STATE OF NORTH CAROLINA
v. Richmond County
Nos. 00 CRS 3363-4
CLEMMIE LEE COVINGTON 00 CRS 7864
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey B. Parsons, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Anne M. Gomez, for defendant-appellant.
BIGGS, Judge.
Defendant appeals from judgments entered upon his convictions
of possession of drug paraphernalia and felony possession of
cocaine while having attained the status of habitual felon.
Defendant was arrested upon warrants dated 10 April 2000
charging him with possession with intent to sell and deliver
cocaine and possession of drug paraphernalia. He appeared in
district court on 18 May 2000, was determined to be indigent, and
John D. Sullivan was appointed to represent him. On 24 July 2000,
defendant was indicted for possession with intent to manufacture,
sell and deliver cocaine, possession of drug paraphernalia, and
being a habitual felon. Sullivan subsequently withdrew because ofa conflict of interest and on 21 February 2001, the trial court
appointed Benny Sharpe (Sharpe) to represent defendant.
Defendant's case was set for trial at the 14 May 2001 criminal
session. On 9 May 2001, Henry T. Drake filed a notice of
representation as defendant's counsel and a motion to continue. In
his motion, Drake informed the trial court that he had been granted
secured leave starting 12 May 2001 and asked that defendant's case
be continued until after the 13 June 2001 session of court. At a
pre-trial hearing held on 15 May 2001, Sharpe informed the court
that defendant had hired Henry Drake to try his case and moved to
continue defendant's case so that defendant might “have counsel of
his choice.” The assistant district attorney informed the court
that Sharpe had been appointed to represent defendant on the 22nd
of February, that a second hearing was held in April with Sharpe,
and that he had spoken with Sharpe “a couple of times,” but
defendant “still didn't want to plead.” Sharpe informed the court
that “in the beginning [defendant] was trying to hire Mr. Drake.
And he had not paid him early on. I didn't think he had paid him,
until I was notified about a week ago.”
After hearing further arguments and reviewing the case file,
the trial court found: (1) the offenses occurred in April of 2000;
(2) a bond forfeiture was entered because defendant failed to
appear; (3) defendant hired Mr. Drake when the matter went on the
trial calendar for the week of 14 May 2001; and (4) Mr. Drake has
indicated to the court that he will not be available for court
until 13 June 2001. Based upon the findings, the trial courtconcluded:
defendant is manipulating the court system by
playing games with the Court. He has had
ample time to hire his own attorney. He made
false statements with regard to his indigency
status. He's had two court appointed lawyers.
Mr. Sharpe was appointed in February, and
has been representing him up until this week
when the court trial calendar came out. And
he at that point sought Mr. Drake's services,
who will not be available until after June the
12th.
The Court finds that this interferes with
the lawful administrative process of the
court. Mr. Sharpe is fully competent and
capable of representing this defendant. The
defendant has expressed no reservations about
Mr. Sharpe's services. He's just simply using
the tactic of hiring an attorney at the last
moment after going on the trial calendar, who
is not available for a month, to delay the
trial of this matter.
The trial court denied the motion to continue and advised
Benny Sharpe “you'll represent him, and we'll proceed.” The
following day, defendant appeared for trial with Sharpe as his
attorney. At defendant's trial, Sharpe moved to suppress physical
evidence seized by police, made opening and closing statements,
cross-examined witnesses, and made objections.
A jury found defendant not guilty of possession with intent to
sell and deliver cocaine but guilty of possession of cocaine and
possession of drug paraphernalia. Defendant then pled guilty to
being a habitual felon. Upon the court's inquiry as to the
voluntariness of defendant's plea to being a habitual felon,
defendant indicated that he was satisfied with defense counsel
Sharpe's legal services. The trial court sentenced defendant to
120 days imprisonment for the possession of drug paraphernaliaconviction and 116 to 149 months imprisonment for the possession of
cocaine and habitual felon convictions. Defendant appeals.
Defendant contends the trial court erred by denying his motion
to continue. He argues that the trial court's actions violated his
constitutionally guaranteed right to counsel. We disagree.
The right to counsel, which is guaranteed by the Sixth and
Fourteenth Amendments of the United States Constitution and Article
I of the North Carolina Constitution, includes the right of an
indigent defendant to appointed counsel. State v. McFadden, 292
N.C. 609, 234 S.E.2d 742 (1977); Gideon v. Wainwright, 372 U.S.
335, 9 L. Ed. 2d 799 (1963); see also N.C.G.S. § 7A-450 (2001). A
defendant who retains private counsel has a Sixth Amendment right
to counsel of his choosing. McFadden, 292 N.C. 609, 234 S.E.2d
742. Furthermore, a defendant must be granted a reasonable time in
which to obtain counsel of his own choosing, and must be granted a
continuance to obtain counsel of his choosing where, through no
fault of his own, he is without counsel. Id. at 615-16, 234 S.E.2d
at 746-47.
The right to choose one's counsel, however, is not absolute.
McFadden, 292 N.C. at 612, 234 S.E.2d at 745. Where a defendant is
appointed counsel, he may not demand counsel of his choice. State
v. Anderson, 350 N.C. 152, 513 S.E.2d 296, cert. denied, 528 U.S.
973, 145 L. Ed. 2d 326 (1999). More importantly, “an accused may
lose his constitutional right to be represented by counsel of his
choice when he perverts that right to a weapon for the purpose of
obstructing and delaying his trial.” McFadden, 292 N.C. at 616,234 S.E.2d at 747.
Ordinarily, a motion to continue is addressed to the
discretion of the trial court, and absent a gross abuse of that
discretion, the trial court's ruling is not subject to review.
When a motion to continue raises a constitutional issue, the trial
court's ruling is fully reviewable upon appeal. Even if the motion
raises a constitutional issue, a denial of a motion to continue is
grounds for a new trial only when defendant shows both that the
denial was erroneous and that he suffered prejudice as a result of
the error. State v. Taylor, 354 N.C. 28, 33-34, 550 S.E.2d 141,
146 (2001).
In State v. Montgomery, 33 N.C. App. 693, 236 S.E.2d 390
(1977) the defendant employed local counsel of his choice before
trial, who had fully prepared the case for trial. When defendant's
case was called for trial, however, defendant appeared and
requested to discharge local counsel and employ another attorney.
The trial court explained to defendant that he could elect to
proceed to trial with his present counsel or to proceed to trial
without counsel. This Court reasoned that the defendant's “attempt
to change counsel when the case was called for trial, which would
have resulted in the disruption and obstruction of orderly
procedure in the court, must be charged to the defendant,” id. at
697, 236 S.E.2d at 392, and held the trial court properly denied
defendant's motion to continue to obtain other counsel.
Here, defendant was afforded ample opportunity during the
thirteen months after he was indicted to obtain counsel. Further,defendant was twice appointed counsel as an indigent. The record
does not reveal why defendant waited until the week before the date
of his trial to employ counsel. Defendant does not show why or how
his case could have been better prepared had the continuance been
granted, nor does defendant show that he was prejudiced by the
denial of his motion to continue. Sharpe had been appointed to
represent defendant more than three months before defendant's trial
and had every reason to be familiar with the case. Sharpe
effectively argued defendant's motion to suppress and the record
indicates that the case was well tried. We note that after
defendant pled guilty to attaining the status of habitual felon,
defendant stated that he was satisfied with Sharpe's legal
services. We fail to perceive that the trial court erred or
deprived defendant of his constitutional right to be represented by
competent counsel at his trial.
No error.
Judges WALKER and THOMAS concur.
Report per Rule 30(e).
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