State v. QuickÂ

               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA19-1023

                              Filed: 20 October 2020

Wake County, Nos. 99 CRS 17681-83

STATE OF NORTH CAROLINA

             v.

WILLIAM LAMONTE QUICK


      Appeal by Defendant from Judgments entered 19 April 2000 by Judge Henry

W. Hight, Jr., in Wake County Superior Court. Heard in the Court of Appeals 26

August 2020.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J.
      Uicker, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine
      Jane Allen, for defendant-appellant.


      HAMPSON, Judge.


      William Lamonte Quick (Defendant) appeals from Judgments entered on 19

April 2000 upon his conviction of Felony Possession of Cocaine, Possession of a

Firearm by a Felon, Possession of a Weapon on School Property, and Misdemeanor

Resisting a Public Officer, Second Degree Trespass, and Carrying a Concealed

Weapon. The sole issue raised by Defendant on direct appeal from these convictions

is whether he was deprived of a right to a speedy appeal and effective assistance of

appellate counsel during the nineteen years it took for this appeal to be docketed in
                                         STATE V. QUICK

                                        Opinion of the Court



this Court because his prior appointed appellate counsel did not take action to timely

prosecute the appeal. The State has filed a Motion requesting, in part, this Court

dismiss Defendant’s appeal without prejudice to his right to seek appropriate post-

conviction relief on this issue in the trial court. Because the Record before us is

insufficient for us to evaluate Defendant’s claims on direct appeal, we allow the

State’s Motion and dismiss Defendant’s appeal without prejudice to his right to seek

post-conviction relief. 1

                         Factual and Procedural Background

       The Record before us tends to show the following:

       On 21 January 1999, a Wake County Grand Jury indicted Defendant for

Possession with Intent to Sell and Deliver Cocaine, Possession of a Firearm by a

Felon, Resisting a Public Officer, Possession of a Firearm on School Property,

Trespass, and Carrying a Concealed Firearm.                    At some point before trial, a

Competency Hearing was held regarding Defendant’s ability to stand trial. The

Record does not contain any transcript of Defendant’s Pretrial Competency Hearing.

       Defendant’s case came to trial in Wake County Superior Court on 18 April

2000. At trial, the State presented the testimony of Raleigh Police Officer Richard



       1 The State, as part of its Motion, originally requested this Court also compel Defendant to
produce additional transcripts from a prior appeal arising from different charges against Defendant.
Defendant produced the additional transcripts in responding to the State’s Motion. The State filed a
Motion to Withdraw the portion of its Motion to Dismiss asking this Court to order Defendant to
produce additional transcripts. We grant the State’s Motion to Withdraw this portion of its Motion to
Dismiss.

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                                  Opinion of the Court



Hoffman (Officer Hoffman). Officer Hoffman testified that, on 2 March 1999, he and

his partner were patrolling the area around Birch Wood Apartments. The officers

saw a group of four men in a courtyard where police had received complaints of drug

activity. The officers approached the men to speak with them. Two of the men

stopped, but Defendant ran.

      Officer Hoffman chased Defendant through private yards and an elementary

school’s grounds. During the chase, Officer Hoffman testified he saw Defendant

remove a jacket and throw it onto the ground. Defendant then tried to hail a taxi cab,

but Officer Hoffman was able to catch up and grab Defendant before he could escape

in the cab. Shortly after arresting Defendant, Officer Hoffman retrieved the jacket

he said he had seen Defendant discard. Officer Hoffman testified that he found a

silver .380-caliber handgun, loaded with six rounds, and 3.0 grams of cocaine in the

jacket.

      After the State and Defendant presented evidence, the jury found Defendant

guilty of all charges—with the exception of Possession of Cocaine with Intent to Sell

or Deliver on which the jury returned a guilty verdict on the lesser included offense

of Possession of Cocaine. The trial court sentenced him to consecutive prison terms of

8-10 months for Possession of Cocaine, 20-24 months for Possession of a Firearm by

a Felon, and 8-10 months for the consolidated misdemeanor charges. Defendant gave




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                                   Opinion of the Court



oral Notice of Appeal in open court. The trial court appointed the Appellate Defender

as appellate counsel with trial counsel, Mr. Graham, as an alternate.

        On 25 April 2000, the Appellate Defender declined appointment and served

notice to Mr. Graham that he was responsible for Defendant’s appeal. On 9 July

2002, Mr. Graham moved to withdraw as Defendant’s appellate counsel and to

appoint Mr. Lemuel Hinton in his place. The Motion to Withdraw was allowed the

same day.

        Years passed with nothing being done to process Defendant’s appeal until

December 2018 when Defendant contacted Prisoner Legal Services, Mr. Hinton, and

the Officer of the Appellate Defender regarding the status of his appeal. On 29 April

2019, Prisoner Legal Services filed a Motion for Reappointment of Legal Counsel.

Attached to this Motion was an affidavit from Mr. Hinton in which he stated that he

was initially unaware of his appointment in 2002. Mr. Hinton also stated he received

copies of the trial transcripts in this case, but could not recall when or how he received

them.

        Ultimately, Mr. Hinton realized, at some point, he was appointed to represent

Defendant on appeal in this matter, but “mistakenly allowed the time to lapse for

preparing the appeal.” On 21 May 2019, the Wake County Superior Court appointed

the Appellate Defender to represent Defendant in this appeal. This Court entered

Orders to deem Defendant’s appellate filings in this case timely and to clarify that



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                                     Opinion of the Court



the appeal would proceed under the North Carolina Rules of Appellate Procedure in

effect as of 1 January 2019.

                                           Issue

      The dispositive issue is whether the Record before us is sufficient for this Court

to review Defendant’s Speedy Appeal and Ineffective Assistance of Appellate Counsel

claims on direct appellate review.

                                         Analysis

      We review alleged violations of constitutional rights de novo. State v. Graham,

200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009). For speedy appeal claims, any

“undue delay in processing an appeal may rise to the level of a due process violation.”

State v. China, 150 N.C. App. 469, 473, 564 S.E.2d 64, 68 (2002) (citation and

quotation marks omitted). In determining whether a defendant’s constitutional due

process rights have been violated by delays in processing the appeal, we consider the

following factors: “(1) the length of the delay; (2) the reason for the delay; (3)

defendant’s assertion of his right to a speedy appeal; and (4) any prejudice to

defendant.” Id. (citing State v. Hammonds, 141 N.C. App. 152, 158, 541 S.E.2d 166,

172 (2000)). No one factor is dispositive; the factors are related and are considered

along with other relevant circumstances. Id.

      Here, the nineteen-year delay in processing Defendant’s appeal is more than

“lengthy and sufficient” to warrant consideration of the remaining China factors. Id.



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                                  Opinion of the Court



at 474, 564 S.E.2d at 68 (six-year delay in “processing defendant’s appeal is lengthy

and sufficient to examine the remaining factors”). Also, as in China, Defendant

contends the reason for the delay in his appeal was the ineffective assistance of his

prior-appointed appellate counsel.

      By his own admission, Mr. Hinton, Defendant’s prior appellate counsel,

became aware he was appointed as Defendant’s appellate counsel, but he “mistakenly

allowed the time to lapse for preparing the appeal.” Despite the delivery, at some

point, of transcripts of Defendant’s trial, no further action was taken by appointed

appellate counsel in the appeal for nineteen years. Indeed, the facts surrounding the

length of the delay and reason why the appeal was so delayed appear relatively well-

established on this Record. It is the remaining two factors—Defendant’s assertion of

his right to a speedy appeal and the resulting prejudice, if any, from the delay—that,

in addition to any other relevant circumstances, require additional evidentiary

development.

      For instance, in China, we observed the defendant’s six-year silence in

asserting his right to appeal was “deafening” and, although not dispositive, weighed

heavily against his due process claims. Id. at 474-75, 564 S.E.2d at 68. Here,

Defendant did not inquire about his appeal for approximately eighteen years, which

absent other facts, would weigh against his current assertion of a right to a speedy

appeal. However, on appeal, Defendant argues his “mental illness, developmental



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                                   Opinion of the Court



disabilities, and neurological disorders” prevented him from asserting his right to a

speedy appeal during this time period. The Record before us contains a Pretrial

Competency Report outlining conflicting findings as to Defendant’s mental illness,

developmental disabilities, and neurological disorders.       The Record contains no

transcript of the Competency Hearing itself.         Defendant points to a number of

references in the Record to Defendant’s mental illness including diagnosis of bipolar

disorder, medications, and pretrial suicide attempts.

      Defendant was, however, found competent to stand trial and assist in his

defense at the time of the original trial. The Record, at this stage, is underdeveloped

as to what, if any, impact Defendant’s alleged mental illness, developmental

disabilities, and/or neurological disorders had during the time his appeal was allowed

to languish and on his ability to inquire as to the status of his appeal.

      Likewise, Defendant contends he suffered prejudice resulting from the passage

of time. For example, Defendant contends even though there are transcripts of the

evidence presented at his trial there are no transcripts of jury selection, opening

statements, closing arguments, the competency hearing, or the jury instructions. As

such, Defendant argues appellate counsel cannot effectively identify, isolate, and

brief issues for appeal, and further, that this constitutes the “most serious” form of

prejudice.




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                                    STATE V. QUICK

                                   Opinion of the Court



      Defendant’s counsel included in the Record a number of emails with court

reporters and record-keepers indicating there are likely no “notes, tapes, or discs”

from the reporters regarding the unreported portions. Defendant also asserts “some

individuals associated with the proceedings are unavailable for purposes of record

reconstruction assistance.” Defendant points out one of the reporters is deceased,

and Defendant contends his trial counsel, Mr. Graham, joined the Attorney General’s

office and is “aligned with the party-opponent and thus has a conflict which prohibits

him from engaging in the reconstruction process

      Again, however, Defendant’s arguments would require us, in the first instance,

to make factual determinations not only as to the veracity of his claims, but also

whether and what prejudice resulted in his ability to reconstruct the Record or to

identify potential issues on appeal that were lost because of the failure to reconstruct

the Record in its entirety.

      Defendant has not filed a Motion for Appropriate Relief in this Court pursuant

to N.C. Gen. Stat. § 15A-1418, which might provide an avenue to simply remand the

matter to the trial court for an initial determination. Instead, Defendant urges us to

resolve these issues on direct appeal. This Court is generally not a fact-finding court,

and we are unable to resolve these questions of fact on the Record before us. See

Johnston v. State, 224 N.C. App. 282, 302, 735 S.E.2d 859, 873 (2012). Rather, this

case is analogous to claims of ineffective assistance of counsel made on direct appeal.



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                                    STATE V. QUICK

                                   Opinion of the Court



      For “ineffective assistance of counsel claims brought on direct review,” we

decide the claims “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 . . . an evidentiary hearing.” State v. Thompson, 359 N.C. 77,

122-23, 604 S.E.2d 850, 881 (2004) (citation and quotation marks omitted). When we

determine such ancillary procedures are needed, “we dismiss those claims without

prejudice, allowing defendant to bring them pursuant to a subsequent motion for

appropriate relief in the trial court.” Id. at 123, 604 S.E.2d at 881.

      After an evidentiary hearing, “[a] trial court’s ruling on a motion for

appropriate relief pursuant to G.S. 15A-1415 is subject to review . . . [i]f the time for

appeal has expired and no appeal is pending, by writ of certiorari.” State v. Morgan,

118 N.C. App. 461, 463, 455 S.E.2d 490, 491 (1995) (citation and quotation marks

omitted) (modifications in the original). Consequently, we dismiss Defendant’s direct

appeal, without prejudice, to permit Defendant to pursue a Motion for Appropriate

Relief on the issues of his speedy appeal and related ineffective assistance of counsel

claims and to develop the facts in the trial court in an evidentiary hearing.

                                     Conclusion

      Accordingly, for the foregoing reasons, we dismiss Defendant's appeal

without prejudice to pursue the claims asserted in this appeal through a

Motion for Appropriate Relief in the trial court.



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                       STATE V. QUICK

                      Opinion of the Court



DISMISSED.

Judges TYSON and BROOK concur.




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