State v. Atkins

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1242
NORTH CAROLINA COURT OF APPEALS

Filed: 29 July 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County
Nos. 11 CRS 210032-37
DORAN ARTHUR ATKINS

Appeal by defendant from judgments entered 15 February 2013

by Judge Paul G. Gessner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 17 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Kathleen N. Bolton, for the State.

Paul M. Green, for defendant-appellant.

CALABRIA, Judge.

Doran Arthur Atkins (“defendant”) appeals from judgments

entered upon jury verdicts finding him guilty of first degree

rape, second degree sex offense, and first degree kidnapping.

We find no error.

I. Background
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In February 2011, “Mary”1 stayed at a Salvation Army

homeless shelter in Charlotte, North Carolina. Defendant,

Mary’s boyfriend, stayed at a men’s shelter about a mile away.

On the evening of 26 February 2011, Mary and defendant walked to

a Shell station in Mecklenburg County. They argued, reconciled,

and started walking when defendant shoved Mary into an alleyway,

hit her in the head, and choked her with his hands. Mary

unsuccessfully tried to escape, but defendant threatened her

life with a broken bottle and choked her several times with his

belt until she lost consciousness. He also forced her to

perform fellatio twice and forced her to have intercourse while

the belt remained around her neck.

The next morning, defendant accompanied Mary to the Shell

station, but warned her that he would kill her if she tried to

contact law enforcement. While at the Shell station, Mary asked

a man to contact law enforcement for her because she had been

kidnapped, raped, and beaten. Shortly afterwards, Officer Amy

Aquino (“Officer Aquino”) of the Charlotte-Mecklenburg Police

Department (“CMPD”) arrived and detained defendant. CMPD

Officer Brian Koll also arrived and assisted Officer Aquino.

Mary was transported to the hospital, and a sexual assault

1
We use a pseudonym both to protect the victim’s privacy and for
ease of reading.
 -3-
evidence collection kit was taken.

Defendant was arrested and subsequently charged with first

degree rape, two counts of first degree sex offense, first

degree kidnapping, assault by strangulation, and assault on a

female. On 13 August 2012, defendant filed a motion to dismiss

for lack of a speedy trial. After a hearing on 22 August 2012,

the trial court denied defendant’s motion.

Defendant’s case was subsequently tried on 11 February

2013. The jury returned verdicts finding defendant guilty of

first degree rape, first degree sexual offense, second degree

sexual offense, first degree kidnapping, assault by

strangulation, and assault on a female. The State submitted a

Prior Record Level Worksheet for sentencing purposes. According

to the State, defendant had six points for three prior Class I

felonies from out-of-state convictions in West Virginia and

South Carolina. Defendant’s counsel expressly stipulated to

defendant’s prior convictions and that defendant qualified as a

Level III for sentencing. Defendant’s counsel did not object to

classifying the out-of-state offenses as Class I felonies.

The trial court arrested judgment for the first degree

sexual offense, assault by strangulation, and assault on a

female. Defendant was sentenced to a minimum of 317 months to a
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maximum of 390 months for the first degree rape offense; a

minimum of 96 months to a maximum of 125 months for the second

degree sexual offense; and a minimum of 96 months to a maximum

of 125 months for the first degree kidnapping offense. All of

defendant’s sentences were to be served in the custody of the

Division of Adult Correction. Defendant appeals.

II. Speedy Trial

Defendant argues that the trial court erred in denying his

motion to dismiss for lack of a speedy trial. We disagree.

The standard of review for an alleged constitutional

violation is de novo. State v. Graham, 200 N.C. App. 204, 214,

683 S.E.2d 437, 444 (2009). The Sixth Amendment to the United

States Constitution guarantees the right to a speedy trial. U.S.

Const. Amend. VI. Additionally, the North Carolina Constitution

provides defendants with the right to a speedy trial. N.C.

Const., art.1, sec. 18. “When reviewing speedy trial claims, we

employ the same analysis under both the Sixth Amendment and

Article I.” State v. Washington, 192 N.C. App. 277, 282, 665

S.E.2d 799, 803 (2008).

The United States Supreme Court devised a four-factor

balancing test analyzing speedy trial cases. Id. (citing Barker

v. Wingo, 407 U.S. 514, 530, 33 L.Ed.2d 101, 116-17 (1972)).
 -5-
The Barker factors are (1) the length of delay, (2) the reason

for the delay, (3) defendant’s assertion of his right to a

speedy trial, and (4) prejudice to the defendant. Id. No one

factor is dispositive in determining whether the accused has

been deprived of his right to a speedy trial. Id. If the

balancing test reveals a defendant’s right to a speedy trial was

violated, the remedy is dismissal. Id. at 298, 665 S.E.2d at

812.

In the instant case, defendant was arrested on 27 February

2011 and indicted on 7 March 2011. On 13 August 2012, defendant

filed a motion to dismiss for lack of a speedy trial.

Defendant’s motion was heard on 22 August 2012. Thus,

defendant’s incarceration prior to the hearing on his motion to

dismiss was approximately 17 months. Although the United States

Supreme Court has not set out a definite period for which a

delay will be deemed presumptively prejudicial, it is

acknowledged that delays approaching one year will suffice.

Doggett v. United States, 505 U.S. 647, 651 n.1, 120 L.Ed.2d

520, 528 n.1 (1992). See also State v. Webster, 337 N.C. 674,

679, 447 S.E.2d 349, 351 (1994) (sixteen month delay enough to

trigger examination of the other factors); State v. Pippin, 72

N.C. App. 387, 391, 324 S.E.2d 900, 904 (1985) (fourteen month
 -6-
delay between arrest and motion to dismiss granted). Since

defendant timely asserted his right to a speedy trial and the

pre-trial delay in this case was in excess of one year, we must

determine both the reason for the delay and whether the delay

was prejudicial to the defendant.

A. Reason for Delay

Some delay between arrest and trial is inevitable and

“[t]he constitutional guarantee does not outlaw good-faith

delays which are reasonably necessary for the State to present

its case.” State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251,

255 (2003) (citation omitted). “[A] defendant has the burden of

showing that the delay was caused by the neglect or willfulness

of the prosecution[,] [which may be rebutted with] evidence

fully explaining the reasons for the delay.” State v. Dorton,

172 N.C. App. 759, 764, 617 S.E.2d 97, 101 (2005) (quoting

Spivey, 357 N.C. at 119, 579 S.E.2d at 255). In addition, this

Court has held that trying older cases “is an appropriate method

of determining the order in which to dispose of cases.” Id. at

764, 617 S.E.2d at 101.

In Spivey, the defendant’s case was delayed four and one-

half years because the court docket was “clogged with murder

cases.” Spivey, 357 N.C. at 119, 579 S.E.2d at 255. According
 -7-
to its policy, “[t]he district attorney[’s office] dealt with

the cases in chronological order, beginning with the oldest.”

Id. at 120, 579 S.E.2d at 255. The Court held that since the

delay was caused by “neutral factors,” the defendant “failed to

present any evidence that the delay was caused by the State’s

neglect or willfulness.” Id. at 121, 579 S.E.2d at 256.

In the instant case, defendant argued at the hearing that

the only reason for the delay was the prosecution’s failure to

call the case for trial. Defendant presented evidence of

statistics from the office of the Trial Court Administrator

regarding courtroom usage and the Mecklenburg County District

Attorney’s policy of hearing adult rape cases in teams on

alternating weeks. Defendant specifically argued that the

District Attorney’s office’s strategy of splitting the assistant

district attorneys (“ADAs”) into “teams” and rotating their

court appearances for adult rape cases was a misuse of courtroom

time that denied defendants their rights to speedy trial.

The State rebutted defendant’s arguments with evidence

regarding hearing cases in chronological order, as well as the

arrest dates of twelve of the cases that preceded defendant’s

arrest date. The State also presented evidence regarding case

assignments and reports. Defendant’s case was assigned to Ms.
 -8-
Pendergrass, an ADA who was hospitalized on medical leave for

several months. Prior to her medical leave, the State had not

received the DNA report from Mary’s sexual assault evidence

collection kit. The DNA report was necessary for the State to

present its case at defendant’s trial. Since Ms. Pendergrass

was on medical leave, another formerly retired ADA, Mr. Cook,

was hired to assist with her caseload during the time she was

gone. The DNA report from Mary’s sexual assault evidence

collection kit and the substitution of another ADA for one on

medical leave were both neutral factors. Therefore, the State’s

explanation regarding the District Attorney’s policy for

scheduling cases was an appropriate reason for the delay. In

addition, the State’s delay while waiting for evidence and

substituting an ADA can both be considered good faith delays.

Defendant has failed to show that the State neglected or

willfully delayed his trial.

B. Prejudice to Defendant

The purposes of the right to a speedy trial are: (1) to

prevent oppressive pretrial incarceration; (2) to minimize

anxiety and concern of the accused; and (3) to limit the

possibility that the defense will be impaired. Dorton, 172 N.C.

App. at 765, 617 S.E.2d at 101 (citing Barker, 407 U.S. at 532,
 -9-
33 L.Ed.2d at 118). “[T]he test for prejudice is whether

significant evidence or testimony that would have been helpful

to the defense was lost due to delay.” State v. Hammonds, 141

N.C. App. 152, 162-63, 541 S.E.2d 166, 174-75 (2000) (citation

omitted).

In Hammonds, the defendant argued that his defense was

prejudiced in part by the death of the State’s principal

investigator while his trial was delayed for over four years.

Id. at 163, 541 S.E.2d at 175. However, the State presented

evidence at trial through other investigators who “testified to

the same events and observations sought by [the] defendant[.]”

Id. at 163, 541 S.E.2d at 175. Therefore, while this Court did

not condone the length of the delay, the State presented

evidence regarding the same events and observations sought by

defendant. Id. at 163-64, 541 S.E.2d at 175. The Court held

that the defendant was not prejudiced by the death of the

State’s principal investigator. Id.

In the instant case, defendant does not argue that his pre-

trial incarceration was oppressive or that he had any anxiety or

particular concerns except for his concerns regarding his

mother’s testimony. Specifically, defendant’s mother could have

testified regarding Mary’s credibility and that Mary had used
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crack cocaine.

At trial, Mary testified as the State’s witness, and the

evidence she presented included some of the same information

defendant contends would have been his mother’s testimony.

According to Mary, she had been dating defendant for two years

and they engaged in consensual sexual intercourse. She also

testified that she loved defendant and that they had expressed

that love for one another just prior to the assault. Mary also

admitted to using crack cocaine three days before the assault

occurred.

Susan Lewis-Kafuko (“Lewis-Kafuko”), a friend of

defendant’s sister, testified on defendant’s behalf. Lewis-

Kafuko testified that she had spent the afternoon of 26 February

2011 with Mary and defendant. During that time, Lewis-Kafuko

witnessed the couple express love towards one another and

discuss their plans of moving in together and establishing a

family together.

Both Mary and Lewis-Kafuko testified to the same events and

observations sought by defendant regarding his mother’s

testimony. Moreover, Mary had first-hand knowledge of the

events that occurred, while defendant’s mother only had first-

hand knowledge of their relationship and was not a witness to
 -11-
the events that led to defendant’s arrest. Furthermore,

defendant does not dispute Mary’s testimony on appeal. Since

defendant fails to dispute Mary’s testimony or show how his

mother’s testimony would have been helpful to his defense, the

loss of his mother’s testimony did not prejudice his defense.

In balancing all of the Barker factors, neither the reason

for the delay nor the prejudice to the defendant weighs against

the State. Therefore, we hold that the trial court did not err

in denying defendant’s motion to dismiss for lack of a speedy

trial.

III. Sentencing

Defendant also argues that the trial court erred in

calculating his prior record level. Specifically, defendant

contends the out-of-state charges used in this calculation

should have been considered misdemeanors rather than felonies.

We disagree.

The standard of review for the determination of a prior

record level is de novo. State v. Bohler, 198 N.C. App. 631,

633, 681 S.E.2d 801, 804 (2009). A determination regarding a

defendant’s prior record level must be supported by competent

evidence. Id. at 633, 681 S.E.2d at 804.

“[A] conviction occurring in a jurisdiction other than
 -12-
North Carolina is classified as a Class I felony if the

jurisdiction in which the offense occurred classifies the

offense as a felony.” N.C. Gen. Stat. § 15A-1340.14(e) (2013).

The State is “not required to show that the [out-of-state]

offenses were ‘substantially similar’ to North Carolina offenses

[if] the prosecution only classifie[s] the convictions at the

default level, Class I.” State v. Hinton, 196 N.C. App. 750,

755, 675 S.E.2d 672, 675-76 (2009) (citation omitted). If the

State submits a felony conviction from another jurisdiction

under the default classification of a Class I felony, it has

“met its burden and [is] required to prove nothing further in

support of that classification.” State v. Threadgill, ___ N.C.

App. ___, ___, 741 S.E.2d 677, 681 (2013). However, “[i]f the

offender proves by the preponderance of the evidence that an

offense classified as a felony in the other jurisdiction is

substantially similar to an offense that is a misdemeanor in

North Carolina, the conviction is treated as that class of

misdemeanor for assigning prior record level points.” N.C. Gen.

Stat. § 15A-1340.14(e).

The State must prove, by a preponderance of the evidence,

that the prior convictions exist and the offender before the

court is the person previously convicted. N.C. Gen. Stat. §
 -13-
15A-1340.14(f) (2013). Acceptable methods of proving prior

convictions include presenting copies of records maintained by

the Division of Criminal Information (“DCI”) and stipulating to

the existence of these offenses. Id.

In the instant case, defendant contends that an out-of-

state shoplifting offense and weapons offense should have been

classified as misdemeanors because the equivalent North Carolina

offenses are misdemeanors. However, defendant presented no

evidence to show that these offenses were substantially similar

to any North Carolina offenses. The State presented copies of

records maintained by DCI showing that defendant’s out-of-state

offenses were felonies in their respective jurisdictions.

Defendant’s counsel stipulated that defendant had six points

according to the prior record level worksheet, and that

defendant had a Prior Record Level III for sentencing.

Therefore, the offenses were properly classified as default

Class I felonies.

Defendant’s final contention is that his counsel’s

stipulation to the existence of these felony convictions was

ineffective assistance of counsel. However, defendant fails to

explain how this stipulation satisfies the two-part test set

forth in State v. Braswell. See Braswell, 312 N.C. 553, 562,
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324 S.E.2d 241, 248 (1985) (holding “the defendant must show

counsel’s performance was deficient . . . [and] the deficient

performance prejudiced the defense.”). Therefore, this argument

is without merit.

IV. Conclusion

Although this Court does not condone the State’s delay,

neither the reason for the delay nor the alleged prejudice to

the defendant denied defendant his right to a speedy trial.

Therefore, the trial court did not err in denying defendant’s

motion to dismiss. In addition, the State presented sufficient

evidence of defendant’s prior record level, and counsel

stipulated to defendant’s prior record level. Accordingly, the

trial court did not err in sentencing defendant as a Prior

Record Level III.

No error.

Chief Judge MARTIN and Judge McGEE concur.

Report per Rule 30(e).