An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-668
                        NORTH CAROLINA COURT OF APPEALS

                                 Filed: 4 March 2014


STATE OF NORTH CAROLINA

      v.                                         Rockingham County
                                                 No. 10CRS000231
SHYMEL D. JEFFERSON



      Appeal by defendant from judgment entered 8 June 2012 by

Judge    A.   Moses    Massey     in    Rockingham     County   Superior     Court.

Heard in the Court of Appeals 10 December 2013.


      Attorney General Roy Cooper, by Special                   Deputy     Attorney
      General Jill Ledford Cheek, for the State.

      John R. Mills for defendant-appellant.


      HUNTER, Robert C., Judge.


      Shymel     D.    Jefferson       (“defendant”)      appeals   from   judgment

sentencing him to life imprisonment without the possibility of

parole     for   one    count    of     first-degree      murder.     On    appeal,

defendant argues that: (1) the sentence imposed violates N.C.

Gen. Stat. § 15A-1340.19B (2013) and other state and federal

constitutional provisions because defendant was a minor when the

crime    took    place;    (2)    the    trial    court    reversibly      erred   by
                                             -2-
failing to make a finding that defendant’s waiver of rights

during      custodial     interrogation             was     knowing,     willing,     and

understanding before admitting those custodial statements into

evidence; (3) defendant’s trial counsel was unconstitutionally

ineffective       for    failing        to     move       to    suppress      defendant’s

custodial      statements;         and        (4)     the       trial    court     lacked

jurisdiction        to   enter    judgment          because      the    indictment    was

fatally defective.

      After careful review, we remand for resentencing but find

no prejudicial error as to the remaining issues.

                                        Background

      Evidence was presented at trial which tended to show the

following.        On the night of 6 November 2009, defendant, Travis

Brown, Shaquan Beamer (“Beamer”), and defendant’s older cousin,

Shavon Reid (“Shavon”), went to the Icehouse, a bar in Eden,

North Carolina.          Defendant was fifteen years old at this time

and   had    been    living      with    Shavon       in    Martinsville,       Virginia.

Prior to the night in question, defendant had begun carrying a

pistol for protection.              He brought the gun with him to the

Icehouse but left it in the car when the group went inside.

      At    the     Icehouse,      defendant          encountered       Jason     Gallant

(“Gallant”),        Timothy      Seay        (“Seay”),         and   Terris     Dandridge
                                      -3-
(“Dandridge”).       After about an hour in the bar, a fistfight

broke out.    Defendant, Dandridge, and Gallant were all involved;

defendant and Dandridge were seen pushing each other. The fight

was quickly broken up by bar security, and both groups were

forced to go outside.         Defendant left the bar and retrieved his

gun from the car.

    Once the crowd       had moved into the street, Seay’s group

began taunting defendant’s group.            Defendant testified that he

heard a gunshot during the encounter.           He then fired his gun in

the direction of the group of people where he thought the shot

had come from until he ran out of bullets.               Devin Turner, a

witness to the incident, testified that the only people he saw

firing were defendant and Shavon.            Ultimately, two people were

injured and one was killed as a result of the shooting.            Gallant

and Dandrige were wounded by gunshots to the wrist and leg,

respectively.       Seay was killed by a gunshot wound to the head

and was also shot one time in the chest, with the bullet getting

lodged in his shoulder.            Police later recovered two types of

shell casings from the scene - .40 caliber and .380.                   Expert

testimony established that the nine .380 casings found at the

scene   and   the    bullet   in    Seay’s   shoulder   were   fired     from

defendant’s gun.
                                          -4-
    After    the    shooting,          defendant       and     Shavon     returned      to

Martinsville.      Defendant called his girlfriend, Melissa Manns

(“Melissa”), and asked her to come pick him up in her car.

Defendant and Melissa drove deep into the country at defendant’s

urging.     Defendant       then       asked    for    the    car   to    be     stopped.

Melissa testified that she then saw defendant get out of the car

and throw an object into the woods, and that defendant told her

“you all better not tell anybody where you took me.”                        After they

returned, Beamer informed Melissa and defendant that someone had

been killed at the Icehouse.               The next day, Melissa called the

police and took the officers to where defendant had thrown the

object into the woods; police recovered a gun from the area,

which Melissa identified as defendant’s.

    About   a   day     after      the    shooting,      Shavon’s        older    brother

Demetrius Reid (“Demetrius”) traveled to Martinsville to bring

defendant   back      to    Demetrius’s         home     in     Hampton,       Virginia.

Demetrius testified that he was willing to let defendant move in

with him while defendant’s mother was in jail.                           On the drive

away from Martinsville, defendant broke down crying and told

Demetrius   that   he      shot    a     man   who    had     “bumped     him”    at   the

Icehouse.    Defendant told Demetrius that the man he shot had

been regularly antagonizing him at parties.                         Demetrius drove
                                   -5-
defendant back to Eden, where he was taken into custody and

interrogated three times by Eden police officers. Before the

first interview, defendant was apprised of his Miranda rights

and signed a waiver of rights form.            The first interview ended

when defendant asserted his right to remain silent.             The second

interview was initiated by defendant, who told Demetrius that he

wanted to speak to the officers.          The second interview ended

with defendant asserting his right to counsel.               The third and

final interview was again initiated by defendant; it was during

this interview that he admitted to firing a gun and shooting

someone at the Icehouse.

    Defendant was indicted and tried as an adult for first-

degree murder.   The jury rejected the theories of premeditation

and deliberation and acting in concert, but convicted defendant

based on the felony murder rule, with the underlying felony

being assault with a deadly weapon inflicting serious injury. He

was sentenced to life imprisonment without the possibility of

parole.   Defendant entered timely notice of appeal.

                                Discussion

                               I. Sentencing

    Defendant first argues that the sentence of mandatory life

imprisonment   without   the    possibility    of   parole   violates   N.C.
                                      -6-
Gen. Stat. § 15A-1340.19B(a)(1) (2013) and this Court’s ruling

in State v. Lovette, __ N.C. App. __, 737 S.E.2d 432 (2013).

The State concedes that the sentence imposed by the trial court

violates North Carolina law and agrees that this case should be

remanded for resentencing.          Accordingly, we remand.

       The   General     Assembly    enacted    section    15A-1340.19B     in

response to the United States Supreme Court’s ruling in Miller

v. Alabama, __ U.S. __, __, 183 L. Ed. 2d 407, 414-15 (2012),

where the Supreme Court held that “mandatory life without parole

for those under the age of 18 at the time of their crimes

violates     the   Eighth    Amendment’s     prohibition    on   ‘cruel    and

unusual punishments.’”         Pursuant to section 15A-1340.19B(a)(1),

the sentence for an individual under the age of 18 at the time

of the offense who is convicted of first-degree murder solely on

the basis of the felony murder rule shall be life imprisonment

with    parole.        See   N.C.   Gen.    Stat.   §§   15A-1340.19A,    15A-

1340.19B(a)(1) (2013).         In Lovette, this Court held that these

provisions, as new rules of criminal procedure, “must be applied

retroactively ‘to all cases, state or federal, pending on direct

review or not yet final.’”            Lovette, __ N.C. App. at __, 737

S.E.2d at 441 (quoting State v. Zuniga, 336 N.C. 508, 511, 444

S.E.2d 443, 445 (1994)).
                                          -7-
      Here, defendant was fifteen years old at the time of the

shooting,    his    conviction      for    first-degree        murder     was     based

solely on the felony murder rule, and the case was pending on

direct    appeal    when     section      15A-1340.19B      came      into   effect.1

Therefore, pursuant to Lovette, we remand for a new sentence.

      Defendant     also    suggests      that    “[t]his      case    presents     the

Court with an opportunity to explain the state law basis for

barring    mandatory       sentences      of    life   without     possibility       of

parole and the interaction between state and federal bars on

cruel     and/or   unusual     punishment.”            Because     application       of

section     15A-1340.19B      and   the        precedent    from      Lovette     fully

resolve this issue, we decline to address defendant’s additional

argument relating to the interplay between state and federal

constitutional law.

                   II. Finding as to Waiver of Rights

      Defendant next argues that the trial court reversibly erred

by   admitting     his   custodial     statements       into     evidence       without

first entering a finding that defendant “knowingly, willingly,

and understandingly waived [his] rights” pursuant to N.C. Gen.

Stat. § 7B-2101(d) (2013). We hold that the trial court erred by




1
  N.C. Gen. Stat. § 15A-1340.19B went into effect on 12 July
2012. See 2012 N.C. Sess. Laws 148, § 3.
                                       -8-
failing to enter the required finding, but because the error was

not prejudicial, we do not disturb the judgment on this ground.

       “Before   admitting     into    evidence       any    statement     resulting

from    custodial    interrogation,      the    court       shall   find      that   the

juvenile knowingly, willingly, and understandingly waived the

juvenile’s rights.”          N.C. Gen. Stat. § 7B-2101(d) (2013).                    The

State     concedes    that    the     trial    court        admitted    defendant’s

custodial statements without entering the finding required by

section     7B-2101(d).        However,       where    defendant       argues        that

violation of section 7B-2101(d) requires this Court to remand

for a new evidentiary hearing, the State contends that violation

of section 7B-2101(d) is reviewed under the prejudicial error

analysis.

       We agree with the State and find that State v. Small, 328

N.C.    175,   400   S.E.2d    413    (1991)    is    controlling        as    to    the

standard of review.          In Small, the North Carolina Supreme Court

analyzed the precursor to section 7B-2101, N.C. Gen. Stat. § 7A-

595, which provided in language almost identical to the statute

before us that “[b]efore admitting any statement resulting from

custodial interrogation into evidence, the judge must find that

the juvenile knowingly, willingly, and understandingly waived

his rights.” See Small, 328 N.C. at 187, 400 S.E.2d at 419; see
                                         -9-
also 1998 Sess. Laws 202, §§ 5, 6 (repealing section 7A-595 and

adding section 7B-2101 to the General Statutes).                         The trial

court   in    Small   admitted     the     juvenile     defendant’s          custodial

statements into evidence without entering the required finding

that waiver of the defendant’s rights was knowing, willing and

understanding.        Small,    328   N.C.      at   187,    400    S.E.2d    at    419.

However,     rather   than     remanding       the   case,    the    Supreme       Court

analyzed the trial court’s violation of section 7A-595 under the

prejudicial error analysis of N.C. Gen. Stat. § 15A-1443(a),

whereby the defendant bears the burden of showing prejudice.

The Court held:

             In light of the State’s compelling evidence
             incriminating   defendant,  there   is   no
             “reasonable possibility that . . . a
             different result would have been reached at
             trial” whether defendant’s statement was
             admitted or excluded. . . . The failure to
             make the finding thus did not affect the
             outcome of defendant’s trial, and defendant
             has failed to carry his burden of showing
             prejudice from the trial court’s failure to
             make the finding.

Id. (quoting N.C. Gen. Stat. § 15A-1443(a)).                   Thus, pursuant to

Small, we will review the trial court’s failure to comply with

section 7B-2101(d) here for prejudicial error.

    Defendant contends that his custodial admission to shooting

someone in the leg at the Icehouse is the only direct evidence
                                           -10-
of   the    underlying       felony     of      assault    with       a    deadly     weapon

inflicting        serious    injury,      and    thus,    had    this       evidence      been

excluded, there exists a reasonable possibility that a different

result would have been reached at trial.                          We disagree.              The

State put on a wide array of                    compelling       evidence, including

defendant’s        own     testimony,     which     tended       to       prove    beyond    a

reasonable doubt that defendant committed the crime of assault

with a deadly weapon inflicting serious injury.

      The       essential    elements     of     assault    with       a    deadly    weapon

inflicting serious injury are “(1) an assault (2) with a deadly

weapon     (3)     inflicting      serious       injury    (4)     not      resulting       in

death.” State v. Ryder, 196 N.C. App. 56, 66, 674 S.E.2d 805,

812 (2009) (citation omitted).                    To prove these elements, the

State      presented       the   following        evidence.           First,       Demetrius

testified        without    objection     that     when    he    and       defendant      were

driving away from Martinsville, defendant broke down crying and

admitted to shooting someone at the Icehouse.                         Second, the State

called      a    witness     who    was      present      at     the       scene     of   the

altercation;        he   identified       defendant       and    Shavon       as    the   two

shooters.         Third, Melissa testified that she drove defendant

into the country and watched him throw his gun into the woods.

Fourth, the State put on expert testimony which established that
                                       -11-
shell casings from the scene of the crime and the bullet lodged

in Seay’s shoulder were all fired from defendant’s gun.                       Fifth,

and most importantly,          defendant      took the stand at trial and

admitted to the following: (1) firing his gun at the victims

when   he   thought     that   he   heard     a   gunshot   coming     from    their

direction; (2) getting Melissa to drive him into the country so

that he could dispose of his gun; and (3) telling Demetrius on

the drive away from Martinsville that he thought he had killed

someone.     Defendant    specifically        admitted      at   trial    that    he

“unloaded [his] gun” into what he estimated to be five people,

with three being shot.              Thus, the State presented extremely

compelling     evidence     that     defendant      committed    the     crime    of

assault with a deadly weapon inflicting serious injury, even

excluding defendant’s custodial statements.

       Defendant failed to show that, absent the admission of his

custodial     statements,      there   existed     a   reasonable      possibility

that   a    different    result     would   have    been    reached      at   trial.

Therefore, defendant has failed to carry the burden of showing

that the trial court’s failure to enter a finding pursuant to

section 7B-2101(d) was prejudicial.               See Small, 328 N.C. at 187,

400 S.E.2d at 419; N.C. Gen. Stat. § 15A-1443(a).
                                           -12-
     In the alternative, defendant argues that this Court should

review the trial court’s failure                    to comply with section 7B-

2101(d) for plain error.                Given that the plain error standard

imposes a higher burden on defendant than prejudicial error,

State v. Lanier, 165 N.C. App. 337, 354, 598 S.E.2d 596, 607

(2004)    (citation        omitted),      we    hold     that    the    trial    court’s

failure     to     comply      with     section     7B-2101(d)     could       not   have

amounted to plain error where the error was not prejudicial.

                   III. Ineffective Assistance of Counsel

     Defendant next argues that he was deprived of effective

assistance       of    counsel    guaranteed        by   the    North    Carolina      and

federal constitutions because his trial counsel failed to move

to   suppress         defendant’s     custodial      admissions.          We    find    no

prejudicial error.

     In order to establish ineffective assistance of counsel,

defendant        has    the    burden    of     showing    that     trial      counsel’s

performance            “fell     below         an      objective        standard        of

reasonableness.”               State v. Fletcher, 354 N.C. 455, 481, 555

S.E.2d 534, 550 (2001) (citation omitted).                      To meet this burden,

defendant must satisfy a two-part test:

            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
                                         -13-
             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.

Id. (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L.

Ed. 2d 674, 693 (1984)).            The element of prejudice can only be

met     if   “there   is    a   reasonable      probability        that,   but     for

counsel’s errors, there would have been a different result in

the proceedings.”          State v. Braswell, 312 N.C. 553, 563, 324

S.E.2d 241, 248 (1985) (citation omitted).                    “[I]f a reviewing

court can determine at the outset that there is no reasonable

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

result of the proceeding would have been different, then the

court    need   not     determine    whether      counsel’s    performance         was

actually deficient.”         State v. Harrison, 169 N.C. App. 257, 262,

610 S.E.2d 407, 411 (2005) (citation omitted), aff’d per curiam,

360 N.C. 394, 627 S.E.2d 461 (2006).                After careful review, we

hold that because defendant cannot establish prejudice by trial

counsel’s     alleged      error,   he   cannot   prevail     on    the    issue    of

ineffective assistance of counsel.

      First, there is no reasonable probability that the trial

court would have allowed a motion to suppress the custodial
                                             -14-
statements if one had been entered.                        Defendant concedes in his

brief on appeal that he signed a waiver of rights form, that the

first    interview       was      stopped    after      he    asserted      his    right   to

remain silent, that the waiver form was again presented before

the second interview, and that the second interview was again

stopped when defendant asserted his right to counsel.                              Defendant

further concedes that the third interview, at which defendant

provided    the    only      incriminating          statements,      was    initiated      by

defendant,       not   the        police     officers.          Defendant’s         behavior

indicated that he understood how to exercise his constitutional

rights     and    that       he    intentionally           waived    those        rights   by

initiating       the   third        and     final     interview.           See     State   v.

Crawford, 83 N.C. App. 135, 137, 349 S.E.2d 301, 302 (1986)

(noting that a defendant may waive the right to remain silent

and the right to counsel by initiating the conversation in which

he waives those rights).                  Furthermore, video footage of these

interviews shows that the officers carefully explained each of

defendant’s Miranda and juvenile rights before defendant signed

the waiver form and that defendant verbally acknowledged that he

understood       these       rights        and    the      effect     of     the     waiver.

Therefore,       had   the     trial      court     been     faced   with    a    motion   to

suppress, it would have had ample evidence before it to deny the
                                   -15-
motion and conclude that defendant’s waiver of his rights was

knowing, willing, and understanding.          See N.C. Gen. Stat. § 7B-

2101(d).

    Second, even assuming that defendant’s trial counsel would

have been successful in keeping defendant’s custodial statements

out of evidence, there is no reasonable probability that the

result at trial would have been different.           As discussed in more

detail above, the State produced a wide array                of compelling

evidence, including defendant’s own testimony at trial, which

independently proved all of the essential elements of the charge

of assault with a deadly weapon inflicting serious injury.

    Therefore, because defendant cannot establish that he was

prejudiced by his trial counsel’s failure to move to suppress

the custodial statements, we need not address whether counsel’s

behavior was deficient.     See Harrison, 169 N.C. App. at 262, 610

S.E.2d at 411.    Defendant’s argument is overruled.

                             IV. Indictment

    Defendant’s     final     argument      is    that   the    short-form

indictment used to charge defendant was unconstitutional because

it did not separately allege premeditation or deliberation or a

specific felony upon which felony murder could have been based.

Defendant   acknowledges    that   the    North   Carolina   Supreme   Court
                                       -16-
decided this issue in the State’s favor in State v. Braxton, 352

N.C. 158, 173-75, 531 S.E.2d 428, 436-38 (2000), and that this

Court   has    no    authority   to    overturn   that   decision.      Thus,

defendant merely presents this issue to preserve it for later

review, and his argument is overruled.

                                  Conclusion

    After careful review, we remand for resentencing pursuant

to section 15A-1340.19B(a)(1).           We find no prejudicial error as

to the trial court’s failure to enter findings under section 7B-

2101(d)   or    trial      counsel’s    failure   to     move   to   suppress

defendant’s         custodial    statements.       Finally,      defendant’s

contention as to the indictment is overruled.



    NO PREJUDICIAL ERROR; REMANDED FOR RESENTENCING.

    Judges MCGEE and ELMORE concur.

    Report per Rule 30(e).
