State v. Curlee ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-515
Filed: 20 December 2016
Davie County, Nos. 13 CRS 50224, 14 CRS 358
STATE OF NORTH CAROLINA, Plaintiff,
v.
DOUGLAS EUGENE CURLEE, Defendant.
Appeal by defendant from judgment entered 29 February 2016 by Judge Kevin
M. Bridges in Davie County Superior Court. Heard in the Court of Appeals 3
November 2016.
Attorney General Roy Cooper, by Associate Attorney General Rory Agan, for the
State.
Willis Johnson & Nelson PLLC, by Drew Nelson, for defendant-appellant.
ZACHARY, Judge.
Douglas Eugene Curlee (defendant) appeals from judgment entered upon his
convictions for felonious larceny from a merchant and having attained the status of
an habitual felon. On appeal, defendant argues that the trial court erred by finding
that, at a hearing conducted two months prior to the date of trial, defendant had
refused the appointment of counsel and that defendant was warned at that hearing
that if he were unable to hire an attorney, he would have to proceed to trial pro se.
For the reasons that follow, we agree.
STATE V. CURLEE
Opinion of the Court
I. Factual and Procedural History
On 6 February 2013, defendant was arrested and charged with larceny from a
merchant, in violation of N.C. Gen. Stat. § 14-72.11(2) (2015), which provides that a
person “is guilty of a Class H felony if the person commits larceny against a merchant
. . . [b]y removing, destroying, or deactivating a component of an antishoplifting or
inventory control device[.]” On 7 February 2013, defendant completed an affidavit of
indigency, requested the appointment of counsel, and trial counsel was appointed to
represent him on the charge of larceny from a merchant. On 19 May 2014, defendant
was indicted on the charge that he had attained the status of an habitual felon. On
30 May 2014, defendant signed a waiver of the right to assigned counsel, because he
was attempting to hire attorney Michael J. Parker.1 Between May 2014 and May
2015, defendant’s trial was continued several times to enable defendant to obtain
funds with which to retain Mr. Parker as trial counsel. On 11 May 2015, defendant
appeared in court before Judge Kevin Bridges. Mr. Parker informed the court that
1 On 23 June 2014, defendant signed another waiver of counsel on which he checked the box
next to the statement “I waive my right to all assistance of counsel, which includes my right to assigned
counsel and my right to the assistance of counsel. In all respects, I desire to appear in my own behalf,
which I understand I have the right to do.” However, there is no other indication in the record that
defendant ever expressed a wish to proceed pro se, and no record of the inquiry by a trial judge that is
required by N.C. Gen. Stat. § 15A-1242 (2015). “The execution of a written waiver is no substitute for
compliance by the trial court with the statute[;] [a] written waiver is something in addition to the
requirements of N.C. Gen. Stat. § 15A-1242, not . . . an alternative to it.” State v. Evans, 153 N.C.
App. 313, 315, 569 S.E.2d 673, 675 (2002) (citations and quotation omitted). Moreover, contrary to the
assertion by the State on appeal, the trial court did not find that defendant “had previously waived
his right to an attorney in court” and did not make findings pertinent to the requirements for
determining that a defendant who wishes to represent himself has been properly informed of, and
understands, the consequences of his decision.
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Opinion of the Court
defendant had not retained him and that, if the court would not agree to continue the
case, Mr. Parker would then move to withdraw as defendant’s counsel. After some
discussion, which is described in detail below, the court agreed to continue the case
for two months, to give defendant more time in which to pay Mr. Parker for his
representation.
On 29 June 2015, Mr. Parker filed a motion to withdraw as defendant’s counsel
because defendant had failed to pay for Mr. Parker’s representation.2 On 6 July 2015,
defendant appeared before the trial court for a hearing on Mr. Parker’s motion to
withdraw. The court allowed Mr. Parker’s motion to withdraw, and defendant asked
for counsel to be appointed. Based upon certain representations by the prosecutor,
which are discussed in detail below, the trial court found that on 11 May 2015
defendant had refused Judge Bridge’s offer to appoint counsel and had been warned
that he would have to proceed pro se if he did not hire counsel by 6 July 2015. The
trial court found that defendant had waived the right to a court-appointed attorney.
Defendant represented himself at his trial, which began on 7 July 2015, the
day after the hearing on Mr. Parker’s motion. Following the presentation of evidence,
the arguments by defendant and the prosecutor, and the trial court’s instructions to
the jury, the jury retired to deliberate. While the jury was deliberating, defendant
2 Mr. Parker’s motion also alleged that defendant had “failed and refused to cooperate with
and follow the advice of counsel.” However, Mr. Parker did not pursue this contention in court, and
there is no record evidence regarding defendant’s alleged failure to cooperate with his counsel.
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Opinion of the Court
left the courthouse and failed to return. The trial court found that defendant had
voluntarily waived his right to be present at all stages of his trial, continued with
trial proceedings in defendant’s absence, and ordered that defendant’s bond be
revoked and an order issued for his arrest. The jury returned a verdict finding
defendant guilty of larceny from a merchant. A separate proceeding was conducted
on the charge that defendant had attained the status of an habitual felon. The jury
found that defendant was an habitual felon. The trial court entered a prayer for
judgment continued, and explained to the jury that it could not sentence defendant
until he was brought before the court.
Defendant was arrested in January of 2016, and appeared before Judge
Bridges for sentencing on 29 February 2016. Defendant was sentenced to 103 to 136
months’ imprisonment. He gave notice of appeal in open court.
II. Standard of Review
On appeal, defendant does not raise any issues pertaining to the substantive
merits of his conviction of larceny from a merchant or the sentence imposed upon his
conviction. Instead, defendant challenges the trial court’s denial of his request for
appointed counsel, on the grounds that the trial court’s findings were not based upon
competent evidence.
“It is well settled in this jurisdiction that when the trial
court sits without a jury, the standard of review on appeal
is whether there was competent evidence to support the
trial court’s findings of fact and whether its conclusions of
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STATE V. CURLEE
Opinion of the Court
law were proper in light of such facts. Findings of fact by
the trial court in a non-jury trial have the force and effect
of a jury verdict and are conclusive on appeal if there is
evidence to support those findings. A trial court’s
conclusions of law, however, are reviewable de novo.
State v. Rollins, 231 N.C. App. 451, 453-54, 752 S.E.2d 230, 233 (2013) (quoting
Mecklenburg Cnty. v. Simply Fashion Stores, Ltd., 208 N.C. App. 664, 668, 704 S.E.2d
48, 52 (2010)).
III. Discussion
On appeal, defendant argues that the trial court erred by denying his request
for the appointment of counsel, on the grounds that the court’s findings were
unsupported by competent evidence. In analyzing this issue, we first note that
certain relevant facts are uncontradicted, including the following:
1. Defendant was arrested on 6 February 2013, and
counsel was appointed to represent him the following day.
2. On 30 May 2014, defendant signed a waiver of the right
to appointed counsel.
3. Between May 2014 and May 2015, defendant’s case was
continued three times to allow defendant time to obtain
funds with which to retain attorney Michael J. Parker to
represent him.
4. On 11 May 2015, Mr. Parker and defendant appeared
before Judge Bridges. Mr. Parker told the court that
defendant had not paid him and that if the case were not
continued he would move to withdraw. Defendant told the
court that he had lost his job but that he expected to be able
to pay Mr. Parker in a month and a half. The court
continued the case for two months.
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STATE V. CURLEE
Opinion of the Court
5. On 6 July 2015, defendant appeared before the trial
court. Mr. Parker moved to withdraw as defendant’s
counsel because defendant had not fully retained him.
Defendant asked for the appointment of counsel. The
prosecutor made certain representations to the trial court
concerning the proceedings on 11 May 2015. The trial court
ruled that defendant had waived the right to appointed
counsel.
“An indigent defendant’s right to appointed counsel in a criminal prosecution
is guaranteed by both the North Carolina Constitution and the Sixth Amendment to
the United States Constitution.” State v. Holloman, 231 N.C. App. 426, 429, 751
S.E.2d 638, 641 (2013) (citation omitted). However, there are several circumstances
under which an indigent defendant may lose the right to appointed counsel. First, a
defendant may waive his right to appointed counsel:
A criminal defendant may “waive his [constitutional] right
to be represented by counsel so long as he voluntarily and
understandingly does so.” Once given, however, “a waiver
of counsel is good and sufficient until the proceedings are
terminated or until the defendant makes known to the
court that he desires to withdraw the waiver and have
counsel assigned to him.” The burden of establishing a
change of desire for the assistance of counsel rests upon the
defendant.
State v. Sexton, 141 N.C. App. 344, 346-47, 539 S.E.2d 675, 676-77 (2000) (quoting
State v. Hyatt, 132 N.C. App. 697, 700, 513 S.E.2d 90, 93 (1999)). A defendant may
also waive the right to be represented by counsel, instead electing to proceed pro se.
“ ‘Once a defendant clearly and unequivocally states that he wants to proceed pro se,
the trial court . . . must determine whether the defendant knowingly, intelligently,
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STATE V. CURLEE
Opinion of the Court
and voluntarily waives the right to in-court representation by counsel.’ ” State v.
Blakeney, __ N.C. App. __, __, 782 S.E.2d 88, 93 (2016) (quoting State v. Thomas, 331
N.C. 671, 674, 417 S.E.2d 473, 476 (1992)). “A trial court’s inquiry will satisfy this
constitutional requirement if conducted pursuant to N.C.G.S. § 15A-1242.” Id. In
addition, a criminal defendant who engages in serious misconduct may forfeit the
right to appointed counsel. Blakeney, __ N.C. App. at __, 782 S.E.2d at 93-94.
Another situation that arises with some frequency in criminal cases is that of
the defendant who waives the appointment of counsel and whose case is continued in
order to allow him time to obtain funds with which to retain counsel. By the time
such a defendant realizes that he cannot afford to hire an attorney, his case may have
been continued several times. At that point, judges and prosecutors are
understandably reluctant to agree to further delay of the proceedings, or may suspect
that the defendant knew that he would be unable to hire a lawyer and was simply
trying to delay the trial. It is not improper in such a situation for the trial court to
inform the defendant that, if he does not want to be represented by appointed counsel
and is unable to hire an attorney by the scheduled trial date, he will be required to
proceed to trial without the assistance of counsel, provided that the trial court informs
the defendant of the consequences of proceeding pro se and conducts the inquiry
required by N.C. Gen. Stat. § 15A-1242.
[D]efendant neither voluntarily waived the right to be
represented by counsel, nor engaged in such serious
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STATE V. CURLEE
Opinion of the Court
misconduct as to warrant forfeiture of the right to counsel
without any warning by the trial court. As a result, the trial
court was required to inform defendant that if he
discharged his attorney but was unable to hire new
counsel, he would then be required to represent himself.
The trial court was further obligated to conduct the inquiry
mandated by N.C. Gen. Stat. § 15A-1242, in order to ensure
that defendant understood the consequences of self-
representation.
Blakeney at __, 782 S.E.2d at 98.
In the present case, the parties have offered arguments regarding, inter alia,
whether defendant showed “good cause” for withdrawing his waiver of appointed
counsel or whether he engaged in behavior that might have supported the trial court’s
conclusion that he had forfeited the right to appointed counsel. We conclude,
however, that on the facts of this case, we are not required to resolve these issues.
Our resolution of this appeal requires review of the hearings conducted in May
and July of 2015. At the 11 May 2015 hearing before Judge Bridges, the State was
represented by Assistant District Attorney Wendy Terry, and defendant was
represented by Michael Parker. Ms. Terry explained the current status of the case to
the court:
MS. TERRY: Mr. Parker has, I think, made an appearance
for the defendant previously for the purpose of having the
case continued so that this gentleman could retain him in
full. This is Mr. Curlee’s third appearance on the trial list.
We continued it so he would have the opportunity of getting
his counsel retained the last two times, if it pleases the
Court. I have spoken with Mr. Parker. Mr. Parker indicates
to me that Mr. Curlee has not been able to make the
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STATE V. CURLEE
Opinion of the Court
appropriate arrangements[.] . . . I want to address the
[issue of] counsel.
Mr. Parker explained that defendant had not paid him the amount required
for representation and informed the court that “[i]f your Honor will not continue the
case, it will be my motion to withdraw.” Judge Bridges discussed the matter with
defendant, who informed him that he had lost his job due to repeated absences
occasioned by the prosecutor’s directive that defendant remain in the courtroom “all
week.” The court asked defendant if was presently able to retain Mr. Parker, and
defendant responded “No sir, not now, I don’t.” Ms. Terry conceded that defendant
had been asked to be available in case his case was reached on the calendar, but that
the State was “not being ugly about it in any way.” The court then engaged in the
following dialogue with defendant:
THE COURT: Mr. Curlee, how long will it take you to hire
your lawyer if I were to give you that time? Are you
currently employed?
THE DEFENDANT: I just got another job last week then I
have to be in court this week. I don’t know what will
happen today on that. I would say at least a month, month
and a half.
THE COURT: I assume he signed a waiver for the file at
some point?
MR. PARKER: He originally had court-appointed counsel,
Judge.
THE CLERK: There’s a waiver signed.
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Opinion of the Court
THE COURT: What was the date of the waiver?
THE CLERK: 6-23-14.
THE COURT: All right. Sir, in June of last year you signed
a waiver, I presume, to hire your own counsel. I also
presume back when you signed the waiver you were
gainfully employed?
THE DEFENDANT: Yes, sir.
THE COURT: And so the difference would be in the interim
you lost your job?
THE DEFENDANT: Yes, sir.
THE COURT: So if I were to continue the case to give you
time, I could continue the case, give you time to hire a
lawyer. If I don't continue the case, I presume you still
would want some kind of counsel based on the change of
circumstances?
THE DEFENDANT: (Defendant nodding.)
THE COURT: Meaning he lost his job in the interim which
would delay the case either way. I will grant the motion
and keep Mr. Parker at least viable at this point. How long
are you telling me it will take to hire your lawyer?
MS. TERRY: There’s a July 6th term of court.
THE COURT: July 6th. Mr. Curlee, you need to be ready
then, sir. Is he free to go at this time then? Is there
anything else that I need to know about that may be
pending?
MS. TERRY: No, sir.
THE COURT: You are free to go. Be back July 6th.
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STATE V. CURLEE
Opinion of the Court
The transcript thus establishes that at the 11 May 2015 hearing the judge was
informed (1) that after signing a waiver of appointed counsel, defendant lost his job
and was not presently able to retain Mr. Parker, (2) that if the case were not
continued, Mr. Parker would move to withdraw as counsel, and (3) that, if the court
did not continue the case, defendant would “want some kind of counsel based on [his]
change of circumstances.” The trial court concluded that, regardless of whether the
case was continued to give defendant more time to retain Mr. Parker or, alternatively,
Mr. Parker was allowed to withdraw, defendant had “lost his job in the interim which
would delay the case either way.” In other words, there would either be a delay
caused by a continuance, or a delay caused by the need to appoint counsel for
defendant.
Faced with this situation, the court did not seek input from defendant as to
whether he would prefer to have counsel appointed or instead to work towards being
able to hire Mr. Parker, and the court did not offer to appoint counsel for defendant
at that time. Instead, the court decided on its own to continue the case in order to
“keep Mr. Parker at least viable at this point.” Significantly, at the 11 May 2015
hearing, Judge Bridges did not address the possibility that defendant might be unable
to retain Mr. Parker even with a continuance. The court told defendant generally to
“be ready” for trial on 6 July 2015. However, the court did not warn defendant that
if he were unable to hire Mr. Parker, defendant would be forced to proceed pro se.
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Opinion of the Court
Nor did the court make any inquiry to ascertain that defendant understood the
consequences of representing himself.
On 6 July 2015, defendant appeared before the trial court. Mr. Parker had
moved to withdraw due to defendant’s failure to retain him, but represented
defendant at the start of the hearing, before his motion was granted. The State was
again represented by Ms. Terry. At the outset of the hearing, Ms. Terry stated the
following:
MS. TERRY: . . . Mr. Curlee is number one on the trial list.
He was on the trial list term before last in front of the
Honorable Judge Bridges. He had not finished -- despite
the age of the case -- this is a 2013 case -- had not finished
hiring an attorney. Judge Bridges gave him a two-month
continuance so he could do that. In the interim he has not
finished paying Mr. Parker. Mr. Parker filed a motion to
withdrawal, if it pleases the Court. Judge Bridges
instructed him that he should be ready to go with or
without an attorney. I tender the Court Mr. Parker on his
motion.
Ms. Terry’s statement to the trial court that Judge Bridges “instructed
[defendant] that he should be ready to go with or without an attorney” is completely
inaccurate. Judge Bridges did not give defendant such a warning and, in fact, said
nothing whatsoever about the possibility of defendant’s being forced to represent
himself. In response to Ms. Terry’s proffer of Mr. Parker to the court, Mr. Parker
agreed that defendant’s failure to pay him constituted the grounds for his motion to
withdraw, and informed the court that he wished to withdraw and that defendant
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Opinion of the Court
“will have a motion to continue or request a court-appointed counsel.” Thereafter,
the parties engaged in the following dialogue:
THE COURT: Mr. Curlee, anything you want to say about
Mr. Parker’s motion to withdraw?
THE DEFENDANT: I have to say then, I lost my job. I just
couldn’t work. I just started back.
THE COURT: The Court would grant Mr. Parker’s motion
to withdraw.
MR. PARKER: Thank you, your Honor.
THE COURT: And, Mr. Curlee, did you have any motions
at this time?
THE DEFENDANT: I would like to see if the Court could
appoint me an attorney.
THE COURT: When did Mr. Curlee sign a waiver?
MS. TERRY: He had appointed counsel. He had Miss
Hamilton-Dewitt whom he released. If I can approach with
the Court file, I will let your Honor make her own
determination in this matter. I can tell you that Judge
Bridges offered Mr. Curlee court-appointed counsel two
terms ago. He declined his offer, Mr. Curlee declined and
wanted to hire an attorney. Judge Bridges told him he
needed to be ready one way or the other this term of court.
Again, Ms. Terry’s representation to the trial court was inaccurate and wholly
unsupported by anything in the 11 May 2015 transcript. After the trial court heard
from Ms. Terry, the hearing continued:
THE COURT: For the record, the Court finds that Miss
Hamilton-Dewitt was appointed February 7th of 2013. The
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Opinion of the Court
case was continued until February 14th of 2013. That the
case was continued until such time that on June 23rd,
2013, Mr. Curlee signed a waiver and was given an
opportunity to hire an attorney, that the matter has been
continued a year. The Court finds on information and belief
that on the last court date, which was two months ago, that
Judge Bridges granted a two-month continuance to the
defendant. At that time Judge Bridges indicated that the
matter would be tried with or without an attorney. That
Judge Bridges gave the defendant an opportunity at that
time to request a court-appointed attorney. Mr. Curlee
indicated he wanted to hire his own attorney. That as of
today he still has not done so. That Mr. Curlee is asking for
a continuance and asking for a court-appointed attorney
today. However, the Court finds this case is an old case.
That it is first on the trial list that was duly published.
That this is a 2013 case. The Court finds that Mr. Curlee
knowingly and voluntarily waived his right to a court-
appointed attorney on a previous court date and that he
was given the opportunity to hire an attorney for several
court dates. That he was put on notice two months ago that
the case would be heard this term. The Court would deny
the motion for court-appointed attorney.
It is clear from a review of the transcript that the trial court’s ruling was based,
at least in part, on Ms. Terry’s misrepresentation that, at the 11 May 2015 hearing,
(1) defendant was asked if he wanted counsel appointed at that point, (2) defendant
was warned that the case would be tried in July regardless of whether defendant
were able to hire Mr. Parker, and (3) defendant was explicitly warned that if he had
not retained counsel by 6 July 2015, he would be forced to proceed to trial pro se.
None of these representations are accurate.
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Opinion of the Court
We wish to be clear that this Court has no basis upon which to believe that Ms.
Terry intentionally misrepresented the facts of this case to the trial court, and note
that she spoke to the court without the benefit of a transcript. On the other hand, we
note that in its appellate brief, the State is less than forthcoming about the history of
this matter. For example, the State asserts that in response to the trial court’s
inquiry, Ms. Terry “informed the trial court of the previous hearing, and the
declaration of Judge Bridges that the appellant needed to be ready on 6 July 2015.”
This is a misrepresentation of the facts, and fails to acknowledge that Ms. Terry did
not simply state that Judge Bridges had told defendant to “be ready” but had instead
made several affirmative representations that were inaccurate. Indeed, the State
omits any mention of either Ms. Terry’s statements or the trial court’s findings
regarding defendant having allegedly been “warned” that he would have to represent
himself if he was unable to hire Mr. Parker. As the State does have a transcript
available for reference, this crucial omission is puzzling.
We also wish to emphasize that we are expressing no opinion on the
substantive issues related to the appointment of counsel beyond our holding that the
trial court’s ruling was not supported by competent evidence. We offer no opinion,
for example, on whether Judge Bridges might properly have warned defendant that
he would have to proceed pro se if he did not hire an attorney, or on whether the trial
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Opinion of the Court
court might properly have found, if it had been provided with accurate information,
that defendant had waived his right to counsel.
We conclude that the trial court’s denial of defendant’s request for appointed
counsel and its ruling that defendant had waived the right to appointed counsel were
not supported by competent evidence. “A trial court does not reach a reasoned
decision, and thus abuses its discretion, when its findings of fact are not supported
by competent evidence.” Point Intrepid, LLC v. Farley, 215 N.C. App. 82, 86, 714
S.E.2d 797, 800 (2011) (citing Leggett v. AAA Cooper Transp., Inc., 198 N.C. App. 96,
104, 678 S.E.2d 757, 763 (2009)). As a result, defendant’s conviction must be
REVERSED.
Judges STROUD and McCULLOUGH concur.
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