              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1330

                               Filed: 16 October 2018

Henderson County, Nos. 15 CRS 53959–60, 16 CRS 25

STATE OF NORTH CAROLINA

             v.

DESHAWN LAMAR PERRY


      Appeal by defendant from judgments entered 21 March and 6 April 2017 by

Judge Alan Z. Thornburg in Henderson County Superior Court. Heard in the Court

of Appeals 8 August 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Creecy
      C. Johnson, for the State.

      Meghan Adelle Jones for defendant.


      ELMORE, Judge.


      Defendant Deshawn Lamar Perry appeals judgments entered after a jury

convicted him of misdemeanor resisting a public officer and of felonious common law

robbery, he later pled guilty to attaining habitual felon status, and the trial court

sentenced him for common law robbery as an habitual felon. He asserts the trial

court erred by denying his motion to recuse the entire Henderson County District

Attorney’s (“HCDA”) Office from prosecuting the charges against him because one of

the State’s attorneys, Henderson County Assistant District Attorney Michael Bender
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(“ADA Bender”), previously represented him in one of the felonies underlying the

habitual felon charge, and because the State later violated the trial court’s express

condition that ADA Bender not participate in the prosecution.

      Because defendant failed to demonstrate an actual conflict of interest existed

in ADA Bender participating in the prosecution of the unrelated charges for resisting

a public officer and common law robbery, the trial court did not abuse its discretion

in denying the disqualification motion as to those particular charges. Although ADA

Bender previously represented defendant in one of the predicate felonies underlying

the habitual felon charge and briefly participated in the prosecution at the first phase

of trial in contradiction to the State’s assurances, because the trial court’s initial

denial was unconditional and defendant never obtained a ruling on his third

disqualification motion at the start of the habitual felon phase of trial in light of his

decision to unconditionally plead guilty to the habitual offender charge, the trial court

did not abuse its discretion in denying the disqualification motion as to that charge.

Accordingly, we hold there was no error below.

                                    I. Background

      On 2 November 2015, defendant was indicted for injury to personal property

in file no. 15 CRS 53958, resisting a public officer and giving false information to

police in file no. 15 CRS 53959, and common law robbery in file no. 15 CRS 53960,

arising from an incident that occurred 6 October 2015. On 4 January 2016, defendant



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was indicted for attaining habitual felon status in file no. 16 CRS 25, based upon

unrelated prior convictions for (1) attempted common law robbery on 13 May 2011,

(2) possession with intent to sell or distribute a Schedule II controlled substance on

18 November 2011, and (3) common law robbery on 20 March 2013.

      At a pretrial hearing on 11 January 2017, defendant moved for recusal of the

entire HCDA’s Office from prosecuting the charges against him. He argued that one

of the State’s two prosecutors, ADA Bender, had previously represented him in one

of the three felonies underlying the habitual felon charge.         The State’s other

prosecutor, Henderson County Assistant District Attorney Doug Mundy (“ADA

Mundy”), replied he perceived no conflict of interest because ADA “Bender [did] not

intend to sit in prosecution of that case”; rather, ADA Mundy was “going to be

prosecuting that case.”    After an unrecorded bench conference, the trial court

“den[ied] the motion at th[at] time” and noted ADA Mundy “has given assurances

that [ADA] Bender will in no way be involved in this case.”

      On 20 March 2017, at the start of trial on the charges of common law robbery,

injury to personal property, resisting a public officer, and giving false information to

police, defendant renewed his recusal motion “based on [ADA] Bender having

represented [his] client in a previous matter which is an ancillary indictment.” In

response, the trial court “adopt[ed] it[ ]s previous ruling and order,” thereby denying

defendant’s second recusal motion.



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      During trial, ADA Mundy served as the primary prosecutor. However, the trial

court introduced both ADAs Mundy and Bender to the jury as the State’s attorneys,

ADA Bender attended bench and chambers conferences, and ADA Bender argued to

the trial court on issues concerning jury instructions. After the trial court dismissed

the injury to personal property and giving false information to police charges, it

instructed the jury on the charges of robbery and resisting a public officer. On 21

March 2017, the jury found defendant guilty of misdemeanor resisting a public officer

and of felonious common law robbery.

      At the start of the habitual felon phase of trial, defendant’s counsel indicated

defendant “want[ed] to move forward with the hearing for that portion” and

“renew[ed his] motion for recusal.” He argued that “previously . . . , we were told that

[ADA] Bender was not going to participate in the trial” and “[e]ven though [ADA

Bender] wasn’t going to participate in the trial, there is an issue when an individual

who represented him as a defense attorney is now seated at the prosecuting table,

and my client is asking me ‘why he is over there?’ ” After an unrecorded conference

in chambers with both parties’ attorneys, however, defendant never obtained a ruling

on his third motion and instead pled guilty to attaining habitual felon status.

      Following these proceedings, on 21 March 2017 the trial court entered

judgment on the resisting a public officer conviction, imposing a sentence of sixty

days’ imprisonment. The trial court also rendered judgment on the robbery and



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habitual felon convictions, imposing fifty-eight to eighty-two months’ imprisonment.

On 6 April 2017, however, the trial court entered a judgment resentencing defendant

on the robbery conviction as an habitual felon, imposing a sentence of sixty-six to

ninety-two months’ imprisonment. Defendant filed written notice of appeal on 11

April 2017.

                                   II. Jurisdiction

       As an initial matter, defendant has petitioned this Court to issue a writ of

certiorari to review the judgment entered on the misdemeanor resisting a public

officer conviction. Although defendant’s 11 April 2017 written notice of appeal was

timely filed as to the 6 April judgment entered on the robbery and habitual offender

convictions, it was untimely as to the 21 March judgment on the resisting a public

officer conviction. See N.C. R. App. P. 4(a)(2) (requiring written notice of appeal be

filed within fourteen days from entry of judgment). In its response, the State does

not oppose the petition but acknowledges our discretion to issue a writ of certiorari

when “the right to prosecute an appeal has been lost by failure to take timely

action[.]”    See N.C. R. App. P. 21(a)(1).    Based on the arguments advanced in

defendant’s petition, in our discretion we allow his petition and issue a writ of

certiorari to review both judgments.

                                    III. Analysis




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      On appeal, defendant asserts the trial court erred by denying his motions to

recuse the entire HCDA’s Office from prosecuting the charges against him because

ADA Bender previously represented him in one of the three felony convictions

underlying the habitual felon charge. He argues the trial court (1) failed to properly

inquire into whether ADA Bender divulged any confidential information to other

prosecutors in the HCDA’s Office regarding the case in which he previously

represented defendant that formed part of the habitual felon charge; and (2) should

have allowed his disqualification motion because the State violated the condition that

ADA Bender not participate in the prosecution. We hold the trial court did not abuse

its discretion in denying the motions.

A. Review Standard

      We review a trial court’s denial of a motion to compel recusal of a prosecutor

or an entire district attorney’s office, which is more accurately considered a motion to

disqualify, see State v. Smith, ___ N.C. App. ___, ___, 813 S.E.2d 867, 869 (2018)

(“Because the trial court’s order compels the District Attorney’s Office’s recusal, we

review the order as one disqualifying the District Attorney and his staff.”), for abuse

of discretion, see State v. Scanlon, 176 N.C. App. 410, 434, 626 S.E.2d 770, 786 (2006)

(“[A]bsent a showing of an abuse of discretion, a decision regarding whether to

disqualify counsel ‘is discretionary with the trial judge and is not generally

reviewable on appeal.’ ” (citation omitted)). “A ruling committed to a trial court’s



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discretion is to be accorded great deference and will be upset only upon a showing

that it was so arbitrary that it could not have been the result of a reasoned decision.”

White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).

B. Discussion

       “Where disqualification is sought, the trial court must make inquiry as to

whether the defendant’s former counsel participated in the prosecution of the case or

divulged any confidential information to other prosecutors.” State v. Camacho, 329

N.C. 589, 601, 406 S.E.2d 868, 875 (1991) (quoting Young v. State, 297 Md. 286, 297,

465 A.2d 1149, 1155 (1983)). “[A] prosecutor may not be disqualified from prosecuting

a criminal action in this State unless and until the trial court determines that an

actual conflict of interests exists.” Id. An actual conflict of interest exists

              where a District Attorney or a member of his or her staff
              has previously represented the defendant with regard to
              the charges to be prosecuted and, as a result of that former
              attorney-client relationship, the prosecution has obtained
              confidential information which may be used to the
              defendant’s detriment at trial.

Id. (emphasis added); see also N.C. St. B. Rev. R. Prof’l Conduct r 1.11(d) (“[A] lawyer

currently serving as a public officer or employee: (1) is subject to Rule[ ] . . . 1.9; and

(2) shall not: participate in a matter in which the lawyer participated personally and

substantially while in private practice . . . .”); N.C. St. B. Rev. R. Prof’l Conduct r.

1.9(a) (“A lawyer who has formerly represented a client in a matter shall not

thereafter represent another person in the same or a substantially related matter in


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which that person’s interests are materially adverse to the interests of the former

client . . . .” (emphasis added)).

       Here, to support his first motion to recuse the entire HCDA’s Office from the

prosecution, defendant argued ADA Bender represented him “in a case which forms

a part of the prosecution’s indictment for habitual felon.” To support his second

recusal motion at the start of trial on the charges against him in 15 CRS 53958 of

injury to personal property, in 15 CRS 53959 of resisting an officer and of providing

false information to police, and in 15 CRS 53960 of common law robbery, defendant

argued ADA Bender “represented [him] in a previous matter which is an ancillary

indictment”—that is, the habitual felon charge. To support his third recusal motion

at the start of trial on the habitual felon charge in 16 CRS 25, defendant argued that

“previously . . . , we were told that [ADA] Bender was not going to participate in the

trial” and “[e]ven though [ADA Bender] wasn’t going to participate in the trial, there

is an issue when an individual who represented him as a defense attorney is now

seated at the prosecuting table, and my client is asking me ‘why he is over there?’ ”

       As ADA Bender did not previously represent defendant in the charges to be

tried against him in 15 CRS 53958–60, defendant failed to show the actual conflict of

interest required by Camacho to disqualify ADA Bender, much less the entire

HCDA’s Office, from prosecuting those charges. Cf. Worley v. Moore, 370 N.C. 358,

365, 368, 807 S.E.2d 133, 139, 141 (2017) (instructing that the correct legal standard



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in assessing conflicts of interest under North Carolina State Bar Revised Professional

Conduct Rule 1.9(a) “is whether, objectively speaking, ‘a substantial risk’ exists ‘that

the lawyer has information to use in the subsequent matter’ ”—not “the outmoded

‘appearance of impropriety’ test”). Without proof of an actual conflict of interest as to

those charges, further inquiry or direction by the trial court was unnecessary.

Accordingly, defendant has failed to show the trial court’s denial of his

disqualification motion as to the prosecution of these particular charges was “so

arbitrary that it could not have been the result of a reasoned decision.” White, 312

N.C. at 777, 324 S.E.2d at 833.

      As to the habitual felon charge in the second phase of trial, because the record

indicates ADA Bender represented defendant in one of the predicate felony

convictions, Camacho instructs the trial court should have inquired into whether

ADA Bender divulged any confidential information to other prosecutors that could

have been detrimental to defendant’s trial on the habitual felon charge in order to

find whether an actual conflict of interest existed. Id. at 601, 406 S.E.2d at 875.

Defendant at the start of the habitual felon proceeding initially indicated he intended

to proceed with trial and moved for a third time to disqualify the HCDA’s Office, this

time on the additional basis that ADA Bender participated in the prosecution at the

first phase of trial.    However, following an immediate unrecorded chambers

conference with both parties’ attorneys, defendant never obtained a ruling on this



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third motion as it related to the habitual felon charge on these grounds, see N.C. R.

App. P. 10(a)(1) (“It is also necessary for the complaining party to obtain a ruling

upon the party’s . . . objection[ ] or motion.”), and instead elected to forgo the trial and

unconditionally plead guilty to attaining habitual felon status as charged.

       Even had the trial court conducted a formal hearing on defendant’s motion and

found an actual conflict of interest would exist if ADA Bender assisted in prosecuting

the habitual felon charge, whether it was a disqualifying conflict was a matter within

its sound discretion. Camacho instructs disqualifying the entire district attorney’s

office under these facts, as defendant requested, would have been impermissibly

excessive. Id. at 601, 406 S.E.2d at 875 (“Even [if an actual conflict is found to exist],

however, any order of disqualification ordinarily should be directed only to individual

prosecutors who have been exposed to such information.” (citation omitted)). And

given that ADA Bender’s prior representation of defendant was wholly unrelated to

the charges in the first phase of trial, the only rulings on the motions were obtained

before the jury found defendant guilty of an underlying felony to which a habitual

offender charge could attach, two unrecorded attorney conferences were held

immediately following defendant’s first and third disqualification motions before and

at the start of the habitual offender proceeding, and defendant failed to argue on the

record how an actual disqualifying conflict might exist when prior convictions

necessary to prove habitual felon status are public records but, rather, appeared



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instead to argue “the outmoded ‘appearance of impropriety’ test[,]” Worley, 370 N.C.

at 368, 807 S.E.2d at 141, we cannot conclude the trial court’s decision not to

disqualify ADA Bender from the prosecution at the time it rendered its rulings was

“so arbitrary that it could not have been the result of a reasoned decision.” White,

312 N.C. at 777, 324 S.E.2d at 833.

      Defendant also argues the trial court further erred by not allowing his

disqualification motion after the State allegedly violated the condition that ADA

Bender not participate in the prosecution. We respectfully disagree with defendant’s

interpretation. During its ruling on defendant’s first recusal motion, which it adopted

in its second ruling, the trial judge stated: “I’m going to deny the motion at this time.

And the Prosecutor has given assurances that [ADA] Bender will in no way be

involved in this case.” Although the State concedes ADA Bender, in contradiction to

that assurance, did participate in the prosecution, we do not interpret the trial court’s

denials as being conditioned upon ADA Bender not participating in the first phase of

trial and, therefore, overrule this argument.

                                   IV. Conclusion

      Based upon the particular facts of this case, defendant has failed to show that

the trial court’s denial of his motions to disqualify the entire HCDA’s Office from

prosecuting the charges against him was “so arbitrary that it could not have been the




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result of a reasoned decision.” White, 312 N.C. at 777, 324 S.E.2d at 833. Accordingly,

we hold there was no error below.

      NO ERROR.

      Judges HUNTER, JR. and ZACHARY concur.




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