An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1111
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


STATE OF NORTH CAROLINA


      v.                                      Brunswick County
                                              No. 07 CRS 52264


NORMAN RAY ROBERTS, III,
     Defendant.


      Appeal by       Defendant from order         entered 1 April        2013 by

Judge Ola M. Lewis in Brunswick County Superior Court.                    Heard in

the Court of Appeals 23 January 2014


      Attorney General Roy A. Cooper, III, by Assistant Attorney
      General Amy Kunstling Irene, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Katherine Jane Allen, for Defendant.


      DILLON, Judge.


      Norman    Ray    Roberts,     III,    (“Defendant”)      petitioned      this

Court for certiorari on 26 April 2013 seeking review of an order

entered by the trial court on 1 April 2013 denying his motion

for appropriate relief (“MAR”).             A panel of this Court granted
                                  -2-
Defendant’s petition on 14 May 2013 for review of the trial

court’s denial of his MAR.    We affirm.

                             I.    Background

      On 19 May 2008, Defendant was indicted on sixteen counts of

first-degree sexual assault.      Attorney Mike Ramos was appointed

to represent Defendant; however, on 3 June 2008, Mr. Ramos filed

a motion to withdraw as Defendant’s counsel because Defendant

had advised Mr. Ramos that he had retained private counsel to

represent him.     On 5 June 2008, Judge Ola M. Lewis heard Mr.

Ramos’ motion to withdraw.        At the hearing, Defendant said he

had hired Eric Altman to represent him.           Mr. Altman confirmed

that he had never tried a criminal case involving the level of

felony for which Defendant was charged.         Mr. Ramos, however, had

twenty-six years of experience and was designated by the State

Bar as a specialist in criminal law.          At the conclusion of the

hearing, Judge Lewis denied Mr. Ramos’ motion to withdraw as

counsel.   However, at no time did Judge Lewis refuse to allow

Mr.   Altman     from   participating    in      Defendant’s   defense.

Notwithstanding, Mr. Altman never filed a notice of appearance

in the matter, either before Mr. Ramos’ motion to withdraw was

heard, or at any point thereafter.
                                        -3-
    Defendant       was   tried   in    the   21    September     2009     Criminal

Session of Brunswick County Superior Court, being represented by

Mr. Ramos.      The jury found Defendant guilty of all charges.

Judge Lewis entered the judgments against Defendant consistent

with the jury’s verdicts, sentencing                him,   as a prior record

level    III   felon,     to    three    presumptive       range,     consecutive

sentences of 336 to 413 months incarceration.

    Defendant appealed to this Court.               On direct appeal, he was

represented    by    Duncan    McCormick.      During      the    course    of   the

appeal, however, Mr. McCormick made a number of arguments on

Defendant’s    behalf;     however,      he   did   not    make     any    argument

pertaining to       the trial court’s decision to deny Mr. Ramos’

motion to withdraw.           This Court found no error, see State v.

Roberts, 2011 N.C. App. LEXIS 73 (N.C. App., Jan. 18, 2011)

(unpublished), and our Supreme Court denied Defendant’s petition

for discretionary review. See State v. Roberts, 365 N.C. 188,

707 S.E.2d 232 (2011).

    On    14   September       2012,    Defendant    filed   the     MAR    in   the

Superior Court, which is the subject of this present appeal,

arguing that the trial court had infringed his constitutional

right to retain counsel of his choice and that Mr. McCormick

provided ineffective assistance of counsel (“IAC”) by failing to
                                        -4-
raise     the   foregoing   constitutional           issue      during     the   first

appeal.

       At the 14 March 2013 MAR hearing, Mr. McCormick, Mr. Ramos

and Mr. Altman testified.          Mr. McCormick confirmed that when he

prepared the original appeal of Defendant’s conviction, he did

not    argue    or   otherwise   give     any      significance       to   the   trial

court’s order denying Mr. Ramos’ motion to withdraw as trial

counsel.

       Mr. Ramos testified that he had been an attorney since 1982

and had been practicing criminal law since that time, including

serious felony cases.        Since 1997, Mr. Ramos had been certified

by the State Bar as a specialist in state and federal criminal

law.    Mr. Ramos also testified that he has tried approximately

twenty-five capital cases, approximately one hundred homicide

cases, and “a bunch” of sex offense cases.

       Mr.   Altman   testified    that       he   had   been    an    attorney    for

almost twelve years, but that his criminal practice was limited

to, for the most part, speeding ticket cases and court-appointed

cases in district court.          He stated that the only criminal jury

trial he had ever done was a misdemeanor appeal to Superior

Court, in which the defendant had pled guilty halfway through

the trial.      Mr. Altman stated that he was having “mental health
                                            -5-
problems[,]”     and     he    sometimes        did     not   show     up   for     district

court.        When    asked,    “Do       you     believe     that    you     should      have

represented Mr. Roberts in 2007/2008 on sixteen counts of B-1

Felony?” Mr. Altman responded, “I do not believe I should.”                                Mr.

Altman said, “Mr. Ramos was in a much better position to take

care of Mr. Roberts’ case than I was.                     I just wasn’t – there was

no way I was going to get up to speed to effectively represent

him.”    When        asked    whether      he     had    “file[d]     any     motions     for

discovery”     in     Defendant’s         case,    Mr.    Altman      said,    “I    do    not

believe I did. . . . ‘Cause I didn’t’ know what I was doing.”

When asked, “So you didn’t even know that you had to file a

Notice   of    Appearance       in    a    Superior       Court      case?”    Mr.   Altman

responded, “No.”             When Mr. Altman learned that Mr. Ramos had

been appointed, he was “relieved to be out of it because I knew

that I’d gotten in over my head.”

    On 1 April 2013, the trial court entered a detailed order

denying Defendant’s MAR.              In its order, the trial court made

findings, inter alia, regarding Mr. Altman’s lack of experience

and ability in trying B1 felony cases and Mr. Ramos’ extensive

experience and ability in trying such cases.                         Also in its order,

the trial court determined that its denial of Mr. Ramos’ motion

to withdraw did not amount to a violation of Defendant’s Sixth
                                            -6-
Amendment rights and that Defendant was not entitled to relief

for his IAC claim, in part, because “there was no reasonable

probability that . . . the result of [Defendant’s appeal] would

have     been     different”    had        Mr.    McCormick     made    an    argument

concerning the trial court’s denial of                       Mr. Ramos’ motion to

withdraw.

       Defendant filed a petition for writ of certiorari in this

Court on 26 April 2013, seeking review of the trial court’s

order denying his MAR, which we issued on 14 May 2013.

                                     II.    Analysis

       Defendant argues that the trial court erred in denying his

MAR.     We believe that Defendant’s right to chosen counsel was

not violated and, accordingly, affirmed the trial court’s order

denying Defendant’s MAR.

                               A. Standard of Review

       “When a trial court’s findings on a motion for appropriate

relief are reviewed, these findings are binding if they are

supported by competent evidence and may be disturbed only upon a

showing of manifest abuse of discretion.”                      State v. Armstrong,

203    N.C.     App.   399,   416,    691    S.E.2d    433,    445,    (citation   and

quotation marks omitted) disc. review denied, ___ N.C. ___, 702

S.E.2d    492     (2010).      “Competent         evidence    is   evidence    that   a
                                       -7-
reasonable     mind    might     accept     as    adequate      to        support     the

finding.”      Id.    at   416-17,    691    S.E.2d    at     445    (citation        and

quotation marks omitted).          “The trial court’s conclusions of law

are reviewed de novo.”           Id. at 417, 691 S.E.2d at 445 (citation

and quotation marks omitted).

             B. Sixth Amendment Right to Counsel of Choice

      Defendant contends the trial court erred by denying his

motion for appropriate relief because his Sixth Amendment right

to counsel of choice was infringed.              We disagree.

      “The   Sixth     Amendment     provides     that      ‘[i]n     all     criminal

prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defense.’                   We have previously

held that an element of this right is the right of a defendant

who   does   not     require   appointed     counsel     to    choose        who     will

represent him.”        United States v. Gonzalez-Lopez, 548 U.S. 140,

144, 165 L. Ed. 2d 409, 416 (2006) (citation omitted).

      In the present case – unlike the facts in Gonzalez-Lopez –

there is nothing in the record to indicate that the trial court

denied   any    request     by    Defendant       to   allow        Mr.     Altman     to

participate in his defense.           Indeed, during the hearing on Mr.

Ramos’ motion to withdraw, the trial court stated that Defendant

was “certainly free to counsel of [his] choice[.]”                         However, at
                                         -8-
this   pre-trial      hearing,     the   trial   court     simply   refused   Mr.

Ramos’ motion to withdraw. R 27 Defendant was facing sixteen B1

felonies, and Mr. Altman admitted at the pre-trial hearing that

he had no experience representing clients with serious felony

charges   and   had    only    been   involved   in   a    single   jury   trial.

Further, as the trial court noted that Mr. Altman never filed a

notice of appearance in the case.

       The United States Supreme Court has held that “the right to

counsel    of   choice        is   circumscribed      in    several   important

respects[,]”    Gonzalez-Lopez, 548 U.S. at 144, 165 L. Ed. 2d at

417 (citation and quotation marks omitted), stating as follows:

           Nothing we have said today casts any doubt
           or   places   any   qualification   upon   our
           previous holdings that limit the right to
           counsel   of    choice   and   recognize   the
           authority of trial courts to establish
           criteria for admitting lawyers to argue
           before them. . . .      We have recognized a
           trial court’s wide latitude in balancing the
           right to counsel of choice against the needs
           of fairness, and against the demands of its
           calendar.   The   court   has,  moreover,   an
           independent   interest    in   ensuring   that
           criminal trials are conducted within the
           ethical standards of the profession and that
           legal proceedings appear fair to all who
           observe them.

Id. at 151-52, 165 L. Ed. 2d at 421 (citations omitted)(emphasis

added).
                                               -9-
      In his brief, Defendant contends that, in the present case,

“the trial court’s belief that retained counsel will not be as

effective as appointed counsel” is not a valid limitation on

Defendant’s constitutional right to counsel of choice.                                Although

we agree with the foregoing assertion, it does not describe this

case.   We believe the record in this case reveals that, to the

extent the trial court placed a limitation on Defendant’s Sixth

Amendment right counsel of choice by denying Mr. Ramos’ motion

to    withdraw,      the       limitation            was     based       on     the       court’s

“independent       interest         in     ensuring        that    criminal         trials   are

conducted within the ethical standards of the profession[,]” see

Gonzalez-Lopez,         548    U.S.       at   152,        165    L.    Ed.    2d    at   421-22

(citation    and    quotation             marks   omitted),            and,    therefore,      we

conclude the trial court did not err in denying Defendant’s MAR.

      Rule   1.1    of        the    North     Carolina          Rules    of    Professional

Conduct states the following:

             Competence:   A lawyer shall not handle a
             legal matter that the lawyer knows or should
             know he or she is not competent to handle
             without associating with a lawyer who is
             competent to handle the matter. Competent
             representation requires the legal knowledge,
             skill,    thoroughness,    and    preparation
             reasonably necessary for the representation.

The   evidence     at    the        MAR    hearing     included          Mr.    Altman’s      own

admission that he was wholly incompetent to represent Defendant
                                              -10-
on his sixteen B1 felony charges.                    Defendant, in fact, admits on

appeal    that      “[u]nless       allowing         a   criminal      defendant      to    be

represented by his retained counsel of choice would result in. .

.    [inter    alia,       a    violation      of]       the   Rules    of     Professional

Conduct, the defendant must be allowed to be represented by

retained counsel of his choosing.”                         As such, we believe the

trial    court’s      denial      of    Mr.    Ramos’      motion      to    withdraw,     and

later, the trial court’s denial of Defendant’s                               MAR, was not

erroneous.          The denial of Mr. Ramos’ motion to withdraw was

necessary to ensure that Defendant’s trial was “conducted within

the ethical standards of the profession[,]” see Gonzalez-Lopez,

548 U.S. at 152, 165 L. Ed. 2d at 421-22, specifically, Rule 1.1

of the North Carolina Rules of Professional Conduct.

       At the hearing on Mr. Ramos’ motion to withdraw – where

Defendant indicated that he wanted Mr. Altman to represent him

at   trial     on    sixteen      B1    felony       counts    and     where    Mr.   Altman

admitted having no experience in such matters - we believe that

the trial court was caught between the proverbial “Scylla and

Charybdis.”          See       Ex Parte McFarland, 163 S.W.3d 743, 759-60

(Tex. Crim. App. 2005).                On the one hand, the trial court had a

legitimate concern that Mr. Altman might not have the ability to

provide       competent         representation,           which,       under    the    Sixth
                                    -11-
Amendment, a criminal defendant is entitled to.              See Strickland

v. Washington, 466 U.S. 668, 693, 80 L. Ed. 2d 674, 697-98

(1984).     On the other hand, “a criminal defendant also has a

Sixth Amendment right to the privately retained counsel of his

choice[.]”         McFarland,    supra.     (emphasis    added)     (footnote

omitted).     We    believe     Judge    Lewis   satisfied   both   of   these

constitutional     requirements     at    the    pre-trial   hearing:      She

denied Mr. Ramos’ motion to withdraw, but she did not otherwise

disqualify Mr. Altman from participating, stating:

            And you are certainly free to hire counsel
            of your choice; but, I have an obligation to
            let you know that Mr. Altman does not handle
            this level of felony. It is a very serious
            charge for which you are facing a very long
            time if you plead guilty or you are found
            guilty. . . .        And so, whatever the
            relationship is with Mr. Altman, it is what
            it is.   But Mr. Ramos is not going to be
            allowed to withdraw as your attorney.”1




1
     We note that in its order denying Defendant’s MAR, the
trial court determined that Defendant’s Sixth Amendment rights
were not violated because the court “refused to allow [Mr.]
Altman . . . to represent the Defendant[.]”       This statement
could be interpreted to mean that the trial court had refused to
allow Mr. Altman to represent Defendant even with Mr. Ramos also
serving; however, this interpretation is not supported by the
record. A better interpretation of this statement, which finds
support in the record, is that the trial court – by denying Mr.
Ramos’ motion to withdraw – merely “refused” to allow Mr. Altman
to serve as Defendant’s sole counsel.
                                         -12-
Notwithstanding, there is nothing in the record to indicate that

following the pre-trial hearing that Defendant sought to include

Mr. Altman in his defense.

                  II.    Findings of Fact/Conclusions of Law

      Defendant presents several arguments challenging the trial

court’s findings of fact, and ultimately, its conclusions of law

in its order denying Defendant’s motion for appropriate relief.

We find each of the following arguments unmeritorious.

      Defendant first argues that findings of fact 9 through 112

are merely recitations of testimony of the witnesses.                     In cases

such as this, “the trial court . . . is entrusted with the duty

to   hear       testimony,   weigh   and     resolve   any    conflicts     in    the

evidence, find the facts, and, then based upon those findings,

render      a    legal   decision    .   .    .   as   to    whether   or   not    a

constitutional violation of some kind has occurred.”                      State v.

Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619-20 (1982).                     “[I]t

is not the role of the trial court as fact finder to simply

restate the testimony given.”                In re O.W., 164 N.C. App. 699,

703, 596 S.E.2d 851, 854 (2004).                  Inasmuch as the trial court



2
     The trial court did not enumerate its findings of fact in
its order denying Defendant’s motion for appropriate relief.
However, on appeal, Defendant supplied a copy of the order, upon
which Defendant numbered the findings of fact, so as to more
effectively and conveniently present his argument.
                                         -13-
found as fact that Mr. Altman, Mr. Ramos, and Mr. McCormick

“testified to the following[,]” the trial court did not perform

its duty of weighing and resolving conflicts in the evidence.

However,    in     this    case,    it   does     not   appear   that   there   were

conflicts in the evidence to resolve.                     No one, including Mr.

Altman, testified that Mr. Altman was competent to represent

Defendant.        See generally State v. Smith, 346 N.C. 794, 800, 488

S.E.2d 210, 214 (1997) (stating that “[i]f there is no conflict

in the evidence on a fact, failure to find that fact is not

error”).         Moreover,    the    trial      court     made   sufficient     other

findings     of     fact   upon     which    to    base    its   conclusion      that

Defendant’s Sixth Amendment right to counsel of choice was not

abridged.

      Defendant next argues that findings of fact 9p, 11, and 12

are   not    supported       by     competent       evidence.       According      to

Defendant’s enumeration, findings of fact 9p, 11, and 12 state

the following:

            9p.    The Court was also privy to Mr.
            Altman’s past mental health conditions at
            the time of Mr. Ramos’ appointment.

            . . . .

            11. Mr. McCormick did not know of Mr. Eric
            Altman’s representation of the Defendant,
            and if he was aware of such would have made
                                          -14-
           a constitutional argument as to the Court’s
           appointment of Mr. Ramos.

           . . . .

           12.   The Court finds there was nothing to
           lead Mr. McCormick to note Mr. Altman’s
           purported appearance in the case file or any
           and all related documents.

     We    agree       with    Defendant      that        there    was     no   evidence

presented at the hearing showing that the trial court was “privy

to Mr. Altman’s past mental health conditions.”                          However, there

was evidence, including Mr. Altman’s testimony, that he suffered

from mental health conditions.               Moreover, the trial court found

as fact in a different portion of the order that “Mr. Altman

has, in the past, suffered from mental health problems.”                              We

would   caution    the    trial      court    not    to    make    findings     of   fact

regarding things the trial court is “privy to[,]” as there was

no   evidence     to    support      it    was      presented      at     the   hearing.

Although we agree with Defendant that this finding was made in

error, the trial court made sufficient other findings upon which

to base its conclusion that Defendant’s Sixth Amendment right to

counsel of choice was not abridged in this case.

     Findings      of   fact    11   and     12   pertain     to    the    question   of

whether Defendant received ineffective assistance of appellate

counsel,    which,       as    Defendant      points       out     in     his   previous
                                                 -15-
argument, is separate and apart from the question of whether

Defendant’s       Sixth      Amendment            right       to      chosen       counsel     was

violated.         On    certiorari,          although         Defendant          challenges    the

trial     court’s       conclusion          of    law     that        he    did    not    receive

effective assistance of appellate counsel, Defendant does not

present     any        argument        showing          how   Defendant’s            appeal    was

prejudiced by Mr. McCormick’s purported ineffective assistance.

See State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248

(1985)     (stating        that        in        addition        to        showing       counsel’s

performance was deficient, “the defendant must show that the

deficient    performance          prejudiced            the    defense.”).            Therefore,

Defendant    has       failed     to    meet      his     burden       on    the    question   of

ineffective       assistance       of       counsel.           See         id.     Because     the

foregoing findings of fact have no bearing on the question of

whether Defendant’s Sixth Amendment right to counsel of choice

was violated, they are superfluous to the trial court’s ruling

thereon, and we need not address whether they are supported by

competent evidence in our analysis of whether Defendant’s right

to counsel of choice was violated.

    Based on the foregoing, we conclude Defendant’s right to

chosen counsel was not violated.                        We therefore affirm the trial

court’s order denying Defendant’s MAR.
                         -16-
AFFIRMED.

Judge STROUD and Judge HUNTER, JR. concur

Report per Rule 30(e).
