State v. Roberts

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1111 NORTH CAROLINA COURT OF APPEALS Filed: 20 May 2014 STATE OF NORTH CAROLINA v. Brunswick County No. 07 CRS 52264 NORMAN RAY ROBERTS, III, Defendant. Appeal by Defendant from order entered 1 April Judge Ola M. Lewis in Brunswick County Superior Court. 2013 by Heard in the Court of Appeals 23 January 2014 Attorney General Roy A. Cooper, III, by Assistant Attorney General Amy Kunstling Irene, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for Defendant. DILLON, Judge. Norman Ray Roberts, III, ( Defendant ) petitioned this Court for certiorari on 26 April 2013 seeking review of an order entered by the trial court on 1 April 2013 denying his motion for appropriate relief ( MAR ). A panel of this Court granted -2Defendant s petition on 14 May 2013 for review of the trial court s denial of his MAR. We affirm. I. Background On 19 May 2008, Defendant was indicted on sixteen counts of first-degree sexual assault. Attorney Mike Ramos was appointed to represent Defendant; however, on 3 June 2008, Mr. Ramos filed a motion to withdraw as Defendant s counsel because Defendant had advised Mr. Ramos that he had retained private counsel to represent him. On 5 June 2008, Judge Ola M. Lewis heard Mr. Ramos motion to withdraw. At the hearing, Defendant said he had hired Eric Altman to represent him. Mr. Altman confirmed that he had never tried a criminal case involving the level of felony for which Defendant was charged. Mr. Ramos, however, had twenty-six years of experience and was designated by the State Bar as a specialist in criminal law. At the conclusion of the hearing, Judge Lewis denied Mr. Ramos motion to withdraw as counsel. Mr. However, at no time did Judge Lewis refuse to allow Altman from participating in Defendant s defense. Notwithstanding, Mr. Altman never filed a notice of appearance in the matter, either before Mr. Ramos motion to withdraw was heard, or at any point thereafter. -3Defendant was tried in the 21 September 2009 Criminal Session of Brunswick County Superior Court, being represented by Mr. Ramos. The jury found Defendant guilty of all charges. Judge Lewis entered the judgments against Defendant consistent with the jury s verdicts, sentencing level III felon, to three him, presumptive as a prior record range, consecutive sentences of 336 to 413 months incarceration. Defendant appealed to this Court. represented by Duncan McCormick. On direct appeal, he was During the course of the appeal, however, Mr. McCormick made a number of arguments on Defendant s behalf; pertaining to however, he did not make any argument the trial court s decision to deny Mr. Ramos motion to withdraw. This Court found no error, see State v. Roberts, 2011 N.C. App. LEXIS 73 (N.C. App., Jan. 18, 2011) (unpublished), and our Supreme Court denied Defendant s petition for discretionary review. See State v. Roberts, 365 N.C. 188, 707 S.E.2d 232 (2011). On 14 September 2012, Defendant filed the MAR in the Superior Court, which is the subject of this present appeal, arguing that the trial court had infringed his constitutional right to retain counsel of his choice and that Mr. McCormick provided ineffective assistance of counsel ( IAC ) by failing to -4raise the foregoing constitutional issue during the first appeal. At the 14 March 2013 MAR hearing, Mr. McCormick, Mr. Ramos and Mr. Altman testified. Mr. McCormick confirmed that when he prepared the original appeal of Defendant s conviction, he did not argue or otherwise give any significance to the trial court s order denying Mr. Ramos motion to withdraw as trial counsel. Mr. Ramos testified that he had been an attorney since 1982 and had been practicing criminal law since that time, including serious felony cases. Since 1997, Mr. Ramos had been certified by the State Bar as a specialist in state and federal criminal law. Mr. Ramos also testified that he has tried approximately twenty-five capital cases, approximately one hundred homicide cases, and a bunch of sex offense cases. Mr. Altman testified that he had been an attorney for almost twelve years, but that his criminal practice was limited to, for the most part, speeding ticket cases and court-appointed cases in district court. He stated that the only criminal jury trial he had ever done was a misdemeanor appeal to Superior Court, in which the defendant had pled guilty halfway through the trial. Mr. Altman stated that he was having mental health -5problems[,] court. and When he sometimes asked, Do did you not show up believe that for you district should have represented Mr. Roberts in 2007/2008 on sixteen counts of B-1 Felony? Mr. Altman responded, I do not believe I should. Mr. Altman said, Mr. Ramos was in a much better position to take care of Mr. Roberts case than I was. I just wasn t there was no way I was going to get up to speed to effectively represent him. When discovery in asked whether Defendant s he case, had Mr. file[d] any Altman said, motions I do for not believe I did. . . . Cause I didn t know what I was doing. When asked, So you didn t even know that you had to file a Notice of Appearance responded, No. in a Superior Court case? Mr. Altman When Mr. Altman learned that Mr. Ramos had been appointed, he was relieved to be out of it because I knew that I d gotten in over my head. On 1 April 2013, the trial court entered a detailed order denying Defendant s MAR. In its order, the trial court made findings, inter alia, regarding Mr. Altman s lack of experience and ability in trying B1 felony cases and Mr. Ramos extensive experience and ability in trying such cases. Also in its order, the trial court determined that its denial of Mr. Ramos motion to withdraw did not amount to a violation of Defendant s Sixth -6Amendment rights and that Defendant was not entitled to relief for his IAC claim, in part, because there was no reasonable probability that . . . the result of [Defendant s appeal] would have been different had Mr. McCormick concerning the trial court s denial of made an argument Mr. Ramos motion to withdraw. Defendant filed a petition for writ of certiorari in this Court on 26 April 2013, seeking review of the trial court s order denying his MAR, which we issued on 14 May 2013. II. Analysis Defendant argues that the trial court erred in denying his MAR. We believe that Defendant s right to chosen counsel was not violated and, accordingly, affirmed the trial court s order denying Defendant s MAR. A. Standard of Review When a trial court s findings on a motion for appropriate relief are reviewed, these findings are binding if they are supported by competent evidence and may be disturbed only upon a showing of manifest abuse of discretion. State v. Armstrong, 203 445, N.C. App. 399, 416, 691 S.E.2d 433, (citation and quotation marks omitted) disc. review denied, ___ N.C. ___, 702 S.E.2d 492 (2010). Competent evidence is evidence that a -7reasonable mind finding. Id. might at accept 416-17, quotation marks omitted). are reviewed de novo. 691 as adequate S.E.2d at to the (citation 445 support and The trial court s conclusions of law Id. at 417, 691 S.E.2d at 445 (citation and quotation marks omitted). B. Sixth Amendment Right to Counsel of Choice Defendant contends the trial court erred by denying his motion for appropriate relief because his Sixth Amendment right to counsel of choice was infringed. The Sixth Amendment We disagree. provides that [i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense. We have previously held that an element of this right is the right of a defendant who does not represent him. require appointed counsel to choose who will United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 165 L. Ed. 2d 409, 416 (2006) (citation omitted). In the present case unlike the facts in Gonzalez-Lopez there is nothing in the record to indicate that the trial court denied any request by Defendant participate in his defense. to allow Mr. Altman to Indeed, during the hearing on Mr. Ramos motion to withdraw, the trial court stated that Defendant was certainly free to counsel of [his] choice[.] However, at -8this pre-trial hearing, the trial court simply refused Mr. Ramos motion to withdraw. R 27 Defendant was facing sixteen B1 felonies, and Mr. Altman admitted at the pre-trial hearing that he had no experience representing clients with serious felony charges and had only been involved in a single jury trial. Further, as the trial court noted that Mr. Altman never filed a notice of appearance in the case. The United States Supreme Court has held that the right to counsel of respects[,] choice is circumscribed in several important Gonzalez-Lopez, 548 U.S. at 144, 165 L. Ed. 2d at 417 (citation and quotation marks omitted), stating as follows: Nothing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them. . . . We have recognized a trial court s wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar. The court has, moreover, an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. Id. at 151-52, 165 L. Ed. 2d at 421 (citations omitted)(emphasis added). -9In his brief, Defendant contends that, in the present case, the trial court s belief that retained counsel will not be as effective as appointed counsel is not a valid limitation on Defendant s constitutional right to counsel of choice. Although we agree with the foregoing assertion, it does not describe this case. We believe the record in this case reveals that, to the extent the trial court placed a limitation on Defendant s Sixth Amendment right counsel of choice by denying Mr. Ramos motion to withdraw, independent the limitation interest in was ensuring based that on the criminal court s trials are conducted within the ethical standards of the profession[,] see Gonzalez-Lopez, (citation and 548 U.S. quotation at 152, marks 165 L. omitted), Ed. and, 2d at 421-22 therefore, we conclude the trial court did not err in denying Defendant s MAR. Rule 1.1 of the North Carolina Rules of Professional Conduct states the following: Competence: A lawyer shall not handle a legal matter that the lawyer knows or should know he or she is not competent to handle without associating with a lawyer who is competent to handle the matter. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. The evidence at the MAR hearing included Mr. Altman s own admission that he was wholly incompetent to represent Defendant -10on his sixteen B1 felony charges. appeal that [u]nless allowing Defendant, in fact, admits on a criminal defendant to be represented by his retained counsel of choice would result in. . . [inter alia, a violation of] the Rules of Professional Conduct, the defendant must be allowed to be represented by retained counsel of his choosing. As such, we believe the trial motion court s denial of Mr. Ramos to later, the trial court s denial of Defendant s erroneous. withdraw, and MAR, was not The denial of Mr. Ramos motion to withdraw was necessary to ensure that Defendant s trial was conducted within the ethical standards of the profession[,] see Gonzalez-Lopez, 548 U.S. at 152, 165 L. Ed. 2d at 421-22, specifically, Rule 1.1 of the North Carolina Rules of Professional Conduct. At the hearing on Mr. Ramos motion to withdraw where Defendant indicated that he wanted Mr. Altman to represent him at trial on sixteen B1 felony counts and where Mr. Altman admitted having no experience in such matters - we believe that the trial court was caught between the proverbial Scylla and Charybdis. See Ex Parte McFarland, 163 S.W.3d 743, 759-60 (Tex. Crim. App. 2005). On the one hand, the trial court had a legitimate concern that Mr. Altman might not have the ability to provide competent representation, which, under the Sixth -11Amendment, a criminal defendant is entitled to. See Strickland v. Washington, 466 U.S. 668, 693, 80 L. Ed. 2d 674, 697-98 (1984). On the other hand, a criminal defendant also has a Sixth Amendment right to the privately retained counsel of his choice[.] omitted). McFarland, We constitutional believe supra. Judge requirements at (emphasis added) (footnote Lewis satisfied both of these the pre-trial hearing: She denied Mr. Ramos motion to withdraw, but she did not otherwise disqualify Mr. Altman from participating, stating: And you are certainly free to hire counsel of your choice; but, I have an obligation to let you know that Mr. Altman does not handle this level of felony. It is a very serious charge for which you are facing a very long time if you plead guilty or you are found guilty. . . . And so, whatever the relationship is with Mr. Altman, it is what it is. But Mr. Ramos is not going to be allowed to withdraw as your attorney. 1 1 We note that in its order denying Defendant s MAR, the trial court determined that Defendant s Sixth Amendment rights were not violated because the court refused to allow [Mr.] Altman . . . to represent the Defendant[.] This statement could be interpreted to mean that the trial court had refused to allow Mr. Altman to represent Defendant even with Mr. Ramos also serving; however, this interpretation is not supported by the record. A better interpretation of this statement, which finds support in the record, is that the trial court by denying Mr. Ramos motion to withdraw merely refused to allow Mr. Altman to serve as Defendant s sole counsel. -12Notwithstanding, there is nothing in the record to indicate that following the pre-trial hearing that Defendant sought to include Mr. Altman in his defense. II. Findings of Fact/Conclusions of Law Defendant presents several arguments challenging the trial court s findings of fact, and ultimately, its conclusions of law in its order denying Defendant s motion for appropriate relief. We find each of the following arguments unmeritorious. Defendant first argues that findings of fact 9 through 112 are merely recitations of testimony of the witnesses. In cases such as this, the trial court . . . is entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision . . . as to whether constitutional violation of some kind has occurred. or not a State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619-20 (1982). [I]t is not the role of the trial court as fact finder to simply restate the testimony given. In re O.W., 164 N.C. App. 699, 703, 596 S.E.2d 851, 854 (2004). 2 Inasmuch as the trial court The trial court did not enumerate its findings of fact in its order denying Defendant s motion for appropriate relief. However, on appeal, Defendant supplied a copy of the order, upon which Defendant numbered the findings of fact, so as to more effectively and conveniently present his argument. -13found as fact that Mr. Altman, Mr. Ramos, and Mr. McCormick testified to the following[,] the trial court did not perform its duty of weighing and resolving conflicts in the evidence. However, in this case, it does not appear conflicts in the evidence to resolve. that there were No one, including Mr. Altman, testified that Mr. Altman was competent to represent Defendant. See generally State v. Smith, 346 N.C. 794, 800, 488 S.E.2d 210, 214 (1997) (stating that [i]f there is no conflict in the evidence on a fact, failure to find that fact is not error ). findings Moreover, of fact the upon trial which court to base made its sufficient other conclusion that Defendant s Sixth Amendment right to counsel of choice was not abridged. Defendant next argues that findings of fact 9p, 11, and 12 are not supported by competent evidence. According to Defendant s enumeration, findings of fact 9p, 11, and 12 state the following: 9p. The Court was also privy to Mr. Altman s past mental health conditions at the time of Mr. Ramos appointment. . . . . 11. Mr. McCormick did not know of Mr. Eric Altman s representation of the Defendant, and if he was aware of such would have made -14a constitutional argument as to the Court s appointment of Mr. Ramos. . . . . 12. The Court finds there was nothing to lead Mr. McCormick to note Mr. Altman s purported appearance in the case file or any and all related documents. We agree with Defendant that there was no evidence presented at the hearing showing that the trial court was privy to Mr. Altman s past mental health conditions. However, there was evidence, including Mr. Altman s testimony, that he suffered from mental health conditions. Moreover, the trial court found as fact in a different portion of the order that Mr. Altman has, in the past, suffered from mental health problems. would caution the trial court not to make findings of We fact regarding things the trial court is privy to[,] as there was no evidence to support it was presented at the hearing. Although we agree with Defendant that this finding was made in error, the trial court made sufficient other findings upon which to base its conclusion that Defendant s Sixth Amendment right to counsel of choice was not abridged in this case. Findings of fact 11 and 12 pertain to the question of whether Defendant received ineffective assistance of appellate counsel, which, as Defendant points out in his previous -15argument, is separate and apart from the question of whether Defendant s violated. trial Sixth On court s Amendment certiorari, conclusion right to although of law chosen Defendant that he counsel challenges did not was the receive effective assistance of appellate counsel, Defendant does not present any argument showing how Defendant s appeal was prejudiced by Mr. McCormick s purported ineffective assistance. See State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (stating that in addition to showing counsel s performance was deficient, the defendant must show that the deficient performance Defendant has ineffective failed assistance prejudiced to meet of the his defense. ). burden counsel. See on the id. Therefore, question Because of the foregoing findings of fact have no bearing on the question of whether Defendant s Sixth Amendment right to counsel of choice was violated, they are superfluous to the trial court s ruling thereon, and we need not address whether they are supported by competent evidence in our analysis of whether Defendant s right to counsel of choice was violated. Based on the foregoing, we conclude Defendant s right to chosen counsel was not violated. We therefore affirm the trial court s order denying Defendant s MAR. -16AFFIRMED. Judge STROUD and Judge HUNTER, JR. concur Report per Rule 30(e).

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