              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-1008

                                 Filed: 18 April 2017

Wake County, No. 14CRS226605; 15CRS4735-4736, 4741

STATE OF NORTH CAROLINA,

             v.

EDWARD THORPE, Defendant.


      Appeal by defendant from judgment entered 9 February 2016 by Judge A.

Graham Shirley in Wake County Superior Court. Heard in the Court of Appeals 22

February 2017.


      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.
                                  STATE V. THORPE

                                  Opinion of the Court



                        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



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                                  Opinion of the Court



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



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                                         Opinion of the Court



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 electronic summaries of these records are retained after the

physical files are destroyed.

      The electronic records kept and maintained by the Clerk showed that

Defendant had retained an attorney and had pleaded guilty to the charges of assault

inflicting serious injury and resisting a public officer in criminal case file 99 CR

57226. Ms. Woodlief testified that the designation “R” was utilized in the Clerk’s

Office to reflect that a defendant had retained counsel. In addition, “N/A” was used

when the handwritten notes on the shuck were not legible or the attorney’s name was

unknown to the clerk. The designation “N/A” was never used when a defendant did

not have counsel. Ms. Woodlief also testified that the designations “R” and “N/A”

appeared in the electronic record for 99 CR 57226, indicating that the name of

Defendant’s retained attorney was not able to be determined because either the

defense attorney neglected to write his or her name on the shuck, or the handwriting

was illegible and the name could not be ascertained.



      1   A shuck is an envelope that contains documents filed in district court criminal cases.

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                                  Opinion of the Court



      The trial court denied the motion to suppress, making oral findings of fact that

even though he was indigent and did not waive his right to counsel, Defendant was

represented by counsel in his prior conviction for assault inflicting serious injury.

Defendant timely filed notice of appeal.

                                 Standard of Review

      Our review of a trial court’s denial of a motion to suppress is “strictly limited

to determining whether the trial judge’s underlying findings of fact are supported by

competent evidence, in which event they are conclusively binding on appeal, and

whether those factual findings in turn support the judge’s ultimate conclusions of

law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citation omitted).

The trial court’s “conclusions of law are reviewable de novo.” State v. Hensley, 201

N.C. App. 607, 609, 687 S.E.2d 309, 311 (2010) (citation omitted).

                                       Analysis

      Defendant’s motion to suppress was filed pursuant to N.C. Gen. Stat. § 15A-

980, which provides:

             (a) A defendant has the right to suppress the use of a prior
                 conviction that was obtained in violation of his right to
                 counsel if its use by the State . . . will:

                    (1) Increase the degree of crime of which the
                        defendant would be guilty; or

                    (2) Result in a sentence of imprisonment that
                        otherwise would not be imposed; or



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                   (3) Result   in   a      lengthened      sentence     of
                       imprisonment.

             (b) A defendant who has grounds to suppress the use of a
                 conviction in evidence at a trial or other proceeding as
                 set forth in (a) must do so by motion made in accordance
                 with the procedure in this Article. A defendant waives
                 his right to suppress use of a prior conviction if he does
                 not move to suppress it.

             (c) When a defendant has moved to suppress use of a prior
                 conviction under the terms of subsection (a), he has the
                 burden of proving by the preponderance of the evidence
                 that the conviction was obtained in violation of his right
                 to counsel. To prevail, he must prove that at the time of
                 the conviction he was indigent, had no counsel, and had
                 not waived his right to counsel. If the defendant proves
                 that a prior conviction was obtained in violation of his
                 right to counsel, the judge must suppress use of the
                 conviction at trial or in any other proceeding if its use
                 will contravene the provisions of subsection (a).

N.C. Gen. Stat. § 15A-980 (2016). Thus, when seeking to suppress prior convictions

pursuant to N.C. Gen. Stat. § 15A-980(c), to prevail a defendant must prove that for

the purposes of the adjudication of the prior conviction: “(1) he was indigent, (2) he

had no counsel, and (3) he did not waive his right to counsel.” State v. Jordan, 174

N.C. App. 479, 482, 621 S.E.2d 229, 231 (2005) (citations omitted).

      In State v. Jordan, the defendant sought to suppress prior convictions

pursuant to N.C. Gen. Stat. § 15A-980. He alleged that the convictions used to

calculate his prior record level, thereby lengthening his sentence, were obtained in

violation of his right to counsel. The Clerk’s records of the prior convictions were

destroyed, and the defendant’s only evidence was his own testimony that he did not

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                                   Opinion of the Court



have representation and he could not afford an attorney. This Court held that a trial

court’s final judgment, such as the defendant’s prior convictions, is entitled to a

“presumption of regularity” and that the presumption applied to prior convictions

challenged under N.C. Gen. Stat. § 15A-980. Id. at 484-85, 621 S.E.2d at 233.

             Official actions taken by public officers in North Carolina
             are accorded the presumption of regularity. Accordingly,
             the official actions of clerks of court are afforded this
             presumption of regularity. . . . The presumption is only one
             of fact and is therefore rebuttable. But in order for the
             [defendant] to rebut the presumption he must produce
             'competent, material and substantial' evidence. . . .

State v. Belton, 169 N.C. App. 350, 356, 610 S.E.2d 283, 287 (2005) (internal citations,

parentheticals, and quotation marks omitted).

      In the case sub judice, the trial court denied Defendant’s motion to suppress

pursuant to N.C. Gen. Stat. § 15A-980 in open court, providing findings of fact and

conclusions of law orally, which are found in the record. The trial court requested the

State reduce that order to writing, but no written order appears in the record.

             In determining whether evidence should be suppressed,
             the trial court shall make findings of fact and conclusions
             of law which shall be included in the record. A written
             determination setting forth the findings and conclusions is
             not necessary, but it is the better practice. . . . Thus, our
             cases require findings of fact only when there is a material
             conflict in the evidence and allow the trial court to make
             these findings either orally or in writing.

State v. Bartlett, 368 N.C. 309, 312, 776 S.E.2d 672, 674 (2015) (internal citations,

parentheticals, and quotation marks omitted). The trial court found that Defendant


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                                    Opinion of the Court



met his burden of proof that he was indigent and had not waived counsel. However,

the trial court also found Defendant had failed to carry his burden of proof that he

had no counsel, the second Jordan factor and essential for him to prevail. Defendant

testified that he would not have proceeded if he did not have counsel. The court

specifically found that, “[i]f he says he wouldn't have done something if a condition

had not existed and he did that thing, then . . . it's clear that the condition did exist

and that is supported by the records of the State . . . .”

      The trial court found that the Wake County Clerk of Superior Court’s records

demonstrated that Defendant had representation for the assault inflicting serious

injury conviction.   The designations “R” and “N/A” in the electronic record for

Defendant’s conviction indicated he had retained an attorney whose name was

illegible or unknown to the clerk entering the data. Applying the presumption of

regularity to the clerk’s electronic records, we presume that the information

contained in these records to be accurate, and Defendant failed to rebut said

presumption with “competent, material and substantial evidence.”

      The trial court’s findings of fact are supported by the competent evidence

presented at the suppression hearing and included in the record, and are, thus,

conclusively binding on this Court. These findings of fact support the legal conclusion

that Defendant’s conviction for assault inflicting serious injury was not obtained in




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                                 Opinion of the Court



violation of his right to counsel and was properly utilized in his indictment for

habitual misdemeanor assault.

                                     Conclusion

      Based upon a thorough and careful review of the record, transcripts, and briefs,

we conclude there was no error in the trial court’s denial of Defendant’s motion to

suppress.

      NO ERROR.

      Judges CALABRIA and HUNTER, JR. concur.




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