State v. Surratt

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-407

No. COA20-455

Filed 3 August 2021

Cleveland County, No. 18 CRS 000741, 19 CRS 001082

STATE OF NORTH CAROLINA

v.

BRANDON LAMAR SURRATT, Defendant.

Appeal by Defendant from judgment entered 31 July 2019 by Judge Daniel A.

Kuehnert in Cleveland County Superior Court. Heard in the Court of Appeals 23

February 2021.

Attorney General Joshua H. Stein, by Special Deputy Attorney General James

Bernier, Jr., for the State.

Leslie Rawls for defendant-appellant.

MURPHY, Judge.

¶1 When the Record is incomplete or unclear regarding a defendant’s relationship

with his or her attorney, we cannot determine whether a defendant is deprived of

effective assistance of counsel. Here, we dismiss Defendant’s ineffective assistance

of counsel claim without prejudice as the claim cannot be decided on our existing

appellate Record.

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¶2 In addition, the trial court does not commit constitutional error when the

Record clearly shows a defendant’s attorney had adequate time to prepare for trial.

Here, the trial court did not commit constitutional error as a thorough examination

of the Record reveals Defendant’s attorney had adequate time to prepare for trial.

BACKGROUND

¶3 On 12 October 2017, the City of Shelby Police Department conducted a

controlled purchase between a paid informant and Defendant Brandon Lamar

Surratt (“Defendant”), which was captured on a video and audio recording. The paid

informant purchased $30.00 worth of cocaine from Defendant. Defendant was

indicted on the following charges: one charge of possession with intent to

manufacture, sell, and deliver a controlled substance, namely cocaine, a Class H

felony; one charge of sale and delivery of a controlled substance, namely cocaine, a

Class G felony; and attaining habitual felon status. N.C.G.S. § 90-95(b)(1) (2019);

N.C.G.S. § 90-95(b)(1)(i) (2019). Defendant’s habitual felon status could elevate these

charges to Class D and Class C felonies, respectively. N.C.G.S. § 14-7.6 (2019).

¶4 Mr. Joshua Valentine (“Valentine”) was appointed as Defendant’s counsel in

June 2019. However, under a local “rule or [] practice,” Valentine was not qualified

to be appointed on cases above Class F felonies. Valentine filed a Motion to Withdraw

as Counsel on 8 July 2019. As grounds for the motion, Valentine stated:

1. Local jurisdiction rules do not allow [him] to

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represent [] Defendant in a habitual felon charge to

which he has been appointed.

2. Irreconcilable differences have arisen in this

attorney-client relationship.

(Emphasis added). On 29 July 2019, the trial court determined, based on Valentine’s

experience as a retained attorney dealing with matters involving felonies above Class

F, there was not an issue with Valentine representing Defendant at trial.

¶5 Defendant’s trial began on 30 July 2019. During a discussion of pretrial

matters, Valentine indicated, “I think my client has an oral motion he would like to

make to the [c]ourt. He’s asked if he’d be allowed to speak.” The trial court allowed

Defendant to be heard, and he made an oral motion to continue, arguing he did not

have enough time to prepare for trial with his appointed counsel:

[DEFENDANT]: Yes. A few months back, and I just

appointed him last month.

This month I got a court date, but I was unaware of they

had appointed me him. And then just yesterday went over

my case briefly. So I wouldn’t had any time -- ample time

to go over my case at all with him. We went over it briefly

yesterday. So I’m asking to continue for one more time to

go over my case. My life we dealing with. I ask give me

more time to go over my case. We briefly went over it

yesterday.

(Emphasis added). After inquiring with Valentine, the trial court denied Defendant’s

motion:

THE COURT: [] Valentine, do you have any reservation

about going forward with the case? Your client’s acting

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like, you know, you haven’t had -- he hasn’t had enough

time with you. I’m wondering if the time you’ve been

appointed to going forward with this trial.

[VALENTINE]: Yes, Your Honor.

So I was appointed back in June to his case. So I was not

involved throughout the whole, you know, administrative

process.

THE COURT: That’s normal.

[VALENTINE]: Yeah.

So I have spent a good amount of time over the weekend

and yesterday preparing if the case did go to trial. I will

tell the [c]ourt we have not had a lot of time together to

review the details and the facts of the case. And, you know,

I always like more time, of course. But if the [c]ourt wants

to go ahead and proceed, you know, I am an officer of the

[c]ourt and will comply with the [c]ourt’s request.

I did make a couple of motions late yesterday that, you

know, I’d like to briefly address with the [c]ourt before we

do proceed. But like I said --

THE COURT: Let me ask you this. There was a -- I am

allowing you to go forward. Yesterday we addressed your -

- the habitual felon status, and, you know, I don’t know if

you looked at that beforehand or not, but I will -- if we get

to that point in the proceedings, because it will be a

bifurcated trial.

[VALENTINE]: Yes.

THE COURT: I will give you as much time as you need to

make sure you do adequate investigation on that part of

the trial, if you haven’t had the time beforehand, to verify,

you know, the prior felonies and those kind of things.

Hang on a minute, sir.

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But you had a -- there’s a motion in here [8 July 2019] about

a motion to withdraw as counsel. Has that motion been

addressed?

[VALENTINE]: I think -- I apologize if it wasn’t clear

yesterday. That was what the DA and I was intending to

address regarding the local rules not explicitly allowing me

to handle this type of case. I know some other judges have

questioned me when I have handled those types of cases.

So I had filed that motion in the -- in the hopes that I could

get on the record the [c]ourt either allowing or disallowing

me to --

THE COURT: Yeah, that’s not a problem. I just wanted to

make sure there wasn’t something else.

...

[Defendant], do you have any other -- anything else you

want to say?

...

[DEFENDANT]: And this is my life we dealing with. I

really appreciate a reasonable amount of time to speak

with [Valentine] about my case. This is a serious case, and

the habitual felon is serious. And I would really appreciate

it if you would help me out with that request.

THE COURT: All right. The -- if at any time -- I mean, you

and your lawyer, and your lawyer in particular, has had

this case since June, which is plenty enough time to

prepare for trial. He’s gotten all the discovery; right?

[VALENTINE]: Yes, sir.

THE COURT: Okay. Hang on.

If in the -- I don’t want to get into what’s going on between

you and your client, but if at any point in time you need to

have a little extra time after -- before cross-examination or

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something, you need to talk to your client, just let me know.

[VALENTINE]: Okay.

THE COURT: And you can have that time.

I’m not inclined, [Defendant], to continue the case. I’m not

going to do that. You have had this case -- the DA -- it’s

gone on for a long time. And you -- you have an obligation,

as well as your lawyer, but you have an obligation to be

prepared yourself. And your lawyer’s been around since

June, and it doesn’t matter -- the case itself has been

around longer than that . . . .

...

So the [c]ourt’s not going to continue the case. I will give

you -- at your lawyer’s request, I will give you time to

discuss any particular matter if you need to have a break,

15-minute break or something at some point during the

trial that would be -- I’m going to give some deference to

your lawyer and you, give you some time in the middle of

the trial, but we are going to go forward with the trial.

This is not a complicated trial.

¶6 The jury found Defendant guilty on all charges. Defendant entered a plea of

guilty with regard to habitual offender status and the trial court imposed an active

sentence of 74 to 101 months. Defendant timely appealed.

ANALYSIS

¶7 On appeal, Defendant argues he was “deprived of effective assistance of

counsel when his appointed attorney made him argue pro se for a continuance and

further failed to advocate on his behalf, when [Defendant] and the attorney never met

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until the day before trial and then, only met briefly.” (Emphasis added). Defendant

also argues “[t]he trial court committed constitutional error in denying [Defendant’s]

motion to continue where he never met his attorney until the day before trial and

then, met with him briefly.”

A. Ineffective Assistance of Counsel

¶8 First, Defendant argues he was deprived of effective assistance of counsel

because his attorney met with him only once, briefly on the day before his trial.

¶9 “On appeal, this Court reviews whether a defendant was denied effective

assistance of counsel de novo.” State v. Wilson, 236 N.C. App. 472, 475, 762 S.E.2d

894, 896 (2014). The United States Supreme Court has established a defendant must

satisfy a two-part test in order to show counsel was ineffective:

First, the defendant must show that counsel’s performance

was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is

reliable.

Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984).

¶ 10 However, “claims of ineffective assistance of counsel should [generally] be

considered through motions for appropriate relief and not on direct appeal.” State v.

Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001), cert. denied, 356 N.C.

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623, 575 S.E.2d 758 (2002). “[I]neffective assistance of counsel claims brought on

direct review will be decided on the merits 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 . . . an evidentiary hearing.” State v. Thompson, 359 N.C. 77,

122-23, 604 S.E.2d 850, 881 (2004) (emphasis added) (marks omitted), cert. denied,

546 U.S. 830, 163 L. Ed. 2d 80 (2005). When the reviewing court determines an

ineffective assistance of counsel claim cannot be decided on the existing appellate

record, it must “dismiss those claims without prejudice, allowing [the] defendant to

bring them pursuant to a subsequent motion for appropriate relief in the trial court.”

Id. at 123, 604 S.E.2d at 881.

¶ 11 In support of his ineffective assistance of counsel claim, Defendant argues he

“never met [Valentine] until Monday, 29 July 2019, the day before trial.” He claims

“[t]he [R]ecord does not show when [Defendant] and his attorney met or for how

long[,]” but also states the Record “does show that after arguing his motion to

withdraw that morning, [Valentine] filed five motions that afternoon at and just after

3:15.” Defendant repeatedly argues he was deprived of his right to adequate time to

consult with his attorney and prepare for trial because he “[met] with [Valentine]

only once, the day before trial” and Valentine did not “support [Defendant’s] request

to meet more than once to go over the case and prepare for trial.”

¶ 12 We cannot properly decide whether Defendant was deprived of effective

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assistance of counsel on direct appeal because the cold Record reveals further

investigation is required. See id. at 123, 604 S.E.2d at 881. For example, during his

motion to continue, Defendant stated:

[DEFENDANT]: This month I got a court date, but I was

unaware of they had appointed me him. And then just

yesterday went over my case briefly. So I wouldn’t had any

time -- ample time to go over my case at all with him. We

went over it briefly yesterday. So I’m asking to continue

for one more time to go over my case. . . . I ask give me more

time to go over my case. We briefly went over it yesterday.

(Emphasis added). If true, such a claim could possibly merit relief. However, the

Record reflects on 8 July 2019, Valentine filed a Motion to Withdraw as Counsel,

citing “[i]rreconcilable differences have arisen in this attorney-client relationship” as

one of the reasons for withdrawal. “Irreconcilable differences” indicates that as of 8

July 2019, Defendant and Valentine had had some sort of communication with one

another and Defendant was aware Valentine had been appointed to represent him.

It is not readily apparent from the Record when this communication occurred, or for

how long, and more information must be developed to determine if Defendant’s claim

satisfies both parts of the Strickland test. See State v. Adams, 335 N.C. 401, 410, 439

S.E.2d 760, 764 (1994) (holding incompleteness in an appellate record precludes a

defendant from showing an error occurred), cert. denied, 522 U.S. 1096, 139 L. Ed. 2d

878 (1998).

¶ 13 The Record here provides conflicting evidence regarding Defendant’s

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relationship with his attorney. Further, we note neither the parties nor the trial

court addressed the “[i]rreconcilable differences” justification for Valentine’s 8 July

2019 Motion to Withdraw as Counsel. Since we do not have a sufficient Record to

determine whether counsel’s performance was deficient, the appropriate remedy is to

remand the case to the trial court to address those claims. We dismiss Defendant’s

ineffective assistance of counsel claim without prejudice, “allowing [D]efendant to

bring [it] pursuant to a subsequent motion for appropriate relief in the trial court.”

Thompson, 359 N.C. at 123, 604 S.E.2d at 881.

B. Motion to Continue

¶ 14 Defendant also argues he is entitled to have his conviction vacated and to a

new trial because “[t]he trial court committed constitutional error in denying [his]

motion to continue where he never met his attorney until the day before trial and

then, met with him briefly.”

¶ 15 Ordinarily, “[a] motion for continuance . . . is . . . addressed to the sound

discretion of the trial judge whose ruling thereon is not subject to review absent an

abuse of such discretion.” State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656

(1982). However, “when a motion raises a constitutional issue, the trial court’s action

upon it involves a question of law which is fully reviewable by an examination of the

particular circumstances presented by the record on appeal of each case.” Id.

¶ 16 “It is implicit in the constitutional guarantees of assistance of counsel and

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confrontation of one’s accusers and witnesses against him that an accused and his

counsel shall have a reasonable time to investigate, prepare and present his defense.”

State v. McFadden, 292 N.C. 609, 616, 234 S.E.2d 742, 747 (1977). “To establish a

constitutional violation, a defendant must show that he did not have ample time to

confer with counsel and to investigate, prepare and present his defense.” State v.

Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 337 (1993). “Whether a defendant bases

his appeal upon an abuse of judicial discretion, or a denial of his constitutional rights,

to entitle him to a new trial because his motion to continue was not allowed, he must

show both error and prejudice.” State v. Moses, 272 N.C. 509, 512, 158 S.E.2d 617,

619 (1968).

¶ 17 Assuming, without deciding, that the trial court committed error by denying

Defendant’s motion to continue, Defendant is unable to show this assumed error

prejudiced him. Defendant urges that prejudice from the denial of the motion to

continue “should be presumed” and, quoting State v. Rogers, contends that “the

likelihood that any lawyer, even a fully competent one, could provide effective

assistance is remote.” State v. Rogers, 352 N.C. 119, 125, 529 S.E.2d 671, 675 (2000)

(marks and citations omitted).

¶ 18 In Rogers, our Supreme Court stated:

While a defendant ordinarily bears the burden of showing

ineffective assistance of counsel, prejudice is presumed

without inquiry into the actual conduct of the trial when

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the likelihood that any lawyer, even a fully competent one,

could provide effective assistance is remote. A trial court’s

refusal to postpone a criminal trial rises to the level of a

Sixth Amendment violation only when surrounding

circumstances justify this presumption of ineffectiveness.

Id. (marks and citations omitted). The facts of Rogers are easily distinguished from

those of the present case. Rogers addressed a situation in which the defense attorneys

were appointed “to a case involving multiple incidents in multiple locations over a

two-day period for which they had only thirty-four days to prepare” for the “bifurcated

capital trial” of a complex case involving many witnesses. Id. Our Supreme Court

expressly based its holding upon “the unique factual circumstances” of the case. Id.

at 126, 529 S.E.2d at 676. The instant case does not present “the unique factual

circumstances” that were present in Rogers.

¶ 19 For example, a thorough review of the Record reveals Valentine had adequate

time to prepare. The case was assigned to Valentine at some point in June 2019.

Defendant’s trial began on 30 July 2019. There is nothing in the Record to indicate

that at least one month was not enough time for Valentine to prepare for trial. To

the contrary, Valentine indicated he “spent a good amount of time over the weekend

and [the day before trial] preparing if the case did go to trial.” Further, the case here

was not complicated. Unlike in Rogers, where the case involved “multiple incidents

in multiple locations over a two-day period[,]” the case here involved a single incident

that occurred on one day: the controlled purchase of cocaine that was captured on

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video and audio recording. Rogers, 352 N.C. at 125, 529 S.E.2d at 675. On the facts

of this case, prejudice cannot be presumed; the Record before us appears to

demonstrate that Valentine spent adequate time preparing for Defendant’s trial.

Defendant makes no other argument regarding prejudice. As Defendant is unable to

show prejudice resulting from the assumed error, the trial court did not err in denying

the motion to continue.

CONCLUSION

¶ 20 As there are factual discrepancies in the Record, we are unable to determine

the effectiveness of counsel upon examination of the cold Record. We dismiss this

issue without prejudice to Defendant’s right to file a motion for appropriate relief.

¶ 21 Assuming, without deciding, the trial court erred in denying Defendant’s

motion to continue, the facts of this case do not present the type of highly unusual

situation in which prejudice should be presumed. The trial court did not err in

denying Defendant’s motion to continue.

DISMISSED WITHOUT PREJUDICE IN PART; NO ERROR IN PART.

Chief Judge STROUD and Judge GRIFFIN concur.