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State v. Dawkins

Court of Appeals of North Carolina

December 17, 2019

STATE OF NORTH CAROLINA,
v.
PAUL EDWARD DAWKINS, Defendant.

          Heard in the Court of Appeals 17 October 2019.

          Appeal by Defendant from judgment entered 11 September 2017 by Judge Forrest D. Bridges in Cleveland County, Nos. 15CRS988-90, 16CRS213 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly Randolph, for the State-Appellee.

          Anne Bleyman for Defendant-Appellant.

          COLLINS, JUDGE

         Defendant Paul Edward Dawkins appeals from the trial court's 11 September 2017 judgment entered upon his (1) convictions for one count of possession with intent to sell or deliver cocaine and one count of sale or delivery of cocaine, (2) guilty pleas to two counts of both possession with intent to sell and deliver cocaine and sale and delivery of cocaine, and (3) admission to having attained habitual felon status. Defendant contends that the trial court erred by admitting certain real evidence and by entering a judgment containing clerical errors. We discern no error at trial, but remand to the trial court for the correction of the clerical errors.

         I. Background

         On 23 January 2015, Detective Jeffrey Scism of the City of Shelby Police Department Vice/Narcotics Unit (along with other law enforcement officers) coordinated a controlled drug-buy operation with the assistance of a paid confidential informant. During the operation, the informant purchased a substance in the form of a small rock from Defendant, whom the officers had suspected of dealing narcotics. Following the buy, the informant gave the rock to Scism, who field tested it as presumptive positive for cocaine. Scism placed the rock in a small evidence bag and later catalogued the evidence and arranged to have it sent to the State Bureau of Investigation ("SBI") for further analysis.

         Defendant was indicted in Cleveland County Superior Court on 11 May 2015 for three counts of possession with intent to sell and deliver cocaine and three counts of sale and delivery of cocaine, all in violation of N.C. Gen. Stat. § 90-95(a)(1). On 9 May 2016, Defendant was also indicted for having attained habitual felon status as set forth N.C. Gen. Stat. § 14-7.1.

         One of each of the possession with intent to sell and deliver cocaine and sale and delivery of cocaine charges came on for trial on 11 January 2017. At trial, the State introduced its Exhibit 6, an evidence bag which Scism testified contained the substance he received from the informant on the date of the drug buy and sent off to the SBI in the form of an "off-white-colored small rock." Scism testified that the substance had been smashed, but that it was "substantially the same" as the rock. Defendant objected to the admission of Exhibit 6, arguing that Scism's admission that the substance was in a different form at trial than it was when Scism received it from the informant meant that Scism could not reliably testify that the substance in Exhibit 6 was what the informant gave him, and that Scism therefore could not authenticate Exhibit 6. The trial court admitted Exhibit 6 over Defendant's objection. State's witness Deborah Chancey, an SBI Crime Laboratory Technician, later testified that she had tested Exhibit 6 and concluded that it contained cocaine base, as indicated in State's Exhibit 7, Chancey's laboratory report containing the results of her test. The jury subsequently returned verdicts finding Defendant guilty of both charges.[1]

         Later that day, Defendant pled guilty to the other charges and admitted to having attained habitual felon status, and the trial court sentenced Defendant on the charges as an habitual felon. The trial court consolidated the sale or delivery charges under one count and, after adjudging Defendant to be an habitual felon, sentenced him thereupon to 96 to 128 months' imprisonment. The trial court also consolidated the possession charges and sentenced Defendant thereupon. The judgment concerning the possession charges was subsequently struck and reentered several times, ultimately resulting in the 11 September 2017 judgment from which Defendant now appeals.

         The 11 September 2017 judgment concerning the possession charges gave Defendant a mitigated Class D sentence of 76 to 104 months' imprisonment, but (1) while indicating that Defendant "ADMITTED TO HABITUAL FELON" status, does not include an indication that the trial court adjudged Defendant an habitual felon, and (2) while finding that mitigating factors existed as contemplated "on the attached AOC-CR-605" form, does not appear to have such a form attached.[2]

         Defendant filed a petition for a writ of certiorari with this Court seeking to belatedly appeal from the judgments, and we allowed Defendant's petition.

         II. ...


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