An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA06-360
NORTH CAROLINA COURT OF APPEALS
Filed: 19 December 2006
STATE OF NORTH CAROLINA
v.
Buncombe County
No. 04 CRS 20227; 63809-10;
63832; 63855; 64178-79
RONALD LEE PEAK
Appeal by defendant from judgment entered 8 April 2005 by
Judge C. Philip Ginn in Buncombe County Superior Court.
Heard in
the Court of Appeals 15 November 2006.
Attorney General Roy Cooper, by Special
General Lars F. Nance, for the State.
Deputy
Attorney
Jarvis John Edgerton, IV, for defendant-appellant.
STEELMAN, Judge.
Ronald Lee Peak (“defendant”) appeals from a judgment entered
8 April 2005, following a jury verdict finding him guilty of
carrying a concealed weapon, possession of a firearm by a felon and
misdemeanor breaking and entering.
Defendant subsequently pled
guilty to assault with a firearm upon a law enforcement officer and
was sentenced as an habitual felon.
On appeal, defendant contends
that the trial court erred by denying defendant’s motion for
substitute counsel, and that the indictment for assault with a
firearm upon a law enforcement officer was facially invalid.
We
disagree, and hold that defendant received a fair trial, free from
-2error.
The court appointed Assistant Public Defender M. LeAnn Melton
(“Melton”) to represent defendant in these matters.
The record
reflects her representation as early as 9 November 2004.
On 14
February 2005, Melton moved to withdraw as counsel at defendant’s
request.
This
motion
was
allowed,
and
Stanford
K.
Clontz
(“counsel”) was appointed to represent defendant.
On 5 April 2005, defendant sought replacement of Mr. Clontz as
his counsel. This request was denied, and these cases proceeded to
trial.
The trial court ex mero motu declared a mistrial when
defense counsel conceded a prior conviction of defendant during the
jury vior dire.
On 6 April 2006, defendant indicated to the court
that he was seeking to obtain other counsel.
The other counsel
failed to appear, and the court proceeded with a second trial
before a different jury venire.
Defendant was found guilty of carrying a concealed weapon,
possession of a firearm by a felon, and misdemeanor breaking and
entering.
The jury was unable to reach a verdict on the charges of
assault with a firearm upon a law enforcement officer and assault
on a female.
Defendant then pled guilty to the assault with a
firearm upon a law enforcement officer and to habitual felon
status.
The State dismissed the assault on a female charge.
Pursuant to the plea arrangement, the charges were consolidated
into one judgment, and defendant received an active sentence from
the presumptive range of 116 to 149 months.
defendant appeals.
From this judgment,
-3I: Right to Counsel
In his first argument, defendant contends that the trial court
erred by denying defendant’s request for new counsel and for a
continuance to secure private counsel.
We disagree.
The Sixth Amendment to the Constitution guarantees that in all
criminal prosecutions, “an accused shall enjoy the right . . . to
have the Assistance of Counsel for his defense.”
Morrison,
449
U.S.
361,
(quotation omitted).
364,
66
L.
Ed.
2d
United States v.
564,
567
(1981)
A defendant who retains private counsel has
a Sixth Amendment right to counsel of his choosing.
McFadden, 292 N.C. 609, 234 S.E.2d 742 (1977).
See State v.
“[T]he right to
counsel of choice,” however, “does not extend to defendants who
require counsel to be appointed for them.”
United States v.
Gonzalez-Lopez, 548 U.S. __, __, 165 L. Ed. 2d 409, 421 (2006)
(emphasis added); see also Wheat v. United States, 486 U.S. 153,
159, 100 L. Ed. 2d 140, 148 (1988) (reasoning that it was not the
“essential aim of the [Sixth] Amendment . . . to ensure that a
defendant will inexorably be represented by the lawyer whom he
prefers”).
Our Supreme Court has held that the right to counsel does not
include the right to “insist that competent counsel . . . be
removed
and
replaced
with
other
counsel
merely
because
defendant has become dissatisfied with his services.”
the
State v.
Robinson, 290 N.C. 56, 66, 224 S.E.2d 174, 179 (1976). Rather, to
be granted substitute counsel, “the defendant must show good cause,
such
as
a
conflict
of
interest,
a
complete
breakdown
in
-4communication, or an irreconcilable conflict which leads to an
apparently unjust verdict.”
State v. Gary, 348 N.C. 510, 516, 501
S.E.2d 57, 62 (1998) (quotation omitted).
the
defendant’s
request
to
appoint
The court’s denial of
substitute
counsel
is
appropriate when it appears to the trial court that counsel is
“reasonably competent to present defendant's case[,] and the nature
of the conflict between defendant and counsel is not such as would
render
counsel
incompetent
or
ineffective
to
represent
that
defendant[.]” State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252,
255 (1980) (emphasis in original).
Without
a
showing
of
a
Sixth
Amendment
violation,
“the
decision of whether appointed counsel shall be replaced is a matter
committed to the sound discretion of the trial court.” State v.
Hutchins, 303 N.C. 321, 336, 279 S.E.2d 788, 798 (1981) (citation
omitted).
The standard of review of the denial of a defendant's
request to substitute counsel is whether the decision was an abuse
of discretion.
State v. Sweezy, 291 N.C. 366, 371-72, 230 S.E.2d
524, 529 (1976).
In the instant case, defendant relies on State v. Harbison,
315 N.C. 175, 337 S.E.2d 504 (1985), to argue that counsel’s
concession of defendant’s prior felony conviction constituted per
se ineffective assistance of counsel, such that the court erred by
denying
defendant’s
motion
for
substitute
counsel
or
for
a
continuance to retain private counsel.
Initially, we observe that counsel’s concession that defendant
had a prior felony conviction occurred during the first trial of
-5these matters, which ended in mistrial.
We find the argument
untenable that defendant was somehow prejudiced by this conduct in
the second proceeding, which was heard by a different jury.
second jury did not witness counsel’s concession.
The
Therefore,
defendant could not have been prejudiced.
Further, we believe that counsel’s conduct during the first
trial was “tactical” and not per se prejudicial. Our Supreme Court
extrapolated the meaning of Harbison’s per se rule in State v. AlBayyinah, 359 N.C. 741, 616 S.E.2d 500 (2005), in which the Court
held that an admission by counsel of defendant’s prior convictions
without
defendant’s
assistance of counsel.
consent
did
not
constitute
ineffective
The Court reasoned:
Although defense counsel made statements
against defendant's wishes that appear to
concede that defendant committed the crimes
for which he was previously convicted,
defendant has failed to show that such
arguments prejudiced his defense.
Defense
counsel made the tactical decision to try to
lessen
the
negative
impact
of
those
convictions and to gain credibility with the
jury by discussing the convictions openly. As
defendant himself acknowledged, the State had
the necessary proof of these convictions to
support the aggravating circumstances; thus,
no prejudice could result from admitting that
the aggravators existed.
The United States
Supreme Court has found that whether or not a
defendant expressly consented to counsel's
argument was not dispositive in finding
ineffective assistance.
Id. at 757, 616 S.E.2d at 512 (citing Florida v. Nixon, 543 U.S.
175, 160 L. Ed. 2d 565, 581 (2004)).
Here, counsel for defendant admitted to the jury during voir
dire that defendant “was convicted of a felony,” which was an
-6element the State was required to prove to establish the crime of
possession of a firearm by a felon.
See N.C. Gen. Stat. § 14-415.1
(2005); see also State v. Cromartie, __ N.C. App. __, __, 627
S.E.2d 677, 682 (2006).
The State certainly had the necessary
proof of the conviction.
The trial court stated, “it would be
pretty easy for the State to produce [defendant’s] record showing
a prior conviction of a felony[.]”
lend
some
credibility
to
Defendant’s admission “would
[defendant’s]
position[,]”
and
simultaneously “prohibit the State from putting in the details of
that
conviction.”
As
in
Al-Bayyinah,
we
believe
counsel
strategically sought to “lessen the negative impact of th[e]
conviction”
and
“gain
credibility
with
the
jury
by
[openly]
discussing the conviction[.]” Al-Bayyinah at 757, 616 S.E.2d at
512.
We are unconvinced that counsel’s concession at the first
trial constituted ineffective assistance of counsel.
There appears to have been some hostility between defendant
and counsel in the proceedings before and after the mistrial.
However, defendant failed to show “a conflict of interest, a
complete breakdown in communication, or an irreconcilable conflict
which [led] to an apparently unjust verdict.”
S.E.2d at 62 (1998).
the
conflict
represent him.
Gary at 516, 501
Defendant failed to show that the nature of
rendered
counsel
incompetent
or
ineffective
to
To the contrary, counsel’s effectiveness was such
that, in the face of strong evidence, the jury could not reach a
verdict on the assault with a firearm upon a law enforcement
officer and assault on a female charges.
-7We conclude that the trial court did not abuse its discretion
in refusing to substitute defendant's appointed counsel.
With regard to defendant’s argument that the trial court erred
by denying defendant’s motion for continuance, we observe that
defendant did not actually make such a motion at trial.
Counsel
merely stated, “[defendant] says now he wants to hire his own
lawyer[.]”
Since
defendant
did
not
move
for
a
continuance,
defendant’s argument that the trial court erred by denying such a
motion is not properly before this court.
This assignment of error is overruled.
II: Facial Invalidity of Indictment
Defendant next argues that the trial court did not have
jurisdiction to accept a plea for the offense of assault with a
firearm upon a law enforcement officer, because the indictment was
facially invalid.
We disagree.
“[W]hen an indictment is alleged to be facially invalid,
thereby depriving the trial court of jurisdiction, the indictment
may be challenged at any time.”
State v. McGee, __ N.C. App. __,
__, 623 S.E.2d 782, 784 (2006) (citing State v. Bartley, 156 N.C.
App. 490, 499, 577 S.E.2d 319, 324 (2003)).
“[A]n indictment is
fatally defective when the indictment fails on the face of the
record to charge an essential element of the offense.”
Bartley at
499, 577 S.E.2d at 324; see also State v. Thomas, 153 N.C. App.
326, 335, 570 S.E.2d 142, 147 (2002) (citing State v. Floyd, 148
N.C. App. 290, 295, 558 S.E.2d 237, 241 (2002)).
“If the charge is
a statutory offense, the indictment is sufficient when it charges
-8the offense in the language of the statute.” Floyd at 295, 558
S.E.2d at 241 (quotation omitted); see also State v. Youngs, 141
N.C. App. 220, 230, 540 S.E.2d 794, 800-01 (2000).
The elements required for conviction of the crime of assault
with a firearm on a law enforcement officer are “(1) an assault;
(2) with a firearm; (3) on a law enforcement officer; (4) while the
officer is engaged in the performance of his or her duties.”
State
v. Haynesworth, 146 N.C. App. 523, 531, 553 S.E.2d 103, 109 (2001);
N.C. Gen. Stat. § 14-34.5 (2005).
In the instant case, the indictment stated the following:
[T]he
defendant
named
above
unlawfully,
willfully and feloniously did assault Cpl. Tim
Bradley, a law enforcment officer of the
Buncombe County Sheriff’s Department, with a
firearm, a Smith & Wesson .9 mm semi-automatic
handgun, by taking the handgun out of his
pocket during a struggle with the officer. At
the time of this offense the officer was
performing a duty of his office: attempting to
arrest the defendant for attempting to break
and enter a motor vehicle.
The foregoing indictment charges the offense in the language of
N.C. Gen. Stat. § 14-34.5(a). Similar indictments have been upheld
by this Court in State v. Pelham, 164 N.C. App. 70, 595 S.E.2d 197
(2004), and State v. Thomas, 153 N.C. App. 326, 570 S.E.2d 142
(2002).
We overrule this assignment of error.
For the foregoing reasons, we hold defendant received a fair
trial, free from error.
NO ERROR.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
