{ "id": 4168516, "name": "STATE OF NORTH CAROLINA v. BRANDON ALLEN POTTER", "name_abbreviation": "State v. Potter", "decision_date": "2009-08-04", "docket_number": "No. COA08-1398", "first_page": "682", "last_page": "687", "citations": [ { "type": "official", "cite": "198 N.C. App. 682" } ], "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": "638 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637355 ], "year": 2006, "pin_cites": [ { "page": "39", "parenthetical": "\"Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.\" (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0036-01" ] }, { "cite": "656 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640355 ], "opinion_index": 0, "case_paths": [ "/se2d/656/0597-01" ] }, { "cite": "180 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8243614 ], "year": 2006, "pin_cites": [ { "page": "531", "parenthetical": "\"Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.\" (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0527-01" ] }, { "cite": "555 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "571", "parenthetical": "\"Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal\"" } ], "opinion_index": 0 }, { "cite": "354 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138413 ], "year": 2001, "pin_cites": [ { "page": "389", "parenthetical": "\"Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal\"" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0372-01" ] }, { "cite": "669 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "362 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149787 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0665-01" ] }, { "cite": "188 N.C. App. 508", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155311 ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0508-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(c)(2)" }, { "page": "(c)(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-32.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(e)" } ], "opinion_index": 1 }, { "cite": "600 S.E.2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "896" }, { "page": "897" } ], "opinion_index": 1 }, { "cite": "166 N.C. App. 202", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411017 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "208" } ], "opinion_index": 1, "case_paths": [ "/nc-app/166/0202-01" ] }, { "cite": "185 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "111" } ], "opinion_index": 1 }, { "cite": "279 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571881 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "633" } ], "opinion_index": 1, "case_paths": [ "/nc/279/0621-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 560, "char_count": 12317, "ocr_confidence": 0.734, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13634906899977567 }, "sha256": "e956d4cebc9da00f067b2a24da8ba0e57169d6f1cf365e667968d5708f3a86d4", "simhash": "1:6bca68a6bea272dc", "word_count": 2013 }, "last_updated": "2023-07-14T15:51:23.100841+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STEPHENS concurs.", "Judge GEER concurs in the result only in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. BRANDON ALLEN POTTER" ], "opinions": [ { "text": "BRYANT, Judge.\nDefendant appeals from judgments and commitments entered 7 May 2008 for robbery with a dangerous weapon and habitual misdemeanor assault. Defendant was sentenced to a term of 100 to 129 months active imprisonment for the robbery followed by a term of seven to nine months suspended sentence for the habitual misdemeanor assault, and defendant was placed on supervised probation for 36 months. For the reasons stated herein, we dismiss defendant\u2019s appeal.\nThe evidence presented at trial tended to show that on the evening of 19 October 2007 Heather Devries stopped at Walmart on her way from work. An hour later, Devries was walking through the parking lot to her car. She had a large shoulder bag which contained cash, her wallet, keys, a cell phone, make-up, and paperwork. While walking, she felt a tug on her shoulder and heard a voice say, \u201cGive me your purse.\u201d Devries turned to face a man and saw a gray knife, similar to a carpet knife. Devries tried to pull her purse away, but the man hit her in the stomach, hit her on her side, then ran away with the purse. Devries screamed for someone to call the police and chased the man until he got into a car with a female passenger and drove away.\nShortly thereafter, a law enforcement officer for the Town of Mooresville stopped defendant and his companion because they matched the description of the suspects. Devries was transported by another law enforcement officer to the scene of the stop, where she identified both defendant and his female companion as the individuals who drove away with her handbag. In defendant\u2019s vehicle was found a gray knife and, subsequent to defendant\u2019s arrest, cash in his front pocket. Devries\u2019 handbag was found along the roadside between the intersection where defendant was stopped and the Walmart where Devries was hit and her handbag taken. Inside the handbag was found Devries\u2019 driver\u2019s license and credit cards but no cash. Devries again identified both defendant and his companion in court.\nDefendant was indicted for robbery with a dangerous weapon and habitual misdemeanor assault premised on the charge of assault on a female. At the close of the evidence, a jury returned guilty verdicts for robbery with a dangerous weapon and assault on a female. Out of the presence of the jury, defendant stipulated to prior convictions for misdemeanor assault on a government official on 23 February 1996 and misdemeanor assault with a deadly weapon on 21 January 1998. The trial court entered judgment and commitment for robbery with a dangerous weapon and habitual misdemeanor assault. Defendant appeals.\nDefendant raises the following two issues on appeal: (I) whether the trial court committed sentencing error by entering judgment for both robbery with a dangerous weapon and misdemeanor assault; and (II) whether defense counsel provided ineffective assistance of counsel.\nI\nFirst, defendant contends that the trial court committed sentencing error under N.C. Gen. Stat. \u00a7 14-33 by entering judgment on both robbery with a dangerous weapon and habitual misdemeanor assault based on misdemeanor assault on a female. Defendant argues that the conduct used to support his conviction for assault on a female under N.C. Gen. Stat. \u00a7 14-33(c)(2) was also used to support his conviction for robbery with a dangerous weapon under N.C. Gen. Stat. \u00a7 14-87. We dismiss this argument.\nUnder the North Carolina General Statutes, section 15A-1444(a1),\n[a] defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant\u2019s prior record or conviction level and class of offense. Otherwise, the. defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.\nN.C. Gen. Stat. \u00a7 15A-1444(a1) (2007).\nHere, defendant was convicted of robbery with a dangerous weapon, a Class D felony, and was sentenced as a record level III felony offender to an active sentence of 100 to 129 months. Convicted of habitual misdemeanor assault, carrying the sentence of a Class H felony, defendant was sentenced as a record level II misdemeanor offender, received a suspended sentence of seven to nine months, and was placed on supervised probation for 36 months. The minimum levels of both sentences are within the presumptive range. See N.C. Gen. Stat. \u00a7 15A-1340.17(c) (2007). Pursuant to N.C.G.S. \u00a7 15A-1444(a1), defendant is not entitled to appeal as a matter of right the issue of whether his sentence is supported by evidence introduced at the trial. See N.C.G.S. \u00a7 15A-1444(a1) (2007). Moreover, defendant has not petitioned this Court to review the merits of his appeal by writ of certiorari. Therefore, we hold defendant\u2019s argument is not properly before us, and accordingly, this argument is dismissed.\nII\nNext, defendant argues defense counsel provided ineffective assistance of counsel by failing to object to the submission of the misdemeanor assault charge to the jury and the imposition of a sentence based on the misdemeanor assault on the grounds that the conduct punished was in perpetuation of the robbery.\nAs we have dismissed on procedural grounds the issue of whether defendant\u2019s conduct punished by a conviction for assault on a female under N.C. Gen. Stat. \u00a7 14-33(c)(2) was covered by the conviction for robbery with a dangerous weapon under N.C. Gen. Stat. \u00a7 14-87, we will not address whether defense counsel\u2019s failure to object to the submission of the misdemeanor assault charge to the jury and the imposition of a sentence based on the misdemeanor assault amounted to ineffective assistance of counsel.\nAccordingly, this issue is dismissed without prejudice to defendant\u2019s right to raise these arguments in a motion for appropriate relief filed in the trial court. See State v. Duncan, 188 N.C. App. 508, 656 S.E.2d 597 (Hunter, J., dissenting) (\u201c[i]f an ineffective assistance of counsel claim is prematurely brought, this Court may dismiss the claim without prejudice, allowing the defendant to reassert the claim during a subsequent motion for appropriate relief proceeding.\u201d), rev\u2019d per curiam for reasons stated in the dissenting opinion, 362 N.C. 665, 669 S.E.2d 738 (2008). See also N.C. Gen. Stat. \u00a7 15A-1415 (2009) (grounds for appropriate relief which may be asserted by defendant after verdict).\nDismissed.\nJudge STEPHENS concurs.\nJudge GEER concurs in the result only in a separate opinion.\n. We note the State\u2019s contention that defendant\u2019s argument is not properly before this Court because it raises constitutional issues that were not raised at trial, see State v. Anthony, 354 N.C. 372, 389, 555 S.E.2d 557, 571 (2001) (\u201cConstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal\u201d) (citation omitted); State v. Sloan, 180 N.C. App. 527, 531, 638 S.E.2d 36, 39 (2006) (\u201cConstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.\u201d (citation omitted)). However, as we deem defendant\u2019s argument subject to dismissal on other grounds, we need not further address the State\u2019s contentions.\n. N.C. Gen. Stat. \u00a7 14-33. Misdemeanor assaults, batteries, and affrays, simple and aggravated; punishments, (c) Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she: ... (2) Assaults a female, he being a male person at least 18 years of age[.j (Emphasis added).\n. Defendant\u2019s motion to amend his brief to add a reference to Assignment of Error No. 9 was allowed by this Court on 20 March 2009.", "type": "majority", "author": "BRYANT, Judge." }, { "text": "GEER, Judge,\nconcurring in the result only.\nI do not agree that N.C. Gen. Stat. \u00a7 15A-1444(a1) (2007) applies in the circumstances of this case. Defendant is arguing that he should have been sentenced only for robbery with a dangerous weapon and not also for habitual misdemeanor assault. If he were to prevail on this argument, the judgment for habitual misdemeanor assault would be arrested, and he would not be subjected to the suspended consecutive seven to nine month sentence. This argument does not seem to me to fall within the intended scope of \u00a7 15A-1444(a1).\nIn any event, I believe that defendant\u2019s argument is precluded by State v. Richardson, 279 N.C. 621, 185 S.E.2d 102 (1971), and State v. Hines, 166 N.C. App. 202, 600 S.E.2d 891 (2004). In Richardson, our Supreme Court held that \u201cwhen separate indictments for armed robbery and felonious assault based on separate features of one continuous course of conduct are tried together, and verdicts of guilty as charged are returned, these verdicts provide support for separate judgments.\u201d 279 N.C. at 633, 185 S.E.2d at 111. Here, defendant\u2019s conviction of armed robbery is supported by the evidence that he took the victim\u2019s purse by confronting her with a knife. Defendant also, in the course of the robbery, struck the victim in her stomach and in her side \u2014 separate features of the course of conduct that supported the conviction of assault on a female that was the basis for the habitual misdemeanor assault conviction.\nDefendant, however, argues that Richardson did not involve a statute, such as the statute governing assault on a female, that provides for punishment for assault \u201c[u]nless the conduct is covered under some other provision of law providing greater punishment . . . .\u201d N.C. Gen. Stat. \u00a7 14-33(c) (2007). Hines, however, involved precisely such a statute, and this Court rejected the argument made by defendant in this case.\nRelying upon N.C. Gen. Stat. \u00a7 14-32.1(e) (2003), which allowed for punishment for assault on a handicapped person \u201c[u]nless [defendant\u2019s] conduct is covered under some other provision of law providing greater punishmentf,]\u201d the defendant in Hines argued that she could not be sentenced for both robbery with a dangerous weapon and aggravated assault on a handicapped person. 166 N.C. App. at 208, 600 S.E.2d at 896. This Court rejected that argument, holding that \u201cthe statutory language cited by defendant bars punishment under both this provision and another provision of an assault statute.\u201d Id. at 209, 600 S.E.2d at 897. Because the defendant had been convicted of robbery with a dangerous weapon (not a violation of an assault statute), she could also be convicted of assault on a handicapped person. Id. I believe Hines is indistinguishable from this case.\nUnder both Richardson and Hines, defendant could properly be sentenced for both robbery with a dangerous weapon and habitual misdemeanor assault. Since there was no error, defendant cannot show ineffective assistance of counsel by defense counsel in failing to raise this issue.", "type": "concurrence", "author": "GEER, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by David L. Elliot, Director, Victims and Citizens Services, for the State.", "Don Willey for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BRANDON ALLEN POTTER\nNo. COA08-1398\n(Filed 4 August 2009)\n1. Sentencing\u2014 two offenses \u2014 same conduct \u2014 sentences in presumptive range\nAn appeal was dismissed where defendant was contesting sentencing for robbery with a dangerous weapon and habitual misdemeanor assault based on assault on a female, but the sen- , tences were within the presumptive range. Defendant was not entitled to appeal as of right under N.C.G.S. \u00a7 15A-1340.17(c), and did not petition for certiorari.\n2. Appeal and Error\u2014 ineffective assistance of counsel \u2014 underlying issue dismissed\nAn appeal alleging ineffective assistance of counsel based on failure to object to. submission of a misdemeanor assault charge and imposition of a sentence based on that charge was dismissed where the issue of whether defendant\u2019s conduct was covered by a conviction for armed robbery was dismissed elsewhere in the opinion.\nJudge GEER concurring in the result only.\nAppeal by defendant from judgments entered 7 May 2008 by Judge John L. Holshouser, Jr. in Iredell County Superior Court. Heard in the Court of Appeals 9 April 2009.\nAttorney General Roy Cooper, by David L. Elliot, Director, Victims and Citizens Services, for the State.\nDon Willey for defendant-appellant." }, "file_name": "0682-01", "first_page_order": 708, "last_page_order": 713 }