{ "id": 8241365, "name": "STATE OF NORTH CAROLINA v. TROY WILLIAM CHIVERS", "name_abbreviation": "State v. Chivers", "decision_date": "2006-11-21", "docket_number": "No. COA06-134", "first_page": "275", "last_page": "286", "citations": [ { "type": "official", "cite": "180 N.C. App. 275" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "145 L. Ed. 2d 388", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1999, "opinion_index": 0 }, { "cite": "528 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9591745, 9590821, 9590661, 9591239, 9591017, 9591422, 9591627, 9590924, 9591537, 9591858, 9590740, 9591319, 9591161, 9591095, 9591966 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/528/1006-13", "/us/528/1006-03", "/us/528/1006-01", "/us/528/1006-08", "/us/528/1006-05", "/us/528/1006-10", "/us/528/1006-12", "/us/528/1006-04", "/us/528/1006-11", "/us/528/1006-14", "/us/528/1006-02", "/us/528/1006-09", "/us/528/1006-07", "/us/528/1006-06", "/us/528/1006-15" ] }, { "cite": "514 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "495" } ], "opinion_index": 0 }, { "cite": "350 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132207 ], "year": 1999, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0315-01" ] }, { "cite": "548 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "820", "parenthetical": "quoting State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d 486, 495, cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999)" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 13", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435039 ], "year": 2001, "pin_cites": [ { "page": "22", "parenthetical": "quoting State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d 486, 495, cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0013-01" ] }, { "cite": "433 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "758", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 785", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524010 ], "year": 1993, "pin_cites": [ { "page": "791", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0785-01" ] }, { "cite": "446 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182598 ], "weight": 6, "year": 1980, "pin_cites": [ { "page": "346" }, { "page": "345" }, { "page": "349-50" }, { "page": "347", "parenthetical": "internal citations omitted" }, { "page": "349" }, { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/us/446/0335-01" ] }, { "cite": "483 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "460-61", "parenthetical": "quoting Cuyler v. Sullivan, 446 U.S. 335, 346, 64 L. Ed. 2d 333, 345 (1980)" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708411 ], "year": 1997, "pin_cites": [ { "page": "55", "parenthetical": "quoting Cuyler v. Sullivan, 446 U.S. 335, 346, 64 L. Ed. 2d 333, 345 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0052-01" ] }, { "cite": "450 U.S. 261", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184550 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "271" }, { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/us/450/0261-01" ] }, { "cite": "474 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "343", "parenthetical": "quoting Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230 (1981)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867667 ], "year": 1996, "pin_cites": [ { "page": "391", "parenthetical": "quoting Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0381-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 9, "year": 1984, "pin_cites": [ { "page": "686" }, { "page": "692" }, { "page": "692" }, { "page": "696" }, { "page": "692" }, { "page": "696" }, { "page": "687" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "372 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765333 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "342" }, { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/us/372/0335-01" ] }, { "cite": "287 U.S. 45", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 369864 ], "weight": 2, "year": 1932, "pin_cites": [ { "page": "71" }, { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/us/287/0045-01" ] }, { "cite": "583 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 546", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957257 ], "year": 2003, "pin_cites": [ { "page": "556-57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0546-01" ] }, { "cite": "605 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "675", "parenthetical": "the State failed to prove the defendant's prior record level by only submitting the prior record level worksheet listing the defendant's purported convictions" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412328 ], "year": 2004, "pin_cites": [ { "page": "580", "parenthetical": "the State failed to prove the defendant's prior record level by only submitting the prior record level worksheet listing the defendant's purported convictions" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0575-01" ] }, { "cite": "591 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985088 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0133-01" ] }, { "cite": "583 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "624" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 608", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957680 ], "year": 2003, "pin_cites": [ { "page": "614-15" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0608-01" ] }, { "cite": "565 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "742" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080945 ], "year": 2002, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0499-01" ] }, { "cite": "410 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "878" } ], "opinion_index": 0 }, { "cite": "330 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512114 ], "year": 1991, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0398-01" ] }, { "cite": "491 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "685" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798543 ], "year": 1997, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0536-01" ] } ], "analysis": { "cardinality": 966, "char_count": 23424, "ocr_confidence": 0.76, "pagerank": { "raw": 2.4857914519109644e-07, "percentile": 0.8080513574343523 }, "sha256": "1352c4e94fbadf151b49feaa761067f3b091a9bc889f8b99dfae8bde92238832", "simhash": "1:abebe5785f0c9fe6", "word_count": 3786 }, "last_updated": "2023-07-14T16:41:00.069129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TROY WILLIAM CHIVERS" ], "opinions": [ { "text": "TYSON, Judge.\nTroy William Chivers (\u201cdefendant\u201d) appeals from judgments entered after a jury found him to be guilty of resisting a law enforcement officer, eluding arrest, failure to stop at a stop sign, and attaining the status of an habitual felon. We find no prejudicial error.\nI. Background\nThe State\u2019s evidence tended to show on 28 October 2004, North Carolina State Highway Patrol Trooper Zeb Stroup (\u201cTrooper Stroup\u201d) sat inside his stationary patrol vehicle while he investigated vehicles for registration violations and observed seatbelt compliance. Trooper Stroup observed a gray minivan driven by defendant, checked the license plate displayed, and discovered the required liability insurance coverage had lapsed. When defendant stopped his vehicle at a red light, Trooper Stroup drove his vehicle behind defendant\u2019s vehicle. After defendant turned right at the light, Trooper Stroup followed and activated his blue lights. Defendant failed to stop his vehicle. While Trooper Stroup pursued defendant\u2019s vehicle through a lightly traveled residential area, he observed defendant remove his seatbelt, run a stop sign, travel left of center, and reach the speed of forty miles per hour. During the pursuit, the vehicles reached a maximum speed of eighty-five miles per hour.\nDefendant drove his vehicle onto a gravel road and exited his vehicle. Defendant ran and Trooper Stroup followed on foot. After traveling approximat\u00e9ly 100 yards, Trooper Stroup overtook defendant, wrestled him to the ground, and subdued him.\nDefendant apologized to Trooper Stroup and stated he had fled because \u201che was afraid [Trooper Stroup would] take him to jail for his [revoked driver\u2019s] license.\u201d Trooper Stroup testified the entire chase, both in the vehicles and on foot, took about three minutes.\nOn 7 February 2005, a grand jury indicted defendant for: (1) driving left of center; (2) reckless driving to endanger; (3) driving while license revoked; (4) no liability insurance; (5) speeding; (6) resisting a public officer; (7) fleeing or eluding arrest; (8) failure to wear a seatbelt; and (9) failure to stop at a stop sign. The grand jury also indicted defendant as an habitual felon based upon allegations he had previously been convicted of: (1) breaking and entering on 6 February 1992; (2) breaking and entering on 13 January 1993; and (3) breaking and entering a motor vehicle on 5 January 1999.\nDefendant testified and admitted to virtually all the evidence presented except the speed of the vehicles. Defendant also called two witnesses who testified his minivan probably could not attain a speed of eighty-five miles per hour. The jury found defendant guilty of: (1) reckless driving; (2) driving while license revoked; (3) resisting a law enforcement officer; (4) exceeding the legal speed limit; (5) eluding arrest; and (6) failure to stop at stop sign.\nDefendant\u2019s trial for attaining the status of an habitual felon followed. The jury found defendant guilty of attaining the status of an habitual felon. The trial court arrested judgment on defendant\u2019s convictions for: (1) driving while license revoked; (2) speeding; and (3) reckless driving. The trial court consolidated the charges and sentenced defendant to an active term of 133 months minimum and 169 months maximum. Defendant appeals.\nII. Issues\nDefendant argues the trial court erred by: (1) sentencing him as a prior record level IV offender and asserts the State failed to prove his prior record points and convictions and (2) denying defense counsel\u2019s motion to withdraw based upon a conflict of interest.\nIII. Defendant\u2019s Sentence\nDefendant argues he is entitled to a new sentencing hearing because the trial court erred in sentencing him as a prior record level IV offender. Defendant asserts the State failed to prove his convictions and prior record points equal level IV. We disagree.\nA. Standard of Review\n\u201cWhen a defendant assigns error to the sentence imposed by the trial court our standard of review is whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.\u201d State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997).\nB. Motion to Dismiss\nThe State argues that defendant failed to preserve this issue for review because he failed to object during the defendant\u2019s sentencing phase as required by Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure. Our Supreme Court has held that an error at sentencing is not considered an error at trial for the purpose of Appellate Rule 10(b)(1). State v. Canady, 330 N.C. 398, 402, 410 S.E.2d 875, 878 (1991). The State\u2019s argument is dismissed. Id.\nC.Proving Prior Convictions\nDefendant\u2019s prior convictions may be proven in one of four ways:\n(1) Stipulation of the parties[;] (2) An original or copy of the court record of the prior conviction[;] (3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts[;] [or] (4) Any other method found by the court to be reliable.\nN.C. Gen. Stat. \u00a7 15A-1340.14(f) (2005).\nThe burden rests on the State to prove a prior conviction exists and that the individual before the court is the same person named in the prior conviction by a preponderance of the evidence. State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002). The State fails to satisfy its burden of proving defendant\u2019s prior record level by merely submitting a prior record level worksheet to the trial court. State v. Miller, 159 N.C. App. 608, 614-15, 583 S.E.2d 620, 624 (2003), aff\u2019d, per curiam, 358 N.C. 133, 591 S.E.2d 520 (2004); see State v. Jeffrey, 167 N.C. App. 575, 580, 605 S.E.2d 672, 675 (2004) (the State failed to prove the defendant\u2019s prior record level by only submitting the prior record level worksheet listing the defendant\u2019s purported convictions). An otherwise unsupported worksheet tendered by the State establishing a defendant\u2019s prior record level is not even sufficient to meet the catchall provision found in N.C. Gen. Stat. \u00a7 15A-1340.14(f)(4), even if uncontested by a defendant. State v. Riley, 159 N.C. App. 546, 556-57, 583 S.E.2d 379, 387 (2003).\nThe State offered a prior record level worksheet into evidence during the sentencing phase of defendant\u2019s trial. The worksheet contained the following offenses: (1) 90 CRS 004796 \u2014 three counts of felony breaking and entering and larceny, one count of forgery/attempting uttering; (2) 92 CRS 061415 \u2014 one count of felony breaking and entering and larceny; (3) 93 CR 062241 \u2014 two counts of misrepresentation to obtain employment security benefits, two counts of misrepresentation to prevent employment security benefits; (4) 97 CR 064306 \u2014 one count of possession of drug paraphernalia; (5) 98 CR 010899 \u2014 one count of misdemeanor possession of stolen goods; (6) 98 CRS 11637 \u2014 one count of felony larceny after breaking and entering, one count of breaking and entering a motor vehicle, three counts of felony possession of stolen goods, and two counts of breaking and entering and larceny; (7) 89 CR 002999 \u2014 one count of possession of drug paraphernalia; and (8) one count of misdemeanor larceny in Michigan on 24 March 1987. The prosecutor asserted these prior convictions equal eleven points, and defendant should be sentenced as a prior record level IV offender.\nAt defendant\u2019s sentencing hearing, the following colloquy ensued:\nState: Judge, I have removed the convictions that were used for the purpose of habitual felon. However, on those days there were multiple convictions, so the points for what he was convicted on those days still makes him a Record Level 4. Does defendant stipulate to what I\u2019m handing up to his Honor, the contents of the gold sheet showing eleven points, making him a Record Level 4?\nDefense Counsel: I don\u2019t believe he can stipulate to that.\nCourt: Do you have any evidence to offer that\u2019s contrary to that?\nDefense Counsel: No, we don\u2019t.\nCourt: Then excluding the specific felonies for which he was found guilty of and used as an underlying support for elevating this felony to the level of being an habitual felon, the Court finds and concludes that the defendant is a Record Level 4 for sentencing purposes.\nDefendant did not stipulate at sentencing to the prior record level worksheet the State tendered. In addition to tendering the worksheet, the State presented certified copies of the following court records: (1) 90 CRS 004796 \u2014 three counts of felony breaking and entering and larceny, one count of forgery/attempting uttering; (2) 92 CRS 061415 \u2014 one count of felony breaking and entering and larceny; and (3) 98 CRS 11637 \u2014 one count of felony larceny after breaking and entering and one count of breaking and entering a motor vehicle. Defendant admitted the following convictions: (1) 89 CR 002999 \u2014 one count of possession of drug paraphernalia; (2) 98 CR 010899 \u2014 one count of misdemeanor possession of stolen goods; and (3) 97 CR 064306 \u2014 one count of possession of drug paraphernalia.\nExcluding the three convictions alleged in defendant\u2019s habitual felon indictment, the State proved, either by defendant\u2019s admissions or by certified copies of court records, the following convictions: (1) 90 CRS 004796 \u2014 two counts of felony breaking and entering and three counts of larceny, one count of forgery/attempting uttering; (2) 92 CRS 061415 \u2014 one count of larceny; (3) 98 CRS 11637 \u2014 one count of felony larceny after breaking and entering; (4) 89 CR 002999 \u2014 one count of possession of drug paraphernalia; (5) 98 CR 010899 \u2014 one count of misdemeanor possession of stolen goods; and (6) 97 CR 064306 \u2014 one count of possession of drug paraphernalia.\nUnder N.C. Gen. Stat. \u00a7 15A-1340.14(d), \u201c[f]or purposes of determining the prior record level, if an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used.\u201d The State sufficiently proved three Class H felonies in convictions 90 CRS 004796, 92 CRS 061415, and 98 CRS 11637. The State also proved three Class A1 or Class 1 misdemeanors for convictions 89 CR 002999, 98 CR 010899, and 97 CR 064306.\nThe trial court incorrectly attributed to defendant five instead of three misdemeanor points. The number of defendant\u2019s points admitted or proven total nine. Nine points show defendant accumulated a prior record level of IV. N.C. Gen. Stat. \u00a7 15A-1340.14(c) (the prior record level for felony sentencing is level IV for at least nine, but not more than fourteen points). With nine prior record points, defendant was correctly sentenced as a prior record level IV under N.C. Gen. Stat. \u00a7 15A-1340.14. Id. Although the trial court failed to properly calculate defendant\u2019s prior record level, defendant was not prejudiced. Defendant\u2019s assignment of error is overruled.\nIV. Defense Counsel\u2019s Motion to Withdraw\nDefendant argues the trial court erred by denying defense counsel\u2019s motion to withdraw based upon an asserted conflict of interest. We disagree.\nAt the trial court\u2019s hearing on defense counsel\u2019s motion to withdraw, counsel argued he must be allowed to withdraw because of a conflict of interest. The conflict arose from counsel\u2019s opinion that he needed to file a motion for appropriate relief challenging one of the three guilty-pled convictions underlying defendant\u2019s habitual felon charge. One of defense counsel\u2019s colleagues in the Buncombe County Public Defender\u2019s Office had represented defendant on the conviction subject to the motion for appropriate relief. Defense counsel argued that a conflict existed because he would have to file a motion for appropriate relief against one of his colleagues.\nN.C. Gen. Stat. \u00a7 15A-144 (2005) states, \u201cThe court may allow an attorney to withdraw from a criminal proceeding upon a showing of good cause.\u201d Rule 1.7, Comment 4 of the North Carolina State Bar Revised Rules of Professional Conduct (2006) states, \u201c[i]f a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client[.]\u201d Rule 1.7, Comment 5 of the North Carolina State Bar Revised Rules of Professional Conduct (2006) states, \u201cUnforeseeable developments ... might create conflicts in the midst of representation .... The withdrawing lawyer must seek court approval where necessary and take steps to minimize harm to the clients.\u201d\nA. Defendant\u2019s Right to Counsel\nThe accused in a criminal prosecution is constitutionally guaranteed a right to counsel under the United States and North Carolina Constitutions. U.S. Const. amend. VI; N.C. Const. art. I, \u00a7 23. This Federal constitutional guarantee is binding on the states through the Fourteenth Amendment. Powell v. Alabama, 287 U.S. 45, 71, 77 L. Ed. 158, 172 (1932); Gideon v. Wainwright, 372 U.S. 335, 342, 9 L. Ed. 2d 799, 804 (1963). \u201c[T]he right to counsel is the right to the effective assistance of counsel.\u201d Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692 (1984).\n\u201cThe right to effective assistance of counsel includes the \u2018right to representation that is free from conflict of interest.\u2019 \u201d State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996) (quoting Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230 (1981)). This Court has stated, \u201c \u2018[d]efense counsel [have] an ethical obligation to avoid conflicting representations\u2019 and to promptly inform the trial court when conflict arises, as they are most often in the position to recognize situations in which a conflict of interest may arise.\u201d State v. Hardison, 126 N.C. App. 52, 55, 483 S.E.2d 459, 460-61 (1997) (quoting Cuyler v. Sullivan, 446 U.S. 335, 346, 64 L. Ed. 2d 333, 345 (1980)).\nIf the possibility of conflict is raised before the conclusion of trial, the trial court must take control of the situation. A hearing should be conducted to determine whether there exists such a conflict of interest that the defendant will be prevented from receiving advice and assistance sufficient to afford him the quality of representation guaranteed by the sixth amendment.\nState v. James, 111 N.C. App. 785, 791, 433 S.E.2d 755, 758 (1993) (internal quotations and citations omitted).\nThe United States Supreme Court has stated, \u201cprejudice is presumed when counsel is burdened by an actual conflict of interest.\u201d Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696. In Cuyler, the United States Supreme Court held:\na defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.\n446 U.S. at 349-50, 64 L. Ed. 2d at 347 (internal citations omitted). The Court explained that prejudice is presumed because it is difficult to measure the amount of prejudice attributable to the conflict. Id. at 349, 64 L. Ed. 2d at 347.\nGiven the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain sit\u00faa-tions likely to give rise to conflicts ... it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest.\nStrickland, 466 U.S. at 692, 80 L. Ed. 2d at 696. If a defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer\u2019s performance prejudice is presumed. Id.\n\u201c \u2018In 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.\u2019 \u201d State v. Bailey, 145 N.C. App. 13, 22, 548 S.E.2d 814, 820 (2001) (quoting State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d 486, 495, cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999)). \u201cTo establish ineffective assistance of counsel, a defendant must satisfy a two-prong test which was promulgated by the United States Supreme Court in Strickland[.]\u201d Id. The test requires:\nFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\nStrickland, 466 U.S. at 687, 80 L. Ed. 2d at 693.\nDuring defense counsel\u2019s motion to withdraw, the following colloquy ensued:\nDefense: [I]n going over the plea transcript with him .. . [defendant] stated that he had never been advised of certain immigration and deportation rights, and while he was in federal custody he was charged with illegal re-entry of the country and the matter was dismissed. The fact that he was never advised was borne out in my review of the older court files on the underlying habitual felon, and this is potentially his only means to collaterally attack the underlying felonies of the habitual felon.\nCourt: What about an MAR?\nDefense: It would be an MAR against Faye Burner and Calvin Hill.\nCourt: That\u2019s got nothing to do with this trial.\nDefense: It\u2019s a[n] habitual felon.\nCourt: That\u2019s a separate action. You can\u2019t attack that in the course of this case.\nDefense: That\u2019s one of his primary means of defending this case would be to knock out one of the prior felony convictions.\nCourt: It\u2019s an entirely separate action. He\u2019s charged with something here, and then if he\u2019s convicted of that, then the State goes through the litany of what he\u2019s been convicted of in the past. In the meantime, if he files a motion for appropriate relief, that\u2019s an entirely different thing. What\u2019s that got to do with this case?\nDefense: That\u2019s my contention, that\u2014\nCourt: Your attack of those previous judgments would be absolutely irrelevant in these matters, in my opinion.\nDefense: Not unless one of those was set aside.\nN.C. Gen. Stat. \u00a7 15A-1415(b) (2005) states:\nThe following are the only grounds which the defendant may assert by a motion for appropriate relief made more than 10 days after entry of judgment:\n(1) The acts charged in the criminal pleading did not at the time they were committed constitute a violation of criminal law.\n(2) The trial court lacked jurisdiction over the person of the defendant or over the subject matter.\n(3) The conviction was obtained in violation of the Constitution of the United States or the Constitution of North Carolina.\n(4) The defendant was convicted or sentenced under a statute that was in violation of the Constitution of the United States or the Constitution of North Carolina.\n(5) The conduct for which the defendant was prosecuted was protected by the Constitution of the United States or the Constitution of North Carolina.\n(6)[Repealed]\n(7) There has been a significant change in law, either substantive or procedural, applied in the proceedings leading to the defendant\u2019s conviction or sentence, and retroactive application of the changed legal standard is required.\n(8) The sentence imposed was unauthorized at the time imposed, contained a type of sentence disposition or a term of imprisonment not authorized for the particular class of offense and prior record or conviction level was illegally imposed, or is otherwise invalid as a matter of law. However, a motion for appropriate relief on the grounds that the sentence imposed on the defendant is not supported by evidence introduced at the trial and sentencing hearing must be made before the sentencing judge.\n(9) The defendant is in confinement and is entitled to release because his sentence has been fully served.\n(Emphasis supplied).\nDefense counsel asserted a conflict with filing a motion for appropriate relief seeking to vacate a prior conviction in which another Buncombe County Public Defender represented defendant. Defense counsel argued he needed to file a motion for appropriate relief asserting ineffective assistance of counsel against prior counsel in an earlier conviction due to prior counsel\u2019s failure to discuss immigration consequences before defendant pled guilty. Defendant\u2019s argument is without merit.\nDefendant failed to argue at trial or on appeal that the trial court\u2019s denial of defense counsel\u2019s motion to withdraw resulted in ineffective assistance of counsel. Defendant has failed to argue or show whether the trial court\u2019s denial of defense counsel\u2019s motion to withdraw resulted in ineffective assistance of counsel at bar. This assignment of error is dismissed.\nV. Conclusion\nThe trial court\u2019s incorrect calculation of defendant\u2019s conviction points did not prejudice him. Defendant\u2019s prior convictions he admitted and the State proved totaled nine points. Defendant was correctly sentenced as a prior record level IV offender.\nDefendant failed to argue and the record does not show he received ineffective assistance of counsel as a result of the trial court\u2019s denial of defense counsel\u2019s motion to withdraw. This assignment of error is dismissed. Defendant received a fair trial, free from prejudicial errors he preserved, assigned, and argued.\nNo Prejudicial Error.\nChief Judge MARTIN and Judge CALABRIA concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Amanda P. Little, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TROY WILLIAM CHIVERS\nNo. COA06-134\n(Filed 21 November 2006)\n1. Sentencing\u2014 prior record level \u2014 calculation\nThe trial court did not err in a resisting a law enforcement officer, eluding arrest, failure to stop at a stop sign, and attaining the status of an habitual felon case by sentencing defendant as a prior level IV offender, because: (1) although defendant failed to object during defendant\u2019s sentencing phase as required by N.C. R. App. P. 10(b)(1), an error at sentencing is not considered an error at trial for the purpose of Rule 10(b)(1); (2) the State sufficiently proved by certified copies of court records or by defendant\u2019s admissions three Class H felonies in convictions 90 CRS 004796, 92 CRS 061415, and 98 CRS 11637, plus three Class A1 or Class 1 misdemeanors for convictions 89 CR 002999, 98 CR 010899, and 97 CR 064306; (3) although the trial court incorrectly attributed to defendant five instead of three misdemeanor points, the number of defendant\u2019s points admitted or proven total nine which is a prior record level of IV; and (4) defendant was not prejudiced by the trial court\u2019s failure to properly calculate defendant\u2019s prior record level when defendant was correctly sentenced as a prior record level IV offender.\n2. Constitutional Law\u2014 effective assistance of counsel \u2014 conflict of interest\nThe trial court did not err by denying defense counsel\u2019s motion to withdraw based upon an asserted conflict of interest, because defendant failed to argue at trial or on appeal, and the record failed to show, that the trial court\u2019s denial of the motion resulted in ineffective assistance of counsel.\nAppeal by defendant from judgment entered 29 April 2005 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 30 October 2006.\nAttorney General Roy Cooper, by Assistant Attorney General Amanda P. Little, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant." }, "file_name": "0275-01", "first_page_order": 305, "last_page_order": 316 }