Criminal Practice – Motion for a Continuance – Motion to Suppress Search Warrant – Ineffective Assistance of Counsel

Defendant was not prejudiced by her trial counsel’s failure to properly move to suppress the evidence obtained as a result of the search warrant.

We found no error in the trial court’s denial of defendant’s motion to continue and no prejudice to defendant in the challenged acts of her trial counsel.

Defendant appealed from judgments entered upon her convictions for possession with intent to sell or distribute methamphetamine and attaining habitual felon status for which she was sentenced to an active sentence of a minimum of 84 months and a maximum of 113 months. Defendant contended the trial court erred by denying her motion to continue when she had been unable to meet with her retained counsel prior to trial due to health reasons to discuss trial preparation and the filing of pre-trial motions, and that defense counsel provided ineffective assistance of counsel by failing to make a motion to suppress the search warrant in the case.

We overruled defendant’s argument that the trial court erred in denying her motion for a continuance. Defendant received full discovery, albeit months before trial rather than mere days before, failed to submit an affidavit in support of her motion, made only general claims about the need for additional time to prepare, and did not specify what materials, witnesses, or other potential evidence would need to be developed or reviewed. Further, while we certainly appreciate the difficulties presented by defendant’s bouts with COVID and her medical vulnerabilities, she failed to explain why she could not meet with her counsel either prior to or after her illness or why remote communication technologies could not have been utilized to protect defendant’s compromised immune system while allowing defense counsel to adequately prepare for trial.

Defendant also argued she received ineffective assistance from her trial counsel in that he failed to file a written pretrial motion, accompanied by an affidavit, to suppress evidence obtained upon the execution of the search warrant for defendant’s property. We disagreed. Both defendant and the State contended the “cold record” was sufficient to permit our review of defendant’s ineffective assistance of counsel claim, although each side strenuously disagreed about the result we should reach upon such consideration. We agreed and concluded that, even assuming defendant’s trial “counsel’s performance was deficient,” defendant could not establish that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

No error in part, no prejudicial error in part.

State v. Kirkpatrick (Lawyers’ Weekly No. 012-065-24, 18 pp.) (Carolyn Thompson, J.) Appealed from Avery County Superior Court (Gary M. Gavenus, J.) Attorney General Joshua H. Stein, by Special Deputy Attorney General Phillip T. Reynolds, for State-appellee; Shawn R. Evans for defendant-appellant. North Carolina Court of Appeals Unpublished