{ "id": 8242587, "name": "STATE OF NORTH CAROLINA v. TAMICA YVETTE MIMS", "name_abbreviation": "State v. Mims", "decision_date": "2006-12-05", "docket_number": "No. COA06-10", "first_page": "403", "last_page": "414", "citations": [ { "type": "official", "cite": "180 N.C. App. 403" } ], "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": "607 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "9" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 770", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8414231 ], "year": 2005, "pin_cites": [ { "page": "776" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0770-01" ] }, { "cite": "519 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "99" }, { "page": "99" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238982 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "66" }, { "page": "66-67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0059-01" ] }, { "cite": "240 F.3d 348", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11137287 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "355-56" } ], "opinion_index": 0, "case_paths": [ "/f3d/240/0348-01" ] }, { "cite": "152 L. Ed. 2d 856", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "535 U.S. 1074", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 355266, 352843, 352044 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/1074-02", "/us/535/1074-03", "/us/535/1074-01" ] }, { "cite": "535 U.S. 162", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 353765 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/0162-01" ] }, { "cite": "483 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1997, "pin_cites": [ { "page": "460" }, { "page": "461" }, { "page": "462" }, { "page": "462", "parenthetical": "remanding the matter to the trial court for an evidentiary hearing regarding the defendant's motion for appropriate relief" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708411 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0052-01" ] }, { "cite": "474 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "343" } ], "opinion_index": 0 }, { "cite": "344 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867667 ], "year": 1996, "pin_cites": [ { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0381-01" ] }, { "cite": "446 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182598 ], "weight": 6, "year": 1980, "pin_cites": [ { "page": "348" }, { "page": "346-47" }, { "page": "349-50" }, { "page": "347" }, { "page": "348" }, { "page": "346-47" } ], "opinion_index": 0, "case_paths": [ "/us/446/0335-01" ] }, { "cite": "450 U.S. 261", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184550 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "271" }, { "page": "230" }, { "page": "273-74" }, { "page": "231", "parenthetical": "remanding to the trial court for a hearing to determine whether an actual conflict of interest existed at the time of the probation revocation hearing" } ], "opinion_index": 0, "case_paths": [ "/us/450/0261-01" ] }, { "cite": "433 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 20, "year": 1993, "pin_cites": [ { "page": "757" }, { "page": "758", "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" }, { "page": "791" }, { "page": "759" }, { "page": "786" }, { "page": "755-56" }, { "page": "787" }, { "page": "756" }, { "page": "788" }, { "page": "757" }, { "page": "791" }, { "page": "759" }, { "page": "758" }, { "page": "759", "parenthetical": "recognizing that \"the Sixth Amendment right to conflict-free representation can be waived by a defendant, if done knowingly, intelligently and voluntarily.\"" }, { "page": "757" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 785", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524010 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "789" }, { "page": "791" }, { "page": "791" }, { "page": "791-92" }, { "page": "789" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0785-01" ] }, { "cite": "407 U.S. 25", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9136521 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "37" }, { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/us/407/0025-01" ] } ], "analysis": { "cardinality": 951, "char_count": 25604, "ocr_confidence": 0.754, "pagerank": { "raw": 3.6532186930006766e-07, "percentile": 0.890176801813542 }, "sha256": "1efca0ceb9615b97eb2bf7fb2af8cc74a86c19984d6adfb93f45194ee6ab95d8", "simhash": "1:8b79550e66469e50", "word_count": 4271 }, "last_updated": "2023-07-14T16:41:00.069129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TAMICA YVETTE MIMS" ], "opinions": [ { "text": "McGEE, Judge.\nTamica Yvette Mims (Defendant) was convicted of trafficking in heroin by possession and of possession of drug paraphernalia. Prior to trial, Defendant moved to dismiss the charges based upon a lack of probable cause. In support of the motion, defense counsel argued as follows:\nAll of the items implicating someone in that matter is another defendant who is not present in this courtroom today, Your Honor. And the only reason [Defendant] is here is because of a spoken word which was out of fear and protection for her son\u2019s father who was at the residence when the officer arrived in custody. . . .\nThe officer served a warrant. They entered the residence. The owner of the residence wasn\u2019t there. They arrested Mr. Chavis who was there. The items that were found were circumstantial linking Mr. Chavis to the crime. However, [Defendant] walks in a couple of minutes later. [Defendant] sees her son\u2019s father in handcuffs. [Defendant] doesn\u2019t have a record. He has a record. [Defendant] says, \u201cThis is mine,\u201d Your Honor. This is why we\u2019re sitting here today. . . .\nThis is her child\u2019s father. She knew what he was facing. We don\u2019t believe that he was guilty of these crimes as well. They were there for Duke Power people to cut the lights on for a friend who was not in the residence at the time and [Defendant] simply wanted to protect her child\u2019s father, Your Honor. [Defendant] didn\u2019t have a record. He had a record. [Defendant] came in and she saw him being handcuffed.\nThe trial court denied Defendant\u2019s motion to dismiss. In light of defense counsel\u2019s statements outlining the defense, the State brought a potential conflict of interest to the trial court\u2019s attention:\n[The State]: I want to be clear Your Honor brought this up with defense counsel now he has mentioned what the defense is. Mr. Chavis is presently charged with heroin offenses as well, is represented by counsel\u2019s boss. I want to make sure this is not a conflict of interest. They\u2019re going to be using the defense.\nThe Court: Conflict of interest is for them to determine, isn\u2019t it? That\u2019s not the [S]tate\u2019s business, is it?\n[The State]: No, sir.\nThe Court: That\u2019s between clients and lawyers.\n[The State]: Yes, sir.\nThe Court: That\u2019s an ethical situation. That\u2019s no concern of yours.\n[The State]: State is ready to proceed, Your Honor.\nAt trial, a police investigator with the Durham Police Department, Kelly Green (Investigator Green), testified that he and several other officers executed a search warrant at a residence located in Durham at 313 Sowell Street, Apartment B, on 21 February 2003. The officers found one person, later identified as Reginald Chavis, inside the residence. Investigator Green testified that a police canine was released into the residence and that the canine went into a bedroom and \u201cindicated on a black flight jacket that was hanging on the bed and indicated around the corner of the bed.\u201d Investigator Green further testified he found what appeared to be a \u201cpelletized large piece of heroin\u201d inside the flight jacket. He also found a shoe box that contained drug paraphernalia underneath the bed. The shoe box contained a \u201ccoffee grinder, digital scales, a box of glassine baggies, . . . used to package heroin[,]\u201d and a black plate containing what appeared to be drug residue. The substances found in the flight jacket and in the shoe box were later confirmed to be heroin.\nJ.C. Husketh (Investigator Husketh), an investigator with the Durham Police Department, testified that he was one of the officers who executed the search warrant at 313 Sowell Street, Apartment B, on 21 February 2003. Investigator Husketh testified that during the search of the premises, Defendant drove up in a vehicle and walked to the front entrance of the apartment. Investigator Husketh further testified that \u201c[a]fter Mr. Chavis was placed in handcuffs and we were about ready to leave the property, . . . [Defendant] stated that \u2018everything in the house is mine.\u2019 \u201d Investigator Husketh testified that Defendant was placed in handcuffs and transported to the police station. Investigator Husketh read Defendant her Miranda rights and Defendant agreed to speak to police. Defendant told Investigator Husketh that she lived in Apartment B at 313 Sowell Street and that everything in the apartment belonged to her. She also said that Reginald Chavis was her boyfriend.\nInvestigator Husketh asked Defendant to tell him what was found inside the apartment; Defendant said that drugs were found. When asked what type of drugs were found, Defendant said that heroin was found in a shoe box. Investigator Husketh also asked Defendant what the coffee grinder was used for and Defendant said it was used \u201cto cut it[.]\u201d Investigator Husketh further testified that Defendant described a technique for packaging heroin as follows:\n[Defendant] advised that she would weigh the drugs out, which would be the scales would be used ... to minimize a loss. You don\u2019t want to add too much drugs to the product. At that point, [Defendant] advised that the contents or the heroin would be placed into the bags. The bags would be folded and the bags\u2014 after it was folded, the contents would be \u2014 well, actually the bags would be taped in order to keep any of the contents from falling out of the bag.\nDefendant testified at trial that she did not live at 313 Sowell Street in February 2003. Defendant said she dropped Reginald Chavis off at that location on 21 February 2003 so that he could meet someone from Duke Power Company who was scheduled to turn on the electricity. Reginald Chavis was doing this as a favor for a friend who lived at that location. Defendant further testified that she went home, changed clothes, and went to work. When she returned to 313 Sowell Street later in the day, police were there. Defendant testified that she saw Reginald Chavis handcuffed and that she told police that everything in the house belonged to her. Defendant testified that she told police the substances belonged to her to protect Reginald Chavis.\nOn cross-examination, Defendant testified as follows:\nQ. And you\u2019re saying that you did all this to protect Reginald Chavis?\nA. Yes, sir.\nQ. Have you asked Mr. Chavis to come here and testify?\nA. No, sir.\nQ. Have you talked to him?\nA. Yes, I have.\nQ. When did you last talk to him?\nA. Last Saturday.\nQ. The time before that?\nA. Probably two Saturdays before that.\nQ. Do you want him to come up before this jury and tell him to support your statement and your story here today?\nA. No, sir.\nQ. Have you ever discussed this with him?\nA. Discussed what?\nQ. These charges.\nA. I talked to him about it.\nQ. You\u2019re telling us that he\u2019s going to let you just take the charges? Is that what you\u2019re saying?\nA. I guess.\nQ. If he\u2019s going to let you just take the charges, does that tell you something about how he cares about you?\nA. Yes.\nQ. Why don\u2019t you call him here before this jury so they can find out whether or not this story holds any truth?\nA. I don\u2019t know.\nQ. Do you want to call him?\nA. No, sir.\nDefendant was convicted of trafficking in heroin by possession and of possession of drug paraphernalia.\nAt sentencing, the trial court stated as follows:\n[Defendant having entered a plea of not guilty, being tried by a jury of her peers, she is found guilty of a class F felon[y] of trafficking in heroin, a felony \u2014 F. The [Trial] Court will impose the mandatory minimum of 70 months minimum, 84 months maximum and fine her $50,000. This sentence is in the Department of Correction[], quarters for women.\nAnd the possession of drug paraphernalia for which [Defendant] is a class II misdemeanor, one prior point, is a class I. Give her 45 days to run at the expiration of the sentence imposed in this case to date. This sentence is suspended. She is placed on intermediate punishment.\nThe intermediate punishment, [Defendant] is to pay the cost of this action. She shall not associate with any known users, dealers, narcotics. She shall perform 72 hours of community service and pay the fee associated therewith. Let her pay a fine in the amount of $500.\nThe trial court entered written judgment dated 19 April 2005, sentencing Defendant to a term of seventy months to eighty-four months in prison on the charge of trafficking in heroin by possession. On the charge of possession of drug paraphernalia, the trial court sentenced Defendant to a consecutive term of forty-five days in prison. However, the trial court suspended the sentence and placed Defendant on supervised probation for twenty-four months. As a special condition of probation, the trial court provided that \u201c[Defendant] is not to associate with, or be in the presence of anyone using controlled substance [s]. [Defendant] is to report to probation [within] 24 [hours] of being released from active sentence in count 1.\u201d The trial court did not check the box next to the provision which reads: \u201cComply with the Special Conditions of Probation\u2014 Intermediate Punishments \u2014 Contempt which are set forth on AOC-CR-603, Page Two.\u201d However, the trial court entered an AOC-CR-603, Page Two form dated 19 April 2005, sentencing Defendant to intensive probation for a period of nine months. On that same form, the trial court also stated as follows: \u201c72 hours [community] service and pay $200.00 [Defendant] has 90 days to complete these [hours].\u201d Defendant appeals.\nI.\nDefendant first argues the trial court erred by failing to conduct a hearing regarding defense counsel\u2019s potential conflict of interest. We agree.\nA criminal defendant subject to imprisonment has a Sixth Amendment right to counsel. Argersinger v. Hamlin, 407 U.S. 25, 37, 32 L. Ed. 2d 530, 538 (1972). The Sixth Amendment right to counsel applies to the states through the Fourteenth Amendment of the United States Constitution. State v. James, 111 N.C. App. 785, 789, 433 S.E.2d 755, 757 (1993). Sections 19 and 23 of the North Carolina Constitution also provide criminal defendants in North Carolina with a right to counsel. Id. The right to counsel includes a right to \u201crepresentation that is free from conflicts of interests.\u201d Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230 (1981).\nWhen a defendant fails to object to a conflict of interest at trial, a defendant \u201cmust demonstrate that an actual conflict of interest adversely affected his lawyer\u2019s performance.\u201d Cuyler v. Sullivan, 446 U.S. 335, 348, 64 L. Ed. 2d 333, 346-47 (1980); see also State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996). \u201c[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.\u201d Cuyler, 446 U.S. at 349-50, 64 L. Ed. 2d at 347. However, when a trial court is made aware of a possible conflict of interest, \u201cthe trial court must \u2018take control of the situation.\u2019 \u201d James, 111 N.C. App. at 791, 433 S.E.2d at 758 (citation omitted). Further, the trial court should conduct a hearing \u201c \u2018to 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 [S]ixth Amendment.\u2019 \u201d Id. (citation omitted). The failure to hold such a hearing, \u201cin and of itself, constitutes reversible error.\u201d Id. at 791, 433 S.E.2d at 759.\nIn James, the defendant was convicted of second-degree murder for shooting the victim. Id. at 786, 433 S.E.2d at 755-56. At trial, a prosecution witness testified that he was present at the scene of the shooting, heard a gun shot, and then saw a gun in the defendant\u2019s hand. Id. at 787, 433 S.E.2d at 756. During cross-examination of the witness, defense counsel acknowledged that he had previously represented the witness on an unrelated drug charge. Id. at 788, 433 S.E.2d at 757. However, although defense counsel brought the potential conflict to the attention of the trial court, the trial court did not conduct an inquiry into the possible conflict of interest. Id. at 791, 433 S.E.2d at 759. Our Court held that the failure to conduct an inquiry was reversible error. Id. Our Court then found that although the ordinary course of action would be to remand the case for the trial court to conduct such a hearing, the record \u201cclearly showfed] on its face that the conflict adversely affected counsel\u2019s performance^]\u201d Id. Therefore, our Court ordered a new trial. Id.\nOur Court followed James in State v. Hardison, 126 N.C. App. 52, 483 S.E.2d 459 (1997), where the defendant filed a motion for appropriate relief to challenge his guilty pleas to first-degree burglary and second-degree kidnapping. Id. at 53, 483 S.E.2d at 460. The defendant argued that his guilty pleas were invalid because his attorney had a conflict of interest which deprived the defendant of effective assistance of counsel. Id. The trial court denied the defendant\u2019s motion without conducting an evidentiary hearing and the defendant filed a petition for writ of certiorari, which our Court allowed. Id. Citing James, our Court recognized that where a trial court becomes aware of even the \u201cmere possibility\u201d of a conflict of interest prior to the conclusion of a trial, the trial court must conduct a hearing to determine whether the conflict will deprive a defendant of his Sixth Amendment right to counsel. Id. at 55, 483 S.E.2d at 461 (citing James, 111 N.C. App. at 791, 433 S.E.2d at 758). Our Court held that \u201cthe [trial] court . . . erred in summarily entering its order denying [the] defendant\u2019s motion for appropriate relief, without conducting an evidentiary hearing to address the issues of fact surrounding counsel\u2019s alleged conflict of interest.\u201d Id. at 56, 483 S.E.2d at 461. Therefore, our Court remanded the matter for an evidentiary hearing. Id. at 58, 483 S.E.2d at 462.\nIn the present case, as in James and Hardison, a potential conflict of interest was brought to the attention of the trial court. The State brought the potential conflict to the trial court\u2019s attention as follows:\n[The State]: I want to be clear Your Honor brought this up with defense counsel now he has mentioned what the defense is. Mr. Chavis is presently charged with heroin offenses as well, is represented by counsel\u2019s boss. I want to make sure this is not a conflict of interest. They\u2019re going to be using the defense.\nHowever, the trial court did not hold an evidentiary hearing to determine whether the potential conflict of interest could affect Defendant\u2019s right to counsel under the United States Constitution and the North Carolina Constitution. Because Defendant argued at trial that she claimed possession of the heroin and the paraphernalia to protect Mr. Chavis, the father of her child, and because Mr. Chavis was represented by defense counsel\u2019s boss, there was at least the potential for a conflict. See N.C. Rules of Professional Conduct, Rule 1.7(a) (2006) (stating that \u201ca lawyer shall not represent a client if the representation involves a concurrent conflict of interest\u201d); see also N.C. Rules of Professional Conduct, Rule 1.10(b) (2006) (stating that \u201c[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9[.]\u201d). Moreover, Defendant did not waive her right to conflict-free counsel. See James, 111 N.C. App. at 791-92, 433 S.E.2d at 759 (recognizing that \u201cthe Sixth Amendment right to conflict-free representation can be waived by a defendant, if done knowingly, intelligently and voluntarily.\u201d). In the present case, unlike in James, we are unable to determine from the face of the record whether an actual conflict of interest adversely affected Defendant\u2019s Counsel\u2019s performance. Therefore, as in Hardison, we remand the matter to the trial court for an evidentiary hearing. See Hardison, 126 N.C. App. at 58, 483 S.E.2d at 462 (remanding the matter to the trial court for an evidentiary hearing regarding the defendant\u2019s motion for appropriate relief).\nThe State relies on Mickens v. Taylor, 535 U.S. 162, 152 L. Ed. 2d 291, reh\u2019g denied, 535 U.S. 1074, 152 L. Ed. 2d 856 (2002). The State argues that, based upon Mickens, \u201cit is not the potential for a conflict', as in the instant case, but an actual conflict that triggers the [trial] court\u2019s obligation to conduct an inquiry.\u201d However, the State misconstrues the Supreme Court\u2019s holding in Mickens-, Mickens is not inconsistent with our Court\u2019s holdings in James and Hardison.\nIn Mickens, the petitioner was convicted and was sentenced to death in Virginia state court for \u201cthe premeditated murder of Timothy Hall during or following the commission of an attempted forcible sodomy.\u201d Id. at 164, 152 L. Ed. 2d at 299. The petitioner filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Virginia. Id. The petitioner alleged he was denied effective assistance of counsel because one of his trial attorneys, Bryan Saunders (Saunders) had a conflict of interest. Id. Saunders was representing Timothy Hall (Hall), a juvenile, on assault and concealed weapons charges at the time Hall was allegedly murdered by the petitioner. Id. After Hall\u2019s death, a juvenile court judge dismissed the charges against Hall. Id. at 164-65, 152 L. Ed. 2d at 299-300. Three days later, the same judge appointed Saunders to represent the petitioner. Id. at 165, 152 L. Ed. 2d at 300. Saunders failed to disclose to the trial court or to the petitioner that he had previously represented Hall. Id.\nThe District Court held an evidentiary hearing and denied the petition for habeas corpus. Id. A divided panel of the Fourth Circuit Court of Appeals reversed, and the Fourth Circuit granted rehearing en banc. Id. The Fourth Circuit \u201cassumed that the juvenile court judge had neglected a duty to inquire into a potential conflict, but rejected [the] petitioner\u2019s argument that this failure either mandated automatic reversal of his conviction or relieved him of the burden of showing that a conflict of interest adversely affected his representation.\u201d Id. The Fourth Circuit held, relying upon Cuyler, that \u201ca defendant must show \u2018both an actual conflict of interest and an adverse effect even if the trial court failed to inquire into a potential conflict about which it reasonably should have known[.]\u2019 \u201d Id. (quoting Mickens v. Taylor, 240 F.3d 348, 355-56 (4th Cir. 2001)). Because the Fourth Circuit concluded that the petitioner had not demonstrated adverse effect, it affirmed the District Court\u2019s denial of the petition. Id.\nOn appeal to the United States Supreme Court, the petitioner argued that \u201cwhere the trial judge neglects a duty to inquire into a potential conflict, the defendant, to obtain reversal of the judgment, need only show that his lawyer was subject to a conflict of interest, and need not show that the conflict adversely affected counsel\u2019s performance.\u201d Id. at 170, 152 L. Ed. 2d at 303. However, the Supreme Court rejected this position, holding as follows:\nSince this was not a case in which (as in Holloway) counsel protested his inability simultaneously to represent multiple defendants; and since the trial court\u2019s failure to make the [Cuyler]-mandated inquiry does not reduce the petitioner\u2019s burden of proof; it was at least necessary, to void the conviction, for [the] petitioner to establish that the conflict of interest adversely affected his counsel\u2019s performance. The Court of Appeals having found no such effect, see 240 [F.3d] at 360, the denial of habeas relief must be affirmed.\nId. at 173-74, 152 L. Ed. 2d at 305. The Supreme Court noted that \u201c[a]n \u2018actual conflict,\u2019 for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel\u2019s performance.\u201d Id. at 172 n. 5, 152 L. Ed. 2d at 304 n. 5.\nIn the present case, unlike in Mickens, an evidentiary hearing has not been held. Therefore, we are unable to determine whether Defendant was denied the right to counsel under the United States Constitution and the North Carolina Constitution. We remand the matter to the trial court to conduct a hearing to determine whether Defendant was deprived of her right to counsel. See Wood, 450 U.S. at 273-74, 67 L. Ed. 2d at 231 (remanding to the trial court for a hearing to determine whether an actual conflict of interest existed at the time of the probation revocation hearing). On remand, Defendant has the burden, as articulated in Mickens, Cuyler and James, of showing that an actual conflict of interest existed and that it adversely affected her counsel\u2019s performance. Mickens, 535 U.S. at 173-74, 152 L. Ed. 2d at 305; Cuyler, 446 U.S. at 348, 64 L. Ed. 2d at 346-47; James, 111 N.C. App. at 789, 433 S.E.2d at 757. Because the trial court may determine that Defendant was not denied the right to counsel, and therefore may not order a new trial, we consider Defendant\u2019s remaining assignment of error.\nII.\nDefendant argues the trial court erred by sentencing her, in absentia, to nine months of intensive probation. We agree. The written judgment entered by a trial court constitutes the actual sentence imposed on a criminal defendant; the announcement of judgment in open court is merely the rendering of judgment. State v. Crumbley, 135 N.C. App. 59, 66, 519 S.E.2d 94, 99 (1999). A defendant has a right to be present at the time a sentence is imposed. Id.; see also State v. Davis, 167 N.C. App. 770, 776, 607 S.E.2d 5, 9 (2005). Where the written judgment represents a substantive change from the sentence pronounced by the trial court, and the defendant was not present at the time the written judgment was entered, the sentence should be vacated and the matter remanded for \u201centry of a new sentencing judgment.\u201d See Crumbley, 135 N.C. App. at 66-67, 519 S.E.2d at 99.\nIn the present case, although the written judgment imposed a sentence of nine months of intensive probation on Defendant, the transcript is void of any reference to this sentence. The State argues \u201c[t]here were no discrepancies between what occurred in open court and the sentence that was entered. The only discrepancy is between what was said in open court and the transcription of those statements.\u201d The State argues that the jury notes taken by the clerk who attended the trial demonstrate that the sentence of nine months\u2019 probation was announced in open court. The jury notes contain the following notation: \u201c9 mths Intensive.\u201d However, because the transcript contains no reference to this sentence, and Defendant was not present at the time the written judgment was entered, we must vacate the sentence of nine months\u2019 intensive probation and remand. In the event the trial court does not order a new trial for Defendant after conducting the evidentiary hearing required by Section I of this opinion, the trial court should enter a new sentencing judgment.\nRemanded in part; and vacated and remanded in part.\nJudges WYNN and McCULLOUGH concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General John C. Evans, for 'the State.", "Russell J. Hollers III for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TAMICA YVETTE MIMS\nNo. COA06-10\n(Filed 5 December 2006)\n1. Constitutional Law\u2014 right to counsel \u2014 conflicts of interest\nThe trial court erred in a trafficking in heroin by possession and possession of drug paraphernalia case by failing to conduct a hearing regarding defense counsel\u2019s potential conflict of interest where defendant claimed possession of the heroin and the paraphernalia to protect the father of her child who was represented by defense counsel\u2019s boss, because: (1) the right to counsel under the United States and North Carolina Constitutions includes a right to representation that is free from conflicts of interest; (2) when a trial court is made aware of a possible conflict of interest, the trial court must take control of the situation and should conduct a hearing to determine whether there exists such a conflict of interest that defendant will be prevented from receiving advice and assistance sufficient to afford him the quality of representation guaranteed by the Sixth Amendment; (3) the failure to hold such a hearing in and of itself constitutes reversible error; (4) defendant did not waive her right to conflict-free counsel; and (5) it cannot be determined from the face of the record whether an actual conflict of interest adversely affected defense counsel\u2019s performance, and an evidentiary hearing must be conducted by the trial court on remand.\n2. Sentencing\u2014 intensive probation \u2014 no reference to sentence in transcript \u2014 defendant not present at time written judgment entered\nThe trial court erred in a trafficking in heroin by possession and possession of drug paraphernalia case by sentencing defendant to nine months of intensive probation, because: (1) where the written judgment represents a substantive change from the sentence pronounced by the trial court and defendant was not present at the time the written judgment was entered, the sentence should be vacated and the matter remanded for entry of a new sentencing judgment; and (2) although the written judgment imposed a sentence of nine months of intensive probation on defendant and the jury notes taken by the clerk who attended the trial demonstrated that the sentence of nine months\u2019 probation was announced in open court, the transcript contained no reference to this sentence and defendant was not present at the time the written judgment was entered.\nAppeal by Defendant from judgments dated 19 April 2005 by Judge Milton F. Fitch Jr. in Superior Court, Durham County. Heard in the Court of Appeals 21 September 2006.\nAttorney General Roy Cooper, by Assistant Attorney General John C. Evans, for 'the State.\nRussell J. Hollers III for Defendant." }, "file_name": "0403-01", "first_page_order": 433, "last_page_order": 444 }