State v. Mulder ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling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).