State v. Robinson
| Decision Date | 16 September 2014 |
| Docket Number | No. COA14–224.,COA14–224. |
| Citation | 236 N.C.App. 446,763 S.E.2d 178 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina, v. Stilloan Devoray ROBINSON. |
Attorney General Roy Cooper, by Assistant Attorney General Hugh Harris, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Jon H. Hunt, for Defendant.
On 6 February 2012, Defendant Stilloan Devoray Robinson was indicted for possession of a stolen motor vehicle, breaking and entering a motor vehicle, and larceny of a motor vehicle.1 On 2 April 2012, Defendant was indicted for having attained the status of an habitual felon. The evidence at Defendant's August 2013 trial tended to show the following:
On 13 January 2012, Defendant was arrested just after parking and exiting a car belonging to William Markham which Markham had reported stolen. At the time, Markham and Defendant were roommates at the McCloud Federal Halfway House2 in Charlotte. Markham testified that, on 10 January 2012, he returned to the house after work, parking his car in a back parking lot. Markham checked in with staff and went to his room. Defendant and Markham's other roommates were present. After changing out of his work clothes, Markham hid his car keys in his shoe and left the room to make a phone call. When Markham returned, he discovered that Defendant and the car keys were both gone. Markham checked the parking lot and saw that his car was missing. Markham testified that he had not given Defendant permission to take his car. A staff member at the halfway house testified that she saw Defendant drive away in Markham's car and called the Charlotte–Mecklenburg Police Department.
Defendant's theory of the case was that Markham had given him permission to use the car on a limited basis. Specifically, Defendant testified that Markham had agreed to loan Defendant the car for one day in exchange for crack cocaine.3 After being unable to obtain actual crack cocaine, Defendant gave Markham some counterfeit crack cocaine on 10 January 2012. In exchange, Markham gave Defendant his car keys with the understanding that Defendant would return the car by leaving it at a local McDonald's the following day. However, on direct examination, Defendant acknowledged that he kept Markham's car for three days:
up keeping it longer?
A. Longer than that.
At the charge conference following completion of the evidence, Defendant requested that the jury be instructed on the crime of unauthorized use of a motor vehicle as a lesser-included offense of possession of a stolen motor vehicle. The trial court denied the request.
The jury found Defendant guilty of possession of a stolen motor vehicle, but not guilty of the other two substantive criminal charges. Defendant admitted to having attained habitual felon status. The trial court sentenced Defendant to an active term of 84–113 months in prison. Defendant's trial counsel gave notice of appeal in open court following the jury's verdict, but failed to give notice of appeal following entry of the trial court's final judgment. Instead, trial counsel asked the court whether the appeal would be assigned to the Office of the Appellate Defender. The trial court responded by appointing the Office of the Appellate Defender to represent Defendant in his appeal, and stated, "I'll note your appeal for the record."
By failing to give timely notice of appeal, Defendant has lost his right of appeal. See N.C. Gen.Stat. §§ 7A–27(b), 15A–1444(a) (2013). Recognizing this deficiency, Defendant's appellate counsel has filed, along with the record on appeal and Defendant's brief, a petition for writ of certiorari pursuant to Appellate Rule 21. "Rule 21 provides that a writ of certiorari may be issued to permit review of trial court orders ... when [, inter alia ] the right to an appeal has been lost by failure to take timely action...." Bailey v. North Carolina Dep't of Revenue, 353 N.C. 142, 157, 540 S.E.2d 313, 322 (2000) (citing N.C.R.App. P. 21(a) ) (italics added). The State did not oppose Defendant's petition, and we allowed Defendant's petition for writ of certiorari by order entered 23 July 2014.
Defendant argues that he received ineffective assistance of counsel ("IAC") in that "his trial attorney, on direct examination, asked him questions to which the answers conceded his guilt to the only crime for which he was convicted[,]" to wit, possession of a stolen motor vehicle.
"An IAC claim must establish both that the professional assistance [the] defendant received was unreasonable and that the trial would have had a different outcome in the absence of such assistance." State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001) (citation omitted), cert. denied, 535 U.S. 1114, 122 S.Ct. 2332, 153 L.Ed.2d 162 (2002).
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. This rule is consistent with the general principle that, on direct appeal, the reviewing court ordinarily limits its review to material included in the record on appeal and the verbatim transcript of proceedings, if one is designated.
Id. at 166, 557 S.E.2d at 524–25 (citations and internal quotation marks omitted). Defendant contends that the record before us is sufficient for this matter to be resolved without further investigation, and we agree. Accordingly, we address the merits of his argument.
The only elements of the offense of possession of a stolen motor vehicle under N.C. Gen.Stat. § 20–106 are that (1) the defendant possessed a motor vehicle which (2) he knew or had reason to believe was stolen. State v. Baker, 65 N.C.App. 430, 437, 310 S.E.2d 101, 108 (1983), cert. denied, 312 N.C. 85, 321 S.E.2d 900 (1984). Property is stolen when it has been carried away without the owner's consent and with the intent to permanently deprive the owner of the property. See, e.g., State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982), overruled in part on other grounds by State v. Mumford, 364 N.C. 394, 699 S.E.2d 911 (2010).
As noted supra in the recap of the evidence presented at trial, Defendant never disputed that he possessed Markham's car. Rather, Defendant contended that he possessed the car with Markham's permission and that he intended to return it to Markham per their alleged agreement. On direct examination, defense counsel's questions only induced Defendant to admit that he had kept the car longer than the alleged agreement with Markham had permitted. Defense counsel's questions did not require Defendant to admit to believing the car was stolen, and indeed, Defendant never gave any testimony indicating that he knew or had reason to know that the car was stolen. To the contrary, Defendant's testimony was that he knew the car was not stolen at the time he possessed it, in that Markham had given Defendant permission to use it. Although Defendant did admit to keeping Markham's car longer than permitted by the alleged agreement, he never suggested that he had the intent to permanently deprive Markham of the car. In sum, defense counsel did not elicit testimony from Defendant which conceded his guilt of any crime for which he was charged,4 and thus, Defendant cannot show that he received ineffective assistance in this regard. Accordingly, Defendant's IAC argument is overruled.
On 30 June 2014, Defendant filed with this Court a "motion to file supplemental brief." In the motion, appellate counsel for Defendant states the following: That he intended to argue on direct appeal that the trial court committed reversible error in denying the defense request to instruct the jury on unauthorized use of a motor vehicle as a lesser-included offense of possession of a stolen motor vehicle. While researching the issue, however, appellate counsel reviewed this Court's opinion in State v. Oliver, 217 N.C.App. 369, 718 S.E.2d 731 (2011). In Oliver, the defendant had alleged error in the trial court's refusal to instruct on unauthorized use of a motor vehicle, contending that "all the essential elements of unauthorized use of a stolen vehicle are essential elements of possession of a stolen vehicle." Id. at 373, 718 S.E.2d at 734. This Court rejected the defendant's contention on the following basis:
To continue reading
Request your trial
-
State v. Coley
...entry of the judgment, his right to appeal has been lost based on his failure to comply with Rule 4(a). See State v. Robinson , 236 N.C. App. 446, 448, 763 S.E.2d 178, 179 (2014) (right of appeal lost where Defendant "gave notice of appeal in open court following the jury's verdict, but fai......
-
State v. Berrier
...oral notice of appeal does not cure a failure to give oral notice of appeal after entry of judgment. See State v. Robinson , 236 N.C. App. 446, 448, 763 S.E.2d 178, 179 (2014). "By failing to give timely notice of appeal, Defendant has lost his right of appeal." Id . (citing N.C. Gen. Stat.......
- In re Interstate Outdoor Inc.
-
Rainey v. Burrell
...hetakes or operates an aircraft, motorboat, motor vehicle, or other motor-propelled conveyance of another." See State v. Robinson, 763 S.E.2d 178, 181 n.4 (N.C. Ct. App. 2014). "One of the essential elements of unauthorized use of a motor vehicle is the taking or operating of a motor vehicl......