Opinion
No. 07-514.
Filed March 4, 2008.
Guilford County No. 04CRS96897.
Appeal by defendant from judgment entered 20 April 2006 by Judge V. Bradford Long in Guilford County Superior Court. Heard in the Court of Appeals 10 December 2007.
Roy Cooper, Attorney General, by Steven A. Armstrong, Assistant Attorney General, for the State. Nora Henry Hargrove for defendant-appellant.
The facts pertinent to the issue involved in this appeal are as follows: defendant was indicted on 18 January 2005 for trafficking by transporting cocaine and for trafficking by possessing cocaine. The charges arose from an incident that occurred on 27 October 2004, when law enforcement officers arrested defendant in a car in possession of a plastic bag containing a white substance weighing 14.5 grams and a large ball of white rock substance weighing 115.1 grams, both of which later tested positive as cocaine base.
On 14 February and 14 March 2005, defendant signed a waiver of counsel form. On 19 April 2005, defendant entered into a plea agreement, where he pled guilty to trafficking in cocaine in an amount greater than twenty-eight ounces and less than two hundred ounces, by transportation and by possession. Prayer for judgment was continued until the trial term of 27 June 2005 to allow defendant an opportunity to provide substantial assistance to the State. Defendant did not provide substantial assistance, and the trial court heard the case for sentencing on 1 August 2005. At that hearing, the trial court determined that defendant had not understood the nature of the plea agreement and allowed defendant to withdraw his plea. Defendant retained a lawyer for trial in February 2006. The February 2006 trial resulted in a deadlocked jury, and the court declared a mistrial. Defendant's trial counsel was subsequently permitted to withdraw, and at that time defendant made no request for court-appointed counsel. No subsequent waiver of counsel appears of record.
On 17 April 2006, defendant sought a continuance of his new trial in order to have additional time to retain counsel or for the court to appoint counsel. The court denied defendant's request for a continuance, and defendant's second trial began two days later, with defendant representing himself. He was convicted of both charges and judgments were entered imposing consecutive terms of imprisonment aggregating a minimum of seventy months and a maximum of eighty-four months. Defendant appeals.
N.C.R. App. P. 28(b) prescribes the requirements for an appellant's brief. Rule 28(b)(5) requires, under an appropriate heading, "a full and complete statement of the facts," consisting of "a non-argumentative summary of all material facts underlying the matter in controversy."
N.C.R. App. P. 28(b)(5) (2008). In the brief filed by defendant in this case, preceding the "Statement of the Facts," counsel has included an "Introduction," by which she characterizes the actions of the trial judge and the prosecutor in a blatantly argumentative manner. Though we elect not to sanction counsel for this violation, we admonish counsel that the Rules of Appellate Procedure are mandatory, and violations thereof may subject a party or counsel to sanctions. State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007).
The dispositive issue is whether defendant's Sixth Amendment right to counsel was violated when the court denied his motion to appoint counsel. In denying his motion, the court found that defendant had waived his right to appointed counsel on several occasions, including 14 February 2005, 14 March 2005, and 2 August 2005. The court found that on 13 February 2006 and in March 2006, after his counsel from his first trial had withdrawn, defendant indicated his ongoing intention to retain counsel for his next trial. The court further found that defendant's waivers were effective as to his right to court-appointed counsel and defendant had waived his right to privately-retained counsel when he failed to procure privately-retained counsel prior to 17 April 2006. By this assignment of error, defendant raises a question of law, which we review de novo. See In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003). We note that a waiver need only be given once to be valid, and "a waiver of counsel is good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he desires to withdraw the waiver and have counsel assigned to him." State v. Hyatt, 132 N.C. App. 697, 700, 513 S.E.2d 90, 93 (1999). A withdrawal of waiver can arise from a defendant's request for counsel. See State v. Scott, ___ N.C. App. ___, ___, 653 S.E.2d 908, 909 (2007) ("Defendant in this case withdrew his prior waiver by explicitly asking the trial court to appoint counsel to represent him."); State v. Sexton, 141 N.C. App. 344, 347, 539 S.E.2d 675, 677 (2000) (finding "that defendant clearly requested withdrawal of his initial waiver and unequivocally expressed a desire to be assigned counsel" where defendant "previously signed a waiver and [requested] a Public Defender"). In order to effectively withdraw his waiver, the defendant carries the burden of proving (1) a change in his desire for assigned counsel and (2) that the request is for good cause. Sexton, 141 N.C. App. at 347, 539 S.E.2d at 677.
In this case, defendant unequivocally expressed his desire for assigned counsel when he moved the court to appoint counsel. Upon requesting the appointment of counsel, defendant explained that after his first trial he thought either he or his family would be able to raise the money for a private attorney in the two months before his next trial but he discovered that attorneys wanted the entire fee up front and neither he nor his family had enough money to pay the fee. Therefore, defendant effectively requested, before his trial, that he be assigned court-appointed counsel in light of his financial inability to retain private counsel. Furthermore, there is no indication from the record before us that defendant was engaging in improper dilatory tactics or otherwise attempting to delay or avoid trial. Defendant's reason for requesting the appointment of counsel demonstrated sufficient good cause in keeping with other decisions of this Court. See, e.g., Scott, ___ N.C. App. at ___, 653 S.E.2d at 909 (finding good cause where defendant had one month in which to retain private counsel and "[d]efendant indicated that he had sought to hire an attorney, but that he `didn't know it would be that much'"); Sexton, 141 N.C. App. at 345, 347, 539 S.E.2d at 676, 677 (finding good cause where defendant had two months in which to retain private counsel and lost his job during the interim). Since defendant has satisfied his burden of showing that he effectively withdrew his waiver, the trial court violated defendant's constitutional right to counsel by denying his motion to appoint counsel.
In addition, the trial court's failure to grant defendant's motion to continue was also error. "The denial of a motion to continue, even when the motion raises a constitutional issue, is grounds for a new trial . . . upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error." State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). "A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless." N.C. Gen. Stat. § 15A-1443(b) (2007). The State did not meet its burden to show that the court's error in denying defendant his constitutional right to counsel was harmless; therefore, this error is grounds for a new trial.
Because we award defendant a new trial for the foregoing reasons, we need not address the remaining issues which defendant raises on appeal, as they are unlikely to occur upon retrial.
New trial.
Judges McGEE and STEPHENS concur.
Report per Rule 30(e).