State v. Mulder

• Court: Court of Appeals of North Carolina
• Decided: March 3, 2015
• Docket: 14-903
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedur e.

NO. COA14-903 NORTH CAROLINA COURT OF APPEALS

Filed: 3 March 2015

STATE OF NORTH CAROLINA

v. Lee County Nos. 11 CRS 50049, 50055 EDWARD EARL MULDER

Appeal by defendant from judgment entered 7 May 2014 by Judge

C. Winston Gilchrist in Lee County Superior Court. Heard in the

Court of Appeals 9 February 2015.

Attorney General Roy Cooper, by Assistant Attorney General Scott A. Conklin, for the State.

Peter Wood for defendant-appellant.

HUNTER, JR., Robert N., Judge.

On 15 October 2012, a jury found defendant Edward Earl Mulder

(“Defendant”) guilty of the following: one count of breaking and

entering; one count of felonious operation of a motor vehicle to

elude arrest; one count of reckless driving to endanger; one count

of speeding; one count of littering; one count of failure to

maintain lane control; one count of injury to personal property;

one count of failure to heed light or siren; two counts of -2- violating a domestic violence protective order (“DVPO”); and five

counts of assault with a deadly weapon on a government officer.

The trial court imposed consecutive sentences of 15–18 months in

prison for the first two counts of assault with a deadly weapon on

a government officer; 19–23 months in prison for the next three

counts of assault with a deadly weapon on a government officer; 6–

8 months in prison for the consolidated offenses of speeding,

reckless driving, felonious operation of a motor vehicle to elude

arrest, failure to heed light or siren, failure to maintain lane

control, and littering; and 75 days in prison for the DVPO

violations, the injury to personal property offense, and the

breaking or entering offense.

Defendant appealed, and this Court held that “Defendant was

unconstitutionally subjected to double jeopardy when he was

convicted of speeding and reckless driving in addition to felony

fleeing to elude arrest based on speeding and reckless driving.”

State v. Mulder, ___ N.C. App. ___, ___, 755 S.E.2d 98, 106 (2014).

Therefore, this Court arrested judgment on the speeding and

reckless driving convictions and remanded Defendant’s case for

resentencing. Id.

The trial court conducted a resentencing hearing on 7 May

2014. Attorney Ed Page, who represented defendant in his original -3- trial, was reappointed to represent him at resentencing. The trial

court arrested judgment on Defendant’s convictions for speeding

and reckless driving. The trial court imposed a sentence of 6-8

months for the consolidated offenses of felonious operation of a

motor vehicle to elude arrest, failure to heed light or siren,

failure to maintain lane control, and littering. Defendant

appeals.

Defendant’s sole argument on appeal is that the trial court

erred by failing to conduct an inquiry into his dissatisfaction

with court-appointed counsel, Ed Page. We review the trial court’s

decision whether to appoint new counsel for an abuse of discretion.

State v. Bowen, 56 N.C. App. 210, 212-13, 287 S.E.2d 458, 460

(1982).

“While it is a fundamental principle that an indigent

defendant in a serious criminal prosecution must have counsel

appointed to represent him, an indigent defendant does not have

the right to have counsel of his choice appointed to represent

him.” State v. Thacker, 301 N.C. 348, 351-52, 271 S.E.2d 252, 255

(1980) (internal citations omitted). Our Supreme Court further

explained:

A trial court is constitutionally required to appoint substitute counsel whenever representation by counsel originally appointed would amount to denial of -4- defendant’s right to effective assistance of counsel, that is, when the initial appointment has not afforded defendant his constitutional right to counsel. Thus, when it appears to the trial court that the original 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, denial of defendant’s request to appoint substitute counsel is entirely proper.

Id. at 352, 271 S.E.2d at 255 (internal citations omitted). “Once

it becomes apparent that the assistance of counsel has not been

rendered ineffective, the trial judge is not required to delve any

further into the alleged conflict.” State v. Poole, 305 N.C. 308,

311-12, 289 S.E.2d 335, 338 (1982). Furthermore, our Supreme Court

“has held that a disagreement over trial tactics generally does

not render the assistance of the original counsel ineffective.”

Thacker, 301 N.C. at 352, 271 S.E.2d at 255.

Defendant argues that he “articulated compelling reasons for

the court to remove Page” and therefore offered “‘more than broad

and general statements of dissatisfaction with his attorney.’”

(quoting State v. Shubert, 102 N.C. App. 419, 425, 402 S.E.2d 642,

646 (1991)). We disagree. It appears that the root of Defendant’s

complaint with Mr. Page was related to his claims that (1) the

charges against him were “trumped up” and fabricated by law

enforcement; (2) that he never committed any domestic violence; -5- and (3) that Mr. Page was refusing to give Defendant e-mails which

would prove his allegations. Defendant apparently wanted Mr. Page

to introduce this evidence at resentencing. Defendant’s claims,

however, are relevant to the guilt phase in his original trial and

are therefore misplaced at resentencing. Indeed, counsel

appropriately advocated for Defendant by requesting that the court

consolidate his offenses, run his sentence concurrent to his other

sentences, or suspend the sentence. Counsel also noted Defendant’s

age and lack of a criminal record. Based on the foregoing, we are

satisfied that the trial court adequately inquired into the reasons

for Defendant’s dissatisfaction, and based on those reasons, it

was apparent that assistance of counsel had not been rendered

ineffective. See Poole, 305 N.C. at 311-12, 289 S.E.2d at 338.

We therefore discern no abuse of discretion on the part of the

trial court.

No error.

Chief Judge MCGEE and Judge STEPHENS concur.

Report per Rule 30(e).