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    "judges": [
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    "parties": [
      "STATE OF NORTH CAROLINA v. RICKY ANDREW SKIPPER"
    ],
    "opinions": [
      {
        "text": "HUNTER, Judge.\nRicky Andrew Skipper (\u201cdefendant\u201d) appeals his conviction and sentencing for assault with a deadly weapon inflicting serious injury, and for being an habitual felon. We conclude that there was no error in defendant\u2019s trial or sentencing.\nThe State\u2019s evidence tended to show that in the early morning hours of 14 May 1999, the victim, Lloyd Dean Morrow (\u201cMorrow\u201d), was sitting on the front porch of a friend\u2019s house along with other friends. Morrow and his friends observed defendant, who lived across the street, arrive home. Defendant got out of a car and carried a cooler up to his front porch. Defendant then sat on his front porch and drank beer. From his front porch, defendant began making \u201cchicken noises\u201d and \u201ccursing and antagonizing\u201d Morrow and his friends. Defendant urged Morrow and his friends to \u201ccome out in the road.\u201d\nMorrow testified that defendant persisted in his verbal harassment, and that finally, Morrow \u201cgot fed up\u201d and told defendant he was \u201ctired of it.\u201d Defendant then suggested that Morrow take a \u201cwalk up the street with [him].\u201d Morrow testified that defendant began walking up the street and Morrow did the same. As the two approached a streetlight, Morrow saw defendant \u201creach in the back for something.\u201d Morrow stated that he could not tell what defendant had in his hand at first, but when defendant swung at him, Morrow threw up his left hand in defense.\nAs defendant struck Morrow\u2019s hand, Morrow stepped back and began to reach into the left pocket of his pants for his pocket knife. Morrow then realized that he could not feel his fingers. He testified that he looked at his hands and saw that his middle finger of his left hand was \u201cjust hanging off.\u201d Defendant swung at Morrow again, but missed. Morrow then saw defendant\u2019s weapon, which he described as a \u201cmachete.\u201d Defendant then began walking back towards his house. Morrow\u2019s version of the events was corroborated by other eyewitnesses.\nDefendant was indicted on charges of assault with a deadly weapon inflicting serious injury and of being an habitual felon, based upon prior drug-related charges. On 5 November 1999, the jury returned a verdict of guilty on the charge of assault with a deadly weapon inflicting serious injury. Following that verdict, the trial court proceeded with the introduction of evidence on the issue of defendant\u2019s status as an habitual felon. Following arguments of counsel for both parties, defense counsel requested a five-minute recess. When defense counsel returned to court, defendant was not present. The trial court allowed the trial to proceed to conclusion in defendant\u2019s absence.\nThe jury returned a verdict that day of guilty on the charge of being an habitual felon. On 27 March 2000, defendant was sentenced to a prison term of a minimum of 116 and a maximum of 149 months. Defendant appeals.\nDefendant brings forth four arguments on appeal: (1) the trial court erred in proceeding with the habitual felon matter and accepting a verdict in defendant\u2019s absence; (2) defendant was denied effective assistance of counsel when his attorney failed to object to the trial court\u2019s use of an habitual felon count listed in the habitual felon indictment to enhance defendant\u2019s sentencing level; (3) the trial court erred in failing to allow defendant to apply for court-appointed counsel following the trial on assault but prior to the habitual felon proceeding; and (4) the trial court erred in failing to instruct the jury on self-defense.\nI. Defendant\u2019s Absence\nDefendant argues that the trial court erred in proceeding with the remainder of the habitual felon matter in defendant\u2019s absence. Defendant first argues that the trial court erred in proceeding with the matter because the Habitual Felon Act is in violation of art. I, \u00a7 6 of the North Carolina Constitution. However, this Court has expressly held that the Habitual Felon Act does not violate art. I, \u00a7 6 of our Constitution. State v. Wilson, 139 N.C. App. 544, 550, 533 S.E.2d 865, 870, appeal dismissed and disc. review denied, 353 N.C. 279, 546 S.E.2d 394 (2000).\nDefendant further argues that the trial court\u2019s proceeding in his absence violated his right to confrontation as provided by art. I, \u00a7 23 of our Constitution. We reject this argument. Our Supreme Court has held that a defendant\u2019s unexplained absence from trial proceedings amounts to a waiver of a defendant\u2019s right to confrontation and to be present during all stages of a trial:\nIn noncapital felony trials, th[e] right to confrontation is purely personal in nature and may be waived by a defendant. State v. Braswell, 312 N.C. 553, 558, 324 S.E.2d 241, 246 (1985); State v. Hayes, 291 N.C. 293, 296-97, 230 S.E.2d 146, 148 (1976); State v. Moore, 275 N.C. 198, 208, 166 S.E.2d 652, 659 (1969). A defendant\u2019s voluntary and unexplained absence from court subsequent to the commencement of trial constitutes such a waiver. State v. Wilson, 31 N.C. App. 323, 229 S.E.2d 314 (1976); State v. Mulwee, 27 N.C. App. 366, 219 S.E.2d 304 (1975). Once trial has commenced, the burden is on the defendant to explain his or her absence; if this burden is not met, waiver is to be inferred. State v. Austin, 75 N.C. App. 338, 330 S.E.2d 661 (1985); State v. Stockton, 13 N.C. App. 287, 185 S.E.2d 459 (1971).\nState v. Richardson, 330 N.C. 174, 178, 410 S.E.2d 61, 63 (1991) (footnote omitted); see also, e.g., State v. Austin, 75 N.C. App. 338, 341, 330 S.E.2d 661, 663 (1985) (trial court did not err in proceeding with trial following defendant\u2019s unexplained absence from courtroom); State v. Montgomery, 33 N.C. App. 693, 696, 236 S.E.2d 390, 392 (defendant\u2019s failure to return from recess following jury selection amounted to waiver of right to be present; trial court did not err in proceeding with trial in defendant\u2019s absence), appeal dismissed and disc. review denied, 293 N.C. 256, 237 S.E.2d 258 (1977).\nIn the present case, it is clear the habitual felon proceeding was well underway when defendant failed to return from the five-minute recess. Evidence in the matter had been introduced, and both parties had presented their arguments to the trial court. It was therefore defendant\u2019s burden to explain his sudden absence from the courtroom. See Richardson, 330 N.C. at 178, 410 S.E.2d at 63. There is no evidence in the record indicating that defendant ever attempted to justify or otherwise explain his absence. The trial court was therefore correct to infer that defendant waived his right to be present for the remainder of the proceeding. See id.; see also, State v. Miller, 142 N.C. App. 435, 446, 543 S.E.2d 201, 208 (2001) (trial court did not err in proceeding with sentencing hearing following defendant\u2019s unexplained absence from courtroom; defendant\u2019s flight from courtroom did not constitute good cause sufficient to postpone hearing). This assignment of error is overruled.\nII. Sentence Enhancement\nDefendant next argues that his right to effective assistance of counsel was denied because his attorney failed to object to the trial court\u2019s use of one of the felonies named in the habitual felon indictment as a part of defendant\u2019s prior record used to enhance his sentence to level three. Under N.C. Gen. Stat. \u00a7 14-7.6 (1999), atrial court may not use the same conviction that has been used to establish habitual felon status in order to enhance a defendant\u2019s sentencing level. However, a close review of the record reveals that the trial court did not use any of the convictions used to establish defendant\u2019s habitual felon status to also enhance defendant\u2019s sentence.\nThe convictions listed on defendant\u2019s habitual felon indictment include: (1) selling cocaine in violation of N.C. Gen. Stat. \u00a7 90-95(a)(l) (1995); (2) possession of cocaine in violation of N.C. Gen. Stat. \u00a7 90-95(a)(3); and (3) possession with intent to manufacture, sell, and/or deliver marijuana in violation of N.C. Gen. Stat. \u00a7 90-95(a)(l). The trial court used all three of these convictions in instructing the jury on the issue of defendant\u2019s habitual felon status.\nOn the prior conviction level worksheet contained in the record, the trial court clearly crossed out defendant\u2019s convictions for felony possession of cocaine and possession with intent to sell and deliver marijuana from the list of defendant\u2019s prior convictions that could be considered 'in enhancing defendant\u2019s sentence. The trial court also crossed out the conviction for selling of cocaine, but then wrote in-the same line \u201cpossession with intent to sell and deliver cocaine.\u201d We take judicial notice that defendant was also convicted of possession with intent to sell and deliver cocaine on the same date as his conviction for selling cocaine. The trial court is not prohibited \u201cfrom using one conviction obtained in a single calendar week to establish habitual felon status and using another separate conviction obtained the same week to determine prior record level.\u201d State v. Truesdale, 123 N.C. App. 639, 642, 473 S.E.2d 670, 672 (1996).\nIt is clear that the trial court crossed out all three of the convictions used to establish defendant\u2019s habitual felon status from the prior conviction worksheet for purposes of enhancing defendant\u2019s sentence. The trial court then used the remaining convictions to enhance defendant\u2019s sentence, including a class H felony conviction for possession with intent to sell and deliver cocaine, a class I felony conviction for placing a flaming cross on the property of another, and a class one misdemeanor conviction for larceny. The trial court did not violate N.C. Gen. Stat. \u00a7 14-7.6; therefore, defendant\u2019s claim for ineffective assistance of counsel based upon the trial court\u2019s failure to comply with N.C. Gen. Stat. \u00a7 14-7.6 fails.\nIII. Court-Appointed Counsel\nIn his next argument, defendant contends that the trial court erred in not allowing defendant to apply for different court-appointed counsel following his conviction for assault, but before the disposition of the habitual felon matter. At the beginning of both proceedings, defense counsel, Mr. King, asked that he be allowed to discontinue his representation for the habitual felon charge and that defendant be allowed to seek court-appointed counsel for that portion of the proceeding. The trial court denied the motion.\n\u201cThe determination of counsel\u2019s motion to withdraw is within the discretion of the trial court, whose decision is reversible only for abuse of discretion.\u201d Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 26, 514 S.E.2d 517, 520 (1999) (citing Benton v. Mintz, 97 N.C. App. 583, 389 S.E.2d 410 (1990)). \u201cN.C.G.S. \u00a7 15A-144 provides that \u2018[t]he court may allow an attorney to withdraw from a criminal proceeding upon a showing of good cause.\u2019 In order to establish prejudicial error arising from the trial court\u2019s denial of a motion to withdraw, a defendant must show that he received ineffective assistance of counsel.\u201d State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d 486, 495 (quoting State v. Cole, 343 N.C. 399, 411, 471 S.E.2d 362, 367 (1996), cert. denied, 519 U.S. 1064, 136 L. Ed. 2d 624 (1997)), cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999). In order to establish ineffective assistance of counsel, a defendant must establish (1) that his attorney\u2019s performance fell below an objective standard of reasonableness; and (2) that the defendant was prejudiced by his attorney\u2019s performance to the extent there exists a reasonable probability that the result of the trial would have been different absent the error. State v. Jaynes, 353 N.C. 534, 547-48, 549 S.E.2d 179, 191 (2001).\nIn the present case, defendant has failed to argue that Mr. King\u2019s representation fell below an objective standard of reasonableness, or that Mr. King\u2019s errors in representation, if any, were such that the result of defendant\u2019s trial would have been different in their absence. The transcript of the proceedings below reveals that Mr. King provided competent assistance to defendant throughout the trial. We discern no abuse of discretion in the trial court\u2019s denial of Mr. King\u2019s motion to withdraw.\nMoreover, the fact that Mr. King requested to withdraw after the substantive portion of the trial, yet before the habitual felon proceeding is of no consequence. In State v. Jackson, 128 N.C. App. 626, 629, 495 S.E.2d 916, 919, disc. review improvidently allowed, 349 N.C. 287, 507 S.E.2d 37 (1998), this Court held that the trial court did not abuse its discretion in disallowing the defendant\u2019s request to reappoint counsel for the habitual felon portion of his trial. The defendant dismissed his attorney during trial, then sought his reappointment following the substantive portion of the trial, but prior to commencement of the habitual felon hearing. Id. We noted, \u201c[b]ecause an adjudication on a habitual felon charge \u2018is necessarily ancillary to a pending prosecution for the \u201cprincipal,\u201d or substantive, felony,\u2019 State v. Allen, 292 N.C. 431, 434, 233 S.E.2d 585, 587 (1977), the defendant\u2019s trial was not yet fully terminated . ...\u201d Id. This assignment of error is overruled.\nIV. Self-Defense Instruction\nIn his final argument, defendant maintains that the trial court should have instructed the jury on self-defense when submitting the charge of assault with a deadly weapon inflicting serious injury. We disagree.\n\u201cA defendant is entitled to a jury instruction on self-defense when there is evidence from which the jury could infer that he acted in self-defense.\u201d State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998) (citing State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977)). \u201cThe right of self-defense is only available, however, to \u2018a person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so.\u2019 \u201d Id. (quoting Marsh, 293 N.C. at 354, 237 S.E.2d at 747).\nHere, defendant did not testify or introduce any evidence. There is simply no evidence in the record which would support an inference that defendant did not enter into the altercation with Morrow voluntarily. The testimony presented at trial was consistent that defendant verbally harassed Morrow and the others and taunted them to \u201ccome out in the road.\u201d The testimony was uncontroverted that when Morrow expressed to defendant that he was tired of the harassment, defendant told Morrow to \u201cwalk up the street with [him].\u201d There is no evidence to support a finding that defendant did not enter the altercation with Morrow aggressively and willingly. Thus, to be entitled to a self-defense instruction, defendant must have presented evidence showing that despite entering the altercation voluntarily, he abandoned the fight, withdrew from the fight, and gave notice to Morrow that he had done so. See Allred, 129 N.C. App. at 235, 498 S.E.2d at 206. Defendant presented no such evidence. Although defendant argues Morrow had a knife, there is no evidence Morrow ever drew his knife or used it against defendant. The uncontradicted evidence was that defendant struck Morrow with a machete. We hold that there was no error in the trial court\u2019s failure to instruct the jury on self-defense.\nNo error.\nJudges WYNN and TYSON concur.",
        "type": "majority",
        "author": "HUNTER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F. Easley, by Assistant Attorney General Fred Lamar, for the State.",
      "David W. Rogers for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. RICKY ANDREW SKIPPER\nNo. COA00-1175\n(Filed 16 October 2001)\n1. Constitutional Law\u2014 right of confrontation \u2014 right to be present at all stages \u2014 habitual felon proceeding in defendant\u2019s absence\nThe trial court did not violate defendant\u2019s right of confrontation in an assault with a deadly weapon inflicting serious injury case by proceeding with the habitual felon matter and accepting a verdict in defendant\u2019s absence, because: (1) a defendant\u2019s unexplained absence from trial proceedings amounts to a waiver of a defendant's right to confrontation and to be present during all stages of a trial; and (2) defendant failed to return from the five-minute recess after the habitual felon proceeding was well underway, and there is no evidence in the record indicating that defendant ever attempted to justify or otherwise explain his absence. N.C. Const, art. I, \u00a7 23.\n2. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object\nA defendant in an assault with a deadly weapon inflicting serious injury case was not denied effective assistance of counsel based on his attorney\u2019s alleged failure to object to the trial court\u2019s use of an habitual felon count listed in the habitual felon indictment to enhance defendant\u2019s sentencing level, because: (1) the trial court did not use any of the convictions used to establish defendant\u2019s habitual felon status to also enhance defendant\u2019s sentence; and (2) the trial court is not prohibited from using one conviction obtained in a single calendar week to establish habitual felon status and using another separate conviction obtained the same week to determine prior record level. N.C.G.S. \u00a7 14-7.6.\n3. Constitutional Law\u2014 right to counsel \u2014 failure to allow defendant to apply for court-appointed counsel\nThe trial court did not abuse its discretion by failing to allow defendant to apply for court-appointed counsel following his trial on assault with a deadly weapon inflicting serious injury but prior to his habitual felon proceeding after defense counsel asked that he be allowed to discontinue his representation, because: (1) defendant failed to argue that his counsel\u2019s representation fell below an objective standard of reasonableness or that his counsel\u2019s errors in representation were such that the result of defendant\u2019s trial would have been different in their absence; and (2) the transcript reveals that defense counsel provided competent assistance to defendant throughout the trial.\n4. Assault\u2014 jury instruction \u2014 self-defense\nThe trial court did not err in an assault with a deadly weapon inflicting serious injury case by failing to instruct the jury on self-defense, because: (1) there is no evidence in the record which would support an inference that defendant did not enter into the altercation with the victim voluntarily; and (2) defendant failed to present evidence showing that despite entering the altercation voluntarily, he abandoned the fight, withdrew from the fight, and gave notice to the victim that he had done so.\nAppeal by defendant from judgment entered 27 March 2000 by Judge James L. Baker, Jr. in Rutherford County Superior Court. Heard in the Court of Appeals 12 September 2001.\nAttorney General Michael F. Easley, by Assistant Attorney General Fred Lamar, for the State.\nDavid W. Rogers for defendant-appellant."
  },
  "file_name": "0532-01",
  "first_page_order": 564,
  "last_page_order": 571
}
