State v. Roberts ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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.
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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
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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
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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
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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
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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
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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).
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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
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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
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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.
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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.
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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
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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
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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.
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AFFIRMED.
Judge STROUD and Judge HUNTER, JR. concur
Report per Rule 30(e).