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    "judges": [
      "Judges STEELMAN and McCULLOUGH concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JOHN LEWIS WRAY, JR."
    ],
    "opinions": [
      {
        "text": "CALABRIA, Judge.\nJohn Lewis Wray, Jr. (\u201cdefendant\u201d) appeals from a judgment entered upon jury verdicts finding him guilty of possession with intent to sell or deliver (\u201cPWISD\u201d) cocaine, sale of cocaine, and attaining the status of an habitual felon. We find no error.\nI Background\nIn 2007, defendant was arrested and indicted for PWISD cocaine, sale of cocaine and for attaining the status of an habitual felon. At trial in Cleveland County Superior Court, although the trial court had appointed \u201cthree of the best lawyers in Cleveland County,\u201d appointed yet another attorney (\u201cthe fourth attorney\u201d) to represent defendant. After defendant told the court that he did not want to be represented by the fourth attorney, the court reminded defendant of the possible prison sentence he faced and asked him whether he was certain that he wanted to represent himself. The trial court found that defendant had forfeited his right to counsel and defendant proceeded to tr\u00edalpro se. The jury was unable to reach a verdict on the sale of cocaine charge but found defendant guilty of PWISD cocaine and attaining the status of an habitual felon. The trial court sentenced defendant to a minimum of 136 months and a maximum of 173 months to be served in the North Carolina Department of Correction. Defendant appealed. This Court concluded that defendant might not have been competent to proceed pro se and \u201cthat the trial court erred by granting defense counsel's motion to withdraw and in ruling that [defendant had forfeited his right to counsel.\u201d State v. Wray, 206 N.C. App. 354, 371, 698 S.E.2d 137, 148 (2010) (\u201cWray I\u201d). As a result, this Court reversed and remanded the case. Id.\nOn 10 May 2011, the trial court filed a motion and ordered defendant\u2019s commitment to Central Regional Hospital for a period not to exceed sixty (60) days for observation and treatment to determine his capacity to proceed. In its order, the court included the reason for the commitment, stating \u201c[t]he North Carolina Court of Appeals has determined that there is an issue concerning this defendant\u2019s capacity to proceed.\u201d On 7 June 2011, defendant was examined and submitted to a capacity to proceed evaluation. Subsequently, a forensic psychiatrist determined defendant was capable to proceed on the pending charges. Since defendant was not represented by an attorney on 29 August 2011, the trial court appointed an attorney for defendant and modified his bond to $500.00, secured. On 9 April 2012, the Court found defendant was competent to proceed.\nAt the second trial, the State produced evidence that law enforcement officers worked with Philip West (\u201cWest\u201d), a paid informant, on 27 September 2006, making controlled drug buys. Since West wore a recording device, the officers could hear what occurred when he made a purchase from defendant. When West returned to the officers, they downloaded a video of the interaction. The State played the video at trial. The State also produced evidence that West paid defendant $20.00 for less than 0.1 grams of cocaine.\nThe jury returned verdicts finding defendant guilty of PWISD cocaine, sale of cocaine, and attaining the status of an habitual felon. The trial court consolidated the offenses of PWISD cocaine and sale of cocaine and sentenced defendant to a minimum of 142 months and a maximum of 180 months in custody of the North Carolina Division of Adult Correction. Defendant appeals.\nII. Defendant's Right to Representation\nPrior to Capacity Evaluation\nDefendant argues that the trial court erred by failing to appoint counsel to represent him after Wray I and before ordering defendant to submit to a capacity to proceed evaluation. Specifically, defendant argues that that time period was a critical stage of his trial that required defendant to be appointed counsel. We disagree.\nThe United States Supreme Court has held that \u201c[t]he presumption that counsel\u2019s assistance is essential require [d them] to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.\u201d United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 (1984). Our Supreme Court has determined that \u201c[w]hether a critical stage has been reached depends upon an analysis of whether potential substantial prejudice to defendant\u2019s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.\u201d State v. Detter, 298 N.C. 604, 620, 260 S.E.2d 567, 579 (1979) (internal quotation marks and citation omitted). Furthermore, \u201c[a] critical stage has been reached when constitutional rights can be waived, defenses lost, a plea taken or other events occur that can affect the entire trial.\u201d Id.\nA capacity to proceed evaluation is conducted to determine \u201cwhether [defendant] has capacity to comprehend his position, to understand the nature of the proceedings against him, to conduct his defense in a rational manner and to cooperate with his counsel so that any available defense may be interposed.\u201d State v. Nobles, 99 N.C. App. 473, 475, 393 S.E.2d 328, 329 (1990) (quotation marks and citation omitted). Our Supreme Court has held that a \u201cdefendant had no constitutional right to have counsel present during his competency evaluation.\u201d State v. Davis, 349 N.C. 1, 20, 506 S.E.2d 455, 465 (1998).\nIn the instant case, the trial court ordered defendant to undergo an evaluation at Central Hospital on his capacity to proceed in accordance with its interpretation of the Court of Appeals\u2019 opinion. At the evaluation, the psychiatrist only asked defendant questions regarding his mental capacity to proceed. Furthermore, since defendant\u2019s evaluation was performed by a psychiatrist at Central Hospital while he had been released on bond, he did not waive his constitutional rights, lose any of his potential defenses, and he certainly could not enter any type of a plea during a hospital commitment. In addition, because he was not in custody at the time of the evaluation, we hold there was no potential for substantial prejudice and this was not a critical stage.\nDefendant cites Estelle v. Smith for the proposition that a defendant must be able to consult with an attorney prior to submitting to a competency hearing. 451 U.S. 454, 101 S. Ct. 1866, 68 L.Ed.2d 359 (1981). However, Estelle is distinguishable because in that case, the defendant had already been appointed an attorney, was already in custody and the competency evaluation was conducted in the defendant\u2019s jail cell. Id. at 469-71, 101 S. Ct. at 1876-77, 68 L.Ed.2d at 373-74. Furthermore, the State used the psychiatrist\u2019s testimony at the penalty stage of the trial to prove future dangerousness and the Court held that because the defendant\u2019s counsel was not notified of the interview and given the opportunity to advise his client on whether to submit to it, information secured from the defendant could not be used by the State at trial. Id. at 471, 101 S.Ct. at 1877, 68 L.Ed.2d at 374.\nIn the instant case, defendant was not in custody, but rather had been released from incarceration. Although defendant was not appointed an attorney until after the competency evaluation occurred, the trial court appointed an attorney on 29 August 2011. Approximately eight months later, on 9 April 2012 the attorney represented defendant at a court hearing and the trial court determined that he was competent to proceed. We hold that the trial court\u2019s order committing defendant to a competency evaluation was not a critical stage and defendant was not denied his Sixth Amendment right to counsel.\nIII. Sentencing\nDefendant argues that the trial court erred by sentencing defendant in violation of N.C. Gen. Stat. \u00a7 15A-1335 because after successfully appealing his original sentence, defendant received a higher sentence at his new trial. We disagree.\nPursuant to statute,\nWhen a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.\nN.C. Gen. Stat. \u00a7 15A-1335 (2011). When the court consolidates multiple offenses for judgment, the \u201cjudgment shall contain a sentence disposition specified for the class of offense and prior record level of the most serious offense....\u201d N.C. Gen. Stat. \u00a7 15A-1340.15(b) (2011); see State v. Mack, 188 N.C. App. 365, 381, 656 S.E.2d 1, 13 (2008).\nIn the instant case, defendant was indicted for sale of cocaine, PWISD cocaine and attaining the status of an habitual felon. At his first trial, defendant was found guilty of PWISD cocaine, a Class H felony, and attaining the status of an habitual felon and was sentenced to a minimum of 136 and a maximum of 173 months. Defendant appealed the judgment and was granted a second trial. At the second trial, the jury found defendant guilty of sale of cocaine, a class G felony, PWISD cocaine and attaining the status of an habitual felon. The trial court consolidated for judgment the offenses of sale of cocaine and PWISD cocaine and sentenced defendant to a minimum of 142 months and a maximum of 180 months. Since defendant was found guilty of attaining the status of an habitual felon at both trials, the trial courts sentenced defendant as an habitual felon, thus elevating his sentence to a Class C felony. N.C. Gen. Stat. \u00a7 14-7.6 (2009).\nWhen the trial court consolidated defendant\u2019s felony convictions after the second trial, according to N.C. Gen. Stat. \u00a7 15A-1340.15(b) defendant was sentenced under the most serious offense. Although the trial court sentenced defendant as a Class C felon at both trials, at the second trial the court sentenced defendant for the sale of cocaine because the sale of cocaine is a more serious offense than PWISD cocaine. Defendant was not found guilty of, nor sentenced for, the sale of cocaine at the first trial. Therefore, when the trial court sentenced defendant for the sale of cocaine at the second trial, it was the first time defendant received a sentence for the sale of cocaine. N.C. Gen. Stat. \u00a7 15A-1335 does not apply here because the trial court did not impose a more severe sentence \u201cfor the same offense[.]\u201d N.C. Gen. Stat. \u00a7 15A-1335 (2011).\nRelying on State v. Skipper, defendant contends that because he was sentenced as an habitual felon at both his first and second trials, \u201cthe trial court... had no choice but to enter [] sentence[s] for a single Class C felony pursuant to \u00a7 15A-1340.15(b).\u201d Skipper,_N.C. App._, _, 715 S.E.2d 271, 273 (2011). Therefore, according to defendant, he should not have received a higher sentence after his second trial, even though the jury returned a verdict finding him guilty of the additional charge of sale of cocaine. Defendant is mistaken.\nIn State v. Gardner, this Court declined to follow Skipper, and instead relied on the principles in State v. Vaughn. Gardner,_N.C. App._,_, 736 S.E.2d 826, 832 (2013). Citing Vaughn, this Court found that \u201cthe term \u2018prior felony conviction\u2019 refers only to \u2018a prior adjudication of the defendant\u2019s guilt... [t]he term... does not refer to the sentence imposed for committing a prior felony\u2019 \u201d and therefore \u201cthe fact that a defendant has been \u2018sentenced as a Class C felon,\u2019 ... does not mean that the actual underlying offense is transformed into a Class C felony.\u201d Id. (citing State v. Vaughn, 130 N.C. App. 456, 460, 503 S.E.2d 110, 113 (1998)). Therefore, the fact that defendant was sentenced as a Class C felon at both the first and second trials does not mean that the underlying offenses were transformed into Class C felonies. Despite the fact the convictions were raised to Class C felonies for the purpose of punishment, the trial court sentenced defendant for the most serious offense at each trial. See Gardner,_N.C. App. at_, 736 S.E.2d at 832. Since defendant was found guilty of a more serious offense at the second trial, the trial court sentenced defendant accordingly. Therefore, we hold that the trial court did not err when it sentenced defendant to a more severe sentence.\nIV. Conclusion\nWe hold that the trial court did not err by not appointing an attorney for defendant prior to his competency evaluation because the trial court\u2019s order committing defendant to a competency evaluation was not a critical stage. We also find that the trial court did not violate N.C. Gen. Stat. \u00a7 15A-1335.\nNo error.\nJudges STEELMAN and McCULLOUGH concur.\n. N.C. Gen. Stat. \u00a7 14-7.6 was amended in 2011 and became effective for all offenses committed on or after 1 December 2011. Since the offense date for defendant\u2019s charges was 27 September 2006, the older version of the statute applies to the instant case.",
        "type": "majority",
        "author": "CALABRIA, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General Joseph E. Herrin, for the State.",
      "Charlotte Gail Blake, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JOHN LEWIS WRAY, JR.\nNo. COA12-1406\nFiled 6 August 2013\n1. Constitutional Law \u2014 appointed counsel \u2014 capacity to proceed evaluation \u2014 not a critical point of trial\nThe trial court did not err by failing to appoint counsel for defendant after a remand from defendant\u2019s first trial and before he was ordered to submit to a capacity to proceed evaluation. There was no potential for substantial prejudice and this was not a critical stage of his trial.\n2. Sentencing \u2014 greater sentence after retrial \u2014 conviction of more serious offense\nThe trial court did not err by imposing a higher sentence following a remand where defendant was found guilty of a more serious offense at the second trial.\nAppeal by defendant from judgment entered 13 June 2012 by Judge Timothy S. Kincaid in Cleveland County Superior Court. Heard in the Court of Appeals 8 May 2013.\nAttorney General Roy Cooper, by Special Deputy Attorney General Joseph E. Herrin, for the State.\nCharlotte Gail Blake, for defendant-appellant."
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