An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                    NO. COA14-414
                        NORTH CAROLINA COURT OF APPEALS

                             Filed:       21 October 2014

STATE OF NORTH CAROLINA


      v.                                         Rutherford County
                                                 Nos. 04-CRS-55985, 55989-91
DENNIS ROGER VANDYKE
     Defendant


     Appeal by Defendant from judgment entered 7 November 2013

by Judge Wayne Abernathy in Rutherford County Superior Court.

Heard in the Court of Appeals 8 September 2014.


     Attorney General Roy Cooper, by Special                   Deputy     Attorney
     General Scott T. Slusser, for the State.

     Charlotte Gail Blake for Defendant.


     BELL, Judge.


     Dennis     Roger     Vandyke         (“Defendant”)   appeals       from   his

convictions    for   assaulting       a    law   enforcement    officer    with   a

firearm,   discharging      a   weapon      into   occupied    property,   felony

fleeing to elude arrest, and the related misdemeanors of driving

while his license was revoked and driving with a fictitious tag.
                                              -2-

On    appeal,    Defendant       argues          that     (1)    his    trial     attorney’s

stipulation to his prior felony conviction, which later became

irrelevant,       deprived       him        of     his     constitutional             right    to

effective assistance of counsel; and (2) the trial court erred

in trying and sentencing                   him for       the    misdemeanor       charges of

driving       while    his    license        was    revoked       and    driving        with    a

fictitious tag after the statute of limitations for bringing

these charges had expired.                   After careful review, we conclude

that    Defendant      received        a    fair     trial      free     from    prejudicial

error.

                                 Factual Background

       The State presented evidence at trial tending to establish

the following facts: On 19 November 2004, Defendant went to the

office    of      Danielle       Rogers-Berkowitz               (“Dr.         Rogers”),       his

chiropractor,         located    in    Forest       City,       North    Carolina,       for    a

follow-up visit.         When Defendant drove into the parking lot that

day, Dr. Rogers asked one of her staff members to call the

police because “[Defendant] was acting strange and had caused

some concern” at her office.

       Officers       Jamie     Dunn       (“Officer       Dunn”)       and    Robert     Davis

(“Officer Davis”) of the Forest City Police Department received

the    call    and    reported    to       the     scene.        Officer       Dunn    had     had

several       previous       encounters          with    Defendant       and     immediately
                                                -3-

recognized him standing outside his van.                          However, Officer Dunn

did not want to confront Defendant in the parking lot in the

vicinity of the general public.                       After a few minutes, Defendant

entered his vehicle and began to drive out of the parking lot.

At     this    point,       Officer      Dunn         notified    Officer    Davis       that

Defendant was leaving              the   parking         lot and coming        toward his

location.

       Officer Davis decided to stop Defendant’s van because its

license       plate   belonged      to      a    different       vehicle   that    was    not

registered in Defendant’s name.                       When Defendant refused to pull

over, Officer Davis activated his siren and pursued Defendant.

The chase ultimately ended near Defendant’s home on Atlas Drive.

Officer Dunn, having had previous encounters with Defendant and

believing       he    was    dangerous,         had     already    requested      that   the

dispatcher send officers to Defendant’s home.

       At one point during the chase, Defendant drove down a dirt

road, stopped his van, and shot at Officer Davis’ patrol vehicle

from    inside       his    van.      The       officers    later    found   Defendant’s

unoccupied van with the driver’s side door open and the back

windshield missing.            Defendant was arrested near his home and a

shotgun was found about 20 to 25 meters from the location at

which Defendant was taken into custody.
                                      -4-

      On 8 December 2004, a motion was filed and an order was

entered requiring Defendant to undergo a forensic evaluation to

determine his capacity to proceed to trial.                On 5 January 2005,

Defendant was admitted to the pre-trial unit of Dorothea Dix

Hospital and evaluated by Drs. Charles Vance (“Dr. Vance”) and

Maureen Lyons Reardon (“Dr. Reardon”).              Drs. Vance and Reardon

diagnosed       Defendant     as     suffering      from      undifferentiated

schizophrenia and discharged him to the custody of the Sheriff

of Rutherford County as incapable of proceeding to trial.                     Drs.

Vance and Reardon also recommended that Defendant be committed

to an inpatient psychiatric facility for treatment to restore

his capacity.

      On   20   January     2005,   the    trial   court   entered   an       order

finding Defendant incapable of proceeding to trial so Defendant

was   involuntarily    committed     at     Broughton   Hospital.        At   this

time, the State dismissed all charges against Defendant with

leave to refile.

      After Defendant’s release from Broughton Hospital, federal

law enforcement officers brought charges against Defendant for

federal firearms violations.              Defendant pled guilty and spent

approximately seven         years in federal       custody.     On   4   January

2012, after Defendant was released from federal custody, the

State reinstated all charges against Defendant.
                                                   -5-

       On 29 October 2012, a grand jury indicted Defendant for (1)

assaulting       a     law     enforcement           officer       with     a    firearm;       (2)

discharging       a    weapon       into      occupied      property;         (3)     fleeing    to

elude arrest; (4) possessing a firearm as a convicted felon; and

(5) the related misdemeanors of driving with his license revoked

and driving with a fictitious tag.

       Defendant’s case came on for trial on 5 November 2013.                                    At

the beginning of his trial, the State and Defendant’s counsel

agreed    to     stipulate         to       Defendant’s      prior      felony        conviction,

thereby establishing one of the elements of Defendant’s charge

of possessing a firearm while being a convicted felon.                                          The

parties    agreed          that    the      jury    would    only      hear     the    fact    that

Defendant had a prior felony conviction but not the nature of

the felony — fleeing to elude arrest.

       At trial, Defendant testified on his own behalf.                                     During

his testimony, Defendant admitted that he had previously pled

guilty    to     and       served       a    sentence       for    a    federal       charge     of

possessing a firearm as a convicted felon arising from the same

events for which he was currently on trial.

       After     the       close     of      all     the    evidence,         but     before    the

delivery of the jury instructions, the trial court determined

that     under       the     North       Carolina        statute       in   place      in     2004,
                                              -6-

Defendant could not be convicted of possession of a firearm by a

convicted felon and dismissed that charge.

       On 7 November 2013, the jury returned a verdict finding

Defendant     guilty          of    each     remaining      charge,        including      the

misdemeanor offenses.               That same day, the trial court sentenced

Defendant     to    two       concurrent       sentences      of    34     to   50   months

imprisonment based upon his felony convictions for assaulting a

law enforcement officer and discharging a weapon into occupied

property.          In       its    judgment,    the    trial       court     consolidated

Defendant’s misdemeanor convictions for driving with a revoked

license and driving with a fictitious tag with his conviction

for felony fleeing                to elude arrest.          For these convictions,

Defendant was sentenced to an additional consecutive term of 8

to 10 months imprisonment.                 Defendant gave notice of appeal in

open court.

                                           Analysis

                   I.        Ineffective Assistance of Counsel

       Defendant        first       argues     that    he     received          ineffective

assistance of counsel due to his trial counsel’s stipulation

that   he   had     a       prior    felony    conviction,         which    later    became

irrelevant    given          that    the   trial    court     later      concluded        that

Defendant could not be successfully prosecuted for possession of

a   firearm   by        a    convicted      felon     under    the    version        of   the
                               -7-

applicable statute that was in effect on 19 November 2004 and

dismissed that charge. Specifically, Defendant contends that he

was prejudiced by his trial counsel’s action, as the jury would

not have otherwise learned of his prior felony conviction but

for his trial counsel’s stipulation.   We disagree.

     In order to prevail on a claim for ineffective assistance

of counsel,

          a defendant must show that (1) defense
          counsel’s ‘performance was deficient,’ and
          (2) ‘the deficient performance prejudiced
          the defense.’     Counsel’s performance is
          deficient when it ‘falls below an objective
          standard   of reasonableness.’     Deficient
          performance  prejudices  a   defendant when
          there is ‘a reasonable probability that, but
          for counsel’s unprofessional errors, the
          result of the proceeding would have been
          different.’

State v. Waring, 364 N.C. App. 443, 502, 701 S.E.2d 615, 652

(2010) (citing and quoting Strickland v. Washington, 466 U.S.

668, 687, 691, 80 L.E.2d 674, 693, 698 (1984)).1


1
  In apparent recognition of the difficulty that he faces in
satisfying the prejudice component of the test enunciated in
Strickland, as discussed in the text of this opinion, Defendant
argues that his trial counsel’s decision to stipulate to his
prior felony conviction constituted such a complete failure “to
subject the prosecution’s     case  to meaningful    adversarial
testing” as to obviate the necessity for a showing of prejudice.
Cronic v. United States, 466 U.S. 648, 659, 80 L. Ed. 2d 657,
674 (1984). However, the record in this case does not show the
“complete” failure on the part of Defendant’s trial counsel to
subject the State’s case to adversarial testing necessary to
                                      -8-

      Our Supreme Court has stated that “if a reviewing court can

determine at the outset that there is no reasonable probability

that in the absence of counsel’s alleged errors the result of

the proceeding would have been different, then the court need

not   determine    whether      counsel’s     performance    was      actually

deficient.” State v. Brasswell, 312 N.C. 553, 563, 324 S.E.2d

241, 249 (1985).

      Defendant    argues    that    his    trial    counsel’s   failure    to

recognize that he could not be convicted of being a felon in

possession of a firearm under the 2004 North Carolina statute —

thereby making the stipulation to his prior felony conviction

irrelevant    —   constituted       ineffective     assistance   of   counsel

because the jury would not have been made aware of his prior

felony conviction had his trial counsel not stipulated to it.

However, after carefully reviewing the record, we conclude that

his   trial   counsel’s     stipulation      did    not   adversely    affect

Defendant’s chances for a more favorable outcome at trial and,




trigger the application of the principle enunciated in Cronic.
Bell v. Cone, 535 U.S. 685, 696-97, 152 L. Ed. 2d 914, 928
(2002). As a result, given that Defendant’s trial counsel did
not “fail[] to oppose the prosecution throughout the [trial] as
a whole,” but rather, according to Defendant, “failed to do so
at [a] specific point,” id. at 697, 152 L. Ed. 2d at 928,
Strickland, rather than Cronic, is controlling with respect to
this claim.
                                           -9-

therefore, Defendant was not prejudiced by his trial counsel’s

performance.

      The        State’s      evidence    tends        to    show    that,       when    law

enforcement officers attempted to stop Defendant based on the

tip that they had received from Dr. Rogers’ office, Defendant

attempted        to   elude     the   officers.         At    one   point    during      the

ensuing high speed              chase,   Defendant      fired a      shot       at Officer

Davis’ patrol vehicle.                A shotgun was found in close proximity

to   Defendant        at   the    time    that    he    was    taken      into    custody.

Because      an       officer     involved       in    chasing      and     apprehending

Defendant knew him, there was little chance that he was the

victim      of    a    mistaken       identification,         as    Defendant’s         trial

testimony tends to suggest.                  Aside from the strength of the

State’s case, Defendant testified on his own behalf at trial and

disclosed information about his prior federal felony conviction,

which the State could have used for impeachment purposes.

      Moreover, the jury was specifically instructed that a prior

felony conviction was not evidence of Defendant’s guilt on the

charges,         thereby      insulating     Defendant          from      any     possible

prejudice, when the trial court gave the following limiting jury

instruction:

             As you may recall, there was a stipulation
             entered by the attorneys earlier that the
             defendant had previously been convicted of a
                                          -10-

              felony.   A prior conviction is not evidence
              of the defendant’s guilt in this case on
              these charges.     You may not convict a
              defendant on the present charges because of
              something he may have done in the past.

       Finally,       the    charge      against      Defendant         for     which      the

stipulation was an essential element — possessing a firearm as a

convicted felon — was ultimately dismissed by the trial court.

As such, Defendant’s argument that a different result would have

been probable had his trial counsel not stipulated to his prior

felony conviction is without merit.

       The State presented ample evidence at trial from which a

jury could convict Defendant of assaulting a law enforcement

officer      with   a   firearm,        discharging      a   weapon         into    occupied

property, feloniously fleeing to elude arrest, driving while his

license was revoked, and driving a vehicle with a fictitious

tag.      Defendant         has   not    shown    that   there         is   a   reasonable

probability that the jury would have reached a different result

had    his    trial     counsel     not    stipulated        to    his      prior        felony

conviction. Accordingly, this argument is overruled.

II.     Prosecution of Misdemeanors after Expiration of Statute of
                             Limitations

       Defendant’s      final     argument       on   appeal      is    that       the   trial

court erred in trying and sentencing him for his misdemeanor

charges of driving while his license was revoked and driving
                                       -11-

with    a   fictitious   tag   after    the   statute   of   limitations   had

expired.

       Pursuant to N.C. Gen. Stat. § 15-1, “all misdemeanors . . .

shall be presented or found by the grand jury within two years

after the commission of the same, and not afterwards.”                     N.C.

Gen. Stat. § 15-1 (2013).          Here, the State initially charged

Defendant using magistrate’s warrants on each of his charges,

including his misdemeanor charges of driving while his license

was revoked and driving with a fictitious tag, on 19 November

2004.       On 20 January 2005, the trial court entered an order

finding Defendant incapable of proceeding to trial so the State

dismissed all charges against Defendant with leave to refile

pursuant to N.C. Gen. Stat. § 15A-1009 2 .         On 4 January 2012, the


2
  N.C. Gen. Stat. § 15A-1009 was repealed by S.L. 2013-18 s. 6,
effective 1 December 2013, but still applied to all crimes
committed prior to that date. It stated, in pertinent part, as
follows:

             a.   If a defendant is found by the court to
             be incapable of proceeding and the charges
             have not been dismissed pursuant to G.S.
             15A-1008, a prosecutor may enter a dismissal
             with leave under this section.

             b.   Dismissal with leave results in removal
             of the case from the docket of the court,
             but   all  process   outstanding,  with  the
             exception of any appearance bond, retains
             its validity, and all necessary actions in
             the case may be taken.
                                     -12-

State reinstated the charges against Defendant after he regained

mental capacity and was capable of proceeding to trial.                        On 29

October 2012, a grand jury indicted Defendant on all charges.

      On appeal, Defendant contends that the trial court erred in

allowing the State to try and convict him on the misdemeanor

charges arising from the 2004 events because he was not indicted

on   these   charges   until     2012,    after    the    two-year    statute      of

limitations     had    expired.          However,      Defendant      has     waived

appellate review of this issue by failing to object at trial.

      “In order to      preserve an issue           for appellate          review, a

party must have presented to the trial court a timely request,

objection,     or   motion,    stating    the     specific      grounds     for   the

ruling   the   party   desired    the    court    to     make   if   the    specific

grounds were not apparent from the context.”                     N.C.R. App. P.

10(a)(1) (2013).       Our Supreme Court has recognized that “[p]lain




                                    . . .

             d.   Upon the defendant becoming capable of
             proceeding, or in the discretion of the
             prosecutor when he believes the defendant
             may soon become capable of proceeding, the
             prosecutor may reinstate the proceedings by
             filing written notice with the clerk, with
             the defendant and with the defendant’s
             attorney of record.

N.C. Gen. Stat. § 15A-1009(a), (b), (d) (2012).
                                 -13-

error review is available in criminal appeals, for challenges to

jury instructions and evidentiary issues, . . . [and] only in

truly exceptional cases.” Dogwood Dev. & Mgmt. Co., LLC v. White

Oak Transport Co., Inc., 362 N.C. 191, 196, 657 S.E.2d 361, 364

(2008).     Additionally, in order to have a purported error that

was not preserved at trial nevertheless be reviewed on appeal,

the defendant must “specifically and distinctly” allege that the

challenged judicial decision amounts to plain error.              N.C.R.

App. P. 10(a)(4) (2013).

     The specific error alleged by Defendant involves neither

jury instructions nor a ruling on the admissibility of evidence.

Moreover,    Defendant   did   not   object   at   trial   nor   did   he

“specifically and distinctly” allege plain error on appeal, and

has therefore failed to properly preserve this issue for appeal.

N.C.R. App. P. 10; see also State v. Gregory, 342 N.C. 580, 584,

467 S.E.2d 28, 32 (1996), cert. denied, 525 U.S. 952, 142 L. Ed.

2d 315 (1998) (declining to review unpreserved issue on appeal

under Rule 10(a)(4), as issue did not involve jury instructions

or admissibility of evidence and defendant had not specifically

alleged plain error).3


3
  Although Defendant contends that the fact that he was indicted
for the misdemeanors for which he was convicted more than two
years after the date upon which the offenses with which he was
                                      -14-

       Nor is Rule 2 of the North Carolina Rules of Appellate

Procedure,     which    Defendant     has     not   attempted   to   invoke,

applicable to this case.       Rule 2 provides:

           To prevent manifest injustice to a party, or
           to expedite decision in the public interest,
           either court of the appellate division may .
           . . suspend or vary the requirements or
           provisions of any of these rules in a case
           pending before it upon application of a
           party or upon its own initiative, and may
           order proceedings in accordance with its
           directions.

N.C.R. App. P. 2 (2013).        However, Rule 2 is only to be invoked

“on rare occasions and under exceptional circumstances.” Dogwood

Dev. & Mgmt Co., LLC v. White Oak Transport Co., Inc., 192 N.C.

App.    114,   123,    665   S.E.2d    493,   500   (2008)   (citation   and

quotation marks omitted).       Even if, assuming arguendo, the trial



charged allegedly occurred constitutes a jurisdictional defect
that is not subject to waiver, our Supreme Court has repeatedly
held that a defendant must assert the statute of limitations
before the trial court in order to take advantage of it on
appeal. State v. Colson, 222 N.C. 28, 30, 21 S.E. 2d 808, 809
(1942) (stating that “[t]he defendant did not plead the statute
[of limitations] or in apt time call it to the attention of the
court”); State v. Brinkley, 193 N.C. App. 747, 748, 138 S.E. 2d
138, 139 (1927) (stating that, “if the statute of limitations is
relied on it should be brought to the attention of the judge”)
(citing State v. Holder, 133 N.C. 709, 711, 45 S.E. 2d 862, 863
(1903)).     As a result, given that the trial court had
jurisdiction over the misdemeanor charges that had been lodged
against Defendant pursuant to N.C.G.S. §§ 7A-271(a)(3) and 15A-
922(g) and given that the statute of limitations is a waivable
defense, we conclude that Defendant’s jurisdictional argument
lacks merit.
                                     -15-

court erred in allowing the State to prosecute Defendant for his

misdemeanor     charges    after     the    statute   of     limitations     had

expired,   Defendant’s     overall    sentence   would     be   unaffected    if

this    Court    vacated    those      convictions     and      remanded     for

resentencing.    Therefore, this argument is overruled.

                                Conclusion

       For the reasons stated above, we conclude that Defendant

received a fair trial free from prejudicial error.

       NO PREJUDICIAL ERROR.

       Judges ERVIN and McCULLOUGH concur.

       Report per Rule 30(e).
