State v. Roberts

• Court: Court of Appeals of North Carolina
• Decided: May 20, 2014
• Docket: 13-1111
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 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 2013 by

Judge Ola M. Lewis in Brunswick County Superior Court. 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 -2- Defendant’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. However, at no time did Judge Lewis refuse to allow

Mr. 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. -3- Defendant 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 him, as a prior record

level III felon, to three presumptive range, consecutive

sentences of 336 to 413 months incarceration.

Defendant appealed to this Court. On direct appeal, he was

represented by Duncan McCormick. During the course of the

appeal, however, Mr. McCormick made a number of arguments on

Defendant’s behalf; however, he did not make any argument

pertaining to 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 -4- raise 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 -5- problems[,]” and he sometimes did not show up for district

court. When asked, “Do you believe that you 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 asked whether he had “file[d] any motions for

discovery” in Defendant’s case, Mr. Altman said, “I do 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 in a Superior Court case?” Mr. Altman

responded, “No.” 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 -6- Amendment 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 made an argument

concerning the trial court’s denial of 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 N.C. App. 399, 416, 691 S.E.2d 433, 445, (citation and

quotation marks omitted) disc. review denied, ___ N.C. ___, 702

S.E.2d 492 (2010). “Competent evidence is evidence that a -7- reasonable mind might accept as adequate to support the

finding.” Id. at 416-17, 691 S.E.2d at 445 (citation and

quotation marks omitted). “The trial court’s conclusions of law

are reviewed de novo.” 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. We disagree.

“The Sixth Amendment 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 require appointed counsel to choose who will

represent him.” 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 to allow Mr. Altman to

participate in his defense. 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 -8- this 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 choice is circumscribed in several important

respects[,]” 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). -9- In 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, the limitation was based on the court’s

“independent interest in ensuring that criminal trials are

conducted within the ethical standards of the profession[,]” see

Gonzalez-Lopez, 548 U.S. at 152, 165 L. Ed. 2d at 421-22

(citation and quotation marks omitted), and, 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 -10- on his sixteen B1 felony charges. Defendant, in fact, admits on

appeal that “[u]nless allowing 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 court’s denial of Mr. Ramos’ motion to withdraw, and

later, the trial court’s denial of Defendant’s MAR, was not

erroneous. 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 -11- Amendment, 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[.]” McFarland, supra. (emphasis added) (footnote

omitted). We believe Judge Lewis satisfied both of these

constitutional requirements at 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. -12- Notwithstanding, 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 or not a

constitutional violation of some kind has occurred.” 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). Inasmuch as the trial court

2 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. -13- found 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 that there were

conflicts in the evidence to resolve. 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”). Moreover, the trial court made sufficient other

findings of fact upon which to base its 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 -14- a 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.” We

would caution the trial court not to make findings of 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 -15- argument, is separate and apart from the question of whether

Defendant’s Sixth Amendment right to chosen counsel was

violated. On certiorari, although Defendant challenges the

trial court’s conclusion of law that he did not 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 prejudiced the defense.”). Therefore,

Defendant has failed to meet his burden on the question of

ineffective assistance of counsel. See id. Because 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. -16- AFFIRMED.

Judge STROUD and Judge HUNTER, JR. concur

Report per Rule 30(e).