Opinion
No. COA12–833.
2013-06-4
STATE of North Carolina v. Michael Anthray DAVIS, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Letitia C. Echols, for the State. Richard Croutharmel for defendant-appellant.
Appeal by defendant from judgment entered 13 February 2012 by Judge Wayland J. Sermons, Jr. in Beaufort County Superior Court. Heard in the Court of Appeals 9 January 2013. Attorney General Roy Cooper, by Assistant Attorney General Letitia C. Echols, for the State. Richard Croutharmel for defendant-appellant.
GEER, Judge.
Defendant Michael Anthray Davis appeals from the judgment revoking his probation. On appeal, he primarily contends that the trial court failed to conduct a sufficient inquiry when defendant expressed dissatisfaction with his trial counsel. We hold that, under the circumstances of this case, the trial court conducted a sufficient inquiry. We further conclude that the trial court's determination that defendant absconded is supported by the record, although we remand for correction of a clerical error.
Facts
On 18 March 2010, defendant pled guilty to the charge of possession of a firearm by a felon. He was sentenced to a term of 13 to 16 months imprisonment, that sentence was suspended, and defendant was placed on 24 months supervised probation.
On 4 January 2012, defendant's probation officer filed a probation violation report that alleged defendant had violated nine separate conditions of his probation: (1) defendant had used marijuana in violation of his probation; (2) defendant failed to satisfy his community service requirement; (3) defendant failed to show up for his office appointments on 21 December 2011, 23 December 2011, and 3 January 2012; (4) defendant missed curfew checks on 2 November 2011, 6 December 2011, 10 December 2011, 29 December 2011, 30 December 2011, and 3 January 2012; (5) defendant was in arrears in the amount of $50.00 to the clerk of court; (6) defendant was in arrears in the amount of $80.00 for his probation supervision fee; (7) defendant failed to enroll in GED classes; (8) defendant had moved from his approved residence on 7 December and 23 December 2011 without obtaining approval; and (9) defendant had moved without making his whereabouts known to his probation officer.
At the probation violation hearing, the probation officer testified that even though defendant was supposed to report to her twice a week, no one from her office saw or spoke with defendant from 23 December 2011 through 3 January 2012. She also testified that defendant had moved twice without prior written approval—written approval was required as a condition of his probation.
Defendant testified at the hearing and asserted that he had actually been home at the time the probation officer said he had violated his curfew. He also claimed he had been making efforts to reach his probation officers during the 23 December to 3 January timeframe. With respect to the moves, defendant testified he had oral permission, although he admitted to having moved without obtaining written permission.
The trial court orally found that defendant had admitted to the positive drug tests, violations of his curfew on certain occasions, and being in arrears both to the clerk of court and for his probation supervision fee. The trial court then found that defendant had moved from his approved residence without obtaining prior approval or being granted written permission and that defendant had willfully absconded by willfully avoiding supervision or willfully making his whereabouts unknown to the supervising probation officer.
Following the hearing, the trial court revoked defendant's probation. Although the written order incorporated the probation violation report as though fully set forth and concluded that each of the violations that were the basis of the revocation was sufficient to revoke defendant's probation, the order failed to list the paragraph numbers of the violations that the trial court had found. Defendant timely appealed to this Court.
Discussion
Defendant first contends on appeal that the trial court erred in not conducting a sufficient inquiry into defendant's dissatisfaction with his counsel. During the probation hearing, the following exchange occurred:
THE COURT: [Defense Counsel], does your client admit or deny the violations in the violation report?
[DEFENSE COUNSEL]: Well, Your Honor, I think my client wanted to voice some concerns he had about my representation of him to you.
THE COURT: Well, it's a little late for that.
Have you met with him?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Have you talked to him?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Have you investigated the case to the best of your ability?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: All right. What do you want to tell me about it, Mr. Davis?
DEFENDANT: I don't think he's representing me because
THE COURT: Why not?
DEFENDANT: Because he told me one thing before. Now he's telling me something different.
THE COURT: Well, he doesn't know what to tell you because I'm the judge. He just represents you.
Your motion is denied.
We note that even though the trial court stated that defendant's “motion [was] denied,” defendant did not specifically move to have his counsel dismissed or to have substitute counsel appointed. His attorney indicated only that defendant had some “concerns.”
Nevertheless, even assuming defendant's expression of concern rose to the level of a request that counsel be replaced, it is well established that “[i]n the absence of any substantial reason for the appointment of replacement counsel, an indigent defendant must accept counsel appointed by the court, unless he wishes to present his own defense. A disagreement over trial tactics does not, by itself, entitle a defendant to the appointment of new counsel. Nor does a defendant have the right to insist that new counsel be appointed merely because he has become dissatisfied with the attorney's services.” State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981) (internal citations omitted).
With respect to defendant's claim that the trial court conducted an inadequate inquiry, our Supreme Court has explained: “[W]hen faced with a claim of conflict and a request for appointment of substitute counsel, the trial court must satisfy itself only that 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. Thacker, 301 N.C. 348, 353, 271 S.E.2d 252, 256 (1980). Although the Court in Thacker acknowledged that “some situations may indeed require an in-depth inquiry and detailed findings of fact,” a conflict arising out of a disagreement in trial tactics and communication problems “is clearly not one of them.” Id. In Thacker, the trial court “made sufficient inquiry to learn that the conflict here was not such as to render the public defender's assistance ineffective.” Id.
Here, defendant did not suggest to the trial court that there was a conflict—he complained only that his trial counsel had changed his advice. On appeal, however, defendant argues that a conflict between the two must have existed because trial counsel stated to the trial court that defendant admitted the curfew violations, but defendant, in his testimony, did not make that admission. Defendant asserts in his brief on appeal that when defendant said his attorney told him one thing at first and now was telling him something else, defendant was referring to the curfew violations. His brief includes no citation to the record, and we have been unable to find anything in the record supporting that assertion. In any event, if a disagreement existed with respect to the curfew violations, it was, given the issues in this probation violation hearing, only a disagreement in trial strategy and possibly a communication issue.
Under Thacker, we hold that the trial court conducted a sufficient inquiry in light of the circumstances when it (1) asked about counsel's preparation of the case and his contact with defendant, (2) satisfied itself that counsel was competent and prepared, and (3) allowed defendant to explain his concerns with his counsel. See State v. Anderson, 350 N.C. 152, 167, 513 S.E.2d 296, 306 (1999) (“ ‘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.’ “ (quoting Thacker, 301 N.C. at 352, 271 S.E.2d at 255)).
On appeal, defendant also appears to argue that the trial court erred in not inquiring whether defendant wanted to represent himself. Although defendant cites authority for the proposition that defendant was entitled to represent himself, he has cited no authority, and we have found none, that suggests the trial court was required, on its own initiative, to ask whether defendant wished to exercise his right to proceed pro se.
Defendant next asserts that the trial court erred in determining that he absconded by willfully avoiding supervision or willfully making his whereabouts unknown to the supervising probation officer. “A hearing to revoke a defendant's probationary sentence only requires that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended. The judge's finding of such a violation, if supported by competent evidence, will not be overturned absent a showing of manifest abuse of discretion.” State v. Young, 190 N.C.App. 458, 459, 660 S.E.2d 574, 576 (2008) (internal citation and quotation marks omitted).
The trial court's written order, in this case, neglects to make any findings regarding what probation conditions defendant violated. At the conclusion of the hearing, however, the trial court made an oral finding that defendant had violated his probation by willfully avoiding supervision or willfully making his whereabouts unknown to the supervising probation officer, as well as by having positive drug tests, violating his curfew, being in arrears for court costs and his probation supervision fee, and moving from his approved residence without obtaining prior approval or being granted written permission.
We believe, given the record, that this omission was merely a clerical error. We, therefore, remand to the trial court so that it may correct this clerical error in its judgment. State v. Hunnicutt, ––– N.C.App. ––––, ––––, 746 S.E.2d 906, 912 (2013) (“ ‘When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record speak the truth.’ “ (quoting State v. Smith, 188 N.C.App. 842, 845, 656 S.E.2d 695, 696 (2008))).
With respect to the sufficiency of the evidence, defendant's probation officer testified that even though defendant was supposed to report to her at least twice a week, no one from her office saw or spoke with defendant from 23 December 2011 to 3 January 2012. During the relevant time frame, defendant also moved his residence twice without getting permission. Finally, he missed an appointment on 4 January 2012 with his probation officer when he had traveled to Durham without obtaining permission.
In arguing that this evidence was insufficient, defendant points to his own testimony and also the lack of evidence that he “clandestinely attempted to hide or conceal himself.” The trial court was not required to believe defendant's testimony and was entitled to conclude that the probation officer's testimony showed that defendant had “willfully absconded by willfully avoiding supervision or willfully making the defendant's whereabouts unknown to the supervising probation officer.” We, therefore, affirm, but remand for correction of the clerical error.
Affirmed in part; remanded in part. Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).