              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA15-499

                            Filed: 17 November 2015

Carteret County, No. 14 CRS 50372; 14 CRS 50376-77

STATE OF NORTH CAROLINA

             v.

DUSTIN JAMAL WARREN


      Appeal by defendant from judgment entered 10 September 2014 by Judge

Benjamin G. Alford in Carteret County Superior Court.     Heard in the Court of

Appeals 22 October 2015.


      Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth
      Leonard McKay, for the State.

      James R. Parish, for defendant-appellant.


      TYSON, Judge.


      Dustin Jamal Warren (“Defendant”) appeals from a jury’s verdict finding him

guilty of possessing precursor chemicals with the intent to manufacture

methamphetamine,      manufacturing    methamphetamine,    and    conspiracy   to

manufacture methamphetamine. We find no error in part, and dismiss Defendant’s

remaining arguments without prejudice to pursue them through a motion for

appropriate relief.

                                  I. Background
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                                  Opinion of the Court



      Shortly before 12:00 p.m. on 29 January 2014, Defendant drove his gold Buick

to the Seashore Motel in Atlantic Beach, North Carolina. Accompanying Defendant

was Heather Kennon (“Kennon”), an acquaintance Defendant knew through his

brother.

      Defendant pulled up to the motel office, Kennon alighted the car, and went into

the office to register for a room. Scott Way (“Way”), the manager of the Seashore

Motel, watched as Kennon alighted from the front passenger seat. Kennon filled out

a registration card and paid for a room for the night. On the registration card,

Kennon listed her name and the license plate of Defendant’s gold Buick.           Way

accepted the registration and payment and gave her a key to room 9. After checking

in, Way testified Kennon and Defendant stayed in the car for a “little while,” and then

proceeded into the room.

      Approximately two hours after checking in, Kennon returned to the motel

office and asked for an extra space heater. Snow was on the ground that day, and it

was very cold outside. Carla Thomas (“Carla”), an assistant manager at the Seashore

Motel, explained to Kennon the motel is old and another space heater would likely

blow the circuit breaker.

      Way brought extra blankets to room 9 and offered them in lieu of a second

space heater. Way testified a man opened the door roughly two or three inches and

“announced that they were in, you know, in – not decent,” and did not want the extra



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blankets. Way testified he heard a male voice, and did not observe any males enter

or exit room 9 except for Defendant.

      The next morning, Way and Carla began the process of checking out guests

and cleaning rooms previously rented. Around 9:00 or 9:30 a.m., Carla knocked on

the door of room 9 to ascertain whether Kennon and Defendant needed anything or

would like to register for another night.

      After no answer, Carla announced her identity and that she was about to enter

the room. Carla unlocked the door and entered the room. She noticed a black bag

which contained, inter alia, a mask and a glue gun. Carla also noticed a pickle jar

turned upside-down with a dried white reside at the bottom. After viewing the

contents of room 9, Carla informed Way of her findings. Together, they determined

the police needed to be summoned. Way called 911.

                               A. Kennon’s Testimony

      Kennan testified that on 28 January 2014, she met Defendant at the

DoubleTree Hotel in Atlantic Beach, North Carolina. Kennan and Defendant shared

a room at the hotel, where they injected and inhaled methamphetamine, respectively.

Defendant had already obtained the materials to make methamphetamine, with the

exception of cold packs.     Kennon and Defendant stopped by Cassie Flowers’

(“Flowers”) residence to obtain cold packs.




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      On 29 January 2014, Kennon accompanied Defendant to the Seashore Motel.

After registering and paying for the room, Defendant parked the gold Buick in front

of room 9. Kennon testified Defendant brought a black suitcase into the room, which

contained the precursors to, and various supplies necessary to manufacture,

methamphetamine. Defendant began removing the precursors and supplies from the

suitcase and arranging them in preparation to make methamphetamine.

      While Defendant prepared the supplies, Kennan injected herself with

methamphetamine she had received from Defendant the previous day.           Kennan

attempted to assist Defendant in making methamphetamine. Defendant became

dissatisfied with Kennan’s assistance and manufactured the methamphetamine

alone, as Kennon looked on. Kennon testified the manufacturing process yielded

approximately 4.5 grams of methamphetamine.

      After Defendant finished, he left the supplies in room 9 at the Seashore Motel

and they traveled to Anique Pittman’s (“Pittman”) residence.            Pittman was

Defendant’s girlfriend. Kennon testified she, Defendant, Pittman, and Mark Thomas

(“Thomas”) drank beers, ingested methamphetamine, and spent the night. Kennon

testified Defendant had the key to room 9 and intended to return to the Seashore

Motel to retrieve the black suitcase and supplies prior to check out.




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      The next morning, Defendant left Kennon at Pittman’s house to retrieve the

materials left in room 9. Kennon testified while Defendant was gone, Thomas texted

Pittman’s phone “saying the law got [Defendant].”

                         B. Law Enforcement Investigation

      In the midmorning hours of 30 January 2014, Atlantic Beach Police Lieutenant

Brian Prior (“Lieutenant Prior”) received a call regarding a potentially hazardous

chemicals and HAZMAT situation at the Seashore Motel. Upon arrival, Lieutenant

Prior made contact with Carla, who told him about the items she had discovered

inside room 9.

      Lieutenant Prior entered the room, and observed: (1) a 7-up two liter bottle

with an unknown “red slushy residue” at the bottom; (2) plastic tubing; (3) a soda cap

that had been “hollowed out” with a tube placed though the cap and secured with

glue; (4) a funnel; (5) a face mask; (6) a glass jar with an unknown white powdery

substance at the bottom; (7) Coleman fuel; (8) cardboard containers with salt in them;

and (9) a used syringe located in the trashcan. Lieutenant Prior determined these

items were consistent with items in a methamphetamine lab, based on his training

and experience. Lieutenant Prior secured the room and obtained a search warrant.

After the search warrant was issued, room 9 was processed by North Carolina State

Bureau of Investigation (”SBI”) agents.




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                                   Opinion of the Court



      SBI Special Agent Kelly Ferrell (“Agent Farrell”) was in charge of responding

to clandestine laboratories found in the eastern portion of the state as a “Site Safety

Officer.” Agent Farrell was called to room 9 of the Seashore Motel to process a

suspected methamphetamine laboratory on 30 January 2014.                 Agent Farrell

documented the items located in room 9.

      Agent Farrell analyzed the red slushy residue found in the bottom of the 7-up

bottle, which tested positive for hydrochloric acid, a precursor chemical for

methamphetamine. Agent Farrell also observed a bottle of Floweasy drain cleaner,

which contains sulfuric acid, and a Walgreens cold pack, which contains ammonium

nitrate.   Agent Farrell testified both sulfuric acid and ammonium nitrate are

precursor chemicals for methamphetamine. Agent Farrell also observed various

other trappings of a methamphetamine laboratory in room 9, including: (1) masks;

(2) burnt aluminum foil; (3) a hot glue gun; (4) coffee filters; (5) green rubber gloves;

(6) a bottle of hydrogen peroxide; and (7) a two pack of Energizer brand batteries of

advanced lithium.

      Agent Kennon testified the materials found in room 9 were “typical of what [is]

see[n]” at a methamphetamine lab using the “one-pot cook” method. Agent Farrell

testified: (1) it took her “less than a minute” to determine the materials found in room

9 were a clandestine methamphetamine laboratory; and (2) the precursor chemicals

found in room 9 were in fact used to produce methamphetamine.



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                                  Opinion of the Court



      Atlantic Beach Police Officer David Ennis (“Officer Ennis”) arrived at the

Seashore Motel and assisted Lieutenant Prior. Officer Ennis briefly looked inside

room 9 and sealed off the crime scene to ensure no one entered or exited except those

authorized to do so. Officer Ennis reviewed the registration card Kennon had filled

out at the time of check in. Officer Ennis ran the vehicle license plate number Kennon

listed on the registration card, and found the plate was issued to a Buick vehicle

registered to Defendant.

      While Officer Ennis remained on the scene, he noticed a gold Buick enter the

Seashore Motel parking lot. Officer Ennis made contact with Defendant, the driver

of the car, and asked him why he was at the motel. Defendant replied he was “just

driving around.”

      While talking to Defendant, Officer Ennis noticed two blue pills located in “the

grip of the driver’s side door” handle of Defendant’s vehicle. Defendant admitted the

pills were Adderall, a controlled substance. Officer Ennis instructed Defendant to

exit his vehicle, handcuffed him, and placed him under arrest for possession of a

controlled substance. Thomas was inside the car at the time of Defendant’s arrest

and was also arrested on unrelated charges.

      Officer Ennis performed a pat down of Defendant and a key fell “from the lower

half of his body.” Officer Ennis picked up and examined the key, issued to room 9 at




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the Seashore Motel. Defendant was transported to the Carteret County Detention

Center for processing.

                  C. Defendant’s Indictment and Pre-Trial Motions

      Defendant was indicted with (1) possession and distribution of a

methamphetamine precursor; (2) manufacturing methamphetamine; and (3)

conspiracy to manufacture methamphetamine on 24 February 2014.               Defendant

retained counsel approximately twenty-seven days after his arrest. Defendant was

represented by attorney Rodney Fulcher (“Fulcher”).         At some point prior to 3

September 2014, Defendant, though counsel, made a motion to continue his case,

which was granted.

      On 3 September 2014, Fulcher moved to withdraw as counsel. In support of

his motion, Fulcher stated “[a]s we've kind of gone along with it, I don't think

[Defendant] and I see eye-to-eye on everything. I don't think I can zealously represent

him at a trial based on the evidence, the conversations we've had.” Fulcher also

mentioned Defendant was unable to “continue finish hiring” him.

      Defendant made a statement to the court at the motion hearing. Defendant

stated Fulcher had not talked to “none of [his] witnesses” and had not obtained “none

of the evidence.” Defendant stated he felt as if he was “being railroaded,” and “ask[ed]

for [Fulcher] to withdraw from [the] case, and we just proceed toward trial.”

Defendant also stated he would need “enough time to prepare for trial, and a lawyer



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who’s going to do the job I asked him to do.” After hearing from Fulcher, Defendant,

and the State, the trial court denied both the motion to withdraw and motion to

continue.

      That same day, Defendant, through counsel, made an “Application and Writ of

Habeas Corpus ad Testificandum” to secure the testimony of two defense witnesses,

Flowers and Thomas, who were in prison in North Carolina. On 4 September 2014,

Judge Benjamin Alford issued the writ and ordered the Carteret County Sheriff to

serve the writ and make Flowers and Thomas available for testimony at trial.

      Defendant’s case was called for trial on 8 September 2014. Defendant made

another motion to continue. In support of his motion, Defendant stated defense

witnesses were subpoenaed on 3 September 2014, and many of the subpoenas had

not yet been served.     Defendant argued Flowers and Thomas were material

witnesses, and Defendant would be prejudiced if they were not available to testify.

The State replied “the witnesses, some of them, are in custody, and we’ll get them

here.” The trial court denied Defendant’s motion to continue. Defendant then made

a motion to suppress the evidence found in room 9 as illegally obtained. The trial

court denied Defendant’s motion to suppress.

                       D. Defendant’s Trial and Sentencing

      Defendant’s case proceeded to trial on 8 September 2014. At the close of State’s

evidence, on 9 September 2014, Defendant moved to dismiss the three charges, which



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was denied. The court asked if Defendant would present any witnesses or evidence,

and Defendant indicated he would. Regarding the testimony of Flowers and Thomas,

Defendant’s counsel stated “I do not know if Mark Thomas had been writted back or

Cassie Flowers either. But I plan to call Lisa -- Richard Willis, and Anique Pittman.

All the other ones I am certain are here to testify.”

      Defendant then called three witnesses on his behalf: Lisa Turner, Richard

Willis, and Anique Pittman. Before the closing of Defendant’s evidence, the following

exchange occurred between the Court and Defendant’s counsel:

             THE COURT: . . . Anything from the defendant?

             [Defendant’s Counsel]: Yes, Your Honor. We would bring
             a couple questions about witnesses.

             THE COURT: Yes, sir.

             [Defendant’s Counsel]: Your Honor, if I may approach on
             one witness?

             THE COURT: Yes.

             (Discussion off the record at the bench.)

             THE COURT: All right.          Mr. Fulcher, you have some
             motion you want --

             [Defendant’s Counsel]: I do, Your Honor. We would -- I
             would like to call one witness, a Brandon Elps, for the
             purposes of testifying to the truth of Ms. Kennon. He's over
             in custody in our jail. It would be limited to the fact -- of
             testimony, that she had, in previous occasions, gotten him
             in trouble, went to the law on him and all that. So that
             would be my motion, to have him over here.


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                    And the other two witnesses would be -- and the
             other two would be for Cassie Flowers in the Department
             of Corrections, and Mark Thomas. They, too, would be
             witnesses to show -- testify to the untruthfulness of Ms.
             Kennon and things that she had said and done in the past.

                   And I would make a motion to continue, to get those
             witnesses here.

             ...

             THE COURT: It would appear to the Court that any writ
             . . . that was issued by this Court was done last Thursday,
             September the 4th, and the trial was scheduled -- was due
             to start the 8th, and the person, Ms. Flowers, is not
             currently in the Carteret County jail and neither is Mark
             Thomas, is my understanding.

                    As to the other one, testifying about some alleged
             bad act of Heather Kennon at some earlier time without
             any connection to this case, would -- this Court does not
             believe would have relevance to the charges for which the
             defendant stands trial in this case, and would not grant a
             continuance for that.

                     If you want to make an offer of proof as to that -- who
             is it that’s in the Carteret County jail?

             [Defendant’s Counsel]: Brandon Elps. But I don't think I
             can do anything other than specific instances --

             THE COURT: I understand. If you want to make an offer
             of proof as to that, I’ll be happy to have the Sheriff bring
             him over.

Following this exchange, Defendant testified on his own behalf. No other evidence or

testimony or offer of proof was presented by Defendant. The jury returned verdicts

finding Defendant guilty of each of the three charges.

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                                  Opinion of the Court



      During sentencing, the trial court determined Defendant had 15 prior record

level points, and had attained a prior record level 5 for sentencing purposes. The

court then consolidated file number 14 CRS 050372, possession and distribution of a

methamphetamine precursor, with file number 14 CRS 050376, manufacture of

methamphetamine, for judgment. The trial court determined the charges were Class

F and Class C felonies, respectively, and sentenced Defendant to an active minimum

term of 127 months and a maximum of 165 months in prison on the consolidated

judgment.

      In file number 14 CRS 050377, conspiracy to manufacture methamphetamine,

the trial court determined the offense was a Class C felony, and sentenced Defendant

to an active minimum term of 127 months and a maximum of 165 months to run

consecutively at the expiration of his sentence in the first judgment.

      Defendant gave notice of appeal in open court.

                                      II. Issues

      Defendant argues the trial court erred by: (1) denying trial counsel’s motion to

withdraw from the case and asserts Defendant’s trial counsel rendered ineffective

assistance in three discreet ways; (2) denying Defendant’s motion to continue and

excluding negative character testimony against State’s witness Kennon by Flowers

and Thomas; and (3) determining the conspiracy to manufacture methamphetamine




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charge was a Class C felony, because the felony is properly classified as a Class D

felony.

           III. Motion to Withdraw and Ineffective Assistance of Counsel

      Defendant argues the trial court erred in denying defense counsel’s motion to

withdraw from the case. He contends he received ineffective assistance of counsel

following the trial court’s denial of defense counsel’s motion to withdraw.

                                A. Standard of Review

      We review the denial of a motion to withdraw for abuse of discretion. State v.

Thomas, 350 N.C. 315, 329, 514 S.E.2d 486, 495 (1999).

      In order to show ineffective assistance of counsel, a defendant must satisfy the

two-prong test announced by the Supreme Court of the United States in Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984). This test for

ineffective assistance of counsel has also been explicitly adopted by the Supreme

Court of North Carolina for state constitutional purposes. State v. Braswell, 312 N.C.

553, 562-63, 324 S.E.2d 241, 248 (1985). Pursuant to Strickland:

             First, the defendant must show that counsel’s performance
             was deficient. This requires showing that counsel made
             errors so serious that counsel was not functioning as the
             “counsel” guaranteed the defendant by the Sixth
             Amendment. Second, the defendant must show that the
             deficient performance prejudiced the defense. This
             requires showing that counsel’s errors were so serious as to
             deprive the defendant of a fair trial, a trial whose result is
             reliable. Unless a defendant makes both showings, it
             cannot be said that the conviction. . . resulted from a


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             breakdown in the adversary process that renders the result
             unreliable.

466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; accord Braswell, 312 N.C. at

561-62, 324 S.E.2d at 248.

      Our Supreme Court has stated, “this Court engages in a presumption that trial

counsel’s representation is within the boundaries of acceptable professional conduct”

when reviewing ineffective assistance of counsel claims. State v. Roache, 358 N.C.

243, 280, 595 S.E.2d 381, 406 (2004) (citation omitted). We “ordinarily do not consider

it to be the function of an appellate court to second-guess counsel’s tactical

decisions[.]” State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986).

                                      B. Analysis

      N.C. Gen. Stat. § 15A-144 provides: “[t]he court may allow an attorney to

withdraw from a criminal proceeding upon a showing of good cause.” N.C. Gen. Stat.

§ 15A-144 (2013). In this case, Defendant’s counsel requested the court allow him to

withdraw from representing Defendant in this case. Defendant’s counsel stated he

did not “see eye-to-eye on everything” with Defendant and that he did not think he

could “zealously represent [Defendant] at a trial based on the evidence” and the

conversations they had. Defendant’s counsel also mentioned Defendant was unable

to “continue finish hiring” him.

      Our Supreme Court has held in order to “establish prejudicial error arising

from the trial court’s denial of a motion to withdraw, a defendant must show that he


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received ineffective assistance of counsel.” State v. Thomas, 350 N.C. 315, 328, 574

S.E.2d 486, 445 (citation omitted), cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 318

(1999).

      In general, “claims of ineffective assistance of counsel should be considered

through motions for appropriate relief and not on direct appeal.” State v. Stroud, 147

N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). However, an ineffective assistance

of counsel claim brought on direct review “will be decided on the merits when the cold

record reveals that no further investigation is required[.]” State v. Fair, 354 N.C. 131,

166, 557 S.E.2d 500, 524 (2001). “[O]n direct appeal, the reviewing court ordinarily

limits its review to material included in the record on appeal and the verbatim

transcript of proceedings, if one is designated.” Id. at 167, 557 S.E.2d at 524-25

(citation omitted).    “[S]hould the reviewing court determine that [ineffective

assistance of counsel] claims have been prematurely asserted on direct appeal, it shall

dismiss those claims without prejudice to the defendant’s right to reassert them

during a subsequent [motion for appropriate relief (“MAR”)] proceeding.” Id. at 167,

557 S.E.2d at 525.

      Here, Defendant asserts he received ineffective assistance from his trial

counsel in three ways: (1) when the trial court denied his motion to continue to allow

him to secure witnesses on his behalf; (2) when defense counsel failed to request the

court to produce a witness, Elps, from the jail to make an offer of proof of his



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testimony; and (3) when, after Writs were issues, defense counsel did not have

Flowers and Thomas brought from the Department of Correction to impeach

Kennon’s truthfulness. We discuss each in turn.

             1. Trial Court’s Denial of Defendant’s Motion to Continue

      Defendant contends he received ineffective assistance of counsel and his due

process rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the

Constitution of the United States were violated when the trial court denied his motion

to continue immediately prior to the commencement of Defendant’s trial.           We

disagree.

      In State v. Rogers, 352 N.C. 119, 529 S.E.2d 671 (2000), our Supreme Court

discussed the appropriate inquiry where ineffective assistance of counsel is alleged

due to a denial of a motion to continue:

             While a defendant ordinarily bears the burden of showing
             ineffective assistance of counsel [under the Strickland
             standard], prejudice is presumed “without inquiry into the
             actual conduct of the trial” when “the likelihood that any
             lawyer, even a fully competent one, could provide effective
             assistance” is remote. A trial court’s refusal to postpone a
             criminal trial rises to the level of a Sixth Amendment
             violation “only when surrounding circumstances justify”
             this presumption of ineffectiveness. “To establish a
             constitutional violation, a defendant must show that he did
             not have ample time to confer with counsel and to
             investigate, prepare and present his defense.”




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352 N.C. at 125, 529 S.E.2d at 675 (quoting United States v. Cronic, 466 U.S. 648,

659-62, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d. 657, 668-70 (1984); State v. Tunstall, 334

N.C. 320, 329, 432 S.E.2d 331, 336-37 (1993)).

      The record shows Defendant had sufficient time to investigate, prepare and

present his defense. Defendant was arrested on 30 January 2014, and indicted on 24

February 2014. Defendant testified he retained trial counsel “twenty-seven days

after” being arrested. The trial court previously continued the case for one month,

and Defendant’s trial began on 8 September 2014, more than seven months after

Defendant was arrested and roughly six months after he had retained counsel.

      Prior to trial, Defendant’s counsel filed two Writs of Habeas Corpus ad

Testificandum, and argued a motion to suppress. During trial, Defendant’s counsel

cross-examined each of the State’s witnesses, and presented the testimony of four

witnesses on Defendant’s behalf, including Defendant’s own testimony.

      Defendant had ample time to investigate, prepare, and present his defense. Id.

Defendant has failed to show he received ineffective assistance of counsel by the trial

court’s denial of his motion to continue. The trial court did not err in denying

Defendant’s motion to withdraw or to continue on this ground.

            2. Failure to Make Offer of Proof Regarding Elps’ Testimony

      Defendant contends he received ineffective assistance of counsel when his trial

counsel failed to request the trial court bring Elps from the jail to make an offer of



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proof of his testimony. We hold the cold record is insufficient for us to rule on this

claim. We dismiss the claim without prejudice to Defendant’s right to re-assert the

claim.

         As noted, a defendant alleging ineffective assistance of counsel must show that

counsel’s performance was deficient and the deficiency was “so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at

687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Grooms, 353 N.C. 50, 64,

540 S.E.2d 713, 722 (2000). A defendant must demonstrate a reasonable probability

that the trial result would have been different absent counsel’s error. Strickland, 466

U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

         The trial court stated its belief that Elps’ testimony would not be relevant, but

nonetheless offered to allow Defendant to make an offer of proof regarding Elps’

testimony:

               THE COURT: [T]his Court does not believe [Elps’
               testimony] would have relevance to the charges for which
               the defendant stands trial in this case, and would not grant
               a continuance for that.

               ...

               If you want to make an offer of proof as to that, I'll be happy
               to have the Sheriff bring [Elps] over.

Defendant’s counsel did not make an offer of proof as to Elps’ testimony. Defendant’s

counsel stated “he [did not] think [he] would be able to do anything other than specific

instances” of prior untruthful statements or conduct by Kennon.

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      From the record and transcript, we are unable to determine whether failure to

make an offer of proof under these facts constitutes ineffective assistance of counsel.

No affidavit tends to show what Elps would have testified to. Although Defendant’s

trial counsel stated he believed Elps could only testify as to specific instances of

Kennon’s untruthfulness, we are unable to ascertain whether Elps’ testimony would

have been relevant and admissible. We are also unable to determine whether trial

counsel’s failure to make an offer of proof of Elps’ testimony made his conduct

deficient, nor whether the deficiency, if present, was “so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687,

104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Grooms, 353 N.C. at 64, 540 S.E.2d at 722.

      Because we determine Defendant has prematurely asserted an ineffective

assistance of counsel claim as to this ground, we “dismiss [the] claim[] without

prejudice to [Defendant’s] right to reassert [it] during a subsequent MAR proceeding.”

Fair, 354 N.C. at 167, 557 S.E.2d at 525 (citation omitted).

                 3. Failure to Offer Flowers’ and Thomas’ Testimony

      Defendant argues he received ineffective assistance of counsel when his trial

counsel failed to call Flowers and Thomas as witnesses to testify regarding the

untruthfulness of Kennon. The record and transcript are again insufficient for us to

rule on this claim. We dismiss this ground without prejudice to Defendant’s right to

reassert the claim in a subsequent MAR proceeding.



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      The first step to an ineffective assistance of counsel claim is to show the

counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064,

80 L. Ed. 2d at 693. Defendant claims his counsel was deficient with regard to the

offering of Flowers’ and Thomas’ testimony in two ways: first, Defendant claims there

is “no indication defense counsel even took the effort to apply for Writs of Habeas

Corpus ad Testificandum for [Flowers and Thomas].” Second, Defendant claims his

counsel’s failure to call Flowers and Thomas as witnesses constituted deficient

performance, because these witnesses would have provided testimony as to the

untruthfulness of Kennon, the State’s “most crucial witness.”

      We find no merit in Defendant’s initial assertion. The record contains an

Application and Writ of Habeas Corpus ad Testificandum for both Flowers’ and

Thomas’ testimony. Defense counsel was not deficient in failing to apply for Writs of

Habeas Corpus ad Testificandum. The record shows defense counsel did in fact apply

for such writs, they were issued by the trial court, and delivered to the Sheriff for

service.

      As to Defendant’s second assertion, on the record before us, we are unable to

determine whether defense counsel’s failure to call Flowers and Thomas to testify

constituted trial strategy or ineffective assistance of counsel.   No offer of proof

regarding Flowers’ and Thomas’ testimony was presented.         The record does not

contain affidavits revealing what Flowers and Thomas would have testified to.



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       We are unable to determine whether defense counsel’s failure to call Flowers

and Thomas as witnesses was trial strategy or deficient performance, or whether the

deficiency, if present, was “so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d

at 693; Grooms, 353 N.C. at 64, 540 S.E.2d at 722.

       Because we determine Defendant prematurely asserted an ineffective

assistance of counsel claim on this ground, we also “dismiss [this] claim[] without

prejudice to [Defendant’s] right to reassert [it] during a subsequent MAR proceeding.”

Fair, 354 N.C. at 167, 557 S.E.2d at 525 (citation omitted).

                                 IV. Motion to Continue

       Defendant argues the trial court erred by denying two motions to continue: one

immediately preceding trial, and the other immediately preceding his own testimony.

Defendant based both motions on the premise that two of his witnesses, Flowers and

Thomas, were not available to testify despite writs being issued to ensure their

attendance at trial. Defendant asserts Flowers’ and Thomas’ testimony as to the

untruthfulness of a key State’s witness, Kennon, would likely have resulted in

Defendant’s acquittal.

                                 A. Standard of Review

       A trial court may allow or deny a motion to continue in its sound discretion.

Its decision will not be overturned absent a gross abuse of discretion. State v. Jones,



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                                   Opinion of the Court



172 N.C. App. 308, 311-12, 616 S.E.2d 15, 18 (2005) (citations omitted). An abuse of

discretion “results where the court’s ruling is manifestly unsupported by reason or is

so arbitrary that it could not have been the result of a reasoned decision.” State v.

Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted).

      Where the trial court’s denial of a motion to continue raises a constitutional

issue, it is “fully reviewable [on appeal] by examination of the particular

circumstances presented by the record on appeal of each case.” State v. Branch, 306

N.C. 101, 104, 291 S.E.2d 653, 656 (1982) (citation omitted). “To establish [the denial

of a motion to continue rises to] a constitutional violation, a defendant must show

that he did not have ample time to . . . investigate, prepare, and present his defense.”

State v. Williams, 355 N.C. 501, 540, 565 S.E.2d 609, 632 (2002) (citation and

quotation marks omitted).

                                      B. Analysis

      As explained supra, the trial court did not err in denying Defendant’s motion

to continue immediately prior to trial. Defendant had ample time to investigate,

prepare and present his defense after receiving a prior continuance. We examine

Defendant’s argument regarding the trial court’s denial of Defendant’s motion to

continue made immediately prior to Defendant’s testimony.




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                                 Opinion of the Court



      During Defendant’s case at trial, Defendant made two consecutive motions to

continue. One motion concerned the testimony of Elps, and the other concerned the

testimony of Flowers and Thomas:

            THE COURT: All right. [Defendant’s counsel], you have
            some motion you want --

            [Defendant’s Counsel]: I do, Your Honor. We would -- I
            would like to call one witness, a Brandon Elps, for the
            purposes of testifying to the truth of Ms. Kennon. He's over
            in custody in our jail. It would be limited to the fact -- of
            testimony, that she had, in previous occasions, gotten him
            in trouble, went to the law on him and all that. So that
            would be my motion, to have him over here.

                   And the other two witnesses would be -- and the
            other two would be for Cassie Flowers in the Department
            of Corrections, and Mark Thomas. They, too, would be
            witnesses to show -- testify to the untruthfulness of Ms.
            Kennon and things that she had said and done in the past.

                  And I would make a motion to continue, to get those
            witnesses here.

After the motions were made, the trial court discussed Flowers and Thomas, but only

issued a ruling denying Defendant’s motion to continue regarding Elps’ testimony:

            THE COURT: It would appear to the Court that any writ
            . . . that was issued by this Court was done last Thursday,
            September the 4th, and the trial was scheduled -- was due
            to start the 8th, and the person, Ms. Flowers, is not
            currently in the Carteret County jail and neither is Mark
            Thomas, is my understanding.

                   As to the other one, testifying about some alleged
            bad act of Heather Kennon at some earlier time without
            any connection to this case, would -- this Court does not
            believe would have relevance to the charges for which the

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                                   Opinion of the Court



             defendant stands trial in this case, and would not grant a
             continuance for that.

The trial court offered to allow Defendant to make an offer of proof regarding Elps’

testimony, which Defendant failed to do.           The court did not make a ruling on

Defendant’s motion to continue to allow for Flowers’ and Thomas’ testimony.

Defendant failed to ask the court for a ruling on the issue.

      Under the North Carolina Rules of Appellate Procedure, “[i]n order to preserve

an issue for appellate review, a party must have presented to the trial court a timely

request, objection, or motion[.] . . . It is also necessary for the complaining party to

obtain a ruling upon the party’s request, objection, or motion.” N.C. R. App. P.

10(a)(1). Because Defendant “did not obtain a ruling by the trial court on this issue,

it is not properly preserved for appeal.” Lake Toxaway Cmty. Ass'n v. RYF Enters.,

LLC, ___ N.C. App. ___, ___, 742 S.E.2d 555, 562 (2013) (citation omitted); see also

State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995), cert. denied, 518 U.S. 1024, 135

L. Ed. 2d 1080 (1996). Pursuant to N.C. R. App. P. 10(a)(1), we dismiss Defendant’s

argument as partially unpreserved.

           V. Conspiracy to Manufacture Methamphetamine Sentencing

      Defendant contends the trial court erred determining the proper felony class

of conspiracy to manufacture methamphetamine charge. He asserts that although

conspiracy to manufacture methamphetamine is a Class C felony, he should have




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                                   Opinion of the Court



been sentenced to a felony one class lower than was committed pursuant to N.C. Gen.

Stat. § 14-2.4(a) (2013). We disagree.

                                A. Standard of Review

      “When a defendant assigns error to the sentence imposed by the trial court our

standard of review is whether the sentence is supported by evidence introduced at

the trial and sentencing hearing.” State v. Chivers, 180 N.C. App. 275, 278, 636 S.E.2d

590, 593 (2006) (citation and brackets omitted), disc. rev. denied, 361 N.C. 222, 642

S.E.2d 709 (2007).

                                      B. Analysis

      N.C. Gen. Stat. § 14-2.4(a) provides: “Unless a different classification is

expressly stated, a person who is convicted of a conspiracy to commit a felony is guilty

of a felony that is one class lower than the felony he or she conspired to commit[.]”

N.C. Gen. Stat. § 14-2.4(a) (emphasis supplied). Here, Defendant was found guilty of

conspiracy to manufacture methamphetamine in violation of N.C. Gen. Stat. § 90-

95(b)(1a) (2013). N.C. Gen. Stat. § 90-95(b)(1a) “expressly” provides, in relevant part:

“The manufacture of methamphetamine shall be punished as a Class C felony[.]” N.C.

Gen. Stat. § 90-95(b)(1a).

      N.C. Gen. Stat. § 90-95(b)(1a) is a part of Article 5 of Chapter 90 of the General

Statues, designated by our General Assembly as the North Carolina Controlled




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                                   Opinion of the Court



Substances Act (“CSA”). See N.C. Gen. Stat. § 90-86 (2013). N.C. Gen. Stat. § 90-98,

another section of the CSA, provides:

             Except as otherwise provided in this Article, any person
             who attempts or conspires to commit any offense defined in
             this Article is guilty of an offense that is the same class as
             the offense which was the object of the attempt or
             conspiracy and is punishable as specified for that class of
             offense and prior record or conviction level in Article 81B
             of Chapter 15A of the General Statutes.

N.C. Gen. Stat. § 90-98 (2013). N.C. Gen. Stat. § 90-95(b)(1a) does not provide a lesser

sentence for a person convicted of conspiracy to manufacture methamphetamine.

Under N.C. Gen. Stat. § 90-98, it is “expressly stated” that a defendant convicted of

conspiracy to manufacture methamphetamine is properly to be sentenced to the same

class of felony as a defendant convicted of the manufacture of methamphetamine.

The trial court did not err in sentencing Defendant as a Class C felon upon his

conviction for conspiracy to manufacture methamphetamine in violation of N.C. Gen.

Stat. § 90-95(b)(1a). N.C. Gen. Stat. § 90-98. Defendant’s argument is overruled.

                                    VI. Conclusion

      Defendant had ample time to investigate, prepare, and present his defense and

received a prior continuance.     The trial court did not err in declining to grant

Defendant’s motion to continue immediately prior to trial, and he did not receive

ineffective assistance of counsel on this issue.

      From the cold record, we are unable to determine whether defense counsel’s

failure to make an offer of proof regarding Elps’ testimony or defense counsel’s failure

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                                   Opinion of the Court



to call Flowers and Thomas to testify regarding Kennon’s untruthfulness constituted

trial strategy or conduct that may rise to ineffective assistance of counsel. We dismiss

these arguments without prejudice to Defendant’s right to pursue these claims in a

subsequent MAR proceeding.

      The trial court did not abuse its discretion in denying Defendant’s motion to

continue immediately prior to trial. This argument is overruled. Defendant failed to

obtain a ruling by the trial court on his motion to continue immediately prior to his

testimony. We dismiss this argument as unpreserved.

      The trial court did not err in sentencing Defendant as a Class C felon on the

charge of conspiracy to manufacture methamphetamine. Id.

      Defendant received a fair trial, free from prejudicial errors he preserved and

argued. Defendant’s claims of ineffective assistance of counsel on Elps’ offer of proof

and failure to call Flowers and Thomas to testify are dismissed without prejudice.

      NO ERROR IN PART; DISMISSED IN PART

      Judges McCULLOUGH and DIETZ concur.




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