STATE OF NORTH CAROLINA
v. Davidson County
Nos. 02CRS061032
JASON ANTHONY EVANS 03CRS009655, 001136
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Spurgeon Fields, III, for the State.
Randolph and Fischer, by J. Clarke Fischer, for defendant-
appellant.
HUNTER, Judge.
A jury found defendant guilty of possession of cocaine and
possession of a firearm by a felon, whereupon he admitted his
status as an habitual felon. The trial court consolidated the
offenses for judgment and sentenced defendant to an active prison
term of 93 to 121 months. After a careful review, we find no
error.
On appeal, defendant challenges the trial court's denial of
his counsel's motion to withdraw on the day of trial. He asserts
that the court's failure to enter findings of fact and conclusions
of law on the motion is alone sufficient to warrant a reversal of
his convictions. Defendant further contends that the court abusedits discretion in denying the motion to withdraw in light of the
breakdown in the attorney-client relationship described to the
court by counsel.
The stenographic transcript of defendant's trial reflects that
defendant arrived late to court on his scheduled trial date, 14
February 2006. He explained to the court that he was attempting to
locate a witness. When defendant's case was called for trial, his
counsel moved to withdraw. The court addressed counsel's motion as
follows:
[DEFENSE COUNSEL]: At this point I made
a motion to withdraw from [defendant's] case.
Because of that there's been some friction
between my client and I. He indicated he was
not here earlier because he was going to
locate a witness. When I spoke with
[defendant] yesterday afternoon I told him
then I would make a motion to withdraw from
his case. He went out this morning looking
for a particular witness, that's why he was
late this morning. He was here every other
time with the excepting [sic] in October [and]
again when his witness did not show and he
went looking for that witness. He has been
here every other time. At this time I think
[defendant] would join this and allow me to
withdraw as attorney of record. There's a
conflict we cannot get past. I think he wants
to retain other counsel, your Honor.
THE COURT: Why did he wait until the
date of trial to make this motion? Or you,
for that matter?
[DEFENSE COUNSEL]: Your Honor, I
apologize to the Court. I could never get in
touch with [defendant]. I called on numerous
occasions to reach him, I could never get in
touch with him.
. . .
THE COURT [to defendant]: What would you
like to say about it?
THE DEFENDANT: As far as not getting in
contact with me, I talked to [counsel]
occasionally many times. He says he's just --
he feels he's just not fit for this case or
something like that. He told me something
like that yesterday. I think when you do have
a lawyer you feel you want to have trust in
that person and that person can trust you and
right now I don't think we have that
established. . . .
THE COURT: . . . [Y]ou are retained; is
that right?
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: You have a right to hire any
lawyer that you want to. At some point if you
were unhappy with your lawyer you have a right
to go out and hire another lawyer. It is a
little bit late, the case is over --
THE DEFENDANT: It's really not my fault,
sir. I'm saying when it comes to being late
or wanting to hire a lawyer as far as being
late because I was really ready to go along
with [counsel] until [counsel] told me he
would rather withdraw from the case.
THE COURT: So you don't feel like you
have a conflict with him?
THE DEFENDANT: At the same time I do.
At the same time I do. I just feel like he's
not going to give me his all in this case,
sir. My life is on the line.
. . .
THE COURT: The Court will note that
[defendant] was indicted September of 2003.
He has had all of this time to make
arrangements about counsel. It was called
around for trial at an early court date, what
was that, last October? N[o] motion to
withdraw was made by the attorney or the
defendant. It was called up around for trial
and the defendant didn't show up for trial
albeit he showed up at a later time. At the
attorney's request to withdraw it is the
Court's opinion it is this defendant's attemptto get yet another continuance. Motion to
withdraw is denied. . . .
At the conclusion of his trial on the substantive charges,
defendant affirmed his satisfaction with counsel, under oath, in
pleading guilty to habitual felon status.
A ruling on a motion to withdraw is left to the sound
discretion of the trial court. State v. Thomas, 310 N.C. 369, 375,
312 S.E.2d 458, 461 (1984). The court may deny the motion once it
is satisfied “that the 'present counsel is able to render competent
assistance and that the nature or degree of the conflict is not
such as to render that assistance ineffective.'” State v. Poole,
305 N.C. 308, 311, 289 S.E.2d 335, 338 (1982) (citation omitted).
“In order to establish prejudicial error arising from the trial
court's denial of a motion to withdraw, a defendant must show that
he received ineffective assistance of counsel.” State v. Thomas,
350 N.C. 315, 328, 514 S.E.2d 486, 495, cert. denied, 528 U.S.
1006, 145 L. Ed. 2d 388 (1999)). If the defendant does not show
prejudice, this Court need not determine if the trial court abused
its discretion in denying the motion to withdraw. See Thomas, 310
N.C. at 375, 312 S.E.2d at 461.
Here, defendant makes no showing that his counsel rendered
constitutionally ineffective assistance at trial. See generally
Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692
(1984). Defendant neither argues nor shows “'that counsel's
performance fell below an objective standard of reasonableness[,]'”
Thomas, 350 N.C. at 328, 514 S.E.2d at 495 (citation omitted), or
that counsel's deficiencies “were so serious as to deprive thedefendant of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693. Accordingly,
because defendant has failed to demonstrate any prejudice caused by
the denial of counsel's motion to withdraw, we overrule his
assignment of error. See Thomas, 310 N.C. at 375, 312 S.E.2d at
461; State v. Chivers, ___ N.C. App. ___, ___, 636 S.E.2d 590, 597
(2006).
We note that the record contains no evidence that defendant's
counsel was burdened by any actual or potential conflict of
interest arising from his representation of other clients. See
generally Cuyler v. Sullivan, 446 U.S. 335, 348, 64 L. Ed. 2d 333,
346-47 (1980); State v. James, 111 N.C. App. 785, 789-90, 433
S.E.2d 755, 757-58 (1993). Rather, we interpret counsel's
references to “some friction” and “a conflict we cannot get past”
as depicting interpersonal difficulties between him and defendant.
Cf. State v. Hammonds, 105 N.C. App. 594, 597, 414 S.E.2d 55, 57
(1992) (finding no grounds for appointment of new counsel where
defendant complained that his counsel “'hasn't spent enough time
with me on this case and really wasn't concerned about hearing my
case'”). Absent any indication that counsel had a true conflict of
interest, the trial court had no duty to hold a separate hearing on
this issue. See State v. Hardison, 126 N.C. App. 52, 56, 483
S.E.2d 459, 461 (1997).
The record on appeal includes additional assignments of error
not addressed by defendant in his brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned. No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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