STATE v. DELROSARIO,

STATE OF NORTH CAROLINA

v. Wake County
No. 01 CRS 067162
ERNESTO RAFEL DELROSARIO

Appeal by defendant from judgment entered 16 January 2007 by
Judge J.B. Allen, Jr., in Wake County Superior Court. Heard in the
Court of Appeals 6 February 2008.

Attorney General Roy Cooper, by Assistant Attorney General
Latoya B. Powell, for the State.

Jarvis John Edgerton, IV, for defendant appellant.

McCULLOUGH, Judge.

At the 11 December 2001 Criminal Session of Wake County
Superior Court, defendant Ernesto Rafel Delrosario (“defendant”)
pled guilty to two counts of maintaining a vehicle or dwelling for
the keeping or sale of controlled substances, one count of
trafficking in cocaine by possession, and one count of trafficking
in cocaine by transportation.
The undisputed evidence presented at the plea hearing tended
to show the following: Sometime prior to 20 July 2001, a
confidential informant working in cooperation with the Raleigh
Police Department told Detective Bradley Young that defendant was
involved in drug trafficking in the Raleigh area. The Raleigh
Police Department, with the assistance of the informant, arrangedto purchase approximately nine ounces of cocaine from defendant on
20 July 2001.
On 20 July 2001, law enforcement observed defendant drive his
vehicle from his residence at 225 Peartree Lane toward the location
for the prearranged cocaine purchase. Law enforcement concluded
that defendant was driving without a valid driver’s license and
stopped the vehicle. During the stop, law enforcement searched
defendant and found nine ounces of cocaine on his person. Defendant
waived his rights and consented to a search of his residence. Upon
searching his residence, law enforcement found a cocaine grinder
and 278.2 grams of cocaine. The trial court accepted defendant’s
guilty plea pursuant to the plea arrangement, and the matter was
continued 60 days for sentencing. Defendant was released.
During the interim between the plea hearing and the sentencing
hearing, defendant absconded. On 21 December 2001, defendant
committed acts that gave rise to federal drug charges.
Specifically, defendant was indicted with charges under 18 U.S.C.
§ 954(c) and 21 U.S.C. § 841(a)(1) for distributing 55 grams of
cocaine. Defendant pled guilty to these federal charges on 24
February 2003. Although the charges arising from the 20 July 2001
offenses were not adopted for prosecution in the federal
indictment, the 20 July 2001 offenses were considered for purposes
of sentencing. The federal judge found as fact that the 20 July
2001 offenses were part of the same course of conduct as
defendant’s 21 December 2001 offenses. Using a “real offense”
approach to sentencing, on 25 June 2003, the federal judgeaggregated the weight of the cocaine from the 21 December offense
and the 20 July offense, and increased defendant’s offense level
from a Level 16 to a Level 22.
At the 16 January 2007 Criminal Session of Wake County
Superior Court, defendant was sentenced on the state charges.
Defendant moved to dismiss the state charges pursuant to N.C. Gen.
Stat. § 90-97 (2007), and alternatively, to continue sentencing, in
order to secure a transcript of defendant’s federal sentencing
hearing. The trial court denied both motions. Defendant received a
consolidated term of imprisonment of 70 to 84 months as well as a
$100,000 fine.
On appeal, defendant contends that the trial court erred by:
(1) denying his motion to dismiss the state drug charges pursuant
to N.C. Gen. Stat. § 90-97; and (2) failing to continue the
sentencing hearing.

Defendant first contends that because the 20 July 2001
offenses that give rise to the state charges were considered during
defendant’s federal sentencing, N.C. Gen. Stat. § 90-97 is a bar to
the state charges against defendant. We disagree, as we conclude
that defendant was not convicted under federal law for the same act
that gives rise to the state charges at issue.
N.C. Gen. Stat. § 90-97 provides, in pertinent part:
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.

First, we address the State’s argument that § 90-97 is
inapplicable to the case sub judice because the state prosecution
ended on the date that defendant pled guilty to the state charges,
which was prior to defendant’s federal conviction. We find that
this argument is inconsistent with the definition of “prosecution”
that has been adopted by our Supreme Court. In State v. Harvey, 281
N.C. 1, 19, 187 S.E.2d 706, 717 (1972), our Supreme Court held that
under the Controlled Substance Act, a prosecution “consists of the
series of proceedings had in the bringing of an accused person to
justice, from the time when the formal accusation is made, by the
filing of an affidavit or a bill of indictment or information in
the criminal court, until the proceedings are terminated." We are
bound by this definition, and accordingly, we conclude that a state
prosecution ends not on the date that a defendant pleads guilty to
state charges, but rather the prosecution is pending until the date
that all state proceedings are terminated. Here, defendant was
convicted of federal charges before all state proceedings were
terminated. Because defendant’s federal conviction occurred before
the state prosecution ended, N.C. Gen. Stat. § 90-97 is applicable
if the remaining statutory requirements are satisfied.

Having decided that defendant’s federal conviction occurred
prior to the conclusion of defendant’s state prosecution, we now
turn to whether the consideration of the 20 July 2001 offenses for
federal sentencing purposes constituted a “conviction” for thoseoffenses as that term is used in N.C. Gen. Stat. § 90-97. “’Where
the language of a statute is clear and unambiguous, there is no
room for judicial construction and the courts must construe the
statute using its plain meaning.’” State v. Cheek, 339 N.C. 725,
728, 453 S.E.2d 862, 864 (1995) (quoting Burgess v. Your House of
Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)).

We have held that, under the traditional definition,
"conviction" refers to the jury’s or fact-finder’s guilty verdict.
State v. McGee, 175 N.C. App. 586, 589-90, 623 S.E.2d 782, 785,
disc. review denied, 360 N.C. 489, 632 S.E.2d 768, appeal
dismissed, disc. review denied, 360 N.C. 542, 634 S.E.2d 891 (2006)
(adopting Black’s Law Dictionary’s definition of the term
“conviction”: “’The act or process of judicially finding someone
guilty of a crime; the state of having been proved guilty. . . . 2.
The judgment (as by jury verdict) that a person is guilty of a
crime.’”). Id. Likewise, the North Carolina Structured Sentencing
Statutes provide, in pertinent part, "a person has been convicted
when he has been adjudged guilty or has entered a plea of guilty or
no contest." N.C. Gen. Stat. § 15A-1331(b) (2007).
This definition of the term “conviction” is in accord with
federal precedent. In Witte v. United States, 515 U.S. 389, 132 L.
Ed. 2d 351 (1995), the defendant moved to dismiss an indictment
charging him with conspiring and attempting to import cocaine in
violation of 21 U.S.C. §§ 952(1) and 963 on the ground that the
cocaine involved in these offenses had been considered as “relevant
conduct” at sentencing for a previous marijuana conviction, andtherefore, the later prosecution was barred by the Double Jeopardy
Clause of the Fifth Amendment. The United States Supreme Court
rejected this argument, reasoning that consideration of uncharged
conduct for sentencing purposes is not a “conviction” for such
conduct, and therefore, is not “punishment” under the Double
Jeopardy Clause:
We agree with the Court of Appeals, however,
that petitioner’s double jeopardy theory–that
consideration of uncharged conduct in arriving
at a sentence within the statutorily
authorized punishment range constitutes
"punishment" for that conduct–is not
supported by our precedents, which make clear
that a defendant in that situation is
punished, for double jeopardy purposes, only
for the offense of which the defendant is
convicted.

Witte, 515 U.S. at 397, 132 L. Ed. 2d at 362.
Thus, under federal law, where uncharged conduct is considered
as relevant conduct for sentencing purposes, the defendant is
neither “convicted” for such conduct nor is he “punished” for such
conduct. Id. Here, Robert Hale, defendant’s counsel in the federal
case, testified that the federal indictment did not adopt for
prosecution defendant’s conduct on 20 July 2001. Because defendant
was not charged in the federal prosecution for his 20 July 2001
acts, he was neither adjudged guilty nor did he plead guilty or no
contest for those acts in federal court. Under both the state and
federal definition of the term, defendant was not “convicted” under
federal law for the uncharged acts that occurred on 20 July 2001.
Accordingly, we conclude that N.C. Gen. Stat. § 97-90 does not bar
the state prosecution for the acts that occurred on 20 July 2001because defendant was not “convicted” for the “same act” under
federal law. This assignment of error is overruled.

Defendant next contends that the trial court committed
reversible error by denying his motion to continue, pending
delivery of a transcript from the federal sentencing hearing.
Defendant argues that the trial court deprived him of his
constitutional right to present his defense. We disagree.
In reviewing a trial court’s ruling on a motion to continue,
“[i]t is well-established that a motion to continue
is ordinarily addressed to the trial judge’s sound
discretion and his ruling thereon will not be disturbed
except upon a showing of abuse of discretion. However,
when a motion to continue is based on a constitutional
right, the question presented is a reviewable question of
law.”
State v. Smith, 155 N.C. App. 500, 505, 573 S.E.2d 618, 622 (2002)
(quoting State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335, 341-42
(1982)), disc. review denied, 357 N.C. 255, 583 S.E.2d 287 (2003).
"To establish a constitutional violation, a defendant must
show that he did not have ample time to … investigate, prepare
and present his defense." State v. Tunstall, 334 N.C. 320, 329, 432
S.E.2d 331, 337 (1993), cert. denied, 543 S.E.2d 144, cert. denied,
543 S.E.2d 882, cert. denied, 544 S.E.2d 242 (2000). In order to
demonstrate that the time allowed to prepare a defense was
inadequate, defendant must show "how his case would have been
better prepared had the continuance been granted or that he was
materially prejudiced by the denial of his motion." State v.
Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526 (1986). Here,although defendant was unable to obtain a transcript of the federal
sentencing hearing, defendant presented Robert Hale’s testimony
that the federal indictment did not adopt the 20 July 2001
offenses. As previously discussed, based on this testimony, the
trial court properly concluded that N.C. Gen. Stat. § 90-97 was not
a defense to defendant’s state prosecution. Since this defense
fails as a matter of law, defendant has not shown that he was
materially prejudiced by the denial of his motion or that he would
have been better prepared had he been able to obtain a transcript
of the hearing. This assignment of error is overruled.
Based on the foregoing, we affirm.
Affirmed.
Judges ELMORE and ARROWOOD concur.

*** Converted from WordPerfect ***