No. COA07-986.North Carolina Court of Appeals.
Filed February 19, 2008.
Guilford County Nos. 03 CRS 047920-047921.
Appeal by defendant from judgments entered 27 October 2006 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 17 January 2008.
Attorney General Roy Cooper, by Associate Attorney General LaToya B. Powell, for the State.
M. Alexander Charns, for defendant-appellant.
TYSON, Judge.
Jaime Lopez (“defendant”), a.k.a. Jardial Alvarez, appeals judgments entered after a jury found him to be guilty of: (1) trafficking in heroin by possession pursuant to N.C. Gen. Stat. § 90-95(h)(4) and (2) conspiracy to traffic in heroin pursuant to N.C. Gen. Stat. § 90-98. We find no error in part and vacate in part.
I. Background
In September 2003, High Point Police Department Lieutenant John Ferrell (“Lieutenant Ferrell”) was assigned to a multi-jurisdictional drug interdiction task force with the United States Drug Enforcement Administration. Lieutenant Ferrell’s primary responsibility included intercepting narcotics as they entered his patrol area. On 15 September 2003, Lieutenant Ferrell was contacted by an employee of Overnight Transportation, a trucking company, which ships freight throughout the United States. Lieutenant Ferrell immediately met with the employee and investigated a questionable shipment of freight. The bill of lading indicated the suspicious freight had been shipped from Fontana, California, a city “in the southwestern portion of California . . . near the Mexican border.” After reviewing the bill of lading, Lieutenant Ferrell discovered the freight contained a “college dorm room refrigerator” and determined the cost of shipping “didn’t make much sense” because the price of the refrigerator was less than the cost to ship the freight. Based on this information, Lieutenant Ferrell decided to pursue the investigation further.
Lieutenant Ferrell secured and transported the freight to the offsite location for the Guilford County Sheriff’s Office. Detective Melton, Lieutenant Ferrell’s partner, arrived shortly thereafter with his narcotics detection dog. Detective Melton’s dog conducted a “sniff search” of the office in which the freight was located and alerted to the odor of narcotics coming from the freight. Detective Melton obtained a search warrant and opened the freight. Meanwhile, other task force officers drove to the residence where the freight shipment was addressed and conducted surveillance.
After executing the search warrant, Lieutenant Ferrell found the refrigerator contained “two bundles” wrapped in cellophane. Afield test kit revealed the “bundles” contained heroin. Lieutenant Ferrell and other task force officers decided to do a controlled delivery to the freight’s intended recipient and obtained an anticipatory search warrant for the recipient’s residence.
Lieutenant Ferrell dressed as an Overnight Transportation employee, loaded the freight into the back of a truck, and proceeded to the recipient’s address. Upon Lieutenant Ferrell’s arrival, defendant paid and signed for delivery as “James Lopez.” Lieutenant Ferrell assisted defendant in carrying the freight into his residence. Lieutenant Ferrell left defendant’s residence while other task officers continued surveillance. Lieutenant Ferrell, Detective Melton, and other task force officers executed the anticipatory search warrant and detained defendant and three other men. Further investigation established defendant’s involvement in a conspiracy to ship heroin from California to North Carolina and to further transport the heroin to New York by vehicle.
On 17 November 2003, a Guilford County grand jury indicted defendant for: (1) trafficking in heroin by possession and (2) conspiracy to traffic a controlled substance. On 20 July 2004, defendant was also indicted in the United States District Court of the Southern District of New York for “unlawfully, intentionally, and knowingly . . . conspir[ing] . . . with . . . other[s] to violate the narcotics laws of the United States.”
On 7 February 2006, a judgment was entered by the United States District Court for the Southern District of New York, which indicated defendant had pled guilty to conspiracy to distribute and possess with intent to distribute narcotics in violation of 21 U.S.C. § 846. Defendant was sentenced to a term of 120 months imprisonment.
On 24 October 2006, defendant’s trial began in the Guilford County Superior Court. On 27 October 2006, the jury found defendant to be guilty of: (1) trafficking in heroin by possession of more than twenty-eight grams and (2) conspiracy to traffic in heroin by possession of more than twenty-eight grams. The trial court determined defendant to be a prior record level III offender and sentenced defendant in the presumptive range to consecutive terms of a minimum of 225 months and a maximum of 279 months imprisonment. Defendant appeals.
II. Issues
Defendant argues the trial court erred by allowing defendant to be tried and sentenced for the same criminal conduct for which he was convicted of in federal court in violation of N.C. Gen. Stat. § 90-97. Defendant also argues he received ineffective assistance of counsel.
III. N.C. Gen. Stat. § 90-97
Defendant argues and the State concedes that defendant was unlawfully convicted of conspiracy to traffic in heroin by possession in Guilford County because he was previously convicted under federal law for the “same act” pursuant to 21 U.S.C. . 846. We agree.
N.C. Gen. Stat. § 90-97 (2005) provides:
Any penalty imposed for violation of [the North Carolina Controlled Substances Act]shall be in addition to, and not in lieu of, any civil or administrative penalty or sanction authorized by law. If a violation of this Article is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this State.
(Emphasis supplied). This Court has previously held that “`the same act’ as used in N.C. Gen. Stat. § 90-97 focuses the relevant analysis on the underlying actions for which defendant is prosecuted at the state and federal levels. . . .” State v. Brunson, 165 N.C. App. 667, 671, 599 S.E.2d 576, 579
(2004). We must determine whether defendant was prosecuted for “the same act” in both the federal and state courts in violation of N.C. Gen. Stat. § 90-97.
Prior to defendant’s trial in North Carolina, he was indicted in the United States District Court for the Southern District of New York. The indictment alleged that defendant had conspired with Jose Chacon, Rafael Fuentes, Eddy Ulerio, Rene Escalante Vazquez, and Genaro Holguin to violate the narcotics laws of the United States. The indictment alleged that in furtherance of the conspiracy, defendant was involved in two different overt acts: (1) “[b]etween in or around July 2003 and in or about September 2003, in North Carolina, . . . defendants, possessed approximately 7 kilograms of cocaine . . . to be delivered to the Bronx, New York?;” and (2) “[i]n or about September 2003, in North Carolina, . . . the defendants, possessed approximately 2 kilograms heroin to be delivered to the Bronx, New York.” Defendant subsequently pled guilty to conspiracy to distribute and possess with intent to distribute narcotics pursuant to 21 U.S.C. . 846. The following exchange occurred between the Judge of the United States District Court and defendant upon entry of his guilty plea:
The Court: [defendant], tell me what you did in connection with Count 2 of this indictment that makes you guilty of this offense.
. . . .
The Court: You agreed with other people you would, be involved with this drug deal?
Defendant: Yes, sir.
The Court: What role were you going to play in, this drug deal?
. . . .
Defendant: I was only going to go and sign for, the refrigerator.
The Court: What were you going to do after you, signed for it?
Defendant: Leave it there in the house where I, was.
. . . .
The Court: Where did this take place? Where was, the house?
Defendant: It was in North Carolina. I don’t remember, the city.
. . . .
The Court: The drugs were coming from where?
Defendant: L.A., I think.
. . . .
The Court: This happened about when?
Defendant: September 15, 2003.
The United States District Court’s judgment stated that the offense ended on 30 September 2003 and that defendant had remained in federal custody since 15 September 2003. Further, the U.S. Attorneys prosecuting defendant in the United States District Court subpoenaed all the exhibits that were to be used against defendant in the present case.
Here, defendant was also indicted for conspiracy to traffic heroin by possession in Guilford County Superior Court. The indictment stated that defendant had conspired with Eddy Ulerio, Rafael Fuentes and Johnny Sanchez to commit felony trafficking by possession of heroin and listed the date of the offense as 15 September 2003. Defendant was tried and convicted for conspiracy to traffic heroin by possession based on the same series of facts and events used to support his previous conviction in the United States District Court.
It is clear that “the underlying actions for which defendant [was] prosecuted” at both the federal and state level constituted the “same act.” Id. Defendant’s federal conviction for conspiracy to distribute and possess with intent to distribute narcotics bars his prosecution for conspiracy to traffic heroin by possession in North Carolina. N.C. Gen. Stat. § 90-97. Defendant’s conviction and sentence for conspiracy to traffic heroin by possession pursuant to N.C. Gen. Stat. § 90-98 in case file 03 CRS 047921 is vacated. Because defendant was not convicted of trafficking in heroin by possession in federal court, we find no error in his conviction and sentence in case file 03 CRS 047920. See State v. Morston, 336 N.C. 381, 391, 445 S.E.2d 1, 6 (1994) (“a defendant properly may be convicted of, and punished for, both conspiracy and the substantive offense which the defendant conspired to commit.”).
IV. Ineffective Assistance of Counsel
Defendant argues he received ineffective assistance of counsel based on defense counsel’s failure to request recordation of the jury selection, bench conferences, and opening and closing arguments during trial. We disagree.
“To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel’s performance was deficient and then that counsel’s deficient performance prejudiced his defense.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693
(1984)), cert. denied, ___ U.S. ___, 166 L. Ed. 2d 116
(2006). Defendant states in his brief, “[he] makes this argument for preservation purposes so it is not waived by the failure to point out this deficient performance of trial counsel. He cannot at this time show prejudice from the failure to record the entire trial.” (Emphasis supplied). In the absence of any showing of prejudice by defendant, this assignment of error is overruled.
V. Conclusion
Defendant’s federal conviction for conspiracy to distribute and possess with intent to distribute narcotics, bars his prosecution for conspiracy to traffic heroin by possession in North Carolina pursuant to N.C. Gen. Stat. § 90-97. Defendant’s conviction and the sentence imposed in case file 03 CRS 047921 is vacated. We find no error in defendant’s remaining conviction and sentence for trafficking heroin by possession in case file numbered 03 CRS 047920.
Defendant has failed to make the required showing of prejudice to prevail on an ineffective assistance of counsel claim Allen, 360 N.C. at 316, 626 S.E.2d at 286. We find no error in part and vacate in part.
No error in part; vacated in part.
Judges GEER and STROUD concur.
Report per Rule 30(e).