State v. Silva , 251 N.C. App. 678 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-278
Filed: 17 January 2017
Forsyth County, Nos. 15 CRS 2755, 51679
STATE OF NORTH CAROLINA
v.
FILEMON OLDMEDO SILVA
Appeal by defendant from judgment entered 22 September 2015 by Judge
Stanley L. Allen in Forsyth County Superior Court. Heard in the Court of Appeals
8 September 2016.
Attorney General Joshua H. Stein, by Assistant Attorney General Ashleigh P.
Dunston for the State.
Paul F. Herzog for defendant-appellant.
McCULLOUGH, Judge.
Filemon Oldmedo Silva (“defendant”) appeals from a judgment entered upon
his convictions for habitual impaired driving and driving while license revoked
(DWLR) for an impaired driving revocation. For the following reasons, we find no
error.
I. Background
During the early morning hours of 22 February 2015, defendant was arrested
for driving while impaired (DWI) and DWLR for an impaired driving revocation after
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Opinion of the Court
a Winston Salem Police Department officer noticed defendant slumped over asleep in
the driver’s seat of a running automobile. On 20 April 2015, a Forsyth County Grand
Jury indicted defendant on one count of habitual impaired driving and one count of
DWLR for an impaired driving revocation. The charges came on for trial in Forsyth
County Superior Court on 21 September 2015 before the Honorable Stanley L. Allen.
At the conclusion of the trial, the jury returned verdicts finding defendant guilty of
both habitual impaired driving and DWLR for an impaired driving revocation. The
offenses were consolidate for entry of judgment and judgment was entered on
22 September 2015 sentencing defendant to a term of 15 to 27 months imprisonment.
Defendant appeals.
II. Discussion
On appeal, defendant contends the trial court erred by failing to personally
address and arraign him regarding the prior DWI convictions serving as the basis of
the habitual impaired driving charge and the prior impaired driving revocation
serving as the basis of the DWLR for an impaired driving revocation charge.
Defendant contends the alleged errors were in violation of N.C. Gen. Stat. §§ 15A-
928, -941, and -1022, and the Fourteenth Amendment to the United States
Constitution.
N.C. Gen. Stat. § 15A-941 provides that, generally, “[a] defendant will be
arraigned . . . only if the defendant files a written request with the clerk of superior
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Opinion of the Court
court for an arraignment not later than 21 days after service of the bill of indictment.”
N.C. Gen. Stat. § 15A-941(d) (2015). That statute further provides that
“[a]rraignment consists of bringing a defendant in open court . . . before a judge
having jurisdiction to try the offense, advising him of the charges pending against
him, and directing him to plead.” N.C. Gen. Stat. § 15A-941(a). This Court has long
recognized that “the purpose of an arraignment is to advise the defendant of the crime
with which he is charged[,]” State v. Carter, 30 N.C. App. 59, 61, 226 S.E.2d 179, 180
(1976), but “[t]he failure to conduct a formal arraignment itself is not reversible error
. . . and the failure to do so is not prejudicial error unless defendant objects and states
that he is not properly informed of the charges[,]” State v. Brunson, 120 N.C. App.
571, 578, 463 S.E.2d 417, 421 (1995).
Yet, the statute primarily at issue in this case, N.C. Gen. Stat. § 15A-928,
provides special rules for the indictment and arraignment of a defendant “[w]hen the
fact that the defendant has been previously convicted of an offense raises an offense
of lower grade to one of higher grade and thereby becomes an element of the latter[.]”
N.C. Gen. Stat. § 15A-928(a) (2015). Pertinent to this case, that statute, entitled
“allegation and proof of previous convictions in superior court[,]” provides as follows:
(c) After commencement of the trial and before the close
of the State’s case, the judge in the absence of the jury must
arraign the defendant upon the special indictment or
information, and must advise him that he may admit the
previous conviction alleged, deny it, or remain silent.
Depending upon the defendant’s response, the trial of the
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case must then proceed as follows:
(1) If the defendant admits the previous conviction, that
element of the offense charged in the indictment or
information is established, no evidence in support
thereof may be adduced by the State, and the judge
must submit the case to the jury without reference
thereto and as if the fact of such previous conviction
were not an element of the offense. The court may
not submit to the jury any lesser included offense
which is distinguished from the offense charged
solely by the fact that a previous conviction is not an
element thereof.
(2) If the defendant denies the previous conviction or
remains silent, the State may prove that element of
the offense charged before the jury as a part of its
case. This section applies only to proof of a prior
conviction when it is an element of the crime
charged, and does not prohibit the State from
introducing proof of prior convictions when
otherwise permitted under the rules of evidence.
N.C. Gen. Stat. § 15A-928(c). This Court has explained that
[t]he purpose of [section 15A-928], which is for the benefit
of defendants charged with prior convictions, is not to
require that the procedures referred to therein be
accomplished at a certain time and no other, which would
be pointless. Its purpose is to insure that defendants are
informed of the prior convictions they are charged with and
are given a fair opportunity to either admit or deny them
before the State’s evidence is concluded; because, as the
statute makes plain, if the convictions are denied, the State
can then present proof of that element of the offense to the
jury, but cannot do so if the prior convictions are admitted.
State v. Ford, 71 N.C. App. 452, 454, 322 S.E.2d 431, 432 (1984).
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Opinion of the Court
As detailed above, in this case, defendant was indicted on one count of habitual
impaired driving in file number 15 CRS 51679. That specialized indictment charged
DWI in count one and charged three prior DWI convictions within ten years of the
current DWI offense in count two, in accordance with the requirements of N.C. Gen.
Stat. § 15A-928(a) and (b). See State v. Lobohe, 143 N.C. App. 555, 558, 547 S.E.2d
107, 109 (2001) (explaining that an indictment that charged DWI in one count and
alleged previous DWI convictions in count two followed precisely the format required
in N.C. Gen. Stat. § 15A-928). In a separate indictment in file number 15 CRS 2755,
defendant was indicted on one count of DWLR for an impaired driving revocation.
After defendant’s case was called for trial, but before the jury was impaneled,
the Assistant District Attorney (ADA) prosecuting the case raised the issue of
whether defendant would be stipulating to any prior convictions, explaining that
“[defense counsel] made the comment . . . that he was going to be stipulating to some
items.” Therefore, the ADA asked “the Court to do a colloquy with the defendant
showing that he has agreed that his . . . attorney can admit these -- whatever items
may be.” At that point, defense counsel indicated that he had discussed with the
prosecutor stipulating that defendant’s license was revoked for an impaired driving
revocation for purposes of the DWLR for an impaired driving revocation charge if the
jury finds that defendant did “drive” for purposes of the DWLR charge. The ADA
then indicated that she was under the impression that if defendant stipulated to prior
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Opinion of the Court
DWI convictions for habitual impaired driving, the State would not be able to present
any evidence of the prior convictions. The ADA, however, explained that she believed
she was not required to accept a stipulation that defendant’s license was revoked for
an impaired driving revocation and indicated the State would put on evidence of all
the elements of DWLR for an impaired driving revocation, unless defendant pleaded
guilty to the charge. During the ADA’s comments to the court, defense counsel
indicated that the ADA was correct that defendant would not stipulate to the prior
DWI convictions needed to prove habitual impaired driving. To be exact, when the
prior DWI convictions were brought up, defense counsel unequivocally stated, “No.
We’re not stipulating to the three prior convictions.” The case then proceeded to jury
selection with both parties in agreement that there were no stipulations as to the
prior DWI convictions or that defendant’s license was revoked for an impaired driving
revocation.
Now on appeal, defendant relies repeatedly on State v. Jackson, 306 N.C. 642,
295 S.E.2d 383 (1982), for the assertions that the offense of habitual impaired driving
is the type of offense governed by N.C. Gen. Stat. § 15A-928 and that the statute must
be strictly followed. Although defendant acknowledges that defense counsel refused
to stipulate to defendant’s prior DWI convictions, defendant argues the trial court
failed to strictly follow the arraignment requirement of N.C. Gen. Stat. § 15A-928(c)
for the habitual impaired driving charge because the trial court did not personally
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address defendant to obtain a plea. Defendant contends both N.C. Gen. Stat. §§ 15A-
928(c) and -941(a) require the court to personally address a defendant and that an
admission of prior convictions is the “functional equivalent” of a guilty plea and,
therefore, N.C. Gen. Stat. § 15A-1022(a) and the Fourteenth Amendment to the
United States Constitution, concerning guilty pleas, require that a defendant be
addressed directly. Defendant relies on cases in which defense counsel admitted the
defendants’ guilt.
In a footnote, defendant further contends the legal principles argued
concerning habitual impaired driving apply equally to the related misdemeanor
charge of DWLR for an impaired driving revocation.
At the outset, we hold that defendant is correct that habitual impaired driving
is precisely the type of offense to which N.C. Gen. Stat. § 15A-928 applies. See N.C.
Gen. Stat. § 20-138.5(a) (2015) (“A person commits the offense of habitual impaired
driving if he drives while impaired as defined in [N.C. Gen. Stat. §] 20-138.1 and has
been convicted of three or more offenses involving impaired driving as defined in
[N.C. Gen. Stat. §] 20-4.01(24a) within 10 years of the date of this offense.”).
However, we note that defendant’s reliance on Jackson is misplaced because the
footnote repeatedly quoted by defendant is dicta. In Jackson, the Court held that
N.C. Gen. Stat. § 15A-928 was not applicable because the defendant’s prior conviction
of armed robbery did not raise the offense for which the defendant was charged to one
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of a higher grade. Jackson 306 N.C. at 652, 295 S.E.2d at 389. In a footnote, the
Court merely provided an example of when N.C. Gen. Stat. § 15A-928 applied and
cautioned the bench and bar about the application of the statute “in order to apprise
[a] defendant of the offense for which he is charged and to enable him to prepare an
effective defense.” Id., n.2.
Reaching the merits of defendant’s arguments, we are not persuaded that the
trial court’s failure to strictly follow N.C. Gen. Stat. § 15A-928(c) is reversible error
in the present case. We find State v. Jernigan, 118 N.C. App. 240, 455 S.E.2d 163
(1995), controlling.
In Jernigan, a defendant appealed his conviction for habitual impaired driving
on the basis that “the trial court did not formally arraign [him] upon the charge
alleging the previous convictions and did not advise [him] that he could admit the
previous convictions, deny them, or remain silent, as required by [N.C. Gen. Stat. §]
15A–928(c).” Id. at 243, 455 S.E.2d at 165. The defendant contended the trial court’s
failure to conduct a formal arraignment constituted reversible error and this Court
disagreed. In Jernigan, this Court explained as follows:
The purpose of [N.C. Gen. Stat. §] 15A-928 is to insure that
the defendant is informed of the previous convictions the
State intends to use and is given a fair opportunity to either
admit or deny them or remain silent. This purpose is
analogous to that of [N.C. Gen. Stat.] § 15A-941, the
general arraignment statute. Under that statute, the
defendant must be brought before a judge and must have
the charges read or summarized to him and must be
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Opinion of the Court
directed to plead. If the defendant does not plead, he must
be tried as if he pled not guilty. The failure to arraign the
defendant under [N.C. Gen. Stat. §] 15A-941 is not always
reversible error. Where there is no doubt that a defendant
is fully aware of the charge against him, or is in no way
prejudiced by the omission of a formal arraignment, it is
not reversible error for the trial court to fail to conduct a
formal arraignment proceeding.
Id. at 244, 455 S.E.2d at 166 (internal citations and quotation marks omitted). This
Court then held that “there [was] no doubt that [the] defendant was fully aware of
the charges against him and was in no way prejudiced by the omission of the
arraignment required by [N.C. Gen. Stat. §] 15A-928(c)” where “[the] defendant’s
attorney informed the court that he had discussed the case with [the] defendant and
that [the] defendant would stipulate to the previous convictions[]” and “[the
d]efendant [made] no contention on appeal that he was not aware of the charges
against him, that he did not understand his rights, or that he did not understand the
effect of the stipulation.” Id.
Additionally, in response to the defendant’s argument “that the stipulation was
ineffective because it was made by his attorney without defendant’s having been
advised by the court of his rights regarding the stipulation[,]” id. at 245, 455 S.E.2d
at 166, this Court explained that
it is clear that a defendant’s attorney may stipulate to an
element of the charged crime on behalf of the defendant
. . . . Moreover, there is no requirement that the record
show that the defendant personally stipulated to the
element or that the defendant knowingly, voluntarily, and
understandingly consented to the stipulation. . . . It is well-
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Opinion of the Court
established that stipulations are acceptable and desirable
substitutes for proving a particular act. Statements of an
attorney are admissible against his client provided that
they have been within the scope of his authority and that
the relationship of attorney and client existed at the time.
In conducting an individual’s defense an attorney is
presumed to have the authority to act on behalf of his
client. The burden is upon the client to prove lack of
authority to the satisfaction of the court.
Id. at 245, 455 S.E.2d at 166-67. Yet, in Jernigan, the defendant did not show, nor
contend, that his attorney was acting contrary to his wishes. Id. at 245, 455 S.E.2d
at 166. Thus, this Court held the trial court did not commit reversible error in
Jernigan by failing to formally arraign the defendant as provided in N.C. Gen. Stat.
§ 15A-928(c).
The present case is distinguishable from Jernigan only by the facts that
defense counsel refused to stipulate to the prior convictions, requiring the State to
put on evidence of all the elements of the charged offenses, and that defendant was
primarily Spanish speaking. However, those distinctions do not sway us to reach a
different result in the present case. Defendant does not assert that defense counsel
was acting contrary to his wishes when he refused to stipulate to the prior
convictions, but instead contends it is not clear that defendant understood the law
because of a limited ability to understand English. We are not persuaded because
there is no indication that defendant was confused about the charges or that defense
counsel was acting contrary to defendant’s wishes. Additionally, interpreters were
present throughout the proceedings to translate for defendant. Lastly, despite
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defendant’s assertions to the contrary, the State presented overwhelming evidence of
defendant’s guilt through testimony of the arresting officer. As a result, we hold the
trial court did not commit reversible error.
In a footnote at the conclusion of defendant’s argument on appeal, defendant
raises an issue as to the general competence of his trial counsel based on trial
counsel’s alleged fundamental misunderstanding of the methods the State may use
to prove prior DWI convictions in habitual driving while impaired cases. Defendant
asserts that “[i]t seems likely that his [trial counsel’s] misunderstanding of basic
traffic law could have led to a trial strategy that was fatal to his client’s case” and
requests that, in the event defendant is not awarded a new trial, this Court remand
the matter for a hearing concerning his trial counsel’s effectiveness. It appears that
defendant is raising an ineffective assistance of counsel argument on appeal, but
seeking review of the issue in superior court.
It is well established that ineffective assistance of counsel
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.”
Thus, when this Court reviews ineffective assistance of
counsel claims on direct appeal and determines that they
have been brought prematurely, we dismiss those claims
without prejudice, allowing defendant to bring them
pursuant to a subsequent motion for appropriate relief in
the trial court.
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State v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881 (2004) (citations omitted)
(quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)), cert. denied,
546 U.S. 830, 163 L. Ed. 2d 80 (2005). It is evident that defendant’s ineffective
assistance of counsel claim before this Court is premature. Thus, we dismiss any
claim asserted in the footnote without prejudice and leave the matter for the trial
court to consider upon a proper motion for appropriate relief by defendant.
III. Conclusion
For the reasons discussed above, the trial court did not commit reversible error
when it failed to formally arraign defendant pursuant to N.C. Gen. Stat. § 15A-928(c).
NO ERROR.
Judges HUNTER, Jr., and DIETZ concur.
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