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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-622


Filed: 18 September 2007


v .                         Wilkes County
                            No. 02 CRS 55283


    Appeal by defendant from judgment entered 14 November 2005 by Judge Richard L. Doughton in Wilkes County Superior Court. Heard in the Court of Appeals 6 March 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Gaines M. Weaver, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.

    STEELMAN, Judge.

    A defendant may forfeit his constitutional right to be represented by counsel when he waives court appointed counsel and fails to procure hired counsel in a timely manner. A motion to continue is properly denied where the defendant had a reasonable time in which to obtain counsel, but failed to do so.
    On 16 April 2003, Christopher Hutch Deskins (“defendant”) pled guilty to possession of stolen property in Wilkes County District Court. Defendant was sentenced to 6-8 months imprisonment. This sentence was suspended and defendant was placed on supervised probation for 36 months upon regular and special conditions of probation.     On 11 October 2005, a probation violation report was filed. Defendant signed the report, acknowledging receipt of a copy of the report, which set the matter for hearing on 7 November 2005. The violation report asserted four separate willful violations of the terms and conditions of defendant's probation: (1) failure to pay costs, fines, and restitution in accordance with a schedule; (2) failure to pay his probation supervision fee; (3) failure to provide documentation of employment; and (4) conviction of assault on a female on 7 October 2005.
    On 7 November 2005, defendant appeared before Judge Richard L. Doughton on the probation violations. Judge Doughton initially addressed the entire courtroom, advising all defendants of their right to counsel. The relevant portion of this advisement is as follows:
        I'm going to ask all of you to pay attention to what I say about an attorney. I'll be asking each of you if you understand your rights when I'm finished, and then ask you what you want to do about an attorney.

        First of all, everybody in Superior Court has a right to be represented by a lawyer if they want to be represented by a lawyer.

        The first right is you have the right to hire anybody you want to hire. You can hire anyone you want. If can't afford to hire your own attorney, and you request a court appointed attorney[,] I'm going to have you fill out an Affidavit of Indigency, which is nothing more than a statement that shows what income you have, what debts you have, what liabilities and what assets you have.
Judge Doughton then went on to advise the defendants of their right to represent themselves. Defendant was called before the trial court, and the following exchange occurred:
        THE COURT:    Do you understand those rights?

        DEFENDANT:    Yes, sir, Your Honor.

        THE COURT:    What do you want to do about an attorney?

        DEFENDANT:    I'd like to hire my own, sir.     

        THE COURT:    Are you willing to be back here Monday morning with that attorney and ready to go to trial?

        DEFENDANT:    Yes, Your Honor.

        THE COURT:    Are you willing to sign a waiver of your right to a court appointed attorney in that regard?

        DEFENDANT:    Yes, Your Honor.

        THE COURT:    Come on over here, and you'll be free to go until Monday morning.

Defendant then executed a waiver of counsel that waived only his right to appointed counsel.
    On 14 November 2005, defendant again appeared before Judge Doughton. There ensued a conversation between the Judge, the prosecutor (Mr. Sherrill), and defendant, as follows:
        MR. SHERRILL:    Your Honor, this is a probation matter. It's on Page 10 of the white calendar, at the bottom of the page. Mr. Deskins signed a waiver last week when he was in court. Is that right Mr. Deskins?
        DEFENDANT:    Yes, sir.
        MR. SHERRILL:    May I approach, Your Honor?
        THE COURT:    Yes, sir.
        MR. SHERRILL:    Are you ready to proceed Mr. Deskins?
        THE COURT:    You signed a waiver last week?
        DEFENDANT:    Yes, sir. I was going to ask you for a continuance, Your Honor. To be honest with you, in a week, there is no way I could get an attorney. I was here last week, and I mean, I'm just going to be honest with you.

        THE COURT:    What does [t]he State have to say?

        MR. SHERRILL:    Your Honor, I served this on October 11th. He's had a month to get an attorney.

        THE COURT:    I'll deny the motion to continue.

    The trial court conducted the probation revocation hearing and found defendant in willful violation of the terms of his probation, and activated his suspended sentence of 6-8 months imprisonment. Defendant appeals.
    In his only argument, defendant contends that the trial court erred in allowing him to proceed without counsel without complying with the provisions of N.C. Gen. Stat. § 15A-1242 and by denying his request for a continuance. We disagree.
    N.C. Gen. Stat. § 15A-1242 provides that:
        A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trialjudge makes thorough inquiry and is satisfied that the defendant:

        (1)    Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;

        (2)    Understands and appreciates the consequences of this decision; and

        (3)    Comprehends the nature of the charges and proceedings and the range of permissible punishments.

N.C. Gen. Stat. § 15A-1242 (2005).
    “The right to counsel is guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I of the North Carolina Constitution.” State v. Montgomery, 138 N.C. App. 521, 524, 530 S.E.2d 66, 68 (2000) (citing State v. McFadden, 292 N.C. 609, 611, 234 S.E.2d 742, 744 (1977)). An indigent defendant forfeits the right to appointed counsel when he chooses to proceed with private counsel. Id., 530 S.E.2d at 69 (citing State v. McDowell, 329 N.C. 363, 373, 407 S.E.2d 200, 206 (1991)). A defendant must be granted a reasonable time in which to obtain private counsel, and must be granted a continuance to do so where, through no fault of his own, he is without counsel. See McFadden, 292 N.C. at 614-15, 234 S.E.2d at 746. A defendant “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.” Id. at 616, 234 S.E.2d at 747. “Any willful actions on the part of the defendant that result in the absence of defense counsel constitute[] a forfeiture of the right to counsel.” State v. Quick, __ N.C. App. __, __, 634 S.E.2d915, 917 (2006) (citing Montgomery, 138 N.C. App. at 524, 530 S.E.2d at 69). When a defendant, by his own conduct, forfeits his right to counsel, the trial court is not required to determine pursuant to N.C. Gen. Stat. § 15A-1242 that defendant knowingly, understandingly, and voluntarily waived such right before requiring him to proceed pro se. Montgomery, 138 N.C. App. at 525, 530 S.E.2d at 69.
    We must thus determine whether defendant forfeited his right to counsel, and whether the trial court abused its discretion in denying defendant's motion for a continuance.
    Defendant received notice of the probation hearing date of 7 November 2005, on or about 11 October 2005. The record is silent as to what efforts, if any, defendant made to procure counsel prior to 7 November 2005. On that date, defendant appeared before the trial court, and advised Judge Doughton that “I'd like to hire my own.” Defendant was then asked, “Are you willing to be back on Monday morning with that attorney and ready to go to trial?” to which defendant replied in the affirmative. On 14 November 2005, the date defendant was to appear with his hired counsel for a hearing on his probation violation, defendant appeared without counsel. Defendant stated to the trial court: “[T]here is no way I could get an attorney.” We note that defendant offered no explanation as to why he could not get an attorney, whether he lacked financial resources, or was unable to get an appointment with an attorney. The record is devoid of any indication thatdefendant met with an attorney, or even attempted to meet with an attorney, prior to 14 November 2005.
        Although the loss of counsel due to defendant's own actions is often referred to as a waiver of the right to counsel, a better term to describe this situation is forfeiture. “Unlike waiver, which requires a knowing and intentional relinquishment of a known right, forfeiture results in the loss of a right regardless of the defendant's knowledge thereof and irrespective of whether the defendant intended to relinquish the right.” A forfeiture results when “the state's interest in maintaining an orderly trial schedule and the defendant's negligence, indifference, or possibly purposeful delaying tactic, combine[] to justify a forfeiture of defendant's right to counsel...

Montgomery, 138 N.C. App. at 524-25, 530 S.E.2d at 69 (internal citations omitted).
    In this case, defendant had over a month to procure hired counsel. He offered no explanation of why he had not procured counsel. By his conduct, he forfeited his right to counsel in this case. See McFadden, 292 N.C. at 616, 234 S.E.2d at 747 (discouraging dilatory tactics on the part of the defendant). This argument is without merit.
    Next we consider whether the trial court erred in denying defendant's motion for a continuance. Such motions are addressed to the sound discretion of the trial court and will not be overturned on appeal unless there is an abuse of discretion. State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335, 341 (1982) (citations omitted). In cases where the basis of the motion is to procure counsel, the discretion of the trial court is limited to the extent that defendant must be afforded a “reasonable time in which toobtain 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.” Montgomery, 138 N.C. App. at 524, 530 S.E.2d at 68 (citing McFadden, 292 N.C. at 614-15, 234 S.E.2d at 746). What is a reasonable time must be determined on a case by case basis, and is dependent upon the particular facts of each case. Cf. State v. Morgan, 359 N.C. 131, 144, 604 S.E.2d 886, 894 (2004) (holding that there is no specific length of time guaranteed a defendant and his counsel for trial preparation; rather the facts of each case are pertinent), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005); State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 337 (1993) (discussing that a reasonable time for counsel to prepare for trial is dependent upon the circumstances of each case).
    In the instant case, defendant had three weeks from the notice of violation until the original hearing date to procure counsel. He then had an additional week from 7 November 2005 to 14 November 2005. The case was a probation violation where the allegations of violation were clear and straightforward. It would not have taken a long period of time for an attorney to prepare for such a hearing. The nature of the alleged violations would have required few, if any, outside witnesses. Based upon the circumstances of this case, defendant had “a reasonable time” in which to procure counsel.
    We note that in cases involving complex issues of identity, or the interviewing of witnesses and extensive discovery, the timeperiod involved here may not be an adequate period of time to procure counsel. Our holding is expressly limited to the facts of this particular case.
    We hold that the trial court did not abuse its discretion in denying defendant's request for a continuance. This assignment of error is without merit.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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