NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 5 June v. Caldwell County Nos. 07 CRS CRS TERRY ALLEN HALL, Defendant.

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA NORTH CAROLINA COURT OF APPEALS Filed: 5 June 2012 STATE OF NORTH CAROLINA v. Caldwell County Nos. 07 CRS CRS TERRY ALLEN HALL, Defendant. Review by writ of certiorari from judgment entered 19 September 2007 by Judge Beverly T. Beal and order entered 7 July 2010 by Judge Timothy S. Kincaid in Caldwell County Superior Court. Heard in the Court of Appeals 6 March Roy Cooper, Attorney General, by Kathryne E. Hathcock, Assistant Attorney General, for the State. Mercedes O. Chut, for defendant-appellant. MARTIN, Chief Judge. On 24 March 2011, this Court granted certiorari to review defendant s 19 September 2007 convictions and the trial court s 7 July 2010 order denying defendant s motion for appropriate relief. We affirm the trial court s order.

2 -2- The following facts are relevant to this appeal. In 2007, defendant was charged in bills of information with habitual impaired driving and attaining the status of a habitual felon. The bill of information charging habitual impaired driving alleged three prior impaired driving convictions from Caldwell County District Court convictions with dates of 7 July 1998, 21 August 2000, and 18 March The bill of information charging habitual felon alleged six prior convictions convictions with dates of 16 June 1986, 10 December 1986, 10 February 1991, 14 June 1991, 1 June 1993, and 8 July Defendant was represented by counsel during the trial court proceedings, and on 19 September 2007, he pled guilty to both offenses. In May 2009, defendant filed a motion for appropriate relief. Defendant argued he had received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984), during the trial proceedings. He contended his counsel was deficient for failing to file a motion to suppress a prior conviction obtained in violation of the right to counsel under N.C.G.S. 15A-980. He also contended his counsel was deficient for failing to file a motion to strike surplus language in the bill of information charging habitual

3 -3- impaired driving on the ground that the allegations violated N.C.G.S. 15A-928(A). We initially note that, in his brief to this Court, defendant neglects to bring forward his argument that he received ineffective assistance of counsel when his counsel failed to file a motion to strike surplus language in the bill of information charging habitual impaired driving on the ground that the allegations violated N.C.G.S. 15A-928(A). Thus, we do not consider the issue. Defendant s first argument is that the bill of information charging habitual impaired driving varied from the proof, and that his counsel s failure to investigate this issue amounted to ineffective assistance of counsel. He contends the bill of information for one of his predicate impaired driving convictions alleged a conviction date of 7 July 1998, whereas the proof showed a conviction date of 6 July Defendant did not argue this issue in his written motion for appropriate relief, and although our review of the transcript from the hearing on defendant s motion reveals that defendant made this argument during the hearing, it does not appear that defendant moved to amend his written motion before or during the hearing in accordance with N.C.G.S. 15A-1415(g). Therefore, defendant

4 -4- has failed to preserve this issue for appellate review. See State v. Moore, 185 N.C. App. 257, , 648 S.E.2d 288, (2007), disc. review dismissed, 362 N.C. 368, 661 S.E.2d 891 (2008); see also N.C.R. App. P. 10(a)(1). However, we further note that, had this issue been properly preserved, and had defendant s trial counsel investigated this predicate conviction and challenged the bill of information on this ground, time was not of the essence as to the offense of habitual impaired driving and defendant was not surprised by the variance. See State v. Spruill, 89 N.C. App. 580, 582, 366 S.E.2d 547, 548, cert. denied, 323 N.C. 368, 373 S.E.2d 554 (1988). Thus, this issue is entirely without merit. Defendant also argues there was insufficient evidence to convict him of habitual impaired driving because the State failed to provide a certified copy of his 21 August 2000 impaired driving conviction, and argues his counsel rendered ineffective assistance by failing to challenge the bill of information on this ground. Again, defendant did not argue this issue in his motion for appropriate relief or move to amend his written motion before or during the hearing in accordance with N.C.G.S. 15A-1415(g). Thus, defendant has also failed to preserve this issue for appellate review. See Moore, 185 N.C. App. at , 648 S.E.2d 288, ; see also N.C.R. App. P.

5 -5-10(a)(1). We further note that defendant pled guilty to the offense of habitual impaired driving, stipulating to his 21 August 2000 impaired driving conviction, and that during the hearing on his motion for appropriate relief, defendant again admitted to his 21 August 2000 impaired driving conviction. Thus, this issue is entirely without merit. Finally, defendant argues that his counsel provided ineffective assistance by failing to investigate the bill of information charging him with being a habitual felon to determine whether defendant was represented by counsel when he was convicted of impaired driving in 87 CR Defendant also failed to argue this issue in his motion for appropriate relief or move to amend his written motion before or during the hearing in accordance with N.C.G.S. 15A-1415(g), and has therefore also failed to preserve this issue for appellate review. See Moore, 185 N.C. App. at , 648 S.E.2d 288, ; see also N.C.R. App. P. 10(a)(1). We further note that, based on this Court s review of the transcript from the hearing on defendant s motion for appropriate relief, the conviction in 87 CR 4274 appears to have been a predicate offense for defendant s habitual impaired driving conviction from 14 June 1991, which, in turn, was a predicate felony for defendant s habitual felon charge. The authority defendant cites in his

6 -6- brief does not support an argument that the failure to investigate a predicate conviction for a charge which served as a predicate conviction for a later charge to determine whether a defendant was represented by counsel during the initial conviction amounts to ineffective assistance of counsel, and we conclude that it does not. Affirmed. Judges HUNTER and STEPHENS concur. Report per Rule 30(e).