State v. McKoy

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1071
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA

Pender County
v.
No. 11 CRS 52835, 12 CRS 542

ROBERT LEVITICUS MCKOY

Appeal by defendant from judgments entered 2 May 2013 by

Judge Arnold O. Jones, II, in Pender County Superior Court.

Heard in the Court of Appeals 18 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Jill F. Cramer, for the State.

The Law Office of Bruce T. Cunningham, Jr., by Bruce T.
Cunningham, Jr., for Defendant.

ERVIN, Judge.

Defendant Robert Leviticus McKoy appeals from a judgment

sentencing him to a term of 89 to 119 months imprisonment based

upon his convictions for felonious speeding to elude arrest,

reckless driving, possession of drug paraphernalia, driving

while license revoked, and having attained the status of an

habitual felon and from a judgment finding him responsible for

driving left of center without requiring him to pay additional

court costs. On appeal, Defendant contends (1) that the trial
 -2-
court erred by sentencing him as an habitual felon despite the

fact that he was neither found guilty of nor pled guilty to

having attained habitual felon status; allowing Defendant to be

convicted of felonious speeding to elude arrest based upon the

use of reckless driving and driving while license revoked as

aggravating circumstances and then separately sentencing him

based upon his convictions for reckless driving and driving

while license revoked; denying his motions to dismiss the

felonious speeding to elude arrest charge for insufficiency of

the evidence; allowing the jury to consider whether Defendant

drove more than fifteen miles per hour in excess of the speed

limit in determining whether he was guilty of felonious speeding

to elude arrest; failing to describe the manner in which

Defendant allegedly drove in a careless and reckless manner in

the course of instructing the jury; and allowing the jury to

consider the issue of Defendant’s guilt of reckless driving and

(2) that he received constitutionally deficient representation

from his trial counsel. After careful consideration of

Defendant’s challenges to the trial court’s judgments in light

of the record and the applicable law, we conclude that the

judgment that the trial court entered based upon Defendant’s

convictions for felonious speeding to elude arrest, reckless

driving, possession of drug paraphernalia, driving while license
 -3-
revoked, and having attained the status of an habitual felon

should be vacated and that this case should be remanded to the

Pender County Superior Court for resentencing.

I. Factual Background

A. Substantive Facts

1. State’s Evidence

Detective Lazaro Ramos worked as a narcotics detective for

the Pender County Sheriff’s Office. On 30 December 2011,

Detective Ramos was traveling north on Highway 117 in an

unmarked Ford Explorer after having gotten off of work. At

approximately 1:46 p.m., Detective Ramos drove past Defendant,

who was entering Highway 117 from Interstate 40 while driving a

red Jeep Cherokee. Detective Ramos noticed Defendant when

Defendant’s vehicle, which he recognized as the result of having

viewed a photograph that had been given to him by Sergeant Lisa

Fields of the Burgaw Police Department, began slowing down.1 As

Detective Ramos continued to observe Defendant, he noticed that

Defendant was behaving evasively and began wondering why

Defendant was trying to avoid him.

As Detective Ramos and Defendant both slowed down, the two

drivers were able to see each other. After Defendant exited
1
Sergeant Fields had shown the vehicle’s photograph to
Detective Ramos, who had responsibility for drug-related
investigations, because she was looking into Defendant’s
activities.
 -4-
Highway 117 to the right and approached the stop sign at the end

of the exit ramp, he appeared to be about to make a right turn.

While Detective Ramos passed over the overpass and continued on

the highway, Defendant continued to creep toward the stop sign.

Upon reaching the stop sign, Defendant made a sharp left turn

rather than turning right as Detective Ramos expected.

After making this observation and crossing the overpass,

Detective Ramos turned around. Once he had turned around,

Detective Ramos activated his blue lights and siren, informed

the 911 dispatch center that he was trying to catch up with

Defendant’s vehicle, and increased his speed to 100 miles per

hour in order to accomplish that goal. Although Detective Ramos

had difficulty catching up with Defendant, he continued to

pursue him.2

After pursuing Defendant for some distance, Detective Ramos

regained visual contact with Defendant. At that point,

Detective Ramos observed Defendant “fishtailing” and watched him

cross over the double yellow line as he attempted to pass other

vehicles in a blind curve. As he came closer to Defendant,

Detective Ramos ran the tags on the vehicle that Defendant was

2
At the time that the chase began, Detective Ramos knew
Defendant as Rob Base. When Sergeant Fields heard Detective
Ramos radio that he was attempting to stop a red Jeep driven by
a Rob Base, she provided him with Defendant’s real name.
 -5-
driving and discovered that it was registered to an individual

named Mack Douglas Smith.3

After a pursuit of less than a mile, Defendant entered a

residential area in which one of his sisters lived. As he did

so, he cut through the yard of a residence in order to avoid

colliding with a vehicle that was leaving the subdivision. Upon

entering a cul de sac, Defendant drove up a driveway and through

back yards associated with various homes. Eventually, Defendant

collided with a tree and fled on foot. A search of the area for

Defendant proved unsuccessful. A search of Defendant’s vehicle

resulted in the seizure of cigar papers and a digital scale,

items that Detective Ramos believed to be drug paraphernalia.

Defendant subsequently surrendered to investigating officers.

Allen Monteith, a driver’s license examiner with the North

Carolina Division of Motor Vehicles, testified that Defendant’s

license was suspended at the time of the incident. In addition,

Detective Ramos testified that Defendant’s name had been written

on the back of the registration card associated with the Jeep

Cherokee. Although Detective Ramos did not have specific

knowledge of the reason that Defendant’s name had been written

3
Mr. Smith had purchased the vehicle for Defendant using
money that Defendant had provided to him for that purpose in
recognition of the fact that Defendant did not have a license.
The insurance applicable to Defendant’s vehicle had been
procured in the name of his sister.
 -6-
on the back of the vehicle’s registration card, he testified

that the name of an individual who is stopped for driving

without a license or is unable to present valid identification

information is frequently written on the registration card

associated with the vehicle that the individual has been

driving.

2. Defense Evidence

Jonnisia McKoy, Defendant’s older sister, testified that

Defendant, who was accompanied by his girlfriend, had been

visiting her in Raleigh on 30 December 2011. Due to their

family tradition of spending New Year’s Eve in their home

church, Ms. McKoy and Defendant left Raleigh to return to Pender

County early in the evening of 30 December 2011. In support of

her testimony, receipts evidencing certain purchases that

Defendant had made in Raleigh on 29 December 2011 were admitted

into evidence.

B. Procedural Facts

On 30 December 2011, a warrant for arrest charging

Defendant with felonious speeding to elude arrest and reckless

driving was issued. On 27 February 2012, the Pender County

grand jury returned bills of indictment charging Defendant with

felonious speeding to elude arrest, reckless driving, speeding

100 miles per hour in a 55 mile per hour zone, driving left of
 -7-
center, possession of drug paraphernalia, driving while license

revoked, and resisting, delaying, and obstructing a public

officer. On 26 March 2012, the Pender County grand jury

returned a bill of indictment alleging that Defendant had

attained the status of an habitual felon.

The charges against Defendant came on for trial before

Judge Paul L. Jones and a jury at the 25 June 2012 criminal

session of the Pender County Superior Court. During the course

of Defendant’s initial trial, Judge Jones dismissed the reckless

driving charge due to deficiencies in the relevant indictment.

Defendant’s first trial ended in a mistrial after the jury

failed to reach a unanimous verdict.

The charges against Defendant came on for trial a second

time before the trial court and a jury at the 30 April 2013

criminal session of the Pender County Superior Court. At the

conclusion of the State’s evidence, the trial court allowed

Defendant’s motion to dismiss the resisting, delaying, and

obstructing a public officer charge. On 2 May 2013, the jury

returned a verdict finding Defendant guilty of or responsible

for felonious speeding to elude arrest, reckless driving,

driving left of center, possession of drug paraphernalia, and

driving while license revoked and finding Defendant not guilty

of speeding 100 miles per hour in a 55 mile per hour zone. At
 -8-
the conclusion of the ensuing sentencing hearing, the trial

court consolidated Defendant’s convictions for felonious fleeing

to elude arrest, reckless driving, possession of drug

paraphernalia, and driving while license revoked for judgment;

concluded that Defendant should be sentenced as an habitual

felon; and entered a judgment ordering that Defendant be

imprisoned for a term of 89 to 119 months. In addition, the

trial court ordered that Defendant not be assessed any

“additional court costs” in connection with his conviction for

driving left of center. Defendant noted an appeal from the

trial court’s judgments.

II. Legal Analysis

A. Speeding to Elude Arrest

In his brief, Defendant contends that the trial court erred

by denying his motion to dismiss the felonious speeding to elude

arrest charge. More specifically, Defendant contends that the

record, when viewed in the light most favorable to the State,

did not contain sufficient evidence to support a determination

that Detective Ramos was lawfully performing an official duty at

the time he attempted to stop Defendant. Defendant’s contention

has merit.4

4
In its brief, the State contends that Defendant failed to
properly preserve his challenge to the sufficiency of the
evidence to support his conviction for felonious speeding to
 -9-
1. Standard of Review

In considering whether to grant a motion to dismiss for

insufficiency of the evidence, the trial court must determine

“‘whether there is substantial evidence (1) of each essential

element of the offense charged and (2) that [the] defendant is

the perpetrator of the offense.’” State v. Bradshaw, 366 N.C.

90, 93, 728 S.E.2d 345, 347 (2012) (quoting State v. Lynch, 327

N.C. 210, 215, 393 S.E.2d 811, 814 (1990)). “Substantial

evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. In conducting

the required analysis, the “trial court must consider the

evidence in the light most favorable to the State, drawing all

reasonable inferences in the State’s favor.” Id. at 92, 728

S.E.2d at 347 (internal quotation marks omitted) (quoting State

v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594 (2009)). “All

elude arrest for purposes of appellate review on the grounds
that Defendant’s trial counsel failed to address the sufficiency
of the evidence to support a determination that Detective Ramos
was acting lawfully at the time that he began to pursue
Defendant when she moved to dismiss the speeding to elude arrest
charge. However, given that the record reflects that Defendant
moved to dismiss the felonious speeding to elude arrest charge
“based on the evidence [considered] in the light most favorable
to the State” at the conclusion of the State’s evidence and
“submit[ted] to the Court the same arguments [] used before for
each charge” when he moved to dismiss the felonious speeding to
elude arrest charge at the conclusion of all of the evidence, we
conclude that Defendant properly preserved his challenge to the
speeding to elude arrest charge for purposes of appellate
review.
 -10-
evidence, competent or incompetent, must be considered,” with

“[a]ny contradictions or conflicts in the evidence [to be]

resolved in favor of the State, and [with any] evidence

unfavorable to the State” eliminated from consideration. Id. at

93, 728 S.E.2d at 347. We review a challenge to the denial of a

motion to dismiss for insufficiency of the evidence using a de

novo standard of review. State v. Smith, 186 N.C. App. 57, 62,

650 S.E.2d 29, 33 (2007).

2. Sufficiency of the Evidence

According to N.C. Gen. Stat. § 20-141.5(a), it is “unlawful

for any person to operate a motor vehicle on a street, highway,

or public vehicular area while fleeing or attempting to elude a

law enforcement officer who is in the lawful performance of his

duties.” Although a violation of N.C. Gen. Stat. § 20-141.5 is

ordinarily a Class 1 misdemeanor, the commission of that offense

becomes a Class H felony if the defendant, in the course of his

or her flight, speeds “in excess of 15 miles per hour over the

legal speed limit,” N.C. Gen. Stat. § 20-141.5(b)(1);

“[r]eckless[ly] driv[es] as proscribed by [N.C. Gen. Stat. §]

20-140,” § 20-141.5(b)(3); or “[d]riv[es] when [his or her]

driv[er’]s license is revoked.” N.C. Gen. Stat. § 20-

141.5(b)(5). As a result, an individual’s guilt for purposes of

N.C. Gen. Stat. § 20-141.5 hinges upon the extent to which the
 -11-
defendant attempts to flee from a law enforcement officer who is

attempting to lawfully perform his or her official duties.

State v. Sinclair, 191 N.C. App. 485, 489-90, 663 S.E.2d 886,

870 (2008) (citing State v. Anderson, 40 N.C. App. 318, 322, 253

S.E.2d 48, 51 (1979)) (stating that, in the event that the

detention of the defendant was “unlawful, there was insufficient

evidence that [the officer] was discharging or attempting to

discharge a duty of his office” for the purpose of determining

the defendant’s guilt of resisting, delaying, or obstructing a

public officer).

“A police officer may effect a brief investigatory seizure

of an individual where the officer has reasonable, articulable

suspicion that a crime may be underway.” State v. Barnard, 184

N.C. App. 25, 29, 645 S.E.2d 780, 783 (2007) (citing Terry v.

Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889,

906 (1968)), aff’d, 362 N.C. 244, 658 S.E.2d 643, cert. denied,

555 U.S. 914, 129 S. Ct. 264, 172 L. Ed. 2d 198 (2008). The

required reasonable articulable suspicion must “‘be based on

specific and articulable facts, as well as the rational

inferences from those facts, as viewed through the eyes of a

reasonable, cautious officer, guided by his experience and

training.’” Id. (quoting State v. Watkins, 337 N.C. 437, 441,

446 S.E.2d 67, 70 (1994)). A reviewing court “must consider the
 -12-
totality of the circumstances in determining whether the officer

possessed a reasonable and articulable suspicion to make an

investigatory stop.” Id.

According to the transcript of Defendant’s second trial,

Detective Ramos saw Defendant, with whom he was familiar as the

result of previous work-related activities and whom he knew to

be under investigation by other law enforcement officers, as he

drove north on Highway 117. After observing Defendant exit upon

catching sight of him, Detective Ramos testified that he had to

drive further north on Highway 117 and cross an overpass before

he turned around, after which, as he headed south on Highway

117, he sped up to 100 mph, turned on his siren and blue lights,

contacted the dispatcher, and decided to stop Defendant. As a

result of the fact that Defendant exited Highway 117 upon

sighting Detective Ramos and the fact that Defendant made an

unexpected left turn after apparently intending to turn right,

Detective Ramos appears to have concluded that Defendant was

engaging in some type of criminal activity. We are, however,

unable to see how, given these facts, Detective Ramos had an

articulable reasonable suspicion sufficient to justify his

decision to stop Defendant.

In an attempt to persuade us to reach a contrary

conclusion, the State argues that Detective Ramos had the
 -13-
reasonable articulable suspicion necessary to justify an

investigative detention of Defendant because (1) Defendant was

under investigation for drug-related activities, (2) Defendant

initiated an unprovoked flight after seeing Detective Ramos, and

(3) Defendant drove recklessly “during the chase.” As an

initial matter, we note that the fact that Defendant drove

recklessly once the chase began has no bearing upon the

lawfulness of Detective Ramos’ decision to pursue Defendant in

the first place given that the required “reasonable suspicion

must arise from the officer’s knowledge prior to the time of the

stop.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631

(2000). Although Detective Ramos testified that Defendant

“punche[d] it” when he turned left after leaving Highway 117, he

never described any illegality in the manner in which Defendant

made that left turn. Simply put, the fact that Defendant

attempted to avoid Detective Ramos without engaging in any

independently unlawful conduct does not provide any

justification for a decision to conduct an investigative

detention given that an individual has a right, if he or she

chooses to exercise it, to avoid contact with law enforcement

officers. State v. Canty, __ N.C. App. , __, 736 S.E.2d 532,

537 (2012) (stating that “[n]ervousness, failure to make eye

contact with law enforcement, and a relatively small reduction
 -14-
in speed is ‘conduct falling within the broad range of what can

be described as normal driving behavior’” (quoting State v.

Peele, 196 N.C. App. 668, 674, 675 S.E.2d 682, 687, disc. review

denied, 363 N.C. 587, 683 S.E.2d 384 (2009))), disc. review

denied, 366 N.C. 578, 739 S.E.2d 850 (2013); Sinclair, 191 N.C.

App. at 489, 663 S.E.2d at 870 (stating that, “[i]f the

encounter was consensual, [the defendant] was at liberty ‘to

disregard the police and go about his business’” (quoting

Florida v. Bostic, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115

L. Ed. 2d 389, 398 (1991))). Finally, the mere fact that

Defendant was under investigation by the local law enforcement

community does not tend to show that Detective Ramos had the

reasonable articulable suspicion necessary to justify an

investigative detention given that the record contains no

evidence tending to show what Defendant was alleged to have done

or the strength of the evidence tending to show that Defendant

was involved in unlawful conduct. Thus, none of the

justifications for Detective Ramos’ decision to conduct an

investigative detention of Defendant offered in the State’s

brief have any merit.

The ultimate deficiency in Detective Ramos’ decision to

detain Defendant was the absence of any indication that any sort

of specific criminal activity was “underway.” See Barnard, 184
 -15-
N.C. App. at 29, 645 S.E.2d at 783. In order for an officer to

conduct a valid investigative detention, there must be some

nexus between the suspicious behavior in which the defendant has

engaged and the crime for which the officer seeks to detain the

defendant. See Canty, __ N.C. App. at __, 736 S.E.2d at 537

(stating that, although slowed speed “tends to be a factor in

reasonable suspicion for impaired driving,” “[i]mpaired driving

. . . was not the offense for which the officers testified that

they pulled over [the defendant]”). A careful review of the

record developed in the trial court demonstrates that Detective

Ramos never provided any explanation for his decision to detain

Defendant and none appears to us from our view of the transcript

of Defendant’s second trial. As a result, given that the record

provides no justification for Detective Ramos’ decision to

pursue and initiate an investigative detention of Defendant, we

conclude that the trial court erred by failing to allow

Defendant’s motion to dismiss the speeding to elude arrest

charge at the conclusion of all of the evidence and that the

trial court’s judgment sentencing Defendant based upon his

conviction for felonious speeding to elude arrest should be

vacated.5

5
Our decision that the trial court should have allowed
Defendant’s motion to dismiss the speeding to elude arrest
charge for insufficiency of the evidence renders many of
 -16-
B. Reckless Driving Conviction

In addition, Defendant contends that the trial court erred

by allowing the jury to convict him for reckless driving and by

entering judgment based upon his reckless driving conviction

given that the trial court lacked jurisdiction to proceed

against him on the basis of that reckless driving charge. In

support of this assertion, Defendant contends that the

challenged trial court decisions overlook the fact that the

reckless driving charge had been dismissed during his first

trial, so that there was no reckless driving charge pending

against him when this case was called for trial at the 30 April

Defendant’s remaining arguments moot. For example, Defendant’s
contention that the trial court’s decision to enter judgment
against him on the basis of his separate convictions for driving
while license revoked and reckless driving despite the fact that
these same offenses were used to enhance the speeding to elude
arrest charge from a misdemeanor to a felony hinges upon a
decision to uphold his felonious speeding to elude arrest
conviction. Similarly, Defendant’s contention that the trial
court erred by allowing the jury to find that he was guilty of
felonious speeding to elude arrest on the grounds that he drove
100 miles per hour in a 55 mile per hour zone is rendered moot
by our decision to invalidate his felonious speeding to elude
arrest conviction and by the jury’s decision to acquit him of
the speeding charge that had been lodged against him. Finally,
although our decision that the record did not contain sufficient
evidence to support Defendant’s conviction for felonious
speeding to elude arrest obviates the necessity for us to
address Defendant’s challenge to the trial court’s decision to
sentence him as an habitual felon, we do note that the trial
court erred by accepting Defendant’s admission to having
attained habitual felon status without complying with the
procedures for accepting a guilty plea set out in N.C. Gen.
Stat. § 15A-1022(a).
 -17-
2013 criminal session of the Pender County Superior Court. Once

again, we conclude that Defendant’s contention has merit.

“Art. I, sec. 12 of our Constitution requires a bill of

indictment, unless waived, for all criminal actions originating

in the Superior Court,” with “a valid bill [being] necessary to

vest the court with authority to determine the question of guilt

or innocence.” State v. Bissette, 250 N.C. 514, 515, 108 S.E.2d

858, 859 (1959). As a result of the fact that the record

clearly reflects that the indictment purporting to charge

Defendant with reckless driving was dismissed during the course

of Defendant’s first trial and that the State never obtained

another indictment charging Defendant with reckless driving,

there was no valid indictment upon which Defendant could have

been tried for reckless driving at the 30 April 2013 criminal

session of the Pender County Superior Court. As a result, the

trial court erred by allowing Defendant to be tried for and

convicted of reckless driving at his second trial.

In seeking to persuade us to reach a different result with

respect to this issue, the State argues that, to the extent that

Defendant is attempting to argue that his reckless driving

conviction should be invalidated on double jeopardy grounds,

Defendant is not entitled to rely on such a contention because

he failed to raise it in the court below. In the alternative,
 -18-
the State contends that Defendant’s conviction was valid because

the record contains a bill of indictment purporting to charge

Defendant with reckless driving. However, we do not find either

of these arguments persuasive.

As an initial matter, we do not understand Defendant’s

argument to rest on double jeopardy considerations. Instead,

Defendant clearly contends that the trial court lacked

jurisdiction to try him for reckless driving in light of the

fact that the record is devoid of a viable indictment charging

him with having committed that offense. According to well-

established principles of North Carolina law, “the issue of a

court’s jurisdiction over a matter may be raised at any time,

even for the first time on appeal or by a court sua sponte.”

State v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622

(2008). Finally, the mere presence of an indictment containing

the dismissed charge in the record does not suffice to establish

the trial court’s jurisdiction over the dismissed charge since

the continued presence of the indictment, which charges offenses

that have not been dismissed in addition to the charge that has

been dismissed, in the record does not in any way undercut the

earlier dismissal decision or reinstate the dismissed charge.

See, e.g., State v. Austin, 31 N.C. App. 20, 26-27, 228 S.E.2d

507, 512 (1976) (stating that, as “[d]efendant Thorne points
 -19-
out, and the State concedes, . . . the indictment against him in

Case No. 75CR3585, which was returned as a true bill on 15 April

1975, was dismissed by the trial court on motion of defendant

prior to arraignment,” so that “the judgment entered in that

case must be vacated”). As a result, Defendant’s conviction for

reckless driving and judgment entered against Defendant based

upon that conviction must be vacated.6

III. Conclusion

Thus, for the reasons stated above, we conclude that the

trial court erred by denying Defendant’s motion to dismiss the

speeding to elude arrest charge that had been lodged against him

for insufficiency of the evidence, a determination that

undermines the validity of Defendant’s conviction for having

attained the status of an habitual felon, and by allowing the

jury to convict Defendant of reckless driving and by entering

judgment against Defendant based upon his conviction for

reckless driving.7 As a result, given that Defendant has not

6
In light of our decision to overturn the judgment stemming
from Defendant’s reckless driving conviction for jurisdictional
reasons, we need not address Defendant’s challenge to the
validity of the trial court’s instructions with respect to the
issue of Defendant’s guilt of reckless driving.
7
As we noted at the beginning of this opinion, Defendant
also contended in his brief that he received constitutionally
deficient representation from his trial counsel, with this
contention predicated on the manner in which his trial counsel
responded to the introduction of various certificates showing
 -20-
challenged the validity of his convictions for driving while

license revoked or possession of drug paraphernalia or the trial

court’s judgment based upon the jury’s decision to find him

responsible for driving left of center, the trial court’s

judgment based upon his convictions for felonious speeding to

that Detective Ramos had completed various courses of
instruction, the manner in which his trial counsel cross-
examined Mr. Monteith concerning Defendant’s prior driving
history, his trial counsel’s failure to object to the trial
court’s instructions with respect to the reckless driving
charge, and his trial counsel’s failure to make an adequate
sentencing presentation. As a result of our decision to vacate
Defendant’s speeding to elude arrest and reckless driving
convictions and to remand this case to the Pender County
Superior Court for resentencing, Defendant’s contentions
relating to his trial counsel’s handling of the certificates
awarded to Detective Ramos, his trial counsel’s failure to
object to the trial court’s reckless driving instructions, and
his trial counsel’s alleged failure to make an effective
sentencing presentation have been rendered moot. Although we do
not believe that our decision has mooted Defendant’s challenge
to the manner in which his trial counsel cross-examined Mr.
Monteith, we do not believe that there is any likelihood that
Defendant would have been acquitted of driving while license
revoked and possession of drug paraphernalia and found not
responsible for driving left of center had the jury not heard
the additional evidence concerning Defendant’s prior driving
history elicited during the cross-examination of Mr. Monteith.
State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15
(2000) (stating that a convicted criminal defendant is not
entitled to relief on ineffective assistance of counsel grounds
in the absence of a showing “that the error committed was so
serious that a reasonable probability exists that the trial
result would have been different absent the error” (citing
Strickland v. Washington, 466 U.S. 668, 691-96, 104 S. Ct. 2052,
2066-69, 80 L. Ed. 2d 674, 696-99 (1984))), cert. denied, 531
U.S. 1117, 121 S. Ct. 868, 148 L. E. 2d 780 (2001). As a
result, Defendant is not entitled to any relief from his
remaining convictions based upon the ineffective assistance of
counsel claim asserted in his brief.
 -21-
elude arrest, reckless driving, driving while license revoked,

and possession of drug paraphernalia should be, and hereby is,

vacated and this case should be, and hereby is, remanded to the

Pender County Superior Court for resentencing and the entry of a

new judgment based upon Defendant’s convictions for driving

while license revoked and possession of drug paraphernalia.

VACATED IN PART, NO ERROR IN PART, AND REMANDED FOR

RESENTENCING.

Judges MCGEE and STEELMAN concur.

Report per Rule 30(e).