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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-208


Filed: 4 September 2007


         v.                        Davidson County
                                No. 05 CRS 56923

    Appeal by defendant from judgment entered 25 August 2006 by Judge Mark Klass in Superior Court, Davidson County. Heard in the Court of Appeals 27 August 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State.

    James R. Parish, for Defendant-appellant.

    WYNN, Judge.

    An adequate hearing is conducted if the hearing “fulfilled the obligation of the court to inquire into defendant's reasons for wanting to discharge his attorneys and to determine whether those reasons were legally sufficient to require the discharge of counsel.”   (See footnote 1)  Here, Defendant Robert William Curry, Jr., contends that the trial court failed to conduct a hearing upon Defendant's request to dismiss counsel for a lack of contact and preparation. Because the trial court did an inquiry as to Defendant's reasons for dismissing his attorney, we affirm.
    Defendant's appeal arises from his conviction of attemptedstatutory rape and taking incident liberties with a child. Defendant was sentenced to a minimal term of one hundred seventy months and to maximum term of two hundred thirteen months in prison for the attempted statutory rape conviction and the judgment was arrested for the incident liberties with a minor conviction.
    Defendant's sole assignment of error is that the trial court committed reversible error by failing to conduct a hearing upon his request to discharge his court-appointed attorney. We disagree.
    Our Supreme court has stated that:
        The constitutional right of an indigent defendant in a criminal action to have the effective assistance of competent counsel, appointed by the court to represent him, does not include the right to insist that competent counsel, so assigned and so assisting him, be removed and replaced with other counsel merely because the defendant has become dissatisfied with his services.

State v. Robinson,
290 N.C. 56, 65-66, 224 S.E.2d 174, 179 (1976). “The decision to substitute counsel rests solely in the discretion of the trial court.” State v. Morgan, 359 N.C. 131, 146, 604 S.E.2d 886, 895 (2004), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005).
        Thus, when it appears to the trial court that the original counsel is reasonably competent to present defendant's case and the nature of the conflict between defendant and counsel is not such as would render counsel incompetent or ineffective to represent that defendant, denial of defendant's request to appoint substitute counsel is entirely proper.

State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980). The trial court is not required to conduct an ex parte hearing to disclose information supporting the defendant's motion to dischargecounsel if the defendant fails to provide the trial court “with even a minimal basis to grant such an ex parte hearing.” State v. Prevatte, 356 N.C. 178, 216, 570 S.E.2d 440, 461 (2002), cert. denied, 538 U.S. 986, 155 L. Ed. 2d 681 (2003). An adequate hearing is conducted if the hearing “fulfilled the obligation of the court to inquire into defendant's reasons for wanting to discharge his attorneys and to determine whether those reasons were legally sufficient to require the discharge of counsel.” State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981).
    When Defendant's case was called for trial the following dialogued transpired.
        MR. WHITLEY [Defendant's counsel]: Mr. Curry wants to address the Court today.

        THE COURT: Stand up.

        THE DEFENDANT: (Defendant stands.) Yes, sir. I would like to dismiss my attorney, ineffective assistance of counsel.

        THE COURT: Do you want to represent yourself here today?

        THE DEFENDANT: No, sir.

        THE COURT: We are trying this case here today in about two minutes.

        THE DEFENDANT: With all due respective [sic], I got in touch with Mr. Whitley a few times. I have got in touch with the State Bar quite a few times and within this whole 14 months, your Honor, I only met him less than an hour.

        THE COURT: I understand that, but we are going to proceed here. You have two options; he can represent you or you can represent yourself.

        THE DEFENDANT: Your Honor, the State Bar has sent me a paper. I had written a grievance out, written my statement and they are interms going to get back in touch with me. I have never had an opportunity to _ - I have written up, I didn't know the exact people to write. I have written Wayne Michael. I have written you also, Mr. Mark Klass. I have written Brian Shipwash. I never got any answer. I have written them more than three times a piece. I never got any response from neither one.

        THE COURT: This matter has been set for trial for some time and it is set for trial today.

        MR. WHITLEY: Your Honor, I have not heard from the State Bar. I know that Mr. Curry and I have met. We have discussed the facts of the case. If he doesn't want me to represent him, I will go home. I don't care. He can represent himself. I have talked to the witnesses that are pertinent to the case and I'm prepared to try this case today. If he doesn't want me, I have other things I can do.

        THE DEFENDANT: Ever since March of - - since March the 6th, that was the very first time that I got in touch with the State Bar. They called him and asked him would he come and see me on that date. He told them, yes. I heard from him a week or two later. My mother, grandmother, my family here, they have been getting in contact with him also. They can tell you the same statements.

        MR. WHITLEY: I have talked to his family a number of times. Everybody is aware of what's going on.

        THE COURT: Mr. Whitley was appointed to represent you in this matter. And unless you want to proceed by yourself --

        THE DEFENDANT: Your Honor, with all due respect, - - even though he was court- appointed to me, I never even had a chance to even meet this gentleman. This is the longest we have been here since I have even known he was my attorney.

        MR. WHITLEY: I take issue with that.

        THE DEFENDANT: From the very beginning of March, March, May, June, July, I have beenwriting you all. I didn't know which one to write. I have written you. I have written Wayne Michael and Brian Shipwash and I never got a response from anyone when I wrote those letters. It was for a dismissal.

        THE COURT: Well, like I say, I understand that. The question is, Mr. Whitley has been appointed to represent you. I'm ready to proceed. The jurors are standing out in the hall. I'm getting ready to bring them out here. Mr. Whitley tells me he's prepared to proceed with your case today. My advice to you would be to proceed with an attorney as opposed to proceeding on your own.

        THE DEFENDANT: Your honor, in all due respect, isn't that violating my rights, also?

        THE COURT: You have the right to represent yourself. You have that right or you have the right to be represented by Mr. Whitley.

        THE DEFENDANT: May I have this appealed before we even get started?

        THE COURT: You have a right to appeal if after this case is over with if you lose.

        THE DEFENDANT: Thank you.

        THE COURT: You may be seated. You can bring the jurors in.

        THE BAILIFF: Yes, sir.

    The trial court then proceeded to jury selection and trial, during which counsel made several motions and evidentiary objections. Counsel also cross examined the witnesses and presented witnesses on defendant's behalf. The jury acquitted defendant of charges of attempted first degree murder and first degree statutory sexual offense. The jury found defendant guilty of attempted statutory rape and taking indecent liberties with a minor. After conferring with defendant's counsel, the prosecutormade a motion to arrest judgment on the verdict of taking indecent liberties with a minor, leaving only the conviction of attempted statutory rape for sentencing.
    The trial court heard Defendant's reasons for seeking to discharge counsel. Defendant articulated that counsel failed to communicate, visit or spend time with Defendant as much as Defendant desired. Defendant also complained of not receiving responses to communications or letters directed to certain individuals other than counsel. The trial court also heard from Defendant's counsel, who indicated he was prepared to try the case after discussing the facts of the case with Defendant and various witnesses.
    In State v. Hutchins, supra, the defendant made a similar complaint that counsel failed to visit him with sufficient frequency. In upholding the trial court's denial of the defendant's motion to discharge counsel, the Supreme Court stated that there was “no indication that the frequency of contact resulted in defendant being misinformed about the progress of the case. Nor is there any suggestion that the level of contact affected adversely the attorneys' preparation for trial.” Id. at 337, 279 S.E.2d at 798. The Court also declared, “[a]t no place in the record is there any evidence which would tend to show that defense counsel were unable to mount a defense which would be consistent with the concept of effective representation.” Id. at 336, 279 S.E.2d at 798.
    Nothing in the present record indicates that Mr. Whitley wasnot qualified or unprepared to represent defendant or that his representation of Defendant was incompetent. There is no evidence to indicate that Mr. Whitley “did not serve as a zealous advocate for [D]efendant throughout the entire time in which he represented [Defendant].” State v. Anderson, 350 N.C. 152, 167, 513 S.E.2d 296, 306, cert. denied, 528 U.S. 973, 145 L. Ed. 2d 326 (1999).
    We hold the trial court conducted an adequate hearing. We overrule defendant's assignment of error.
    No error.
    Judges BRYANT AND ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981).

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