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State v. Thorpe

Court of Appeals of North Carolina

April 18, 2017

STATE OF NORTH CAROLINA,
v.
EDWARD THORPE, Defendant.

          Heard in the Court of Appeals 22 February 2017.

         Appeal by defendant from judgment entered 9 February 2016 by Judge A. Graham Shirley in Wake County, No. 14CRS226605; 15CRS4735-4736, 4741 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State.

          Mary McCullers Reece, for defendant-appellant.

          BERGER, Judge.

         Edward Thorpe, a.k.a. Marquis Tayshawn Evans, ("Defendant") pleaded guilty to felony breaking and entering, larceny after breaking and entering, felony possession of stolen goods, two counts of habitual misdemeanor assault, and having attained habitual felon status. Defendant's appeal arises from the trial court's denial of a motion to suppress a prior conviction. Defendant alleges that the trial court erred in denying his motion to suppress because said conviction was obtained in violation of his right to counsel. We disagree.

         Factual and Procedural Background

         On January 26, 2015, a Wake County Grand Jury indicted Defendant for breaking and entering in violation of N.C. Gen. Stat. § 14-54(a), larceny after breaking and entering in violation of N.C. Gen. Stat. § 14-72(b)(2), and possession of stolen goods in violation of N.C. Gen. Stat. § 14-71.1. On January 27, 2015, the Grand Jury issued a True Bill of Indictment alleging that Defendant had attained habitual felon status pursuant to N.C. Gen. Stat. § 14-7.1. Subsequently, on July 7, 2015, Defendant was indicted for two counts of assault on a female in violation of N.C. Gen. Stat. § 14-33(c)(2), and one count of habitual misdemeanor assault in violation of N.C. Gen. Stat. § 14-33.2. Indictments for two additional counts of assault on a female and habitual misdemeanor assault were handed down by the Grand Jury on August 4, 2015. An additional habitual felon indictment was issued against Defendant on September 29, 2015.

         On February 9, 2016, Defendant pleaded guilty to felony breaking and entering, larceny after breaking and entering, felony possession of stolen goods, two counts of habitual misdemeanor assault, and having attained habitual felon status. These charges were consolidated into one judgment, and Defendant was sentenced to 77 to 105 months in prison.

         Prior to the trial court accepting his plea, however, Defendant filed a motion to suppress, pursuant to N.C. Gen. Stat. § 15A-980, relating to an underlying assault inflicting serious injury conviction utilized in the two indictments for habitual misdemeanor assault. Defendant argued that this conviction should be suppressed because it "was obtained in violation of his right to Counsel." Defendant filed an affidavit with his motion to suppress and asserted that, when he pleaded guilty to the charges of assault inflicting serious injury and resisting a public officer in Wake County District Court file number 99 CR 57226, he was not represented by counsel, was indigent, and did not waive his right to counsel. Defendant also alleged that he had other pending charges at the time for which he requested and received court-appointed counsel.

         On February 8, 2016, a hearing on the motion to suppress was held. Defendant's only evidence was his own testimony. Defendant testified that when the charge at issue was pending, he was living with his father and brother, was not employed, owned no property, and was therefore indigent.

         Defendant also stated that he would not have gone to court without an attorney representing him. Defendant asserted that he had representation for other charges during that time period, but claimed he had no representation on the charge at issue. When asked by his attorney if he would have gone to court without an attorney during that time period, Defendant testified, "absolutely not."

         Ms. Tonya Woodlief, Assistant Clerk of Wake County Superior Court, was called by the State to testify. Ms. Woodlief stated that she has processed and maintained records for the Criminal Division for thirteen years, and, at the time of her testimony, was head of the Criminal Division.

         Ms. Woodlief testified that the Clerk's Office keeps records of case events for misdemeanor cases by hand-written notes directly on the shuck.[1] In Wake County, the physical files of misdemeanor criminal records are maintained for five years and then destroyed. The ...


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