255 N.C. App. 653
N.C. Ct. App.2017Background
- Around 2:00 a.m. on Nov. 13, 2014, Officer Scales responded to a 911 report of a suspicious Black male with dreadlocks who might have put a handgun in a backpack; Scales encountered and questioned the man, who denied having a gun.
- Scales grabbed the man’s backpack, heard a metal thump, and believed there was a gun inside; the man ran, escaped, and Scales later opened the bag and found a Glock .40 and documents bearing Harris’s name and DOB. Harris later turned himself in.
- Harris was indicted for possession of a firearm by a felon, carrying a concealed weapon, resisting a public officer, and later pled guilty to habitual felon status; the jury convicted on the three charged counts.
- The State had filed discovery requesting, among other things, court-ordered disclosure of any alibi and alibi witnesses; the trial court did not enter a discovery order requiring Harris to disclose alibi, but at charge conference refused to give the alibi jury instruction after the prosecutor objected that defense counsel had not given notice.
- At sentencing the trial court misadded prior-record points (assigned 18 instead of 17) and sentenced Harris as a Prior Record Level VI offender to 117–153 months (minimum 117 months).
- The court ordered payment of $3,640 attorney fees and a $60 appointment fee; the specific hours/amount were not discussed in open court and Harris was not given an opportunity to be heard on those fees.
Issues
| Issue | State's Argument | Harris's Argument | Held |
|---|---|---|---|
| Whether Harris received ineffective assistance because defense counsel failed to give alibi notice and the court refused the alibi jury instruction | Failure to provide timely alibi notice justified objection and omission of the alibi instruction | Counsel was ineffective for failing to give alibi notice, causing omission of the alibi instruction and prejudice | No ineffective assistance; court erred in refusing instruction (discovery order was never entered) but omission was not prejudicial because alibi evidence was presented and jury was properly instructed on presumption of innocence and burden of proof (Hood reasoning applied) |
| Whether the trial court erred in calculating prior record level (misadded points, sentencing as Level VI) | The arithmetic error was harmless because the imposed sentence (min 117 months) falls within the presumptive range for both Level V and Level VI | Trial court miscalculated points and thus improperly sentenced as Level VI | Error in arithmetic conceded; harmless because the sentence is within the presumptive range for the correct prior-record level |
| Whether the attorney fees and appointment fee can be imposed where hours/amount were not discussed in open court and defendant had no opportunity to be heard | Fees may be entered as civil judgment based on counsel’s submission | Fees invalid because Harris was not notified of total hours/amount or given an opportunity to be heard at sentencing | Vacated: fees and appointment fee reversed without prejudice; State may reapply on remand but defendant must be given notice and an opportunity to be heard (Jacobs/Webb principles) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective assistance test: deficient performance and prejudice)
- Braswell v. State, 312 N.C. 553 (1985) (North Carolina adoption of Strickland standard)
- State v. Hood, 332 N.C. 611 (1992) (failure to give alibi instruction harmless where jury was instructed on presumption of innocence and burden of proof and alibi evidence was presented)
- State v. Fair, 354 N.C. 131 (2001) (ineffective-assistance claims on direct appeal may be decided when "cold record" suffices)
- State v. Jacobs, 172 N.C. App. 220 (2005) (vacating imposition of appointed counsel fees where defendant was not notified of total hours/amount or given opportunity to be heard)
- State v. Ballard, 781 S.E.2d 75 (2015) (erroneous prior-record calculation is harmless if sentence falls within presumptive range for correct level)
- State v. Lindsay, 185 N.C. App. 314 (2007) (harmless-error analysis for improper prior record level calculations)