STATE OF NORTH CAROLINA
v. Brunswick County
Nos. 01 CRS 6486
BENNY STANLEY, 02 CRS 740
Defendant.
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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