STATE OF NORTH CAROLINA,
v
.
Wilkes County
No. 02 CRS 55283
CHRISTOPHER HUTCH DESKINS
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.
AFFIRMED.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
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