An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1630


Filed: 7 October 2003


         v.                        Brunswick County
                                Nos.    01 CRS 6486
BENNY STANLEY,                            02 CRS 740

    Appeal by defendant from judgment entered 5 June 2002 by Judge D. Jack Hooks, Jr. in Brunswick County Superior Court. Heard in the Court of Appeals 25 August 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Sonya M. Calloway, for the State.

    Nora Henry Hargrove for defendant-appellant.

    GEER, Judge.

    The primary issue on this appeal is whether the trial court erred in denying defense counsel's oral motion to continue the trial. Because we believe that the trial court did not abuse its discretion in denying the motion and defendant has failed to demonstrate prejudice from that denial, we find no error.
    On 2 December 2001, the Brunswick County grand jury indicted defendant on charges of (1) possession with intent to sell and deliver cocaine and (2) sale and delivery of cocaine. On 11 February 2002, the grand jury also charged defendant with being an habitual felon.
    Defendant waived his right to assigned counsel on 9 January 2002 and again on 6 February 2002. Attorney R. C. Soles, Jr. gavenotice of limited representation on 13 February 2002 for the purpose of case management.
    On 30 April 2002, Judge William C. Gore, Jr. entered a scheduling order stating that defendant had declined the State's plea offer and setting the case for trial beginning 28 May 2002. The order noted that if the case was not reached on that date, it would be rescheduled for the next regular superior court session.
    At the case management conference, the State provided discovery to defendant in open court as required by the court. Judge Hooks _ who apparently presided at the case management conference as well as at trial _ warned defendant that the case was set for trial on 3 June 2002 and "they're going to call this case, go get your lawyer, be ready."
    On 24 May 2002, defendant approached attorney Benedict Del Re' about representing him. At a pretrial hearing on 3 June 2002, Mr. Del Re' orally requested that the trial court continue the matter for 30 days. Mr. Del Re' explained to the court that defendant was supposed "to have in [his] office funds, sign a retainer agreement, and all of these things; that has not happened." That morning, however, defendant had "partially retain[ed]" him, but Mr. Del Re' was "not prepared to try this case today."
    The State opposed the motion for a continuance and noted, without contradiction by defendant, that Mr. Del Re' was defendant's third attorney:
        Mr. Soles was the first person to represent Mr. Stanley. Mr. Soles came before this Court in case management, and in writing, said that he did not represent Mr. Stanley on thesecharges and had not been fully retained. Then Mr. Stanley tried to retain Mr. Chris Gentry, and that dragged on for several weeks and he never retained Mr. Gentry. And then he tried to retain Mr. Stiller, who did have a conflict.

The State reminded the trial court that the court during the case management hearing had "instructed the defendant that with or without a lawyer this matter would be for trial on June 3rd and that he would have to speak to an attorney as soon as possible." The State also noted that, because of the trial date, one of its witnesses had lost the opportunity to attend a four-day training seminar and the SBI had been forced to cancel certain training in order to ensure that a lab technician was available to testify.
    In its discretion, the trial court denied the motion to continue. Defendant's trial began the next day after the trial court heard three additional motions.
    At trial, the State introduced evidence showing that defendant had sold 0.1 gram of crack cocaine to Daniel Patrick Koehler, an undercover informant. Mr. Koehler identified defendant as the man who sold him the crack cocaine. Detective Israel West testified about the undercover operation and produced a short videotape of the drug transaction. The trial court denied defendant's motion to dismiss at the close of the State's evidence. Defendant did not introduce any evidence.
    After deliberating, the jury found defendant guilty of possession with intent to sell or deliver cocaine and of sale or delivery of cocaine. Defendant entered a plea of guilty to habitual felon status. The trial court consolidated thesubstantive offenses for judgment and sentenced defendant as an habitual felon to a term of 60 to 81 months imprisonment. Defendant appeals from the trial court's judgment.
    In his first assignment of error, defendant contends that the trial court erred by denying his motion for a continuance. Ordinarily, a motion for a continuance is a matter within the trial court's discretion and a denial is not reversible error absent an abuse of discretion. State v. Massey, 316 N.C. 558, 572, 342 S.E.2d 811, 819-20 (1986). If, however, the motion to continue is based on a constitutional right, such as the right to effective assistance of counsel or the right to confront witnesses, then it presents a question of law that is fully reviewable on appeal. Id.
    Our Supreme Court has held that "[t]he denial of a motion to continue, even when the motion raises a constitutional issue, is grounds for a new trial only upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error." State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982) (emphasis added). With respect to whether defendant had sufficient time to confer with his counsel and to prepare his defense, "[n]o precise time limits are fixed . . . and what constitutes a reasonable length of time for the preparation of a defense must be determined upon the facts of each case." Id. at 104-05, 291 S.E.2d at 656. If a defendant shows that the preparation time was constitutionally inadequate, he is then entitled to a new trial unless the State shows that the error was harmless beyond a reasonable doubt. State v. Gardner, 322 N.C.591, 594, 369 S.E.2d 593, 596 (1988).
    Here, given the fact that defendant had substantial notice of the trial date and of his need to obtain counsel, but failed to act to fully retain counsel until the day of trial, we cannot find that the trial court abused its discretion in denying the motion to continue. See State v. Sampley, 60 N.C. App. 493, 496, 299 S.E.2d 460, 462 (1983) (no abuse of discretion to deny oral motion to continue on the first day of trial when defendant had more than a month from the withdrawal of his original attorney in which to retain a new one), disc. review denied, 308 N.C. 390, 302 S.E.2d 257 (1983).
    Even if defendant could show that he was given inadequate time to prepare his defense, he has failed to demonstrate prejudice from the denial of the motion to continue. On appeal, defendant argues generally that defense counsel might have been able to interview witnesses "to determine whether they could offer a defense" or that he may have been able to subpoena law enforcement officers "to determine if there were any gaps in the chain [of custody of evidence]." Defendant concludes: "A good attorney, such as Mr. Del Re', with an adequate amount of time, may be able to uncover shortcomings in the [S]tate's case that are not now apparent. He cannot tell you what he would have found if he had time, since he did not have time."
    Under the circumstances of this case _ in which defense counsel had an opportunity the week before trial to review discovery and the State's videotape _ this generalized statement ofprejudice is not sufficient to establish prejudice. As the Supreme Court has previously held, "'a mere intangible hope that something helpful to a litigant may possibly turn up affords no sufficient basis for delaying a trial to a later term.'" State v. Tolley, 290 N.C. 349, 357, 226 S.E.2d 353, 362 (1976) (quoting State v. Gibson, 229 N.C. 497, 502, 50 S.E.2d 520, 524 (1948)). See also Branch, 306 N.C. at 105, 291 S.E.2d at 657 (defendant failed to demonstrate prejudice from denial of motion to continue when defendant did not provide names of witnesses and did not explain what defendant expected to prove through the witnesses). This assignment of error is overruled.
    In his second argument, defendant contends his adjudication as an habitual felon violated the due process, equal protection and double jeopardy clauses of the state and federal constitutions. The State subsequently filed a motion with this Court to dismiss defendant's appeal as to this assignment of error because defendant failed to raise the issue of the constitutionality of the Habitual Felon Act at trial. While defendant concedes in his response that the issue was not raised at trial, he requests that this Court treat his argument as a petition for writ of certiorari.
    "[A] constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal." State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). In addition, the issues for which defendant seeks review have all been decided contrary to his position. See State v. Hodge, 112 N.C. App. 462, 468, 436 S.E.2d 251, 255 (1993); see alsoState v. Cates, 154 N.C. App. 737, 739-40, 573 S.E.2d 208, 209-10 (2002), disc. review denied, 356 N.C. 682, 577 S.E.2d 897 (2003). We therefore deny defendant's request to treat this argument as a petition for writ of certiorari. The State's motion to dismiss the appeal as to this argument is granted.
    Defendant failed to address his remaining assignment of error in his brief. It is, therefore, deemed abandoned. N.C.R. App. P. 28(b)(6).

    No error.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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