Drive.
Officer Dunn, having had previous encounters with Defendant and
believing he was dangerous, had already requested that the
dispatcher send officers to Defendant’s home.
At one point during the chase, Defendant drove down a dirt
road, stopped his van, and shot at Officer Davis’ patrol vehicle
from inside his van. The officers later found Defendant’s
unoccupied van with the driver’s side door open and the back
windshield missing. Defendant was arrested near his home and a
shotgun was found about 20 to 25 meters from the location at
which Defendant was taken into custody.
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On 8 December 2004, a motion was filed and an order was
entered requiring Defendant to undergo a forensic evaluation to
determine his capacity to proceed to trial. On 5 January 2005,
Defendant was admitted to the pre-trial unit of Dorothea Dix
Hospital and evaluated by Drs. Charles Vance (“Dr. Vance”) and
Maureen Lyons Reardon (“Dr. Reardon”). Drs. Vance and Reardon
diagnosed Defendant as suffering from undifferentiated
schizophrenia and discharged him to the custody of the Sheriff
of Rutherford County as incapable of proceeding to trial. Drs.
Vance and Reardon also recommended that Defendant be committed
to an inpatient psychiatric facility for treatment to restore
his capacity.
On 20 January 2005, the trial court entered an order
finding Defendant incapable of proceeding to trial so Defendant
was involuntarily committed at Broughton Hospital. At this
time, the State dismissed all charges against Defendant with
leave to refile.
After Defendant’s release from Broughton Hospital, federal
law enforcement officers brought charges against Defendant for
federal firearms violations. Defendant pled guilty and spent
approximately seven years in federal custody. On 4 January
2012, after Defendant was released from federal custody, the
State reinstated all charges against Defendant.
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On 29 October 2012, a grand jury indicted Defendant for (1)
assaulting a law enforcement officer with a firearm; (2)
discharging a weapon into occupied property; (3) fleeing to
elude arrest; (4) possessing a firearm as a convicted felon; and
(5) the related misdemeanors of driving with his license revoked
and driving with a fictitious tag.
Defendant’s case came on for trial on 5 November 2013. At
the beginning of his trial, the State and Defendant’s counsel
agreed to stipulate to Defendant’s prior felony conviction,
thereby establishing one of the elements of Defendant’s charge
of possessing a firearm while being a convicted felon. The
parties agreed that the jury would only hear the fact that
Defendant had a prior felony conviction but not the nature of
the felony — fleeing to elude arrest.
At trial, Defendant testified on his own behalf. During
his testimony, Defendant admitted that he had previously pled
guilty to and served a sentence for a federal charge of
possessing a firearm as a convicted felon arising from the same
events for which he was currently on trial.
After the close of all the evidence, but before the
delivery of the jury instructions, the trial court determined
that under the North Carolina statute in place in 2004,
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Defendant could not be convicted of possession of a firearm by a
convicted felon and dismissed that charge.
On 7 November 2013, the jury returned a verdict finding
Defendant guilty of each remaining charge, including the
misdemeanor offenses. That same day, the trial court sentenced
Defendant to two concurrent sentences of 34 to 50 months
imprisonment based upon his felony convictions for assaulting a
law enforcement officer and discharging a weapon into occupied
property. In its judgment, the trial court consolidated
Defendant’s misdemeanor convictions for driving with a revoked
license and driving with a fictitious tag with his conviction
for felony fleeing to elude arrest. For these convictions,
Defendant was sentenced to an additional consecutive term of 8
to 10 months imprisonment. Defendant gave notice of appeal in
open court.
Analysis
I. Ineffective Assistance of Counsel
Defendant first argues that he received ineffective
assistance of counsel due to his trial counsel’s stipulation
that he had a prior felony conviction, which later became
irrelevant given that the trial court later concluded that
Defendant could not be successfully prosecuted for possession of
a firearm by a convicted felon under the version of the
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applicable statute that was in effect on 19 November 2004 and
dismissed that charge. Specifically, Defendant contends that he
was prejudiced by his trial counsel’s action, as the jury would
not have otherwise learned of his prior felony conviction but
for his trial counsel’s stipulation. We disagree.
In order to prevail on a claim for ineffective assistance
of counsel,
a defendant must show that (1) defense
counsel’s ‘performance was deficient,’ and
(2) ‘the deficient performance prejudiced
the defense.’ Counsel’s performance is
deficient when it ‘falls below an objective
standard of reasonableness.’ Deficient
performance prejudices a defendant when
there is ‘a reasonable probability that, but
for counsel’s unprofessional errors, the
result of the proceeding would have been
different.’
State v. Waring, 364 N.C. App. 443, 502, 701 S.E.2d 615, 652
(2010) (citing and quoting Strickland v. Washington, 466 U.S.
668, 687, 691, 80 L. Ed. 2d 674, 693, 698 (1984)).1
1
In apparent recognition of the difficulty that he faces in
satisfying the prejudice component of the test enunciated in
Strickland, as discussed in the text of this opinion, Defendant
argues that his trial counsel’s decision to stipulate to his
prior felony conviction constituted such a complete failure “to
subject the prosecution’s case to meaningful adversarial
testing” as to obviate the necessity for a showing of prejudice.
Cronic v. United States, 466 U.S. 648, 659, 80 L. Ed. 2d 657,
674 (1984). However, the record in this case does not show the
“complete” failure on the part of Defendant’s trial counsel to
subject the State’s case to adversarial testing necessary to
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Our Supreme Court has stated that “if a reviewing court can
determine at the outset that there is no reasonable probability
that in the absence of counsel’s alleged errors the result of
the proceeding would have been different, then the court need
not determine whether counsel’s performance was actually
deficient.” State v. Brasswell, 312 N.C. 553, 563, 324 S.E.2d
241, 249 (1985).
Defendant argues that his trial counsel’s failure to
recognize that he could not be convicted of being a felon in
possession of a firearm under the 2004 North Carolina statute —
thereby making the stipulation to his prior felony conviction
irrelevant — constituted ineffective assistance of counsel
because the jury would not have been made aware of his prior
felony conviction had his trial counsel not stipulated to it.
However, after carefully reviewing the record, we conclude that
his trial counsel’s stipulation did not adversely affect
Defendant’s chances for a more favorable outcome at trial and,
trigger the application of the principle enunciated in Cronic.
Bell v. Cone, 535 U.S. 685, 696-97, 152 L. Ed. 2d 914, 928
(2002). As a result, given that Defendant’s trial counsel did
not “fail[] to oppose the prosecution throughout the [trial] as
a whole,” but rather, according to Defendant, “failed to do so
at [a] specific point,” id. at 697, 152 L. Ed. 2d at 928,
Strickland, rather than Cronic, is controlling with respect to
this claim.
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therefore, Defendant was not prejudiced by his trial counsel’s
performance.
The State’s evidence tends to show that, when law
enforcement officers attempted to stop Defendant based on the
tip that they had received from Dr. Rogers’ office, Defendant
attempted to elude the officers. At one point during the
ensuing high speed chase, Defendant fired a shot at Officer
Davis’ patrol vehicle. A shotgun was found in close proximity
to Defendant at the time that he was taken into custody.
Because an officer involved in chasing and apprehending
Defendant knew him, there was little chance that he was the
victim of a mistaken identification, as Defendant’s trial
testimony tends to suggest. Aside from the strength of the
State’s case, Defendant testified on his own behalf at trial and
disclosed information about his prior federal felony conviction,
which the State could have used for impeachment purposes.
Moreover, the jury was specifically instructed that a prior
felony conviction was not evidence of Defendant’s guilt on the
charges, thereby insulating Defendant from any possible
prejudice, when the trial court gave the following limiting jury
instruction:
As you may recall, there was a stipulation
entered by the attorneys earlier that the
defendant had previously been convicted of a
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felony. A prior conviction is not evidence
of the defendant’s guilt in this case on
these charges. You may not convict a
defendant on the present charges because of
something he may have done in the past.
Finally, the charge against Defendant for which the
stipulation was an essential element — possessing a firearm as a
convicted felon — was ultimately dismissed by the trial court.
As such, Defendant’s argument that a different result would have
been probable had his trial counsel not stipulated to his prior
felony conviction is without merit.
The State presented ample evidence at trial from which a
jury could convict Defendant of assaulting a law enforcement
officer with a firearm, discharging a weapon into occupied
property, feloniously fleeing to elude arrest, driving while his
license was revoked, and driving a vehicle with a fictitious
tag. Defendant has not shown that there is a reasonable
probability that the jury would have reached a different result
had his trial counsel not stipulated to his prior felony
conviction. Accordingly, this argument is overruled.
II. Prosecution of Misdemeanors after Expiration of Statute of
Limitations
Defendant’s final argument on appeal is that the trial
court erred in trying and sentencing him for his misdemeanor
charges of driving while his license was revoked and driving
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with a fictitious tag after the statute of limitations had
expired.
Pursuant to N.C. Gen. Stat. § 15-1, “all misdemeanors . . .
shall be presented or found by the grand jury within two years
after the commission of the same, and not afterwards.” N.C.
Gen. Stat. § 15-1 (2013). Here, the State initially charged
Defendant using magistrate’s warrants on each of his charges,
including his misdemeanor charges of driving while his license
was revoked and driving with a fictitious tag, on 19 November
2004. On 20 January 2005, the trial court entered an order
finding Defendant incapable of proceeding to trial so the State
dismissed all charges against Defendant with leave to refile
pursuant to N.C. Gen. Stat. § 15A-1009 2 . On 4 January 2012, the
2
N.C. Gen. Stat. § 15A-1009 was repealed by S.L. 2013-18 s. 6,
effective 1 December 2013, but still applied to all crimes
committed prior to that date. It stated, in pertinent part, as
follows:
a. If a defendant is found by the court to
be incapable of proceeding and the charges
have not been dismissed pursuant to G.S.
15A-1008, a prosecutor may enter a dismissal
with leave under this section.
b. Dismissal with leave results in removal
of the case from the docket of the court,
but all process outstanding, with the
exception of any appearance bond, retains
its validity, and all necessary actions in
the case may be taken.
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State reinstated the charges against Defendant after he regained
mental capacity and was capable of proceeding to trial. On 29
October 2012, a grand jury indicted Defendant on all charges.
On appeal, Defendant contends that the trial court erred in
allowing the State to try and convict him on the misdemeanor
charges arising from the 2004 events because he was not indicted
on these charges until 2012, after the two-year statute of
limitations had expired. However, Defendant has waived
appellate review of this issue by failing to object at trial.
“In order to preserve an issue for appellate review, a
party must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context.” N.C.R. App. P.
10(a)(1) (2013). Our Supreme Court has recognized that “[p]lain
. . .
d. Upon the defendant becoming capable of
proceeding, or in the discretion of the
prosecutor when he believes the defendant
may soon become capable of proceeding, the
prosecutor may reinstate the proceedings by
filing written notice with the clerk, with
the defendant and with the defendant’s
attorney of record.
N.C. Gen. Stat. § 15A-1009(a), (b), (d) (2012).
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error review is available in criminal appeals, for challenges to
jury instructions and evidentiary issues, . . . [and] only in
truly exceptional cases.” Dogwood Dev. & Mgmt. Co., LLC v. White
Oak Transport Co., Inc., 362 N.C. 191, 196, 657 S.E.2d 361, 364
(2008). Additionally, in order to have a purported error that
was not preserved at trial nevertheless be reviewed on appeal,
the defendant must “specifically and distinctly” allege that the
challenged judicial decision amounts to plain error. N.C.R.
App. P. 10(a)(4) (2013).
The specific error alleged by Defendant involves neither
jury instructions nor a ruling on the admissibility of evidence.
Moreover, Defendant did not object at trial nor did he
“specifically and distinctly” allege plain error on appeal, and
has therefore failed to properly preserve this issue for appeal.
N.C.R. App. P. 10; see also State v. Gregory, 342 N.C. 580, 584,
467 S.E.2d 28, 32 (1996), cert. denied, 525 U.S. 952, 142 L. Ed.
2d 315 (1998) (declining to review unpreserved issue on appeal
under Rule 10(a)(4), as issue did not involve jury instructions
or admissibility of evidence and defendant had not specifically
alleged plain error).3
3
Although Defendant contends that the fact that he was indicted
for the misdemeanors for which he was convicted more than two
years after the date upon which the offenses with which he was
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Nor is Rule 2 of the North Carolina Rules of Appellate
Procedure, which Defendant has not attempted to invoke,
applicable to this case. Rule 2 provides:
To prevent manifest injustice to a party, or
to expedite decision in the public interest,
either court of the appellate division may .
. . suspend or vary the requirements or
provisions of any of these rules in a case
pending before it upon application of a
party or upon its own initiative, and may
order proceedings in accordance with its
directions.
N.C.R. App. P. 2 (2013). However, Rule 2 is only to be invoked
“on rare occasions and under exceptional circumstances.” Dogwood
Dev. & Mgmt Co., LLC v. White Oak Transport Co., Inc., 192 N.C.
App. 114, 123, 665 S.E.2d 493, 500 (2008) (citation and
quotation marks omitted). Even if, assuming arguendo, the trial
charged allegedly occurred constitutes a jurisdictional defect
that is not subject to waiver, our Supreme Court has repeatedly
held that a defendant must assert the statute of limitations
before the trial court in order to take advantage of it on
appeal. State v. Colson, 222 N.C. 28, 30, 21 S.E.2d 808, 809
(1942) (stating that “[t]he defendant did not plead the statute
[of limitations] or in apt time call it to the attention of the
court”); State v. Brinkley, 193 N.C. App. 747, 748, 138 S.E.2d
138, 139 (1927) (stating that, “if the statute of limitations is
relied on it should be brought to the attention of the judge”)
(citing State v. Holder, 133 N.C. 709, 711, 45 S.E.2d 862, 863
(1903)). As a result, given that the trial court had
jurisdiction over the misdemeanor charges that had been lodged
against Defendant pursuant to N.C.G.S. §§ 7A-271(a)(3) and 15A-
922(g) and given that the statute of limitations is a waivable
defense, we conclude that Defendant’s jurisdictional argument
lacks merit.
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court erred in allowing the State to prosecute Defendant for his
misdemeanor charges after the statute of limitations had
expired, Defendant’s overall sentence would be unaffected if
this Court vacated those convictions and remanded for
resentencing. Therefore, this argument is overruled.
Conclusion
For the reasons stated above, we conclude that Defendant
received a fair trial free from prejudicial error.
NO PREJUDICIAL ERROR.
Judges ERVIN and McCULLOUGH concur.
Report per Rule 30(e).