State of Louisiana v. Dontrale Demarko Phillips

NOT FOR PUBLICATION
STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-254

STATE OF LOUISIANA

VERSUS

DONTRALE DEMARKO PHILLIPS

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 313,293
HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE

************

SYLVIA R. COOKS
JUDGE

************

Court composed of Sylvia R. Cooks, Jimmie C. Peters and John E. Conery, Judges.

AFFIRMED.

James C. Downs, District Attorney
Brian D. Cespiva, Assistant District Attorney
Parish of Rapides
P.O. Drawer 1472
Alexandria, LA 71309
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

Douglas Lee Harville
Louisiana Appellate Project
400 Travis Street, Suite 1702
Shreveport, LA 71101-3144
(318) 222-1700
COUNSEL FOR APPELLANT:
Dontrale Demarko Phillips

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On July 18, 2012, Defendant, Dontrale Demarko Phillips, entered a Circle K

convenience store located on Masonic Drive in Alexandria, Louisiana and

committed an armed robbery. During the robbery, Defendant discharged a silver

handgun into the ceiling of the store. Cherie Moose, Defendant’s girlfriend at the

time, drove Defendant to the store, waited while the robbery was committed, and

then drove Defendant from the scene. Moose later positively identified Defendant

as the perpetrator of the crime. A shell casing was found at the scene, which was

later matched to a handgun later found in a duffel bag in Defendant’s bedroom.

On July 22, 2012, Defendant committed an armed robbery of a Subway

restaurant located on Masonic Drive in Alexandria, Louisiana. Moose again drove

Defendant to and from the scene, and later identified him as the perpetrator of the

crime.

On July 29, 2012, Defendant committed another armed robbery, this time of

a Dollar General store located on MacArthur Drive in Alexandria, Louisiana.

Moose again drove Defendant to and from the scene, and later identified him as the

perpetrator of the crime.

Defendant was charged by bill of information filed on October 29, 2012,

with three counts of armed robbery, violations of La.R.S. 14:64. On the same date,

Defendant moved to represent himself and waived his right to trial by jury.

Defendant refused to enter a plea on November 30, 2012; thus, the trial court

entered a plea of not guilty on his behalf.

On its own motion, the trial court appointed a sanity commission to examine

Defendant. On March 18, 2013, the trial court found Defendant was unable to

comprehend the proceedings against him and to assist in his defense. Defendant

was subsequently committed to the custody of the Eastern Louisiana Health
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System, Forensic Division. On June 10, 2013, the trial court found Defendant had

the mental capacity to stand trial and to represent himself.

A bench trial commenced on December 10, 2103, with Defendant

representing himself with the assistance of “hybrid counsel.” Defendant was

subsequently found guilty as charged. On December 17, 2013, Defendant was

sentenced to serve thirty years at hard labor without benefit of probation, parole, or

suspension of sentence on each count, to run consecutively. After he was

sentenced, Defendant filed a pro se motion to appeal in open court, which was

granted. A pro se supplemental motion for appeal was filed on December 30,

2013, and was subsequently granted.

A pro se motion to reconsider sentence was filed on January 9, 2014, and

denied the same day. A second pro se motion to reconsider sentence was filed on

January 21, 2014, and was denied the following day.

Defendant is now before this court asserting one counsel-filed assignment of

error. Therein, he contends the trial court erred in imposing sentences that are

unconstitutionally excessive. Defendant also filed two pro se briefs in this matter

in which he asserts the following assignments of error: 1) the trial court committed

reversible error when it denied Appellant’s 6th and 14th amendment rights of the

United States Constitution and Article 1, § 13 of the Louisiana Constitution by

failing to appoint counsel for Defendant at a critical stage in the proceedings and

forcing Defendant to represent himself; 2) the trial court committed reversible error

by admitting statements introduced in evidence against him at the preliminary

examination where he was denied counsel at the trial through the oral testimony of

the State’s witnesses; and 3) the trial court erred in proceeding with the trial when

no valid bill of information had been filed.

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ANALYSIS

In his counsel-filed assignment of error, Defendant contends the trial court

erred in imposing sentences that are unconstitutionally excessive.

This court discussed the standard of review applicable to claims of

excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867

So.2d 955, 958-59, as follows:

The Eighth Amendment to the United States Constitution and
La. Const. art. I, § 20 prohibit the imposition of cruel or excessive
punishment. “ ‘[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.’ ”
State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is
given wide discretion in imposing a sentence, and, absent a manifest
abuse of that discretion, we will not deem as excessive a sentence
imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir.
3/6/96), 670 So.2d 713. However, “[m]aximum sentences are
reserved for the most serious violations and the worst offenders.”
State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d
217, 225. The only relevant question for us to consider on review is
not whether another sentence would be more appropriate, but whether
the trial court abused its broad discretion in sentencing a defendant.
State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519
U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

The fifth circuit, in [State v.] Lisotta, [98-646 (La.App. 5 Cir.
12/16/98),] 726 So.2d [57] at 58, stated that the reviewing court
should consider three factors in reviewing the trial court’s sentencing
discretion:

1. The nature of the crime,

2. The nature and background of the offender, and

3. The sentence imposed for similar crimes by the same court and
other courts.

Defendant was convicted of three counts of armed robbery. Each count was

punishable by imprisonment at hard labor for not less than ten nor more than

ninety-nine years without benefit of probation, parole, or suspension of sentence.

La.R.S. 14:64. Defendant received a sentence of thirty years at hard labor without

benefit of probation, parole, or suspension of sentence on each count, to run

consecutively.
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At the sentencing hearing, Defendant stated he was twenty-nine years old

and had completed the tenth grade. He worked at various jobs, including working

in lumber yards. He did not recall when he last worked, had a daughter who was

about to turn four years old, and did not pay child support.

The trial court then discussed Defendant’s criminal history as follows:

Since 2001 in Alexandria, I see in ‘01 you were arrested for
possession with intent, CDSI. That was dismissed. Possession of
marijuana that went through City Court. Possession of CDSII in ‘01
that was dismissed. You’ve been convicted of remaining or, entering
on premises in ‘02. You were charged with armed robbery in ‘02, but
it was reduced to an attempted simple robbery in ‘03. You’ve been
convicted of disturbing the peace in ‘03. You were arrested for
possession with intent to distribute in ‘03. You were convicted of
entry into an inhabited dwelling in ‘02. In exchange for that they
dropped to contributing to the delinquency of a juvenile on that date.
In ’03 possession with intent to distribute was dismissed, and then a
possession of CDSV was dismissed. Possession with intent to
distribute in ‘09, firearm by a convicted felon in ‘09 were dismissed,
and in ‘09 you had introduction of an electrical device in a
correctional facility and you also had on the same date contraband in a
correctional facility. You were originally, well, you were charged with
simple battery in 2010. That went to Alexandria City Court. You had
a domestic abuse strangulation in ’10 that was reduced to a
misdemeanor domestic violence. You had a misdemeanor false
imprisonment that you were convicted of. You had a violation of a
protective order that went to Alexandria City Court. You had a
violation of protective order that was here in 2011. You had another
possession with intent to distribute in 2011 that was not prosecuted. I
don’t even show that they have a file here. You have a pending
possession CDSII in 308,683. You have a possession with intent
CDSII in a school zone that was 2011. You had two of those.
Obstructing of a public passage in 2011. Resisting arrest by violence
in 2011. Then July 31, 2012, you have these three armed robberies.
Firearm by a convicted felon, illegal use of a weapon, resisting arrest,
resisting arrest, simple assault.

That is your record. It shows that you have thirty-three (33)
bookings in our jail. . . .

The trial court then found Defendant was in need of correctional treatment or a

custodial environment, and a lesser sentence would deprecate the seriousness of

the crimes. The trial court reasoned Defendant knowingly created a risk of death

or great bodily harm to more than one person, used threats of or actual violence

during the commission of the offenses, and used and discharged a firearm during
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the commission of the offenses. The trial court subsequently stated Defendant

planned the offenses, did not have a good work or family history, did not have

major family responsibilities, had not taken responsibility for his actions, and was

not willing to make any restitution. The trial court further noted Defendant did not

have sufficient education, training, and life experience to be rehabilitated and not

be a danger to the public. The trial court found Defendant had been engaged in

criminal conduct in Rapides Parish since 2001, and noted Defendant had been

arrested twenty-eight times since he turned eighteen. The trial court also stated it

believed Defendant was a danger to public safety and needed a sentence that would

deter him in the future.

Despite the trial court’s findings, Defendant contends, based on the facts of

the case, a sentence of ninety years without benefit of probation, parole, or

suspension of sentence is excessive.

In State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, the supreme court

found a sentencing range of thirty-five to fifty years is acceptable for a first felony

offender convicted of armed robbery. In State v. Square, 433 So.2d 104

(La.1983), the supreme court affirmed the defendant’s twenty-five-year sentence

for one conviction of armed robbery despite his lack of a prior criminal record. In

State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, writ denied,

05-1740 (La. 2/10/06), 924 So.2d 162, the fifth circuit affirmed the defendant’s

sixty-year sentence on each of two counts of armed robbery, to run concurrently,

although he was a first offender.

In State v. Douglas, 389 So.2d 1263 (La.1980), the supreme court affirmed

the defendant’s ninety-nine-year sentence for armed robbery, noting he had three

prior felony convictions. In State v. Lagarde, 07-123 (La.App. 5 Cir. 5/29/07), 960

So.2d 1105, writ denied, 07-1650 (La. 5/9/08), 980 So.2d 684, the fifth circuit

affirmed the defendant’s ninety-nine-year sentence for armed robbery, noting he
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was a career criminal with two prior felony convictions. In State v. Wilson, 452

So.2d 773 (La.App. 4 Cir. 1984), the fourth circuit affirmed the defendant’s ninety-

nine-year sentence for armed robbery, noting his extensive arrest record and prior

convictions for criminal trespass, possession of stolen property, soliciting for

prostitution, and theft. In State v. Jack, 448 So.2d 725 (La.App. 5 Cir. 1984), the

fifth circuit affirmed the defendant’s ninety-nine-year sentence for armed robbery,

noting his extensive juvenile record and adult convictions for theft and burglary.

In this case, Defendant received a sentence on each count that was within the

sentencing range set forth by the supreme court for a first offender. The trial court,

in its discretion, ordered those sentences to be served consecutively. La.Code

Crim.P. art. 883. Based on the cases cited herein and Defendant’s extensive

criminal record, we find the sentences imposed are not excessive.

PRO SE ASSIGNMENTS OF ERROR NOS. 1 & 2

In his first pro se assignment of error, Defendant contends the trial court

committed reversible error when it denied his 6th and 14th amendment rights of

the United States Constitution and Article 1, § 13 of the Louisiana Constitution by

failing to appoint counsel for him at a critical stage in the proceedings and forcing

him to represent himself. In his second pro se assignment of error, Defendant

contends the trial court committed reversible error by admitting statements

introduced in evidence against him at the preliminary examination where he was

denied counsel at the trial through the oral testimony of the State’s witnesses.

Defendant filed a pro se motion for preliminary examination. The hearing

was held on August 27, 2012, at which the following discussion occurred:

MR. CESPIVA (Counsel for the State):

Your Honor, this is a P. E. filed by Mr. Dontrale Phillips.
I don’t know if he’s been assigned a lawyer, but its filed pro se.

THE COURT:

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All right. Is Mr. Phillips here?

MR. CESPIVA:

Your Honor, he’s been picked up on 7/31, and he’s
serving 180 days.

THE COURT:

Okay. Well, let’s have a Preliminary Exam on Mr.
Phillips?

THE CLERK:

It’s on an Armed Robbery?

MR. CESPIVA:

Yes.

THE CLERK:

I don’t have an attorney in yet.

MR. CESPIVA:

We don’t have a lawyer either. And, I just got the file
this morning.

THE COURT:

He filed it In Proper Person. So - -

....

THE COURT:

Come on, Mr. Phillips, if you would; you’re here for a
preliminary exam, sir, that you’ve requested. You do not have
an attorney, so, you filed this pro se. So, what we’re going to do
is proceed with your preliminary exam.

Mr. Cespiva, if you would call your first witness, sir.

The trial court subsequently found there was probable cause to believe Defendant

committed three armed robberies.

At the conclusion of the preliminary examination, the trial court asked

Defendant if he had requested an attorney, and Defendant stated: “No, sir. I’m

representing myself[.]” Defendant subsequently moved to represent himself on
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October 29, 2012, the date the bill of information was filed, and represented

himself at trial with the assistance of “hybrid counsel.”

In his pro se briefs, Defendant contends the trial court forced him to

represent himself at the preliminary examination, did not advise him of his right to

counsel, and he did not waive counsel. Defendant contends he was forced to cross-

examine the State’s witnesses and argue evidentiary matters without any

understanding of substantive criminal procedure. Defendant notes that, on the date

of the preliminary examination, the State and the court clerk informed the trial

court that he had not been assigned an attorney. Defendant alleges the trial court

informed him that his right to counsel attached once he was arraigned. Defendant

asserts the preliminary examination was a critical stage of the proceedings, and his

right to counsel attached at that time. Defendant further asserts he was not

questioned about his desire to represent himself at the preliminary examination.

Defendant contends this constitutional violation is not subject to the harmless error

analysis. In support of this claim, Defendant cites State v. Haider, 00-231

(La.App. 3 Cir. 10/11/00), 772 So.2d 189.

In Haider, the defendant entered a dual plea of not guilty and not guilty by

reason of insanity. No counsel appeared on the defendant’s behalf at a competency

hearing. This court stated it could not fathom someone with the defendant’s

mental problems attempting to intelligently question experts. In finding that the

competency hearing was a critical stage of the proceedings, which necessitated the

assistance of counsel, this court found decisive the fact that the defendant’s only

defense was his insanity. We consequently concluded the defendant’s mental

competency was the focus of his defense strategy throughout the proceedings, and

the error was reversible.

Defendant has alleged there is a prohibition against the State’s use at trial of

anything that occurred at a preliminary hearing. In support of his statement,
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Defendant notes White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050 (1963), wherein

the defendant, without the benefit of counsel, entered a guilty plea at the

preliminary hearing, and that admission was subsequently used against him at trial.

Under these circumstances, the Supreme Court held that the preliminary hearing

was a critical stage in the proceedings and there was no need to determine whether

prejudice resulted from the absence of counsel.

Defendant also contends the following:

The trial court committed “reversible error by admitting testimony
with regard to the co-defendant Cherie Moose’s statements
implicating Appellant and herself at his trial. The preliminary
examination was a critical stage of the proceedings where the State
there elicited testimony from its witnesses regarding Cherie
Moose[‘]s confession implicating appellant and herself which was
introduced in evidence against him at trial through the oral testimony
of state witnesses, subsequently entering into the determination of his
innocence or guilt and lack of counsel at the preliminary hearing
where Appellant was forced to represent himself, confront and cross-
examine state witnesses without the benefit of counsel requires
reversal.

Defendant further contends this court should not determine whether prejudice

resulted from the denial of counsel at the preliminary examination but should

reverse his convictions even though he did not object to the introduction of such

evidence.

The State contends the answer to the issues presented by the Defendant can

be found in State v. Savoie, 07-914 (La.App. 3 Cir. 3/5/08), 982 So.2d 119, writ

denied, 08-617 (La. 10/3/08), 992 So.2d 1011. Therein, this court concluded that a

hearing held on the defendant’s pro se motion to quash did not constitute a “critical

stage” of the proceedings that required the appointment of counsel. In Savoie, this

court stated:

Although titled motions to quash, the grounds of the motions
concerned the alleged violations of the Defendant’s right to have
counsel appointed within seventy-two hours of arrest, the failure to
timely file a bill of information within sixty days of arrest, and finally,
the failure to arraign him within thirty days of the filing of the bill.
See La.Code Crim.P. arts. 230.1 and 701. These claims do not
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concern the time limitation for the institution of prosecution or for the
commencement of trial, which are valid grounds for a motion to
quash. See La.Code Crim.P. art. 532(7) and State v. Barnes, 94-1411
(La.App. 4 Cir. 12/28/94), 648 So.2d 480. In State v. Francois, an
unpublished writ bearing docket number 03-1324 (La.App. 3 Cir.
11/10/03), this court held that an Article 701(B) hearing is not a
critical stage of the proceeding, and the right to counsel does not
apply. We find the same would be true for hearings concerning
alleged violations of La.Code Crim.P. art. 230.1, which, like Article
701 hearings, concern pretrial custody only, not dismissal of the
charge. A hearing on an alleged violation of either article in no way
potentially impairs a meaningful defense or a fair trial. Accordingly,
we find the October 9, 2006 hearing was not a critical stage of the
proceedings in this case. Thus, no error patent is recognized.

Id. at 122-23 (footnote omitted).

The State notes the Savoie court discussed Gerstein v. Pugh, 420 U.S. 103,

95 S.Ct. 854 (1975). In Gerstein, 420 U.S. 103, the Supreme Court addressed the

issue of whether Florida’s probable cause hearing was a critical stage in the

proceedings. The Supreme Court found that, “[b]ecause of its limited function and

its nonadversary character, the probable cause determination is not a ‘critical stage’

in the prosecution that would require appointed counsel.” Gerstein, 420 U.S. at

122. The Supreme Court noted the probable cause determination affected the

defendant’s pretrial custody only, and the prosecution was not required to produce

witnesses for cross-examination. The State asserts that Florida’s probable cause

hearing is akin to Louisiana’s preliminary examination.

The State notes that in Gerstein the Supreme Court distinguished its prior

holding in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999 (1970). In Coleman,

the Supreme Court determined that Alabama’s preliminary hearing was a critical

stage of the criminal process at which the accused is constitutionally entitled to the

assistance of counsel. Coleman was not represented by counsel at the preliminary

hearing. The Supreme Court noted that, although nothing that occurred at the

preliminary hearing was used at Coleman’s trial, the record did not reveal whether

the defendant was otherwise prejudiced by the absence of counsel at the hearing.

11

The Supreme Court remanded the matter for a determination of “whether such

denial of counsel was harmless error, . . . and therefore whether the convictions

should be reinstated or a new trial ordered.” Id. at 11.

The State asserts Defendant requested a preliminary examination after his

arrest and before the institution of prosecution. The State asserts a “preliminary

examination functions as a ‘probable cause’ determination and does not function in

any manner that could potentially impair a meaningful defense or a fair trial.” The

State contends the trial court’s ruling at a preliminary examination does not affect

the State’s right to file a bill of information or pursue an indictment even if the trial

court determines there is not enough probable cause to hold a defendant in custody.

Therefore, like Florida, Louisiana’s preliminary examination is a probable cause

hearing that does not constitute a critical stage of the prosecution.

Louisiana Code of Criminal Procedure Article 293 provides: “When a

preliminary examination is ordered, the court shall conduct the examination

promptly but shall allow the defendant a reasonable time to procure counsel.”

In State v. Jenkins, 338 So.2d 276 (La.1976), the supreme court discussed

preliminary examinations. It stated:

Although all of the procedural safeguards of a criminal jury trial
need not be afforded at a preliminary examination, the accused has a
right to a hearing that insures a fair and impartial determination of the
issue of probable cause. Absent an intelligent waiver thereof, the
hearing may not be conducted without benefit of counsel for the
defendant. La.C.Cr.P. art. 293; Art. I, § 13, La.Const. 1974; see
Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387
(1970). The hearing is to be full-blown and adversary [sic], and one in
which the defendant is entitled to confront witnesses against him and
to have full cross-examination of them. La.C.Cr.P. art. 294. . . .

We also note that the right to a preliminary examination has
been accorded the status of a constitutional right in felony cases in
Louisiana by the adoption of Art. I, § 14, La.Const. of 1974. The
convention in drafting this article contemplated the type of formal,
adversary proceeding provided for by our Code, including the right to
subpoena and cross-examine witnesses. Hargrave, The Declaration of
Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 49
(1974). The elevation of the right to a preliminary examination to a
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constitutional guarantee reflects a recognition by the people of
Louisiana of the importance of according an accused a prompt and
thorough determination that there is sufficient cause to deprive him of
his liberty.

At the same time, our La.Code of Criminal Procedure has
specifically incorporated the concept that inconsequential defects in
the conduct of the preliminary examination will not mandate release
of the accused or rendering the proceeding invalid.

Id. at 279. See also State v. Silbey, 450 So.2d 710, 713 (La.App. 4 Cir. 1984).

Louisiana Code of Criminal Procedure Article 298 provides:

A person ordered held in custody following a preliminary
examination shall not be discharged on a writ of habeas corpus or by
other process because of any informality or error in the commitment
or the proceedings prior thereto that does not substantially prejudice
him. No preliminary examination shall be held invalid for any
purpose because of an informality or error that does not substantially
prejudice the defendant.

We find the question presented in this case is not answered by this court’s

decision in Savoie. The instant case does not involve alleged violations of La.Code

Crim.P. arts. 701(B) or 230.1.1 Based on Jenkins, 338 So.2d at 279, the instant

case is distinguishable from Gerstein, 420 U.S. 103. In Ditch v. Grace, 479 F.3d

249 (3rd Cir. 2007), cert. denied, 552 U.S. 949, 128 S.Ct. 377 (2007), the

defendant argued his habeas petition should be granted because he was denied the

right to counsel at his preliminary hearing in violation of U.S. Const. amend. VI.

The court concluded that a Pennsylvania preliminary hearing was a critical stage in

a criminal prosecution, as the “Commonwealth may assume charge of the

prosecution and recommend to the issuing authority that the defendant be

discharged or bound over to court,” the Commonwealth must establish a prima

facie case that a crime has been committed and the accused was probably the

person who committed it, and a principal function of the hearing was to protect the

accused rights against an unlawful arrest and detention. Id. at 253. Because the

1
These articles address the time period for filing a bill of information or indictment after
arrest and the maximum time for appearance before a judge for the purpose of appointment of
counsel, respectively.
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preliminary hearing was a critical stage of a criminal prosecution, the court

concluded that Ditch was entitled to the assistance of effective counsel at that

hearing. Ditch was denied that right, as he informed the judge at the beginning of

the hearing that he wished to secure representation and requested a continuance in

order to do so, but the judge denied his request.

Citing Coleman, 399 U.S. 11, the court concluded that denial of counsel at a

preliminary hearing did not automatically entitle an accused to vacatur and a new

trial. Ditch also argued that a witness identification made at the preliminary

hearing was later used against him at trial, and lack of counsel under these

circumstances infected the entire proceeding and warranted vacatur. The court

noted that Coleman did not address the appropriate relief in a case involving a

denial of counsel at a preliminary hearing where evidence obtained from the

hearing was later used against the defendant at trial. The court found the case was

similar to White, 373 U.S. 59. However, the question of relief presented by the

facts of the case was not squarely addressed by either Coleman, 399 U.S. 11, or

White, 373 U.S. 59. The court went on the find that the denial of counsel at

Ditch’s preliminary hearing was subject to a harmless error standard even though

evidence of the identification made at the hearing was later used against him at

trial.

Ditch also argued that, because he was denied counsel at a critical stage of

the proceedings, he was entitled to a presumption of prejudice under U.S. v.

Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984). In Cronic, the Supreme Court

identified three situations implicating the right to counsel that involved

circumstances so likely to prejudice the accused that the cost of litigating their

effect in a particular case was unjustified. The first involved a complete denial of

counsel. The Court explained that a trial would be presumptively unfair where the

accused was denied the presence of counsel at a critical stage. The court, in Ditch,
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479 F.3d 249, concluded that Cronic, 466 U.S. 648, prescribes a presumption of

prejudice only with regard to those critical stages of litigation where a denial of

counsel would necessarily undermine the reliability of the entire criminal

proceeding. In support of this conclusion, the court cited U.S. v. Owen, 407 F.3d

222 (4th Cir.2005), cert. denied, 546 U.S. 1098, 126 S.Ct. 1026 (2006). In Owen,

the court found the defendant impliedly waived his right to counsel at arraignment,

and the denial of court-appointed counsel at arraignment was subject to a harmless

error analysis.

In his second pro se brief, Defendant cites to several record pages containing

testimony at the preliminary examination and his trial. At the preliminary

examination, Corporal David Foshee discussed a statement made by Moose, in

which she implicated Defendant to police. Corporal Foshee also mentioned that

statement at Defendant’s trial. Officer April Painter testified at trial that Moose

implicated herself as the driver of the vehicle. Moose testified for the State at

Defendant’s trial, discussing her participation, as well as that of Defendant, in the

offenses for which Defendant was convicted.

After a review of the facts in this case, we find it is distinguishable from

White, 373 U.S. 59. It is clear that what made the preliminary hearing in White

critical was the fact that a guilty plea had been entered at that hearing, and the plea

had been used against petitioner at trial. In the instant case, Moose testified at

Defendant’s trial. Accordingly, any issue regarding testimony about Moose’s

statement to police at the preliminary hearing did not substantially prejudice the

Defendant. Any error that may have occurred was harmless.

For the reasons set forth herein, Defendant’s first and second pro se

assignments of error lack merit.

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PRO SE ASSIGNMENT OF ERROR NO. 3

In his third pro se assignment of error, Defendant contends the trial court

erred in proceeding with the trial when no “valid” bill of information had been

filed.

In support of this claim, Defendant asserts that an error patent may be

asserted at any time. However, Defendant fails to point to any error in the bill of

information, nor that the record did not contain a bill of information. Thus, we

cannot address this assignment of error, as it has not been sufficiently briefed by

Defendant. See Uniform Rules—Courts of Appeal, Rule 2-12.4.

DECREE

For the foregoing reasons, Defendant’s convictions and sentences are

affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules–Courts of
Appeal, Rule 2-16.3.

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