An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA 15-239

                                 Filed: 20 October 2015

Person County, Nos. 14 CRS 417, 1743, 50266

STATE OF NORTH CAROLINA

              v.

DAVID LAVON FOWLER


       Appeal by Defendant from judgment entered 19 November 2014 by Judge

William Osmond Smith III in Person County Superior Court. Heard in the Court of

Appeals 28 September 2015.


       Attorney General Roy Cooper, by Assistant Attorney General J. Joy Strickland,
       for the State.

       Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for Defendant-
       Appellant.


       INMAN, Judge.


       David Lavon Fowler (“Defendant”) appeals from a judgment entered upon jury

verdicts finding him guilty of driving while impaired (“DWI”), felony fleeing to elude

arrest, driving while license revoked (“DWLR”), and reckless driving. Defendant also

pled guilty to attaining habitual felon status. We find no error.

                       Factual and Procedural Background
                                 STATE V. FOWLER

                                 Opinion of the Court



      On 14 February 2014, Defendant was driving home when off-duty Person

County Sheriff’s Deputy Robert McLaughlin (“Deputy McLaughlin”) noticed him

driving at a high rate of speed and swerving between lanes. Deputy McLaughlin

followed Defendant and alerted the Sheriff’s Department and Roxboro Police by radio.

Because of Deputy McLaughlin’s warning, Deputy Adam Norris (“Deputy Norris”)

waited for Defendant on the side of the road in his unmarked pickup truck.

      As Defendant approached him, Deputy Norris activated his blue lights and

siren and attempted to initiate a traffic stop. Shortly thereafter, Defendant, Deputy

McLaughlin, and Deputy Norris reached the city of Roxboro, and Defendant stopped

at a red light. which allowed Deputy Norris to pull directly behind him. Nonetheless,

Defendant proceeded down the road after the light turned green and continued

driving until he was forced to stop by a Roxboro Police officer who was blocking the

road. Officers removed Defendant from the car and took him into custody.

      Defendant was indicted on 10 March 2014 for habitual DWI, felony fleeing to

elude arrest, DWLR, and reckless driving. A second indictment charging Defendant

with attaining habitual felon status was issued on 13 October 2014. Defendant was

subsequently arrested and served with this indictment on 31 October 2014.

      Beginning 17 November 2014, Defendant was tried by a jury in Person County

Superior Court. That morning, Defendant met with his appointed counsel, who

informed him that his trial was set for that day. Defendant made an oral motion for



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                                 Opinion of the Court



a continuance and to discharge appointed counsel in order to retain separate counsel.

In support of his motion to continue, Defendant made several broad claims that he

and his appointed counsel were “at each other’s throats” and had engaged in a

“shouting match” earlier that morning. The court denied Defendant’s motion.

       Prior to trial, the parties stipulated to Defendant’s prior DWI convictions as

the underlying convictions for the habitual DWI charge. On 19 November 2014, the

jury returned verdicts finding Defendant guilty of one count each of DWI, felony

fleeing to elude arrest, DWLR, and reckless driving. Following the jury’s verdicts,

the trial court adjudicated Defendant guilty of habitual DWI based upon his

stipulation. Defendant then pled guilty to attaining habitual felon status. After

arresting judgment on the reckless driving and DWLR convictions, the trial court

consolidated the remaining convictions into one judgment and sentenced Defendant

to a term of 87 to 117 months of imprisonment. Defendant appeals.

                                     Analysis

      The sole issue on appeal is whether the trial court erred in denying Defendant’s

motion to continue. Specifically, Defendant contends that the trial court erred in

denying his motion because he received notice of the habitual felon indictment only

seventeen days before his trial, rather than the twenty days required by statute. We

disagree.




                                        -3-
                                     STATE V. FOWLER

                                     Opinion of the Court



      “We review a trial court’s resolution of a motion to continue for abuse of

discretion.” State v. Morgan, 359 N.C. 131, 143, 604 S.E.2d 886, 894 (2004), cert.

denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005). “Generally, the denial of a motion to

continue, whether a constitutional issue is raised or not, is sufficient grounds for the

granting of a new trial only when the defendant is able to show that the denial was

erroneous and that he suffered prejudice as a result of the error.” State v. Rogers,

352 N.C. 119, 124, 529 S.E.2d 671, 675 (2000).

      Initially, we note that Defendant did not raise his current argument in support

of his motion to continue at trial. Instead, Defendant sought a continuance based on

his desire to substitute retained counsel for his appointed counsel. Defendant also

made some assertions about being unprepared for trial due to problems with his

counsel, but he made no claims regarding the timing of the habitual felon indictment.

“It is well established that where a theory argued on appeal was not raised before the

trial court, the law does not permit parties to swap horses between courts in order to

get a better mount in the appellate courts.” State v. Tellez, 200 N.C. App. 517, 521,

684 S.E.2d 733, 736 (2009) (internal quotation marks and citation omitted). Thus,

Defendant’s argument is not properly before us.

      Moreover, even if this issue had been preserved, we find it to be without merit.

N.C. Gen. Stat. § 14-7.3 provides:

             An indictment which charges a person who is an habitual
             felon within the meaning of G.S. 14-7.1 with the


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                                  STATE V. FOWLER

                                  Opinion of the Court



             commission of any felony under the laws of the State of
             North Carolina must, in order to sustain a conviction of
             habitual felon, also charge that said person is an habitual
             felon. The indictment charging the defendant as an
             habitual felon shall be separate from the indictment
             charging him with the principal felony. . . . No defendant
             charged with being an habitual felon in a bill of indictment
             shall be required to go to trial on said charge within 20 days
             of the finding of a true bill by the grand jury; provided, the
             defendant may waive this 20-day period.

N.C. Gen. Stat. § 14-7.3 (2013) (emphasis added). Defendant concedes that more than

twenty days elapsed between the grand jury’s issuance of the habitual felon

indictment and the start of his trial. Nevertheless, he contends that a literal reading

of the statute would “completely annihilat[e]” the statute’s purpose of providing

Defendants with notice of the State’s intent to try them as recidivists.

      In State v. Winstead, this Court rejected this argument, holding that “‘true bill’

refers to the separate indictment for the habitual felon charge. Therefore, the twenty-

day period runs from the time the grand jury returns an indictment on the habitual

felon charge.” 78 N.C. App. 180, 182, 336 S.E.2d 721, 723 (1985). Since Defendant

concedes that he stood trial more than twenty days after the grand jury returned the

habitual felon indictment, we are bound by our decision in Winstead to find his

argument meritless. See In Re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37

(1989). Defendant received a fair trial, free from error.

      NO ERROR.

      Judges STROUD and DAVIS concur.


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                         STATE V. FOWLER

                         Opinion of the Court



Report per Rule 30(e).




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