An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1242
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:     29 July 2014


STATE OF NORTH CAROLINA

      v.                                      Mecklenburg County
                                              Nos. 11 CRS 210032-37
DORAN ARTHUR ATKINS



      Appeal by defendant from judgments entered 15 February 2013

by Judge Paul G. Gessner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 17 March 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Kathleen N. Bolton, for the State.

      Paul M. Green, for defendant-appellant.


      CALABRIA, Judge.


      Doran Arthur Atkins (“defendant”) appeals from judgments

entered upon jury verdicts finding him guilty of first degree

rape, second degree sex offense, and first degree kidnapping.

We find no error.

                                 I. Background
                                          -2-
       In    February    2011,      “Mary”1     stayed       at   a   Salvation    Army

homeless     shelter    in    Charlotte,        North    Carolina.        Defendant,

Mary’s boyfriend, stayed at a men’s shelter about a mile away.

On the evening of 26 February 2011, Mary and defendant walked to

a Shell station in Mecklenburg County.                  They argued, reconciled,

and started walking when defendant shoved Mary into an alleyway,

hit her in the head,            and choked her with his hands.                     Mary

unsuccessfully       tried    to    escape,     but   defendant       threatened     her

life with a broken bottle and choked her several times with his

belt   until   she     lost   consciousness.            He    also    forced   her   to

perform fellatio twice and forced her to have intercourse while

the belt remained around her neck.

       The next morning, defendant accompanied Mary to the Shell

station, but warned her that he would kill her if she tried to

contact law enforcement.            While at the Shell station, Mary asked

a man to contact law enforcement for her because she had been

kidnapped, raped, and beaten.              Shortly afterwards, Officer Amy

Aquino (“Officer Aquino”) of the Charlotte-Mecklenburg Police

Department     (“CMPD”)       arrived     and    detained         defendant.       CMPD

Officer Brian Koll also arrived and assisted Officer Aquino.

Mary   was   transported       to   the   hospital,      and      a   sexual   assault

1
  We use a pseudonym both to protect the victim’s privacy and for
ease of reading.
                                            -3-
evidence collection kit was taken.

    Defendant was arrested and subsequently charged with first

degree    rape,    two    counts      of    first   degree     sex     offense,      first

degree kidnapping, assault by strangulation, and assault on a

female.    On 13 August 2012, defendant filed a motion to dismiss

for lack of a speedy trial.                After a hearing on 22 August 2012,

the trial court denied defendant’s motion.

    Defendant’s          case   was    subsequently       tried      on    11    February

2013.     The jury returned verdicts finding defendant guilty of

first degree rape, first degree sexual offense, second degree

sexual     offense,        first        degree      kidnapping,            assault        by

strangulation, and assault on a female.                    The State submitted a

Prior Record Level Worksheet for sentencing purposes.                           According

to the State, defendant had six points for three prior Class I

felonies    from    out-of-state           convictions    in     West     Virginia     and

South    Carolina.        Defendant’s        counsel     expressly        stipulated      to

defendant’s prior convictions and that defendant qualified as a

Level III for sentencing.             Defendant’s counsel did not object to

classifying the out-of-state offenses as Class I felonies.

    The     trial    court      arrested      judgment     for    the     first    degree

sexual    offense,       assault   by      strangulation,        and    assault      on    a

female.    Defendant was sentenced to a minimum of 317 months to a
                                       -4-
maximum   of   390   months   for   the      first   degree    rape   offense;   a

minimum of 96 months to a maximum of 125 months for the second

degree sexual offense; and a minimum of 96 months to a maximum

of 125 months for the first degree kidnapping offense.                    All of

defendant’s sentences were to be served in the custody of the

Division of Adult Correction.          Defendant appeals.

                              II. Speedy Trial

    Defendant argues that the trial court erred in denying his

motion to dismiss for lack of a speedy trial.                 We disagree.

    The    standard     of    review      for   an   alleged     constitutional

violation is de novo. State v. Graham, 200 N.C. App. 204, 214,

683 S.E.2d 437, 444 (2009).            The Sixth Amendment to the United

States Constitution guarantees the right to a speedy trial. U.S.

Const. Amend. VI.      Additionally, the North Carolina Constitution

provides defendants with the right to a speedy trial.                        N.C.

Const., art.1, sec. 18.        “When reviewing speedy trial claims, we

employ the same analysis under both the Sixth Amendment and

Article I.”     State v. Washington, 192 N.C. App. 277, 282, 665

S.E.2d 799, 803 (2008).

    The    United    States    Supreme       Court    devised    a    four-factor

balancing test analyzing speedy trial cases.              Id. (citing Barker

v. Wingo, 407 U.S. 514, 530, 33 L.Ed.2d 101, 116-17 (1972)).
                                           -5-
The Barker factors are (1) the length of delay, (2) the reason

for    the    delay,      (3)   defendant’s      assertion       of       his    right    to   a

speedy trial, and (4) prejudice to the defendant. Id. No one

factor is dispositive in determining whether the accused has

been deprived of his right to a speedy trial.                                   Id.    If the

balancing test reveals a defendant’s right to a speedy trial was

violated, the remedy is dismissal. Id. at 298, 665 S.E.2d at

812.

       In the instant case, defendant was arrested on 27 February

2011 and indicted on 7 March 2011.                  On 13 August 2012, defendant

filed    a     motion      to    dismiss      for   lack    of        a    speedy        trial.

Defendant’s         motion      was   heard    on    22    August          2012.         Thus,

defendant’s incarceration prior to the hearing on his motion to

dismiss was approximately 17 months.                 Although the United States

Supreme Court has not set out a definite period for which a

delay        will    be     deemed     presumptively            prejudicial,           it      is

acknowledged        that     delays   approaching         one    year       will      suffice.

Doggett v. United States, 505 U.S. 647, 651 n.1, 120 L.Ed.2d

520, 528 n.1 (1992).             See also State v. Webster, 337 N.C. 674,

679, 447 S.E.2d 349, 351 (1994) (sixteen month delay enough to

trigger examination of the other factors);                       State v. Pippin, 72

N.C. App. 387, 391, 324 S.E.2d 900, 904 (1985) (fourteen month
                                            -6-
delay       between   arrest    and    motion      to     dismiss       granted).    Since

defendant timely asserted his right to a speedy trial and the

pre-trial delay in this case was in excess of one year, we must

determine both the reason for the delay and whether the delay

was prejudicial to the defendant.

A. Reason for Delay

       Some    delay    between       arrest      and    trial    is     inevitable    and

“[t]he       constitutional      guarantee         does    not     outlaw     good-faith

delays which are reasonably necessary for the State to present

its case.” State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251,

255 (2003) (citation omitted). “[A] defendant has the burden of

showing that the delay was caused by the neglect or willfulness

of    the    prosecution[,]      [which     may     be    rebutted       with]   evidence

fully explaining the reasons for the delay.”                           State v. Dorton,

172   N.C.     App.    759,    764,   617    S.E.2d       97,    101    (2005)   (quoting

Spivey, 357 N.C. at 119, 579 S.E.2d at 255).                           In addition, this

Court has held that trying older cases “is an appropriate method

of determining the order in which to dispose of cases.” Id. at

764, 617 S.E.2d at 101.

       In Spivey, the defendant’s case was delayed four and one-

half years because the court docket was “clogged with murder

cases.” Spivey, 357 N.C. at 119, 579 S.E.2d at 255.                              According
                                           -7-
to its policy, “[t]he district attorney[’s office] dealt with

the cases in chronological order, beginning with the oldest.”

Id. at 120, 579 S.E.2d at 255.                   The Court held that since the

delay was caused by “neutral factors,” the defendant “failed to

present any evidence that the delay was caused by the State’s

neglect or willfulness.” Id. at 121, 579 S.E.2d at 256.

       In the instant case, defendant argued at the hearing that

the only reason for the delay was the prosecution’s failure to

call   the   case    for    trial.         Defendant     presented      evidence       of

statistics    from    the       office   of    the    Trial   Court   Administrator

regarding courtroom usage and the Mecklenburg County District

Attorney’s     policy      of    hearing      adult   rape    cases    in    teams    on

alternating     weeks.          Defendant      specifically     argued       that    the

District Attorney’s office’s strategy of splitting the assistant

district     attorneys      (“ADAs”)     into     “teams”     and   rotating        their

court appearances for adult rape cases was a misuse of courtroom

time that denied defendants their rights to speedy trial.

       The   State   rebutted       defendant’s        arguments      with    evidence

regarding hearing cases in chronological order, as well as the

arrest dates of twelve of the cases that preceded defendant’s

arrest date.        The State also presented evidence regarding case

assignments and reports.             Defendant’s case was assigned to Ms.
                                           -8-
Pendergrass, an ADA who was hospitalized on medical leave for

several months.          Prior to her medical leave, the State had not

received    the    DNA    report     from    Mary’s       sexual    assault      evidence

collection kit.          The DNA report was necessary for the State to

present its case at defendant’s trial.                         Since Ms. Pendergrass

was on medical leave, another formerly retired ADA, Mr. Cook,

was hired to assist with her caseload during the time she was

gone.      The    DNA    report     from    Mary’s       sexual     assault      evidence

collection kit and the substitution of another ADA for one on

medical leave were both neutral factors.                    Therefore, the State’s

explanation       regarding        the     District       Attorney’s          policy   for

scheduling cases was an appropriate reason for the delay.                               In

addition,    the    State’s       delay     while       waiting    for   evidence      and

substituting an ADA can both be considered good faith delays.

Defendant    has    failed     to    show        that    the     State   neglected      or

willfully delayed his trial.

B. Prejudice to Defendant

     The purposes of the right to a speedy trial are: (1) to

prevent     oppressive      pretrial        incarceration;         (2)    to     minimize

anxiety    and    concern     of    the     accused;       and    (3)    to    limit   the

possibility that the defense will be impaired.                      Dorton, 172 N.C.

App. at 765, 617 S.E.2d at 101 (citing Barker, 407 U.S. at 532,
                                           -9-
33    L.Ed.2d    at   118).         “[T]he   test      for    prejudice       is   whether

significant evidence or testimony that would have been helpful

to the defense was lost due to delay.”                       State v. Hammonds, 141

N.C. App. 152, 162-63, 541 S.E.2d 166, 174-75 (2000) (citation

omitted).

       In   Hammonds,    the       defendant     argued      that    his   defense      was

prejudiced       in   part    by     the   death    of       the    State’s    principal

investigator while his trial was delayed for over four years.

Id. at 163, 541 S.E.2d at 175. However, the State presented

evidence at trial through other investigators who “testified to

the same events and observations sought by [the] defendant[.]”

Id. at 163, 541 S.E.2d at 175.                 Therefore, while this Court did

not    condone    the   length       of    the   delay,       the    State     presented

evidence regarding the same events and observations sought by

defendant.       Id. at 163-64, 541 S.E.2d at 175.                       The Court held

that   the   defendant        was    not   prejudiced        by    the    death    of   the

State’s principal investigator.              Id.

       In the instant case, defendant does not argue that his pre-

trial incarceration was oppressive or that he had any anxiety or

particular       concerns     except       for   his     concerns        regarding      his

mother’s testimony.           Specifically, defendant’s mother could have

testified regarding Mary’s credibility and that Mary had used
                                        -10-
crack cocaine.

    At trial, Mary testified as the State’s witness, and the

evidence she presented included some of the same information

defendant    contends       would   have      been   his   mother’s        testimony.

According to Mary, she had been dating defendant for two years

and they engaged in consensual sexual intercourse.                          She also

testified that she loved defendant and that they had expressed

that love for one another just prior to the assault.                       Mary also

admitted to using crack cocaine three days before the assault

occurred.

    Susan      Lewis-Kafuko           (“Lewis-Kafuko”),          a     friend       of

defendant’s    sister,      testified      on   defendant’s     behalf.        Lewis-

Kafuko testified that she had spent the afternoon of 26 February

2011 with Mary and defendant.                 During that time, Lewis-Kafuko

witnessed    the    couple    express      love      towards   one    another      and

discuss their plans of moving in together and establishing a

family together.

    Both Mary and Lewis-Kafuko testified to the same events and

observations       sought     by    defendant        regarding       his    mother’s

testimony.      Moreover,      Mary     had     first-hand     knowledge      of   the

events that occurred, while defendant’s mother only had first-

hand knowledge of their relationship and was not a witness to
                                          -11-
the   events      that    led     to   defendant’s       arrest.        Furthermore,

defendant does not dispute Mary’s testimony on appeal.                             Since

defendant fails          to dispute Mary’s testimony or              show how his

mother’s testimony would have been helpful to his defense, the

loss of his mother’s testimony did not prejudice his defense.

      In balancing all of the Barker factors, neither the reason

for the delay nor the prejudice to the defendant weighs against

the State.     Therefore, we hold that the trial court did not err

in denying defendant’s motion to dismiss for lack of a speedy

trial.

                                  III. Sentencing

      Defendant      also    argues       that    the    trial     court    erred    in

calculating    his       prior   record    level.       Specifically,        defendant

contends    the    out-of-state        charges      used   in    this      calculation

should have been considered misdemeanors rather than felonies.

We disagree.

      The standard of review for the determination of a prior

record level is de novo. State v. Bohler, 198 N.C. App. 631,

633, 681 S.E.2d 801, 804 (2009). A determination regarding a

defendant’s prior record level must be supported by competent

evidence.    Id. at 633, 681 S.E.2d at 804.

      “[A]     conviction        occurring   in     a   jurisdiction       other    than
                                         -12-
North   Carolina        is    classified      as    a    Class   I     felony    if     the

jurisdiction       in    which    the    offense         occurred      classifies       the

offense as a felony.” N.C. Gen. Stat. § 15A-1340.14(e) (2013).

The   State   is    “not      required   to     show      that   the    [out-of-state]

offenses were ‘substantially similar’ to North Carolina offenses

[if] the prosecution only classifie[s] the convictions at the

default level, Class I.” State v. Hinton, 196 N.C. App. 750,

755, 675 S.E.2d 672, 675-76 (2009) (citation omitted). If the

State   submits     a    felony    conviction           from   another    jurisdiction

under the default classification of a Class I felony, it has

“met its burden and [is] required to prove nothing further in

support of that classification.” State v. Threadgill, ___ N.C.

App. ___, ___, 741 S.E.2d 677, 681 (2013).                       However, “[i]f the

offender proves by the preponderance of the evidence that an

offense classified as a felony in the other jurisdiction is

substantially similar to an offense that is a misdemeanor in

North   Carolina,       the    conviction      is   treated      as    that     class    of

misdemeanor for assigning prior record level points.” N.C. Gen.

Stat. § 15A-1340.14(e).

      The State must prove, by a preponderance of the evidence,

that the prior convictions exist and the offender before the

court is the person previously convicted.                        N.C. Gen. Stat. §
                                         -13-
15A-1340.14(f)       (2013).        Acceptable      methods     of    proving      prior

convictions include presenting copies of records maintained by

the Division of Criminal Information (“DCI”) and stipulating to

the existence of these offenses. Id.

    In the instant case, defendant contends that an out-of-

state shoplifting offense and weapons offense should have been

classified as misdemeanors because the equivalent North Carolina

offenses    are     misdemeanors.          However,      defendant      presented    no

evidence to show that these offenses were substantially similar

to any North Carolina offenses.                 The State presented copies of

records maintained by DCI showing that defendant’s out-of-state

offenses     were    felonies       in     their    respective        jurisdictions.

Defendant’s    counsel      stipulated      that    defendant        had   six    points

according     to    the     prior    record      level     worksheet,       and     that

defendant     had     a    Prior     Record      Level    III     for      sentencing.

Therefore,    the     offenses      were    properly      classified       as    default

Class I felonies.

    Defendant’s           final     contention      is     that      his     counsel’s

stipulation to the existence of these felony convictions was

ineffective assistance of counsel.                 However, defendant fails to

explain how this stipulation satisfies the two-part test set

forth in State v. Braswell.                See Braswell, 312 N.C. 553, 562,
                                       -14-
324 S.E.2d 241, 248 (1985) (holding “the defendant must show

counsel’s performance was deficient . . . [and] the deficient

performance prejudiced the defense.”).            Therefore, this argument

is without merit.

                              IV. Conclusion

    Although this Court does not condone the State’s delay,

neither the reason for the delay nor the alleged prejudice to

the defendant    denied defendant his right to a speedy trial.

Therefore, the trial court did not err in denying defendant’s

motion to dismiss. In addition, the State presented sufficient

evidence   of    defendant’s      prior       record    level,     and   counsel

stipulated to defendant’s prior record level.               Accordingly, the

trial   court   did   not   err   in   sentencing      defendant    as   a   Prior

Record Level III.

    No error.

    Chief Judge MARTIN and Judge McGEE concur.

    Report per Rule 30(e).
