Opinion
No. COA12–1280.
2013-06-4
STATE of North Carolina v. Rodrick Allen STUBBS.
Attorney General Roy Cooper, by Assistant Attorney General Allison A. Angell, for the State. John R. Mills and Daphne Edwards, for defendant-appellant.
Appeal by defendant from judgments entered 2 March 2012 by Judge Robert F. Floyd, Jr. in Robeson County Superior Court. Heard in the Court of Appeals 13 March 2013. Attorney General Roy Cooper, by Assistant Attorney General Allison A. Angell, for the State. John R. Mills and Daphne Edwards, for defendant-appellant.
CALABRIA, Judge.
Rodrick Allen Stubbs (“defendant”) appeals from judgments entered upon jury verdicts finding him guilty of assault with a deadly weapon inflicting serious injury (“AWDWISI”) and robbery with a dangerous weapon (“RWDW”). We find no error in part and dismiss in part.
I. Background
On 14 February 2011, defendant was indicted for AWDWISI and RWDW. The trial court appointed counsel for defendant. On 11 July 2011, defendant sent the trial court a pro se “Motion to Dismiss Counsel Calender [sic] And Docket.” In his motion, defendant requested that the trial court dismiss his appointed counsel because he felt that he “utterly failed to provide any resemblance of a defense communication, strategy or plan.” Defendant also asserted that his assigned counsel had a conflict of interest because he had previously represented another individual during his trial and conviction for murdering defendant's father.
In a letter dated 29 July 2011, Senior Resident Superior Court Judge Robert Floyd (“Judge Floyd”) informed defendant that he was required to act through his attorney when filing court documents and instructed him to discuss the concerns raised in his motion with defense counsel. On 20 September 2011, defendant again wrote to Judge Floyd seeking the discharge of his counsel. Defendant reiterated his belief that his counsel had a conflict of interest and also noted a continuing lack of communication between counsel and defendant.
In a letter dated 16 November 2011, Judge Floyd responded to defendant, informing him that a copy of defendant's letter was being sent to his attorney as well as to the district attorney “so that [defendant's] request can be considered as a motion and be scheduled for hearing before a judge.” However, the record reflects that no such hearing was ever conducted.
Beginning 29 February 2012, defendant was tried by a jury in Robeson County Superior Court. Judge Floyd was the presiding judge. Neither defense counsel nor the assistant district attorney addressed defendant's prior pro se motions during the trial. On 2 March 2012, the jury returned verdicts finding defendant guilty of both charges. For the AWDWISI conviction, defendant was sentenced to a minimum of 25 months to a maximum of 39 months. For the RWDW conviction, defendant was sentenced to a minimum of 64 months to a maximum of 86 months. The sentences were to be served consecutively in the North Carolina Division of Adult Correction. Defendant appeals.
II. Conflict of Interest
Defendant argues that the trial court erred by failing to conduct a hearing addressing defendant's concerns about his counsel's potential conflict of interest. We disagree.
A criminal defendant subject to imprisonment has a Sixth Amendment right to counsel. The Sixth Amendment right to counsel applies to the states through the Fourteenth Amendment of the United States Constitution. Sections 19 and 23 of the North Carolina Constitution also provide criminal defendants in North Carolina with a right to counsel. The right to counsel includes a right to representation that is free from conflicts of interests.
State v. Mims, 180 N.C.App. 403, 409, 637 S.E.2d 244, 247–48 (2006)(internal quotations and citations omitted). Our Supreme Court has stated that “when 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). “[T]he court is not required to act if it is aware only of a vague, unspecified possibility of conflict.” State v. Choudhry, 365 N.C. 215, 220, 717 S.E.2d 348, 352 (2011) (internal quotations omitted). However, “when the court knows or reasonably should know of a particular conflict, that court must inquire into [that conflict of interest].” Id. (internal quotations and citation omitted).
In the instant case, defendant claimed in his initial motion that his counsel had a conflict of interest “because counsel has represented the man who murder [sic] the defendant's father.” In his next filing, defendant again claimed a conflict of interest because “this is the same attorney that represented the defendant that was found guilty of the murder of my father April 11, 2000. ” Thus, defendant's conflict of interest claim was that his attorney could not adequately represent him after he had represented another individual who was convicted of murdering defendant's father more than ten years prior. Defendant made no attempt to explain how his attorney's prior representation, which did not directly involve defendant, affected his attorney's representation of defendant in this case. There is nothing in the record which would connect defense counsel's prior representation to the present case, and the extremely tenuous connection between a criminal defendant's attorney and a relative of that defendant's victim is simply insufficient, standing alone, for us to assume the existence of a conflict. Ultimately, we conclude that defendant's claim raised no more than “a vague, unspecified possibility of conflict [,]” Id., and consequently, “no inquiry by the trial court [wa]s required.” State v. Phillips, 365 N.C. 103, 120, 711 S.E.2d 122, 136 (2011). Accordingly, the trial court did not err by failing to conduct a hearing addressing defendant's conflict of interest claim. This argument is overruled.
III. Ineffective Assistance of Counsel
Defendant argues that he received ineffective assistance of counsel because (1) his counsel failed to disclose a conflict of interest and (2) his counsel failed to adequately communicate with defendant and his family. Although we have determined that defendant's conflict of interest claim was without merit, we must still address defendant's allegations regarding his lack of communication with defense counsel.
“To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006)(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). “Our Supreme Court has held that an ineffective assistance claim brought on direct review will be decided on the merits only ‘when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.’ “ State v. Jones, 176 N.C.App. 678, 688, 627 S.E.2d 265, 271 (2006) (quoting State v. Fair, 354 N.C. 131, 166, 557 S .E.2d 500, 524 (2001)).
In the instant case, we believe further factual inquiry is required into defendant's allegation of ineffective assistance of counsel. It is not possible to determine from the cold record whether defense counsel failed to adequately communicate with defendant or how that alleged failure may have prejudiced defendant's defense. Therefore, we do not address the merits of this allegation, but rather dismiss this argument without prejudice to defendant's right to raise the issue in a subsequent motion for appropriate relief.
IV. Conclusion
Defendant raised only a vague and unspecified allegation of his counsel's supposed conflict of interest, and thus, the trial court was not required to formally inquire into this allegation. Defendant's contention that he received ineffective assistance due to defense counsel's failure to adequately communicate with him regarding his case cannot be determined by the cold record. As a result, we dismiss that portion of defendant's ineffective assistance claim without prejudice.
No error in part and dismissed in part. Judges ERVIN and DILLON concur.
Report per Rule 30(e).