An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1071
                        NORTH CAROLINA COURT OF APPEALS
                              Filed:     17 June 2014
STATE OF NORTH CAROLINA

                                                Pender County
      v.
                                                No. 11 CRS 52835, 12 CRS 542

ROBERT LEVITICUS MCKOY


      Appeal by defendant from judgments entered 2 May 2013 by

Judge Arnold      O.    Jones, II,     in     Pender County Superior Court.

Heard in the Court of Appeals 18 February 2014.

      Attorney General Roy Cooper, by Assistant Attorney General
      Jill F. Cramer, for the State.

      The Law Office of Bruce T. Cunningham, Jr., by Bruce T.
      Cunningham, Jr., for Defendant.

      ERVIN, Judge.

      Defendant Robert Leviticus McKoy appeals from a judgment

sentencing him to a term of 89 to 119 months imprisonment based

upon his convictions for felonious speeding to elude arrest,

reckless     driving,     possession     of    drug   paraphernalia,       driving

while license revoked,          and having attained the status of an

habitual felon and from a judgment finding him responsible for

driving left of center without requiring him to pay additional

court costs.       On appeal, Defendant contends (1) that the trial
                                               -2-
court erred by sentencing him as an habitual felon despite the

fact that he was neither found guilty of nor pled guilty to

having attained habitual felon status; allowing Defendant to be

convicted of felonious speeding to elude arrest based upon the

use of reckless driving and driving while license revoked as

aggravating        circumstances         and    then       separately    sentencing       him

based      upon    his    convictions      for       reckless    driving     and      driving

while      license       revoked;    denying         his     motions    to   dismiss      the

felonious speeding to elude arrest charge for insufficiency of

the evidence; allowing the jury to consider whether Defendant

drove more than fifteen miles per hour in excess of the speed

limit in determining whether he was guilty of felonious speeding

to   elude        arrest;      failing    to    describe        the    manner    in    which

Defendant allegedly drove in a careless and reckless manner in

the course of instructing the jury; and allowing the jury to

consider the issue of Defendant’s guilt of reckless driving and

(2) that he received constitutionally deficient representation

from    his       trial     counsel.           After       careful     consideration       of

Defendant’s challenges to the trial court’s judgments in light

of   the    record       and   the   applicable        law,     we    conclude     that   the

judgment that the trial court entered based upon Defendant’s

convictions        for    felonious      speeding       to    elude    arrest,     reckless

driving, possession of drug paraphernalia, driving while license
                                       -3-
revoked, and having attained the status of an habitual felon

should be vacated and that this case should be remanded to the

Pender County Superior Court for resentencing.

                              I. Factual Background

                              A. Substantive Facts

                              1. State’s Evidence

      Detective Lazaro Ramos worked as a narcotics detective for

the   Pender    County     Sheriff’s   Office.         On    30   December    2011,

Detective      Ramos    was   traveling    north     on     Highway   117    in    an

unmarked Ford Explorer after having gotten off of work.                            At

approximately 1:46 p.m., Detective Ramos drove past Defendant,

who was entering Highway 117 from Interstate 40 while driving a

red   Jeep   Cherokee.         Detective     Ramos    noticed     Defendant   when

Defendant’s vehicle, which he recognized as the result of having

viewed a photograph that had been given to him by Sergeant Lisa

Fields of the Burgaw Police Department, began slowing down.1                       As

Detective Ramos continued to observe Defendant, he noticed that

Defendant      was     behaving   evasively     and       began   wondering       why

Defendant was trying to avoid him.

      As Detective Ramos and Defendant both slowed down, the two

drivers were able to see each other.                  After Defendant exited
      1
      Sergeant Fields had shown the vehicle’s photograph to
Detective Ramos, who had responsibility for drug-related
investigations, because she was looking into     Defendant’s
activities.
                                      -4-
Highway 117 to the right and approached the stop sign at the end

of the exit ramp, he appeared to be about to make a right turn.

While Detective Ramos passed over the overpass and continued on

the highway, Defendant continued to creep toward the stop sign.

Upon reaching the stop sign, Defendant made a sharp left turn

rather than turning right as Detective Ramos expected.

      After making this observation and crossing the overpass,

Detective   Ramos    turned     around.      Once   he   had    turned     around,

Detective Ramos activated his blue lights and siren, informed

the 911 dispatch center that he was trying to catch up with

Defendant’s vehicle, and increased his speed to 100 miles per

hour in order to accomplish that goal.              Although Detective Ramos

had   difficulty     catching    up   with    Defendant,   he       continued   to

pursue him.2

      After pursuing Defendant for some distance, Detective Ramos

regained    visual    contact     with      Defendant.         At   that   point,

Detective Ramos observed Defendant “fishtailing” and watched him

cross over the double yellow line as he attempted to pass other

vehicles in a blind curve.            As he came closer to Defendant,

Detective Ramos ran the tags on the vehicle that Defendant was

      2
      At the time that the chase began, Detective Ramos knew
Defendant as Rob Base.     When Sergeant Fields heard Detective
Ramos radio that he was attempting to stop a red Jeep driven by
a Rob Base, she provided him with Defendant’s real name.
                                 -5-
driving and discovered that it was registered to an individual

named Mack Douglas Smith.3

     After a pursuit of less than a mile, Defendant entered a

residential area in which one of his sisters lived.            As he did

so, he cut through the yard of a residence in order to avoid

colliding with a vehicle that was leaving the subdivision.          Upon

entering a cul de sac, Defendant drove up a driveway and through

back yards associated with various homes.      Eventually, Defendant

collided with a tree and fled on foot.      A search of the area for

Defendant proved unsuccessful.      A search of Defendant’s vehicle

resulted in the seizure of cigar papers and a digital scale,

items that Detective Ramos believed to be drug paraphernalia.

Defendant subsequently surrendered to investigating officers.

     Allen Monteith, a driver’s license examiner with the North

Carolina Division of Motor Vehicles, testified that Defendant’s

license was suspended at the time of the incident.       In addition,

Detective Ramos testified that Defendant’s name had been written

on the back of the registration card associated with the Jeep

Cherokee.    Although   Detective   Ramos   did   not   have    specific

knowledge of the reason that Defendant’s name had been written

     3
      Mr. Smith had purchased the vehicle for Defendant using
money that Defendant had provided to him for that purpose in
recognition of the fact that Defendant did not have a license.
The insurance applicable to Defendant’s vehicle had been
procured in the name of his sister.
                                               -6-
on the back of the vehicle’s registration card, he testified

that   the    name       of    an    individual          who    is    stopped      for   driving

without a license or is unable to present valid identification

information        is    frequently          written       on    the       registration      card

associated        with    the       vehicle        that    the       individual       has   been

driving.

                                    2. Defense Evidence

       Jonnisia McKoy, Defendant’s older sister, testified                                   that

Defendant,        who    was       accompanied       by    his       girlfriend,      had   been

visiting her in Raleigh on 30 December 2011.                                    Due to their

family      tradition         of    spending       New    Year’s       Eve    in   their     home

church, Ms. McKoy and Defendant left Raleigh to return to Pender

County early in the evening of 30 December 2011.                                In support of

her    testimony,         receipts       evidencing             certain      purchases       that

Defendant had made in Raleigh on 29 December 2011 were admitted

into evidence.

                                    B. Procedural Facts

       On    30    December          2011,     a     warrant         for     arrest      charging

Defendant with felonious speeding to elude arrest and reckless

driving was issued.                 On 27 February 2012, the Pender County

grand jury returned bills of indictment charging Defendant with

felonious speeding to elude arrest, reckless driving, speeding

100 miles per hour in a 55 mile per hour zone, driving left of
                                             -7-
center, possession of drug paraphernalia, driving while license

revoked,    and      resisting,       delaying,          and    obstructing      a    public

officer.        On   26     March     2012,    the       Pender      County    grand    jury

returned    a    bill      of    indictment        alleging       that      Defendant    had

attained the status of an habitual felon.

      The   charges        against     Defendant         came   on    for     trial    before

Judge Paul L. Jones and a jury at the 25 June 2012 criminal

session of the Pender County Superior Court.                          During the course

of Defendant’s initial trial, Judge Jones dismissed the reckless

driving charge due to deficiencies in the relevant indictment.

Defendant’s      first      trial     ended    in    a    mistrial       after   the     jury

failed to reach a unanimous verdict.

      The charges against Defendant came on for trial a second

time before the trial court and a jury at the 30 April 2013

criminal session of the Pender County Superior Court.                                 At the

conclusion      of   the    State’s        evidence,      the     trial     court     allowed

Defendant’s       motion        to   dismiss   the       resisting,         delaying,    and

obstructing a public officer charge.                       On 2 May 2013, the jury

returned a verdict finding Defendant guilty of or responsible

for   felonious       speeding        to    elude    arrest,         reckless       driving,

driving left of center, possession of drug paraphernalia, and

driving while license revoked and finding Defendant not guilty

of speeding 100 miles per hour in a 55 mile per hour zone.                                 At
                                         -8-
the   conclusion      of    the    ensuing    sentencing      hearing,      the     trial

court consolidated Defendant’s convictions for felonious fleeing

to    elude       arrest,     reckless       driving,    possession            of    drug

paraphernalia, and driving while license revoked for judgment;

concluded     that    Defendant      should    be   sentenced       as    an   habitual

felon;    and     entered     a    judgment    ordering       that       Defendant    be

imprisoned for a term of 89 to 119 months.                      In addition, the

trial     court     ordered       that   Defendant      not    be        assessed    any

“additional court costs” in connection with his conviction for

driving left of center.               Defendant noted an appeal from the

trial court’s judgments.

                                  II. Legal Analysis

                           A. Speeding to Elude Arrest

      In his brief, Defendant contends that the trial court erred

by denying his motion to dismiss the felonious speeding to elude

arrest charge.        More specifically, Defendant contends that the

record, when viewed in the light most favorable to the State,

did not contain sufficient evidence to support a determination

that Detective Ramos was lawfully performing an official duty at

the time he attempted to stop Defendant.                 Defendant’s contention

has merit.4

      4
      In its brief, the State contends that Defendant failed to
properly preserve his challenge to the sufficiency of the
evidence to support his conviction for felonious speeding to
                                    -9-
                           1. Standard of Review

       In considering whether to grant a motion to dismiss for

insufficiency of the evidence, the trial court must determine

“‘whether there is substantial evidence (1) of each essential

element of the offense charged and (2) that [the] defendant is

the perpetrator of the offense.’”          State v. Bradshaw, 366 N.C.

90, 93, 728 S.E.2d 345, 347 (2012) (quoting State v. Lynch, 327

N.C.   210,   215,   393   S.E.2d   811,   814   (1990)).      “Substantial

evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”          Id.     In conducting

the    required   analysis,   the   “trial   court   must     consider    the

evidence in the light most favorable to the State, drawing all

reasonable inferences in the State’s favor.”                Id. at 92, 728

S.E.2d at 347 (internal quotation marks omitted) (quoting State

v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594 (2009)).                 “All


elude arrest for purposes of appellate review on the grounds
that Defendant’s trial counsel failed to address the sufficiency
of the evidence to support a determination that Detective Ramos
was acting lawfully at the time that he began to pursue
Defendant when she moved to dismiss the speeding to elude arrest
charge. However, given that the record reflects that Defendant
moved to dismiss the felonious speeding to elude arrest charge
“based on the evidence [considered] in the light most favorable
to the State” at the conclusion of the State’s evidence and
“submit[ted] to the Court the same arguments [] used before for
each charge” when he moved to dismiss the felonious speeding to
elude arrest charge at the conclusion of all of the evidence, we
conclude that Defendant properly preserved his challenge to the
speeding to elude arrest charge for purposes of appellate
review.
                                         -10-
evidence, competent or incompetent, must be considered,” with

“[a]ny   contradictions          or   conflicts    in     the    evidence       [to   be]

resolved     in     favor   of    the    State,    and     [with       any]     evidence

unfavorable to the State” eliminated from consideration.                         Id. at

93, 728 S.E.2d at 347.           We review a challenge to the denial of a

motion to dismiss for insufficiency of the evidence using a de

novo standard of review.              State v. Smith, 186 N.C. App. 57, 62,

650 S.E.2d 29, 33 (2007).

                       2. Sufficiency of the Evidence

    According to N.C. Gen. Stat. § 20-141.5(a), it is “unlawful

for any person to operate a motor vehicle on a street, highway,

or public vehicular area while fleeing or attempting to elude a

law enforcement officer who is in the lawful performance of his

duties.”     Although a violation of N.C. Gen. Stat. § 20-141.5 is

ordinarily a Class 1 misdemeanor, the commission of that offense

becomes a Class H felony if the defendant, in the course of his

or her flight, speeds “in excess of 15 miles per hour over the

legal    speed      limit,”      N.C.    Gen.     Stat.         §      20-141.5(b)(1);

“[r]eckless[ly] driv[es] as proscribed by [N.C. Gen. Stat. §]

20-140,”   §      20-141.5(b)(3);       or   “[d]riv[es]        when    [his    or    her]

driv[er’]s        license   is    revoked.”         N.C.    Gen.        Stat.    §    20-

141.5(b)(5).       As a result, an individual’s guilt for purposes of

N.C. Gen. Stat. § 20-141.5 hinges upon the extent to which the
                                     -11-
defendant attempts to flee from a law enforcement officer who is

attempting     to    lawfully   perform     his     or    her    official     duties.

State v. Sinclair, 191 N.C. App. 485, 489-90, 663 S.E.2d 886,

870 (2008) (citing State v. Anderson, 40 N.C. App. 318, 322, 253

S.E.2d   48,   51    (1979))    (stating    that,    in    the       event   that    the

detention of the defendant was “unlawful, there was insufficient

evidence that [the officer] was discharging or attempting to

discharge a duty of his office” for the purpose of determining

the defendant’s guilt of resisting, delaying, or obstructing a

public officer).

    “A police officer may effect a brief investigatory seizure

of an individual where the officer has reasonable, articulable

suspicion that a crime may be underway.”                  State v. Barnard, 184

N.C. App. 25, 29, 645 S.E.2d 780, 783 (2007) (citing Terry v.

Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889,

906 (1968)), aff’d, 362 N.C. 244, 658 S.E.2d 643, cert. denied,

555 U.S. 914, 129 S. Ct. 264, 172 L. Ed. 2d 198 (2008).                              The

required   reasonable      articulable      suspicion      must      “‘be    based    on

specific     and    articulable    facts,     as     well       as     the   rational

inferences from those facts, as viewed through the eyes of a

reasonable,     cautious    officer,       guided    by    his       experience      and

training.’”        Id. (quoting State v. Watkins, 337 N.C. 437, 441,

446 S.E.2d 67, 70 (1994)).         A reviewing court “must consider the
                                              -12-
totality of the circumstances in determining whether the officer

possessed     a    reasonable         and    articulable     suspicion    to    make   an

investigatory stop.”            Id.

    According to the transcript of Defendant’s second trial,

Detective Ramos saw Defendant, with whom he was familiar as the

result of previous work-related activities and whom he knew to

be under investigation by other law enforcement officers, as he

drove north on Highway 117.                  After observing Defendant exit upon

catching sight of him, Detective Ramos testified that he had to

drive further north on Highway 117 and cross an overpass before

he turned around, after which, as he headed south on Highway

117, he sped up to 100 mph, turned on his siren and blue lights,

contacted the dispatcher, and decided to stop Defendant.                             As a

result   of       the    fact   that        Defendant    exited   Highway      117   upon

sighting Detective Ramos and the fact that Defendant made an

unexpected left turn after apparently intending to turn right,

Detective Ramos appears to have concluded that Defendant was

engaging in some type of criminal activity.                          We are, however,

unable to see how, given these facts, Detective Ramos had an

articulable        reasonable         suspicion      sufficient      to   justify      his

decision to stop Defendant.

    In      an     attempt      to      persuade        us   to   reach   a    contrary

conclusion,        the    State      argues     that     Detective    Ramos    had     the
                                         -13-
reasonable     articulable          suspicion        necessary          to    justify        an

investigative detention of Defendant because (1) Defendant was

under investigation for drug-related activities, (2) Defendant

initiated an unprovoked flight after seeing Detective Ramos, and

(3)    Defendant     drove       recklessly     “during      the    chase.”            As    an

initial   matter,      we    note    that     the    fact    that       Defendant       drove

recklessly     once    the       chase   began       has     no    bearing       upon       the

lawfulness of Detective Ramos’ decision to pursue Defendant in

the first place given that the required “reasonable suspicion

must arise from the officer’s knowledge prior to the time of the

stop.”    State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631

(2000).       Although       Detective       Ramos    testified          that    Defendant

“punche[d] it” when he turned left after leaving Highway 117, he

never described any illegality in the manner in which Defendant

made   that   left     turn.        Simply    put,     the    fact       that    Defendant

attempted     to   avoid        Detective    Ramos    without       engaging       in       any

independently         unlawful        conduct        does         not        provide        any

justification      for      a     decision     to    conduct        an       investigative

detention given that an individual has a right, if he or she

chooses to exercise it, to avoid contact with law enforcement

officers.     State v. Canty, __ N.C. App. , __, 736 S.E.2d 532,

537 (2012) (stating that “[n]ervousness, failure to make eye

contact with law enforcement, and a relatively small reduction
                                                -14-
in speed is ‘conduct falling within the broad range of what can

be    described         as    normal     driving        behavior’”       (quoting          State    v.

Peele, 196 N.C. App. 668, 674, 675 S.E.2d 682, 687, disc. review

denied, 363 N.C. 587, 683 S.E.2d 384 (2009))),                                      disc. review

denied, 366 N.C. 578, 739 S.E.2d 850 (2013); Sinclair, 191 N.C.

App.    at    489,       663        S.E.2d   at    870        (stating       that,    “[i]f        the

encounter was consensual, [the defendant] was at liberty ‘to

disregard         the    police        and   go    about        his    business’”          (quoting

Florida v. Bostic, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115

L.    Ed.    2d    389,       398    (1991))).          Finally,       the    mere        fact   that

Defendant was under investigation by the local law enforcement

community does not tend to show that Detective Ramos had the

reasonable         articulable           suspicion            necessary       to     justify        an

investigative           detention        given         that     the    record       contains        no

evidence tending to show what Defendant was alleged to have done

or the strength of the evidence tending to show that Defendant

was    involved          in     unlawful        conduct.              Thus,        none     of     the

justifications           for        Detective     Ramos’        decision       to    conduct        an

investigative           detention       of   Defendant          offered       in     the    State’s

brief have any merit.

       The    ultimate         deficiency         in    Detective      Ramos’        decision       to

detain Defendant was the absence of any indication that any sort

of specific criminal activity was “underway.”                                See Barnard, 184
                                            -15-
N.C. App. at 29, 645 S.E.2d at 783.                      In order for an officer to

conduct     a    valid       investigative      detention,          there    must    be    some

nexus between the suspicious behavior in which the defendant has

engaged and the crime for which the officer seeks to detain the

defendant.            See Canty, __ N.C. App. at __, 736 S.E.2d at 537

(stating that, although slowed speed “tends to be a factor in

reasonable suspicion for impaired driving,” “[i]mpaired driving

. . . was not the offense for which the officers testified that

they pulled over [the defendant]”).                          A careful review of the

record developed in the trial court demonstrates that Detective

Ramos never provided any explanation for his decision to detain

Defendant and none appears to us from our view of the transcript

of Defendant’s second trial.                As a result, given that the record

provides        no    justification       for      Detective        Ramos’    decision       to

pursue and initiate an investigative detention of Defendant, we

conclude        that       the   trial    court     erred      by     failing       to     allow

Defendant’s           motion     to   dismiss     the    speeding      to    elude       arrest

charge at the conclusion of all of the evidence and that the

trial    court’s           judgment    sentencing       Defendant       based       upon    his

conviction           for   felonious     speeding       to   elude    arrest    should       be

vacated.5

     5
      Our decision that the trial court should have allowed
Defendant’s motion to dismiss the speeding to elude arrest
charge for insufficiency of the evidence renders many of
                                          -16-
                        B. Reckless Driving Conviction

     In addition, Defendant contends that the trial court erred

by allowing the jury to convict him for reckless driving and by

entering   judgment      based     upon    his   reckless    driving     conviction

given   that     the    trial     court    lacked   jurisdiction       to    proceed

against him on the basis of that reckless driving charge.                           In

support    of     this     assertion,       Defendant       contends     that      the

challenged      trial    court    decisions      overlook   the   fact      that   the

reckless   driving       charge    had    been   dismissed    during     his    first

trial, so that there was no reckless driving charge pending

against him when this case was called for trial at the 30 April


Defendant’s remaining arguments moot.   For example, Defendant’s
contention that the trial court’s decision to enter judgment
against him on the basis of his separate convictions for driving
while license revoked and reckless driving despite the fact that
these same offenses were used to enhance the speeding to elude
arrest charge from a misdemeanor to a felony hinges upon a
decision to uphold his felonious speeding to elude arrest
conviction.   Similarly, Defendant’s contention that the trial
court erred by allowing the jury to find that he was guilty of
felonious speeding to elude arrest on the grounds that he drove
100 miles per hour in a 55 mile per hour zone is rendered moot
by our decision to invalidate his felonious speeding to elude
arrest conviction and by the jury’s decision to acquit him of
the speeding charge that had been lodged against him. Finally,
although our decision that the record did not contain sufficient
evidence to support Defendant’s conviction for felonious
speeding to elude arrest obviates the necessity for us to
address Defendant’s challenge to the trial court’s decision to
sentence him as an habitual felon, we do note that the trial
court erred by accepting Defendant’s admission to having
attained habitual felon status without complying with the
procedures for accepting a guilty plea set out in N.C. Gen.
Stat. § 15A-1022(a).
                                     -17-
2013 criminal session of the Pender County Superior Court.                 Once

again, we conclude that Defendant’s contention has merit.

    “Art. I, sec. 12 of our Constitution requires a bill of

indictment, unless waived, for all criminal actions originating

in the Superior Court,” with “a valid bill [being] necessary to

vest the court with authority to determine the question of guilt

or innocence.”     State v. Bissette, 250 N.C. 514, 515, 108 S.E.2d

858, 859 (1959).        As a result of the fact that the record

clearly     reflects   that    the   indictment      purporting    to     charge

Defendant with reckless driving was dismissed during the course

of Defendant’s first trial and that the State never obtained

another   indictment    charging     Defendant     with    reckless     driving,

there was no valid indictment upon which Defendant could have

been tried for reckless driving at the 30 April 2013 criminal

session of the Pender County Superior Court.                As a result, the

trial court erred by allowing Defendant to be tried for and

convicted of reckless driving at his second trial.

    In seeking to persuade us to reach a different result with

respect to this issue, the State argues that, to the extent that

Defendant    is   attempting    to   argue    that   his    reckless    driving

conviction    should   be   invalidated      on   double   jeopardy     grounds,

Defendant is not entitled to rely on such a contention because

he failed to raise it in the court below.                 In the alternative,
                                    -18-
the State contends that Defendant’s conviction was valid because

the record contains a bill of indictment purporting to charge

Defendant with reckless driving.         However, we do not find either

of these arguments persuasive.

    As    an   initial   matter,    we   do   not   understand   Defendant’s

argument to rest on double jeopardy considerations.                  Instead,

Defendant      clearly   contends    that     the    trial   court    lacked

jurisdiction to try him for reckless driving in light of the

fact that the record is devoid of a viable indictment charging

him with having committed that offense.                According to well-

established principles of North Carolina law, “the issue of a

court’s jurisdiction over a matter may be raised at any time,

even for the first time on appeal or by a court sua sponte.”

State v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622

(2008).     Finally, the mere presence of an indictment containing

the dismissed charge in the record does not suffice to establish

the trial court’s jurisdiction over the dismissed charge since

the continued presence of the indictment, which charges offenses

that have not been dismissed in addition to the charge that has

been dismissed, in the record does not in any way undercut the

earlier dismissal decision or reinstate the dismissed charge.

See, e.g., State v. Austin, 31 N.C. App. 20, 26-27, 228 S.E.2d

507, 512 (1976) (stating that, as “[d]efendant Thorne points
                                     -19-
out, and the State concedes, . . . the indictment against him in

Case No. 75CR3585, which was returned as a true bill on 15 April

1975, was dismissed by the trial court on motion of defendant

prior to arraignment,” so that “the judgment entered in that

case must be vacated”).        As a result, Defendant’s conviction for

reckless driving and judgment entered against Defendant based

upon that conviction must be vacated.6

                               III. Conclusion

      Thus, for the reasons stated above, we conclude that the

trial court erred by denying Defendant’s motion to dismiss the

speeding to elude arrest charge that had been lodged against him

for   insufficiency     of     the   evidence,      a    determination     that

undermines    the   validity    of   Defendant’s    conviction    for    having

attained the status of an habitual felon, and by allowing the

jury to convict Defendant of reckless driving and by entering

judgment     against   Defendant     based   upon       his   conviction   for

reckless driving.7      As a result, given that Defendant has not

      6
      In light of our decision to overturn the judgment stemming
from Defendant’s reckless driving conviction for jurisdictional
reasons, we need not address Defendant’s challenge to the
validity of the trial court’s instructions with respect to the
issue of Defendant’s guilt of reckless driving.
      7
      As we noted at the beginning of this opinion, Defendant
also contended in his brief that he received constitutionally
deficient representation from his trial counsel, with this
contention predicated on the manner in which his trial counsel
responded to the introduction of various certificates showing
                                 -20-
challenged the validity of his convictions for driving while

license revoked or possession of drug paraphernalia or the trial

court’s judgment based upon the jury’s decision to find him

responsible   for   driving   left   of   center,   the   trial   court’s

judgment based upon his convictions for felonious speeding to


that   Detective  Ramos   had   completed  various  courses   of
instruction, the manner in which his trial counsel cross-
examined Mr. Monteith concerning Defendant’s prior driving
history, his trial counsel’s failure to object to the trial
court’s instructions with respect to the reckless driving
charge, and his trial counsel’s failure to make an adequate
sentencing presentation. As a result of our decision to vacate
Defendant’s speeding to elude arrest and reckless driving
convictions and to remand this case to the Pender County
Superior   Court   for  resentencing,   Defendant’s  contentions
relating to his trial counsel’s handling of the certificates
awarded to Detective Ramos, his trial counsel’s failure to
object to the trial court’s reckless driving instructions, and
his trial counsel’s alleged failure to make an effective
sentencing presentation have been rendered moot. Although we do
not believe that our decision has mooted Defendant’s challenge
to the manner in which his trial counsel cross-examined Mr.
Monteith, we do not believe that there is any likelihood that
Defendant would have been acquitted of driving while license
revoked and possession of drug paraphernalia and found not
responsible for driving left of center had the jury not heard
the additional evidence concerning Defendant’s prior driving
history elicited during the cross-examination of Mr. Monteith.
State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15
(2000) (stating that a convicted criminal defendant is not
entitled to relief on ineffective assistance of counsel grounds
in the absence of a showing “that the error committed was so
serious that a reasonable probability exists that the trial
result would have been different absent the error” (citing
Strickland v. Washington, 466 U.S. 668, 691-96, 104 S. Ct. 2052,
2066-69, 80 L. Ed. 2d 674, 696-99 (1984))), cert. denied, 531
U.S. 1117, 121 S. Ct. 868, 148 L. E. 2d 780 (2001).         As a
result, Defendant is not entitled to any relief from his
remaining convictions based upon the ineffective assistance of
counsel claim asserted in his brief.
                                   -21-
elude arrest, reckless driving, driving while license revoked,

and possession of drug paraphernalia should be, and hereby is,

vacated and this case should be, and hereby is, remanded to the

Pender County Superior Court for resentencing and the entry of a

new   judgment   based   upon   Defendant’s   convictions   for   driving

while license revoked and possession of drug paraphernalia.

      VACATED IN PART, NO ERROR IN PART, AND REMANDED FOR

      RESENTENCING.

      Judges MCGEE and STEELMAN concur.

      Report per Rule 30(e).
