                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA16-278

                                Filed: 17 January 2017

Forsyth County, Nos. 15 CRS 2755, 51679

STATE OF NORTH CAROLINA

               v.

FILEMON OLDMEDO SILVA


         Appeal by defendant from judgment entered 22 September 2015 by Judge

Stanley L. Allen in Forsyth County Superior Court. Heard in the Court of Appeals

8 September 2016.


         Attorney General Joshua H. Stein, by Assistant Attorney General Ashleigh P.
         Dunston for the State.

         Paul F. Herzog for defendant-appellant.


         McCULLOUGH, Judge.


         Filemon Oldmedo Silva (“defendant”) appeals from a judgment entered upon

his convictions for habitual impaired driving and driving while license revoked

(DWLR) for an impaired driving revocation. For the following reasons, we find no

error.

                                  I.       Background

         During the early morning hours of 22 February 2015, defendant was arrested

for driving while impaired (DWI) and DWLR for an impaired driving revocation after
                                    STATE V. SILVA

                                   Opinion of the Court



a Winston Salem Police Department officer noticed defendant slumped over asleep in

the driver’s seat of a running automobile. On 20 April 2015, a Forsyth County Grand

Jury indicted defendant on one count of habitual impaired driving and one count of

DWLR for an impaired driving revocation. The charges came on for trial in Forsyth

County Superior Court on 21 September 2015 before the Honorable Stanley L. Allen.

At the conclusion of the trial, the jury returned verdicts finding defendant guilty of

both habitual impaired driving and DWLR for an impaired driving revocation. The

offenses were consolidate for entry of judgment and judgment was entered on

22 September 2015 sentencing defendant to a term of 15 to 27 months imprisonment.

Defendant appeals.

                                   II.    Discussion

      On appeal, defendant contends the trial court erred by failing to personally

address and arraign him regarding the prior DWI convictions serving as the basis of

the habitual impaired driving charge and the prior impaired driving revocation

serving as the basis of the DWLR for an impaired driving revocation charge.

Defendant contends the alleged errors were in violation of N.C. Gen. Stat. §§ 15A-

928, -941, and -1022, and the Fourteenth Amendment to the United States

Constitution.

      N.C. Gen. Stat. § 15A-941 provides that, generally, “[a] defendant will be

arraigned . . . only if the defendant files a written request with the clerk of superior



                                          -2-
                                     STATE V. SILVA

                                    Opinion of the Court



court for an arraignment not later than 21 days after service of the bill of indictment.”

N.C. Gen. Stat. § 15A-941(d) (2015).             That statute further provides that

“[a]rraignment consists of bringing a defendant in open court . . . before a judge

having jurisdiction to try the offense, advising him of the charges pending against

him, and directing him to plead.” N.C. Gen. Stat. § 15A-941(a). This Court has long

recognized that “the purpose of an arraignment is to advise the defendant of the crime

with which he is charged[,]” State v. Carter, 30 N.C. App. 59, 61, 226 S.E.2d 179, 180

(1976), but “[t]he failure to conduct a formal arraignment itself is not reversible error

. . . and the failure to do so is not prejudicial error unless defendant objects and states

that he is not properly informed of the charges[,]” State v. Brunson, 120 N.C. App.

571, 578, 463 S.E.2d 417, 421 (1995).

       Yet, the statute primarily at issue in this case, N.C. Gen. Stat. § 15A-928,

provides special rules for the indictment and arraignment of a defendant “[w]hen the

fact that the defendant has been previously convicted of an offense raises an offense

of lower grade to one of higher grade and thereby becomes an element of the latter[.]”

N.C. Gen. Stat. § 15A-928(a) (2015). Pertinent to this case, that statute, entitled

“allegation and proof of previous convictions in superior court[,]” provides as follows:

              (c)    After commencement of the trial and before the close
              of the State’s case, the judge in the absence of the jury must
              arraign the defendant upon the special indictment or
              information, and must advise him that he may admit the
              previous conviction alleged, deny it, or remain silent.
              Depending upon the defendant’s response, the trial of the


                                           -3-
                                   STATE V. SILVA

                                  Opinion of the Court



             case must then proceed as follows:

                (1) If the defendant admits the previous conviction, that
                    element of the offense charged in the indictment or
                    information is established, no evidence in support
                    thereof may be adduced by the State, and the judge
                    must submit the case to the jury without reference
                    thereto and as if the fact of such previous conviction
                    were not an element of the offense. The court may
                    not submit to the jury any lesser included offense
                    which is distinguished from the offense charged
                    solely by the fact that a previous conviction is not an
                    element thereof.

                (2) If the defendant denies the previous conviction or
                    remains silent, the State may prove that element of
                    the offense charged before the jury as a part of its
                    case. This section applies only to proof of a prior
                    conviction when it is an element of the crime
                    charged, and does not prohibit the State from
                    introducing proof of prior convictions when
                    otherwise permitted under the rules of evidence.

N.C. Gen. Stat. § 15A-928(c). This Court has explained that

             [t]he purpose of [section 15A-928], which is for the benefit
             of defendants charged with prior convictions, is not to
             require that the procedures referred to therein be
             accomplished at a certain time and no other, which would
             be pointless. Its purpose is to insure that defendants are
             informed of the prior convictions they are charged with and
             are given a fair opportunity to either admit or deny them
             before the State’s evidence is concluded; because, as the
             statute makes plain, if the convictions are denied, the State
             can then present proof of that element of the offense to the
             jury, but cannot do so if the prior convictions are admitted.

State v. Ford, 71 N.C. App. 452, 454, 322 S.E.2d 431, 432 (1984).




                                         -4-
                                   STATE V. SILVA

                                  Opinion of the Court



      As detailed above, in this case, defendant was indicted on one count of habitual

impaired driving in file number 15 CRS 51679. That specialized indictment charged

DWI in count one and charged three prior DWI convictions within ten years of the

current DWI offense in count two, in accordance with the requirements of N.C. Gen.

Stat. § 15A-928(a) and (b). See State v. Lobohe, 143 N.C. App. 555, 558, 547 S.E.2d

107, 109 (2001) (explaining that an indictment that charged DWI in one count and

alleged previous DWI convictions in count two followed precisely the format required

in N.C. Gen. Stat. § 15A-928). In a separate indictment in file number 15 CRS 2755,

defendant was indicted on one count of DWLR for an impaired driving revocation.

      After defendant’s case was called for trial, but before the jury was impaneled,

the Assistant District Attorney (ADA) prosecuting the case raised the issue of

whether defendant would be stipulating to any prior convictions, explaining that

“[defense counsel] made the comment . . . that he was going to be stipulating to some

items.” Therefore, the ADA asked “the Court to do a colloquy with the defendant

showing that he has agreed that his . . . attorney can admit these -- whatever items

may be.” At that point, defense counsel indicated that he had discussed with the

prosecutor stipulating that defendant’s license was revoked for an impaired driving

revocation for purposes of the DWLR for an impaired driving revocation charge if the

jury finds that defendant did “drive” for purposes of the DWLR charge. The ADA

then indicated that she was under the impression that if defendant stipulated to prior



                                         -5-
                                   STATE V. SILVA

                                  Opinion of the Court



DWI convictions for habitual impaired driving, the State would not be able to present

any evidence of the prior convictions. The ADA, however, explained that she believed

she was not required to accept a stipulation that defendant’s license was revoked for

an impaired driving revocation and indicated the State would put on evidence of all

the elements of DWLR for an impaired driving revocation, unless defendant pleaded

guilty to the charge. During the ADA’s comments to the court, defense counsel

indicated that the ADA was correct that defendant would not stipulate to the prior

DWI convictions needed to prove habitual impaired driving. To be exact, when the

prior DWI convictions were brought up, defense counsel unequivocally stated, “No.

We’re not stipulating to the three prior convictions.” The case then proceeded to jury

selection with both parties in agreement that there were no stipulations as to the

prior DWI convictions or that defendant’s license was revoked for an impaired driving

revocation.

      Now on appeal, defendant relies repeatedly on State v. Jackson, 306 N.C. 642,

295 S.E.2d 383 (1982), for the assertions that the offense of habitual impaired driving

is the type of offense governed by N.C. Gen. Stat. § 15A-928 and that the statute must

be strictly followed. Although defendant acknowledges that defense counsel refused

to stipulate to defendant’s prior DWI convictions, defendant argues the trial court

failed to strictly follow the arraignment requirement of N.C. Gen. Stat. § 15A-928(c)

for the habitual impaired driving charge because the trial court did not personally



                                         -6-
                                   STATE V. SILVA

                                  Opinion of the Court



address defendant to obtain a plea. Defendant contends both N.C. Gen. Stat. §§ 15A-

928(c) and -941(a) require the court to personally address a defendant and that an

admission of prior convictions is the “functional equivalent” of a guilty plea and,

therefore, N.C. Gen. Stat. § 15A-1022(a) and the Fourteenth Amendment to the

United States Constitution, concerning guilty pleas, require that a defendant be

addressed directly. Defendant relies on cases in which defense counsel admitted the

defendants’ guilt.

      In a footnote, defendant further contends the legal principles argued

concerning habitual impaired driving apply equally to the related misdemeanor

charge of DWLR for an impaired driving revocation.

      At the outset, we hold that defendant is correct that habitual impaired driving

is precisely the type of offense to which N.C. Gen. Stat. § 15A-928 applies. See N.C.

Gen. Stat. § 20-138.5(a) (2015) (“A person commits the offense of habitual impaired

driving if he drives while impaired as defined in [N.C. Gen. Stat. §] 20-138.1 and has

been convicted of three or more offenses involving impaired driving as defined in

[N.C. Gen. Stat. §] 20-4.01(24a) within 10 years of the date of this offense.”).

However, we note that defendant’s reliance on Jackson is misplaced because the

footnote repeatedly quoted by defendant is dicta. In Jackson, the Court held that

N.C. Gen. Stat. § 15A-928 was not applicable because the defendant’s prior conviction

of armed robbery did not raise the offense for which the defendant was charged to one



                                         -7-
                                     STATE V. SILVA

                                   Opinion of the Court



of a higher grade. Jackson 306 N.C. at 652, 295 S.E.2d at 389. In a footnote, the

Court merely provided an example of when N.C. Gen. Stat. § 15A-928 applied and

cautioned the bench and bar about the application of the statute “in order to apprise

[a] defendant of the offense for which he is charged and to enable him to prepare an

effective defense.” Id., n.2.

       Reaching the merits of defendant’s arguments, we are not persuaded that the

trial court’s failure to strictly follow N.C. Gen. Stat. § 15A-928(c) is reversible error

in the present case. We find State v. Jernigan, 118 N.C. App. 240, 455 S.E.2d 163

(1995), controlling.

       In Jernigan, a defendant appealed his conviction for habitual impaired driving

on the basis that “the trial court did not formally arraign [him] upon the charge

alleging the previous convictions and did not advise [him] that he could admit the

previous convictions, deny them, or remain silent, as required by [N.C. Gen. Stat. §]

15A–928(c).” Id. at 243, 455 S.E.2d at 165. The defendant contended the trial court’s

failure to conduct a formal arraignment constituted reversible error and this Court

disagreed. In Jernigan, this Court explained as follows:

              The purpose of [N.C. Gen. Stat. §] 15A-928 is to insure that
              the defendant is informed of the previous convictions the
              State intends to use and is given a fair opportunity to either
              admit or deny them or remain silent. This purpose is
              analogous to that of [N.C. Gen. Stat.] § 15A-941, the
              general arraignment statute. Under that statute, the
              defendant must be brought before a judge and must have
              the charges read or summarized to him and must be


                                          -8-
                                     STATE V. SILVA

                                    Opinion of the Court



              directed to plead. If the defendant does not plead, he must
              be tried as if he pled not guilty. The failure to arraign the
              defendant under [N.C. Gen. Stat. §] 15A-941 is not always
              reversible error. Where there is no doubt that a defendant
              is fully aware of the charge against him, or is in no way
              prejudiced by the omission of a formal arraignment, it is
              not reversible error for the trial court to fail to conduct a
              formal arraignment proceeding.

Id. at 244, 455 S.E.2d at 166 (internal citations and quotation marks omitted). This

Court then held that “there [was] no doubt that [the] defendant was fully aware of

the charges against him and was in no way prejudiced by the omission of the

arraignment required by [N.C. Gen. Stat. §] 15A-928(c)” where “[the] defendant’s

attorney informed the court that he had discussed the case with [the] defendant and

that [the] defendant would stipulate to the previous convictions[]” and “[the

d]efendant [made] no contention on appeal that he was not aware of the charges

against him, that he did not understand his rights, or that he did not understand the

effect of the stipulation.” Id.

       Additionally, in response to the defendant’s argument “that the stipulation was

ineffective because it was made by his attorney without defendant’s having been

advised by the court of his rights regarding the stipulation[,]” id. at 245, 455 S.E.2d

at 166, this Court explained that

              it is clear that a defendant’s attorney may stipulate to an
              element of the charged crime on behalf of the defendant
              . . . . Moreover, there is no requirement that the record
              show that the defendant personally stipulated to the
              element or that the defendant knowingly, voluntarily, and
              understandingly consented to the stipulation. . . . It is well-

                                           -9-
                                      STATE V. SILVA

                                     Opinion of the Court



                established that stipulations are acceptable and desirable
                substitutes for proving a particular act. Statements of an
                attorney are admissible against his client provided that
                they have been within the scope of his authority and that
                the relationship of attorney and client existed at the time.
                In conducting an individual’s defense an attorney is
                presumed to have the authority to act on behalf of his
                client. The burden is upon the client to prove lack of
                authority to the satisfaction of the court.

Id. at 245, 455 S.E.2d at 166-67. Yet, in Jernigan, the defendant did not show, nor

contend, that his attorney was acting contrary to his wishes. Id. at 245, 455 S.E.2d

at 166. Thus, this Court held the trial court did not commit reversible error in

Jernigan by failing to formally arraign the defendant as provided in N.C. Gen. Stat.

§ 15A-928(c).

      The present case is distinguishable from Jernigan only by the facts that

defense counsel refused to stipulate to the prior convictions, requiring the State to

put on evidence of all the elements of the charged offenses, and that defendant was

primarily Spanish speaking. However, those distinctions do not sway us to reach a

different result in the present case. Defendant does not assert that defense counsel

was acting contrary to his wishes when he refused to stipulate to the prior

convictions, but instead contends it is not clear that defendant understood the law

because of a limited ability to understand English. We are not persuaded because

there is no indication that defendant was confused about the charges or that defense

counsel was acting contrary to defendant’s wishes. Additionally, interpreters were

present throughout the proceedings to translate for defendant.           Lastly, despite

                                            - 10 -
                                    STATE V. SILVA

                                  Opinion of the Court



defendant’s assertions to the contrary, the State presented overwhelming evidence of

defendant’s guilt through testimony of the arresting officer. As a result, we hold the

trial court did not commit reversible error.

      In a footnote at the conclusion of defendant’s argument on appeal, defendant

raises an issue as to the general competence of his trial counsel based on trial

counsel’s alleged fundamental misunderstanding of the methods the State may use

to prove prior DWI convictions in habitual driving while impaired cases. Defendant

asserts that “[i]t seems likely that his [trial counsel’s] misunderstanding of basic

traffic law could have led to a trial strategy that was fatal to his client’s case” and

requests that, in the event defendant is not awarded a new trial, this Court remand

the matter for a hearing concerning his trial counsel’s effectiveness. It appears that

defendant is raising an ineffective assistance of counsel argument on appeal, but

seeking review of the issue in superior court.

             It is well established that ineffective assistance of counsel
             claims “brought on direct review will be decided on the
             merits when the cold record reveals that no further
             investigation is required, i.e., claims that may be developed
             and argued without such ancillary procedures as the
             appointment of investigators or an evidentiary hearing.”
             Thus, when this Court reviews ineffective assistance of
             counsel claims on direct appeal and determines that they
             have been brought prematurely, we dismiss those claims
             without prejudice, allowing defendant to bring them
             pursuant to a subsequent motion for appropriate relief in
             the trial court.




                                         - 11 -
                                   STATE V. SILVA

                                  Opinion of the Court



State v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881 (2004) (citations omitted)

(quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)), cert. denied,

546 U.S. 830, 163 L. Ed. 2d 80 (2005). It is evident that defendant’s ineffective

assistance of counsel claim before this Court is premature. Thus, we dismiss any

claim asserted in the footnote without prejudice and leave the matter for the trial

court to consider upon a proper motion for appropriate relief by defendant.

                                  III.   Conclusion

      For the reasons discussed above, the trial court did not commit reversible error

when it failed to formally arraign defendant pursuant to N.C. Gen. Stat. § 15A-928(c).

      NO ERROR.

      Judges HUNTER, Jr., and DIETZ concur.




                                         - 12 -
