{ "id": 4158316, "name": "STATE OF NORTH CAROLINA v. ERNESTO RAFEL DELROSARIO", "name_abbreviation": "State v. Delrosario", "decision_date": "2008-06-03", "docket_number": "No. COA07-953", "first_page": "797", "last_page": "803", "citations": [ { "type": "official", "cite": "190 N.C. App. 797" } ], "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": "634 S.E.2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636697, 12636698 ], "weight": 2, "year": 2006, "pin_cites": [ { "parenthetical": "adopting Black's Law Dictionary's definition of the term \"conviction\": \" 'The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty. ... 2. The judgment (as by jury verdict) that a person is guilty of a crime.' \"" } ], "opinion_index": 0, "case_paths": [ "/se2d/634/0891-01", "/se2d/634/0891-02" ] }, { "cite": "632 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636378, 12636379, 12636380 ], "year": 2006, "pin_cites": [ { "parenthetical": "adopting Black's Law Dictionary's definition of the term \"conviction\": \" 'The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty. ... 2. The judgment (as by jury verdict" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0768-01", "/se2d/632/0768-02", "/se2d/632/0768-03" ] }, { "cite": "623 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634744 ], "year": 2006, "pin_cites": [ { "page": "785" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0782-01" ] }, { "cite": "343 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "526" } ], "opinion_index": 0 }, { "cite": "317 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778761 ], "year": 1986, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0127-01" ] }, { "cite": "544 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "543 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "543 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "432 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "337" } ], "opinion_index": 0 }, { "cite": "334 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532725 ], "year": 1993, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0320-01" ] }, { "cite": "583 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 255", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491555, 491721, 491565, 491694, 491548, 491665, 491826, 491671, 491420 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0255-03", "/nc/357/0255-01", "/nc/357/0255-08", "/nc/357/0255-07", "/nc/357/0255-05", "/nc/357/0255-04", "/nc/357/0255-02", "/nc/357/0255-06", "/nc/357/0255-09" ] }, { "cite": "289 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "341-42" } ], "opinion_index": 0 }, { "cite": "305 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569745 ], "year": 1982, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0308-01" ] }, { "cite": "573 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "622", "parenthetical": "quoting State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335, 341-42 (1982)" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 500", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250814 ], "year": 2002, "pin_cites": [ { "page": "505", "parenthetical": "quoting State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335, 341-42 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0500-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "21 U.S.C. \u00a7\u00a7 952", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "515 U.S. 389", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1563793 ], "weight": 5, "year": 1995, "pin_cites": [ { "page": "397" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/us/515/0389-01" ] }, { "cite": "360 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792064, 3789234, 3788598, 3797047, 3791800, 3791227, 3798558 ], "year": 2006, "pin_cites": [ { "parenthetical": "adopting Black's Law Dictionary's definition of the term \"conviction\": \" 'The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty. ... 2. The judgment (as by jury verdict) that a person is guilty of a crime.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0542-06", "/nc/360/0542-03", "/nc/360/0542-02", "/nc/360/0542-01", "/nc/360/0542-07", "/nc/360/0542-05", "/nc/360/0542-04" ] }, { "cite": "360 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792225, 3788417, 3791334, 3790022, 3789906, 3789364, 3797885 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0489-03", "/nc/360/0489-05", "/nc/360/0489-02", "/nc/360/0489-06", "/nc/360/0489-07", "/nc/360/0489-04", "/nc/360/0489-01" ] }, { "cite": "175 N.C. App. 586", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352812 ], "year": 2006, "pin_cites": [ { "page": "589-90" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0586-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "453 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "864", "parenthetical": "quoting Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)" } ], "opinion_index": 0 }, { "cite": "339 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558634 ], "year": 1995, "pin_cites": [ { "page": "728", "parenthetical": "quoting Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0725-01" ] }, { "cite": "187 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "717" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-97", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 8, "year": 2007, "opinion_index": 0 }, { "cite": "21 U.S.C. \u00a7 841", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "18 U.S.C. \u00a7 954", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 608, "char_count": 12658, "ocr_confidence": 0.745, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.39341135332600474 }, "sha256": "5b633f133306a30647de1b803b30b4efd7376320324882f1ff59ed0e778cea5a", "simhash": "1:9b6dff61f13245d9", "word_count": 2059 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and ARROWOOD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ERNESTO RAFEL DELROSARIO" ], "opinions": [ { "text": "McCullough, Judge.\nAt the 11 December 2001 Criminal Session of Wake County Superior Court, defendant Ernesto Rafel Delrosario (\u201cdefendant\u201d) pled guilty to two counts of maintaining a vehicle or dwelling for the keeping or sale of controlled substances, one count of trafficking in cocaine by possession, and one count of trafficking in cocaine by transportation.\nThe undisputed evidence presented at the plea hearing tended to show the following: Sometime prior to 20 July 2001, a confidential informant working in cooperation with the Raleigh Police Department told Detective Bradley Young that defendant was involved in drug trafficking in the Raleigh area. The Raleigh Police Department, with the assistance of the informant, arranged to purchase approximately nine ounces of cocaine from defendant on 20 July 2001.\nOn 20 July 2001, law enforcement observed defendant drive his vehicle from his residence at 225 Peartree Lane toward the location for the prearranged cocaine purchase. Law enforcement concluded that defendant was driving without a valid driver\u2019s license and stopped the vehicle. During the stop, law enforcement searched defendant and found nine ounces of cocaine on his person. Defendant waived his rights and consented to a search of his residence. Upon searching his residence, law enforcement found a cocaine grinder and 278.2 grams of cocaine. The trial court accepted defendant\u2019s guilty plea pursuant to the plea arrangement, and the matter was continued 60 days for sentencing. Defendant was released.\nDuring the interim between the plea hearing and the sentencing hearing, defendant absconded. On 21 December 2001, defendant committed acts that gave rise to federal drug charges. Specifically, defendant was indicted with charges under 18 U.S.C. \u00a7 954(c) and 21 U.S.C. \u00a7 841(a)(1) for distributing 55 grams of cocaine. Defendant pled guilty to these federal charges on 24 February 2003. Although the charges arising from the 20 July 2001 offenses were not adopted for prosecution in the federal indictment, the 20 July 2001 offenses were considered for purposes of sentencing. The federal judge found as fact that the 20 July 2001 offenses were part of the same course of conduct as defendant\u2019s 21 December 2001 offenses. Using a \u201creal offense\u201d approach to sentencing, on 25 June 2003, the federal judge aggregated the weight of the cocaine from the 21 December offense and the 20 July offense, and increased defendant\u2019s offense level from a Level 16 to a Level 22.\nAt the 16 January 2007 Criminal Session of Wake County Superior Court, defendant was sentenced on the state charges. Defendant moved to dismiss the state charges pursuant to N.C. Gen. Stat. \u00a7 90-97 (2007), and alternatively, to continue sentencing', in order to secure a transcript of defendant\u2019s federal sentencing hearing. The trial court denied both motions. Defendant received a consolidated term of imprisonment of 70 to 84 months as well as a $100,000 fine.\nOn appeal, defendant contends that the trial court erred by: (1) denying his motion to dismiss the state drug charges pursuant to N.C. Gen. Stat. \u00a7 90-97; and (2) failing to continue the sentencing hearing.\nI. Motion to Dismiss\nDefendant first contends that because the 20 July 2001 offenses that give rise to the state charges were considered during defendant\u2019s federal sentencing, N.C. Gen. Stat. \u00a7 90-97 is a bar to the state charges against defendant. We disagree, as we conclude that defendant was not convicted under federal law for the same act that gives rise to the state charges at issue.\nN.C. Gen. Stat. \u00a7 90-97 provides, in pertinent part:\nIf a violation of this Article is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this State.\nA. \u201cProsecution\u201d under \u00a7 90-97\nFirst, we address the State\u2019s argument that \u00a7 90-97 is inapplicable \u2022 to the case sub judice because the state prosecution ended on the date that defendant pled guilty to the state charges, which was prior to defendant\u2019s federal conviction. We find that this argument is inconsistent with the definition of \u201cprosecution\u201d that has been adopted by our Supreme Court. In State v. Harvey, 281 N.C. 1, 19, 187 S.E.2d 706, 717 (1972), our Supreme Court held that under the Controlled Substance Act, a prosecution \u201cconsists of the series of proceedings had in the bringing of an accused person to justice, from the time when the formal accusation is made, by the filing of an affidavit or a bill of indictment or information in the criminal court, until the proceedings are terminated.\u201d We are bound by this definition, and accordingly, we conclude that a state prosecution ends not on the date that a defendant pleads guilty to state charges, but rather the prosecution is pending until the date that all state proceedings are terminated. Here, defendant was convicted of federal charges before all state proceedings were terminated. Because defendant\u2019s federal conviction occurred before the state prosecution ended, N.C. Gen. Stat. \u00a7 90-97 is applicable if the remaining statutory requirements are satisfied.\nb. \u201cConviction\u201d under N.C. Gen. Stat. \u00a7 90-97\nHaving decided that defendant\u2019s federal conviction occurred prior to the conclusion of defendant\u2019s state prosecution, we now turn to whether the consideration of the 20 July 2001 offenses for federal sentencing purposes constituted a \u201cconviction\u201d for those offenses as that term is used in N.C. Gen. Stat. \u00a7 90-97. \u201c \u2018Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.\u2019 \u201d State v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 864 (1995) (quoting Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)).\nWe have held that, under the traditional definition, \u201cconviction\u201d refers to the jury\u2019s or fact-finder\u2019s guilty verdict. State v. McGee, 175 N.C. App. 586, 589-90, 623 S.E.2d 782, 785, disc. review denied, 360 N.C. 489, 632 S.E.2d 768, appeal dismissed, disc. review denied, 360 N.C. 542, 634 S.E.2d 891 (2006) (adopting Black\u2019s Law Dictionary\u2019s definition of the term \u201cconviction\u201d: \u201c \u2018The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty. ... 2. The judgment (as by jury verdict) that a person is guilty of a crime.\u2019 \u201d). Id. Likewise, the North Carolina Structured Sentencing Statutes provide, in pertinent part, \u201ca person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest.\u201d N.C. Gen. Stat. \u00a7 15A-1331(b) (2007).\nThis definition of the term \u201cconviction\u201d is in accord with federal precedent. In Witte v. United States, 515 U.S. 389, 132 L. Ed. 2d 351 (1995), the defendant moved to dismiss an indictment charging him with conspiring and attempting to import cocaine in violation of 21 U.S.C. \u00a7\u00a7 952(1) and 963 on the ground that the cocaine involved in these offenses had been considered as \u201crelevant conduct\u201d at sentencing for a previous marijuana conviction, and therefore, the later prosecution was barred by the Double Jeopardy Clause of the Fifth Amendment. The United States Supreme Court rejected this argument, reasoning that consideration of uncharged conduct for sentencing purposes is not a \u201cconviction\u201d for such conduct, and therefore, is not \u201cpunishment\u201d under the Double Jeopardy Clause:\nWe agree with the Court of Appeals, however, that petitioner\u2019s double jeopardy theory \u2014 that consideration of uncharged conduct in arriving at a sentence within the statutorily authorized punishment range constitutes \u201cpunishment\u201d for that conduct \u2014 is not supported by our precedents, which make clear that a defendant in that situation is punished, for double jeopardy purposes, only for the offense of which the defendant is convicted.\nWitte, 515 U.S. at 397, 132 L. Ed. 2d at 362.\nThus, under federal law, where uncharged conduct is considered as relevant conduct for sentencing purposes, the defendant is neither \u201cconvicted\u201d for such conduct nor is he \u201cpunished\u201d for such conduct. Id. Here, Robert Hale, defendant\u2019s counsel in the federal case, testified that the federal indictment did not adopt for prosecution defendant\u2019s conduct on 20 July 2001. Because defendant was not charged in the federal prosecution for his 20 July 2001 acts, he was neither adjudged guilty nor did he plead guilty or no contest for those acts in federal court. Under both the state and federal definition of the term, defendant was not \u201cconvicted\u201d under federal law for the uncharged acts that occurred on 20 July 2001. Accordingly, we conclude that N.C. Gen. Stat. \u00a7 97-90 does not bar the state prosecution for the acts that occurred on 20 July 2001 because defendant was not \u201cconvicted\u201d for the \u201csame act\u201d under federal law. This assignment of error is overruled.\nII. Motion to Continue\nDefendant next contends that the trial court committed reversible error by denying his motion to continue, pending delivery of a transcript from the federal sentencing hearing. Defendant argues that the trial court deprived him of his constitutional right to present his defense. We disagree.\nIn reviewing a trial court\u2019s ruling on a motion to continue,\n\u201c[i]t is well-established that a motion to continue is ordinarily addressed to the trial judge\u2019s sound discretion and his ruling thereon will not be disturbed except upon a showing of abuse of discretion. However, when a motion to continue is based on a constitutional right, the question presented is a reviewable question of law.\u201d\nState v. Smith, 155 N.C. App. 500, 505, 573 S.E.2d 618, 622 (2002) (quoting State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335, 341-42 (1982)), disc. review denied, 357 N.C. 255, 583 S.E.2d 287 (2003).\n\u201cTo establish a constitutional violation, a defendant must show that he did not have ample time to . . . investigate, prepare and present his defense.\u201d State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 337 (1993), cert. denied, 543 S.E.2d 144, cert. denied, 543 S.E.2d 882, cert. denied, 544 S.E.2d 242 (2000). In order to demonstrate that the time allowed to prepare a defense was inadequate, defendant must show \u201chow his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion.\u201d State v. Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526 (1986). Here, although defendant was unable to obtain a transcript of the federal sentencing hearing, defendant presented Robert Hale\u2019s testimony that the federal indictment did not adopt the 20 July 2001 offenses. As previously discussed, based on this testimony, the trial court properly concluded that N.C. Gen. Stat. \u00a7 90-97 was not a defense to defendant\u2019s state prosecution. Since this defense fails as a matter of law, defendant has not shown that he was materially prejudiced by the denial of his motion or that he would have been better prepared had he been able to obtain a transcript of the hearing. This assignment of error is overruled.\nBased on the foregoing, we affirm.\nAffirmed.\nJudges ELMORE and ARROWOOD concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Latoya B. Powell, for the State.", "Jarvis John Edgerton, TV, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERNESTO RAFEL DELROSARIO\nNo. COA07-953\n(Filed 3 June 2008)\n1. Criminal Law\u2014 actions used in federal sentencing \u2014 not a federal conviction \u2014 state prosecution not barred\nN.C.G.S. \u00a7 90-97 did not bar state prosecution where defendant pled guilty in state court to a drug offense, those acts were considered at sentencing for a federal conviction of a related offense, and the state sentencing occurred after the federal sentencing. The acts that were the subject of the state charge were not charged in federal court and defendant was not convicted under federal law for those actions.\n2. Criminal Law\u2014 continuance denied \u2014 transcript of federal sentencing hearing not available\nThe trial court did not err by denying a continuance where a defendant sought a transcript of a federal sentencing hearing which had considered the acts for which he was being sentenced in state court. There was testimony that the federal indictment had not adopted these offenses, the trial court properly concluded that N.C.G.S. \u00a7 90-97 was not a defense to the State prosecution, and defendant had not shown that he was materially prejudiced by the denial of his motion.\nAppeal by defendant from judgment entered 16 January 2007 by Judge J.B. Allen, Jr., in Wake County Superior Court. Heard in the Court of Appeals 6 February 2008.\nAttorney General Roy Cooper, by Assistant Attorney General Latoya B. Powell, for the State.\nJarvis John Edgerton, TV, for defendant appellant." }, "file_name": "0797-01", "first_page_order": 829, "last_page_order": 835 }