Heard in the Court of Appeals October 24, 2013.
Chatham County. No. 10 CRS 51652.
Attorney General Roy Cooper, by Special Deputy Attorney General David P. Brenskelle, for the State.
The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr., for defendant-appellant.
GEER, Judge. Judges STEPHENS and ERVIN concur.
Appeal by defendant from judgment entered 17 December 2012 by Judge Allen Baddour in Chatham County Superior Court. Heard in the Court of Appeals 24 October 2013.
Defendant Kenneth Eugene Alston appeals from his conviction of robbery with a dangerous weapon. On appeal, defendant primarily contends that he received ineffective assistance of counsel (" IAC" ) when his trial counsel failed to object to the joinder for trial of defendant's charges of robbery with a dangerous weapon and possession of a firearm by a felon. Defendant argues that the statute prohibiting possession of a firearm by a felon is a " civil regulatory measure" and, therefore, a violation of that statute may not be joined for trial with a criminal offense.
While our Supreme Court has held that the ban on felons possessing firearms does not impose additional punishment for prior convictions because the General Assembly
adopted the prohibition as a civil regulatory measure, that holding does not in any way mean that a violation of that civil regulatory measure cannot be a crime. As both the Supreme Court and this Court have previously recognized, when a felon possesses a firearm, he commits a crime. Consequently, we hold defendant did not receive IAC when his trial counsel failed to object to the joinder of the charges brought against defendant.
The State's evidence tended to show the following facts. At some point between 22 July 2010 and 25 July 2010, Chad Taylor called an acquaintance, Calvin Moore, and told Moore that he wanted to sell some marijuana. Moore told defendant about the offer, but did not tell defendant that Taylor, defendant's distant cousin, was the seller. In the evening of 25 July 2010, Taylor and Moore agreed by phone that Taylor would sell Moore three pounds of marijuana.
Late in the night on 25 July or early in the morning on 26 July 2010, defendant drove Moore and three young women, including Tiffany Jarrell, to the house where the drug deal was to take place. Defendant, Moore, and the women all agreed in advance that they would rob the sellers rather than purchase the marijuana. As defendant neared the house, he realized that the house belonged to one of his family members. Defendant nonetheless decided to go forward with the robbery. Defendant parked at the house, and defendant and Moore got out and talked to Taylor and Taylor's friend, Jesus Sifuentes.
Sifuentes left the house in his car and then returned in 10 or 15 minutes with the marijuana. Sifuentes handed Moore the marijuana, and defendant and Moore then pulled out handguns and aimed them at Taylor and Sifuentes. Jarrell and the other women then searched Taylor's and Sifuentes' pockets and took wallets, cell phones, and about $1,500.00 in cash, as well as the marijuana. The robbers then left in defendant's car with defendant driving.
After the robbers left, Taylor got a shotgun and Sifuentes and Taylor chased the robbers in Sifuentes' car. Sifuentes and Taylor caught up with the robbers on the highway, and Sifuentes drove his car into the back of defendant's car, causing both cars to wreck. After the crash, the robbers believed Taylor and Sifuentes had fled, and defendant decided to stay with his car and to tell the police that he was involved in a hit and run. Defendant convinced Jarrell to stay with the car as well. Moore and the other two women called a friend and got a ride home. Moore took the marijuana and the two guns used in the robbery with him.
Defendant and Jarrell went to the hospital, and a nurse at the hospital discovered the cash proceeds from the robbery in Jarrell's underwear. Jarrell lied about where she got the money. Jarrell then went to the police station, where she also lied to the police about what had occurred.
Defendant was indicted for accessory after the fact to robbery with a dangerous weapon on 10 October 2011 and for possession of a firearm by a felon on 21 May 2012. Defendant was also indicted for robbery with a dangerous weapon. The jury found defendant guilty of robbery with a dangerous weapon and, accordingly, did not render a verdict with respect to the accessory after the fact charge. However, the jury found defendant not guilty of possession of a firearm by a felon. In an amended judgment, the court sentenced defendant to an aggravated-range term of 152 to 192 months imprisonment. Defendant timely appealed to this Court.
Defendant first contends that the trial court erroneously joined for trial defendant's charges of robbery with a dangerous weapon and possession of a firearm by a felon. Defendant argues that the latter charge was for violation of a " civil regulatory measure" that could not be properly tried alongside a criminal offense.
Defendant did not make his joinder argument to the trial court, but he argues on appeal that the trial court committed plain error in the joinder. However, our Supreme Court has expressly held that plain error review does not apply to the issue whether joinder of charges was appropriate. State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230-31 (2000). Consequently, due to defendant's failure to preserve this issue for review, it is not properly before this Court.
Defendant alternatively argues that he received IAC due to his counsel's failure to object to the joinder of the charges of robbery with a dangerous weapon and possession of a firearm by a felon. Defendant must satisfy a two-part test in order to prevail on his IAC claim:
" First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (emphasis omitted) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693, 104 S.Ct. 2052, 2064 (1984)).
Defendant argues that his counsel's performance was deficient because, in State v. Whitaker, 364 N.C. 404, 411, 700 S.E.2d 215, 220 (2010), our Supreme Court held that the statute prohibiting possession of a firearm by a felon is a " civil regulatory measure" rather than a criminal offense, and, according to defendant, it is inherently improper to try a criminal offense together with a civil regulatory matter. Defendant asserts that his trial counsel should have been aware of Whitaker, a " well-known" case decided roughly two years before defendant's trial, since " Second Amendment ...