State v. Melton

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-411

Filed 21 May 2024

Forsyth County, Nos. 19 CRS 60259; 20 CRS 96

STATE OF NORTH CAROLINA

v.

STEPHON DENARD MELTON, Defendant.

Appeal by Defendant from judgment entered 15 September 2022 by Judge

Steve R. Warren in Forsyth County Superior Court. Heard in the Court of Appeals 6

February 2024.

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

V. Sutton, for the State.

Caryn Strickland for Defendant.

GRIFFIN, Judge.

Defendant Stephon Denard Melton appeals from judgment entered upon a

jury’s verdict finding him guilty of possession of methamphetamine and attaining

habitual felon status. Defendant contends the trial court committed a structural

error in denying his court-appointed counsel’s motion to withdraw and further erred

in failing to exercise its discretion to reconsider the denial of the motion. We hold the

trial court did not err.

I. Factual and Procedural Background

This case arises from an incident which occurred on 26 September 2019. The

STATE V. MELTON

Opinion of the Court

relevant facts are as follows:

On 7 February 2022, Defendant was indicted for felony possession of

methamphetamine, possession of methamphetamine on the premises of Forsyth

County Jail, and having attained habitual felon status. On 8 July 2022, Defendant,

represented by court-appointed counsel, requested a trial. The matter was

calendared for trial at the 12 September 2022 Session of Forsyth County Superior

Court.

On 23 August 2022, the State provided notice of trial ready status. On 5

September 2022, Defendant indicated, in an administrative hearing, he was also

prepared to proceed to trial.

On 9 September 2022, an attorney, who was not Defendant’s court-appointed

counsel and had not yet been retained as private counsel, contacted the State without

notice to Defendant’s court-appointed counsel. The attorney requested, on behalf of

Defendant, a plea deal or continuance in Defendant’s case to allow her to prepare to

defend him. The State denied the request for a continuance but did offer a plea deal,

which Defendant rejected. Defendant’s court-appointed counsel was not immediately

informed of the other attorney’s requests.

On Sunday, 11 September 2022, Defendant’s court-appointed counsel, after

hearing of the attorney’s request, notified the State he would be filing a motion to

withdraw. On Monday, 12 September 2022, Defendant’s court-appointed counsel

filed the motion, which was heard later that day before Judge Stanley L. Allen in

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Opinion of the Court

Forsyth Couty Superior Court. Upon hearing arguments from all parties, Judge

Allen denied the motion.

On 13 September 2022, Defendant’s case came on for trial before Judge Steve

R. Warren in Forsyth Couty Superior Court. Prior to jury selection, Judge Warren

acknowledged there was a motion to withdraw in the file. Defendant’s court-

appointed counsel noted the motion had been denied but stated Defendant wished to

be heard on the motion again. Judge Warren allowed the parties to be heard on the

motion, then repronounced the denial of the motion.

The trial proceeded, and on 15 September 2022, the jury returned a verdict

finding Defendant guilty of felony possession of methamphetamine and of having

attained habitual felon status. Defendant was found not guilty of possession of

methamphetamine on the premises of Forsyth County Jail. Defendant was sentenced

to 42 to 63 months’ imprisonment.

On 16 September 2022, Defendant timely filed notice of appeal.

II. Analysis

Defendant contends the trial court committed a structural error in denying his

court-appointed counsel’s motion to withdraw and further erred in failing to exercise

its discretion to reconsider the denial of the motion.

A. Motion to Withdraw

Defendant argues the trial court committed a structural error in denying his

court-appointed counsel’s motion to withdraw where it erroneously applied the

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Opinion of the Court

ineffective assistance of counsel standard in considering the motion. We disagree.

1. Standard of Review

While we generally review a trial court’s decision to either grant or deny a

motion to withdraw for abuse of discretion, State v. Warren, 244 N.C. App. 134, 142,

780 S.E.2d 835, 841 (2015), our Courts have repeatedly recognized “when [a] motion

is based on a right guaranteed by the Federal and State Constitutions, the question

presented is one of law and not of discretion[.]” State v. Little, 56 N.C. App. 765, 767,

290 S.E.2d 393, 395 (1982) (internal marks and citation omitted); see also State v.

McFadden, 292 N.C. 609, 611, 234 S.E.2d 742, 744 (1977). Thus, where, as here, the

defendant’s motion concerns his “right to be defended in all criminal prosecutions by

counsel whom he selects and retains[,]” we must review the trial court’s decision

concerning that motion, de novo. Little, 56 N.C. App. at 767, 290 S.E.2d at 395

(internal marks and citation omitted); see also State v. Speller, 230 N.C. 345, 351, 53

S.E.2d 294, 298 (1949) (“Both the State and Federal Constitutions secure to every

man the right to be defended in all criminal prosecutions by counsel whom he selects

and retains.” (citation omitted)).

Moreover, Defendant argues the trial court committed a structural error—a

rare constitutional error, of which this Court reviews de novo. See State v. Blake, 275

N.C. App. 699, 705, 853 S.E.2d 838, 843 (2020). See also United States v. Gonzalez-

Lopez, 548 U.S. 140, 150 (2006); State v. Goodwin, 267 N.C. App. 437, 438, 833 S.E.2d

379, 380 (2019) (explaining the United States Supreme Court and our State Courts,

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Opinion of the Court

alike, recognize the erroneous deprivation of a defendant’s right to counsel of choice,

qualifies as a structural error).

2. Application of the proper standard on a motion to withdraw

The Sixth Amendment guarantees the accused, in all criminal prosecutions,

the right to have the assistance of counsel in making his defense. See U.S. Const.

amend. VI; N.C. Const. art. I, § 23 (“In all criminal prosecutions, every person charged

with crime has the right to . . . have counsel for defense[.]”). Where the accused is

found to be indigent, he is entitled to court-appointed counsel unless he

understandingly and voluntarily waives that right. State v. Pickens, 20 N.C. App. 63,

65, 200 S.E.2d 405, 406 (1973) (citing Argersinger v. Hamlin, 407 U.S. 25 (1972); State

v. Morris, 275 N.C. 50, 57, 165 S.E.2d 245, 249 (1969)).

While an indigent defendant has the right to court-appointed counsel, his right

is not unlimited. Specifically, our Courts have placed certain limitations on an

indigent defendant’s right to substitute his court-appointed counsel. However, these

limitations differ based on whether an indigent defendant seeks to replace his court-

appointed counsel with other court-appointed counsel or whether he, no longer being

indigent, seeks to replace his court-appointed counsel with private counsel of his

choice.

Our precedent is clear when it comes to substituting court-appointed counsel

with court-appointed counsel. Our Courts have explicitly recognized, the right to

court-appointed counsel “does not include the privilege to insist that counsel be

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Opinion of the Court

removed and replaced with other [court-appointed] counsel merely because [the]

defendant becomes dissatisfied with his attorney’s services.” State v. Holloman, 231

N.C. App. 426, 429, 751 S.E.2d 638, 641 (2013) (quoting State v. Sweezy, 291 N.C.

366, 371, 230 S.E.2d 524, 528 (1976) (internal marks omitted)). However, where it

appears “representation by counsel originally appointed would amount to denial of

[the] defendant’s right to effective assistance of counsel[,]” the trial court is required

to appoint substitute counsel. State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252,

255 (1980). Thus, upon a defendant’s request to substitute his court-appointed

counsel with other court-appointed counsel, “[t]he trial court’s sole obligation . . . is to

make sufficient inquiry into [the] defendant’s reasons to the extent necessary to

determine whether [the] defendant will receive effective assistance of counsel.” State

v. Poole, 305 N.C. 308, 312, 289 S.E.2d 335, 338 (1982).

Less clear, however, is the standard by which the trial court is to determine

whether to allow a defendant, previously found to be indigent, the right to substitute

his court-appointed counsel with private counsel of his choice.

A defendant’s right to counsel under the Sixth Amendment includes the right

of a non-indigent defendant to be defended by counsel of his choice. See N.C. Const.,

art. I; U. S. Const. amend. XIV; see also Powell v. Alabama, 287 U.S. 45, 53 (1932)

(“It is hardly necessary to say that the right to counsel being conceded, a defendant

should be afforded a fair opportunity to secure counsel of his own choice.”). Still, this

right is not unrestricted. See State v. Gant, 153 N.C. App. 136, 142, 568 S.E.2d 909,

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913 (2002) (“A defendant’s right to be defended by chosen counsel is not absolute.”

(internal marks and citation omitted)).

Our Court recently contemplated this issue in State v. Goodwin, 267 N.C. App.

437, 833 S.E.2d 379. In Goodwin, the defendant, prior to jury selection, requested

new counsel, stating he wished to fire his court-appointed defense counsel and hire a

private attorney. Id. at 438–39, 833 S.E.2d at 381. The defendant explained he

believed his defense counsel “was not competent to represent him because they could

not agree on which witness to call and could not properly communicate.” Id. In

response to this statement, the defendant’s court-appointed counsel filed a motion to

withdraw. Id. at 439, 833 S.E.2d at 381. The trial court denied the defendant’s

request and his counsel’s motions stating, “[t]he [trial] [c]ourt deems there not to be

an absolute impasse in regards to this case so far.” Id. The defendant appealed,

arguing, inter alia, “the trial court committed a structural error when it denied his

request for new, chosen counsel.” Id. The Goodwin Court, adopting our Supreme

Court’s purported reasoning in State v. McFadden, stated the trial court could only

deny the defendant’s request to substitute his court-appointed counsel for private

counsel of his choosing where it determined that granting the motion would “result

in significant prejudice to the defendant or in a disruption of the orderly processes of

justice unreasonable under the circumstances[.]” Id. at 440, 833 S.E.2d at 382

(internal marks and citation omitted). The Goodwin Court noted there was no

evidence in the record suggesting the trial court made such a determination as the

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Opinion of the Court

court “made no findings of fact indicating that the timing or content of [the

d]efendant’s request may have been improper or insufficient.” Id. at 441, 833 S.E.2d

at 382. Therefore, the Court, upon reviewing the transcript, held the trial court

committed a structural error as it “mistakenly relied upon the absolute impasse

standard in ruling on his request for new counsel[,]” when the defendant’s request

was “an assertion of his right to be represented by the counsel of his choice; not an

argument regarding the effectiveness of [his defense counsel’s] representation.” Id.

As an aside, we recognize that although the Court’s opinion in Goodwin

suggests the record was void of evidence tending to show the trial court applied the

proper standard where the trial court failed to make certain findings of fact, the trial

court is not required to make findings of fact. Id.; see Poole, 305 N.C. at 312, 289

S.E.2d at 338 (holding the trial court was not required to make findings of fact as

“[t]he trial court’s sole obligation when faced with a request that counsel be

withdrawn is to make sufficient inquiry into [the] defendant’s reasons to the extent

necessary” to a make the required determination). Relying on State v. Poole, the

Court, in an unpublished opinion, later clarified its holding in Goodwin by

recognizing, in cases such as this, “[w]hile it is certainly preferable for trial courts to

memorialize their findings of fact and conclusions of law either orally, in the

transcript, or in a formal order, such memorialization is not a requirement[.]” State

v. Beal, 272 N.C. App. 577, 844 S.E.2d 626, 2020 WL 4185818, *5 (unpublished)

(citing generally Poole, 305 N.C. at 312, 289 S.E.2d at 338).

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Opinion of the Court

Additionally, while we recognize the Goodwin Court relied heavily on our

Supreme Court’s decision in State v. McFadden, it is unclear whether the Goodwin

Court correctly interpreted McFadden. The Goodwin Court notes:

Under our reading of McFadden, when a trial court is faced

with a [d]efendant’s request to substitute his court-

appointed counsel for the private counsel of his choosing, it

may only deny that request if granting it would cause

significant prejudice or a disruption in the orderly process

of justice.

Goodwin, 267 N.C. App. at 440, 833 S.E.2d at 382. However, prior panels of this

Court, faced with similar issues on appeal, seemingly interpreted McFadden

otherwise as they, without weighing prejudice against the defendant, applied a

balancing test, noting the defendant’s right to private counsel of his choice must be

“balanced against the need for speedy disposition of the criminal charges and the

orderly administration of the judicial process.” State v. Chavis, 141 N.C. App. 553,

562, 540 S.E.2d 404, 411 (2000) (internal marks and citation omitted); see Little, 56

N.C. App. at 768–89, 290 S.E.2d at 395–96; see also Gant, 153 N.C. App. at 142, 568

S.E.2d at 913; State v. Foster, 105 N.C. App. 581, 584, 414 S.E.2d 91, 92 (1992).

In State v. Chavis, on the morning his case was called for trial, the defendant

sought a third continuance to permit him to obtain alternate counsel. 141 N.C. App.

at 556, 540 S.E.2d at 408. The trial court denied the defendant’s motion. Id. On

appeal, the Court balanced the defendant’s right to private counsel against the need

for speedy disposition of his charges and the orderly administration of judicial process

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Opinion of the Court

and held the trial court did not err. Id. at 562, 540 S.E.2d at 411. The Court noted

the record showed the defendant made the motion the morning trial was set to begin,

without the presence of the private counsel he indicated he wanted to employ and

without making any financial arrangements with that counsel. Id. Additionally, the

Court recognized the State was ready to proceed to trial with all witnesses present

and the defendant had failed to indicate any conflict he had with his court-appointed

counsel. Id.

In State v. Little, the defendant was appointed a public defender. 56 N.C. App.

at 766, 290 S.E.2d at 394. On the day of trial, the public defender moved to withdraw

after he informed the trial court that the defendant’s mother had indicated a desire

to retain private counsel for the defendant and had, in fact, retained counsel that day.

Id. at 767, 290 S.E.2d at 349. The defendant moved for a continuance in order to

allow the counsel of his choice to prepare his defense, which was denied. Id. at 766,

290 S.E.2d at 349. On appeal from the denial of his motion, the Court stated the

defendant was dilatory in securing privately retained counsel as his mother had been

in contact with the private counsel for several weeks before the counsel was retained

on the day of trial. Id. at 768, 290 S.E.2d at 395. Further, the Court stated, upon

balancing the defendant’s “right to have counsel of his choice with the need for speedy

disposition of criminal charges and the orderly administration of the judicial process,”

it was clear the defendant’s constitutional rights had not been denied. Id. at 768, 290

S.E.2d at 395–96.

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Opinion of the Court

Nonetheless, bound by this Court’s prior opinion in Goodwin, we apply its

interpretation of McFadden and the standard it requires. In re Civil Penalty, 324

N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (holding that where a panel of this Court has

previously decided a legal issue, a subsequent panel of this Court “is bound by that

precedent, unless it has been overturned by a higher court”).

Here, on Sunday, 11 September 2022, Defendant’s court-appointed counsel

informed the State he would be filing a motion to withdraw. The motion was filed on

12 September 2022—the morning trial was set to begin. That same day, the motion

came on for hearing. The trial court heard arguments from the parties and conducted

an inquiry with Defendant who, complaining there had been a lack of communication,

expressed he wanted to hire private counsel of his choice. The trial court then asked

Defendant’s court-appointed counsel whether he and Defendant had any “ideological

differences,” to which he responded, “I would say there is, Your Honor.” Before

concluding the hearing, the trial court asked Defendant several additional questions:

[TRIAL] COURT: And have you usually talked to another

lawyer?

DEFENDANT: Yes, I talked to several. As of—after

the court date—

[TRIAL] COURT: That was a yes or no question.

DEFENDANT: Yes, I talked to several.

[TRIAL] COURT: And have you employed another

lawyer?

DEFENDANT: They won’t allow me to—

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Opinion of the Court

[TRIAL] COURT: That’s not what—just answer yes or no,

have you employed another lawyer?

DEFENDANT: No, sir.

The trial court then denied the motion to withdraw.

Unlike the trial court in Goodwin, the trial court here conducted an inquiry

into more than just whether there existed an absolute impasse between Defendant

and his court-appointed counsel. While the trial court did ask Defendant’s court-

appointed counsel whether he and Defendant had any ideological differences, the

court’s colloquy with Defendant revolved around Defendant’s present failure to retain

private counsel despite his supposed desire to do so.

Despite including a mere question about any “ideological differences” between

Defendant and his court-appointed counsel, the record reflects, the trial court

conducted an inquiry which revolved around issues concerning the further disruption

and delay of trial. Thus, the trial court did not apply the incorrect standard in

considering the motion to withdraw. See also State v. Hall, 287 N.C. App. 394, 881

S.E.2d 762, 2022 WL 17985838, *5 (2022) (unpublished) (holding the trial court did

not erroneously apply the ineffective assistance of counsel standard where the trial

court made only a passing reference to the lack of an “impasse,” while the majority of

the exchange and ruling was centered around the disruption and delay hiring new

counsel would cause). Thus, the trial court did not commit a structural error.

B. Reconsideration of the Motion to Withdraw

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Opinion of the Court

Defendant argues the trial court erred in failing to exercise its discretion to

reconsider the prior denial of his court-appointed counsel’s motion to withdraw.

1. Standard of review

We review matters left to the discretion of a trial court for abuse of discretion.

See France v. France, 224 N.C. App. 570, 577, 738 S.E.2d 180, 185 (2012) (“[W]here

matters are left to the discretion of the trial court, appellate review is limited to a

determination of whether there was a clear abuse of discretion.” (internal marks and

citation omitted)). An abuse of discretion occurs where the trial court’s ruling “is

manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision.” Id. (internal marks and citation omitted).

2. Discretion to reconsider a prior ruling on a motion

Generally, there lies no appeal from one judge of the superior court to another

as they maintain equal and coordinate power. Michigan Nat’l Bank v. Hanner, 268

N.C. 668, 670, 151 S.E.2d 579, 580 (1966). As is well-established in our jurisprudence,

“one Superior Court judge may [neither] correct another’s errors of law; [nor] modify,

overrule, or change the judgment of another Superior Court judge previously made

in the same action.” State v. Woolridge, 357 N.C. 544, 549, 592 S.E.2d 191, 194 (2003)

(citation omitted). However, there exists an exception to this rule, whereby one judge

is authorized to overrule another under certain circumstances. See Crook v. KRC

Mgmt. Corp., 206 N.C. App. 179, 189, 697 S.E.2d 449, 456 (2010). Per this exception,

“[o]ne superior court judge may only modify, overrule, or change the order of another

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Opinion of the Court

superior court judge where the original order was (1) interlocutory, (2) discretionary,

and (3) there has been a substantial change of circumstances since the entry of the

prior order.” Id. (internal marks and citation omitted). The party seeking the

modification bears the burden of showing there has since been a substantial change

in circumstances, that being “an intervention of new facts which bear upon the

propriety of the previous order.” First Fin. Ins. Co. v. Com. Coverage, 154 N.C. App.

504, 507, 572 S.E.2d 259, 262 (2002) (internal marks and citation omitted).

Here, Defendant’s court-appointed counsel filed a motion to withdraw on 12

September 2022. The same day, the motion came on for hearing before Judge Allen

in Forsyth County Superior Court. Judge Allen denied the motion to withdraw. On

13 September 2022, the matter came on for trial, in Forsyth County Superior Court,

before Judge Warren. Upon inquiry from Judge Warren, Defendant’s court-appointed

counsel stated the motion to withdraw had previously been denied but Defendant

wished to be heard again on the matter. After hearing arguments from all parties,

Judge Warren repronounced the denial of the motion.

While the motion to withdraw, here, was both interlocutory and discretionary,

Defendant did not argue there had been a substantial change in circumstances since

the day before when Judge Allen denied the motion. Likewise, the record does not

reflect a substantial change in circumstances.

Therefore, the trial court did not err in repronouncing the denial of the motion

to withdraw.

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Opinion of the Court

NO ERROR.

Judge STROUD concurs by separate opinion.

Judge THOMPSON dissents by separate opinion.

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No. COA23-411 – State v. Melton

STROUD, Judge, concurring by separate opinion.

I concur in the majority opinion except as to any citation of unpublished cases

of this Court that were not argued in any brief filed in this case. I would not rely

upon an unpublished opinion not argued by a party for the same reasons as in my

concurring opinion in State v. Hensley, 254 N.C. App. 173, 802 S.E.2d 744 (2017).

No. COA23-411–State v. Melton

THOMPSON, Judge, dissenting by separate opinion.

On appeal, defendant contends that “[t]he trial court committed structural

error by denying [court-appointed defense] counsel’s motion to withdraw so that

[defendant] could hire the counsel of his own choosing.” I agree, and for this reason,

respectfully dissent.

“A structural error is one that should not be deemed harmless beyond a

reasonable doubt because it affects the framework within which the trial proceeds,

rather than being simply an error in the trial process itself.” State v. Goodwin, 267

N.C. App. 437, 439, 844 S.E.2d 379, 381 (2019) (citation, internal quotation marks,

and brackets omitted). “The purpose of the structural error doctrine is to ensure

insistence on certain basic, constitutional guarantees that should define the

framework of any criminal trial.” Id. (citation omitted). “The Supreme Court of the

United States has repeatedly held that erroneous deprivation of the right to counsel

of choice, with consequences that are necessarily unquantifiable and indeterminate,

unquestionably qualifies as structural error.” Id. at 440, 833 S.E.2d at 381 (citation

and internal quotation marks omitted).

The Supreme Court of North Carolina has held that the “[S]tate should keep

to a necessary minimum its interference with the individual’s desire to defend himself

in whatever manner he deems best, using any legitimate means within his resources”

and “that desire can constitutionally be forced to yield only when it will result in

STATE V. MELTON

Thompson, J., dissenting

significant prejudice to the defendant or in a disruption of the orderly processes of

justice unreasonable under the circumstances of the particular case.” State v.

McFadden, 292 N.C. 609, 613–14, 234 S.E.2d 742, 746 (1977) (emphases added)

(citation omitted) (hereinafter, McFadden standard). In Goodwin, our Court held that

“when a trial court is faced with a [d]efendant’s request to substitute his court-

appointed counsel for the private counsel of his choosing, it may only deny that

request if granting it would cause significant prejudice [to defendant] or a disruption

in the orderly process of justice.” 267 N.C. App. at 440, 833 S.E.2d at 381. However,

“[i]t is within the trial court’s discretion to decide whether allowing a defendant’s

request for continuance to hire the counsel of his choice would result in ‘significant

prejudice . . . or in a disruption of the orderly processes of justice that is unreasonable

under the circumstances of the particular case.” Id. at 441, 833 S.E.2d at 382.

Here, court-appointed defense counsel moved to withdraw at the first hearing

on September 13 (first hearing) and before a different trial court judge at the second

hearing on September 14 (second hearing). I will address each motion in the

discussion to follow.

a. First hearing on motion to withdraw

At the first hearing on the motion to withdraw, defendant addressed the court:

DEFENDANT: I w[a]nt to say that I - - throughout [court-

appointed defense counsel] has been a good attorney. It’s

just throughout Covid and all my other cases, there’s been

a lack of communication. The reason I want to seek new

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Thompson, J., dissenting

counsel is [be]cause, my previous court date there’s been a

failure to communicate, either with the DA or with my

attorney, and it allowed me to have a failure to appear,

which would have imposed a $200,000 bail on me and

would have jeopardized my job, my liability, and

everything, all on a matter of lack of communication. With

that being said, I want to seek new counsel, if you don’t

mind, Your Honor.

THE COURT: It doesn’t sound like - - your client didn’t say

anything about any ideological differences between y’all.

Are there?

[COURT-APPOINTED DEFENSE COUNSEL]: Your

Honor - -

THE COURT: With your representation.

[COURT-APPOINTED DEFENSE COUNSEL]: From my

understanding, there’s an issue a bit more with some of the

contents from what he had said and possibly going forward.

His posture has been that he does want a trial for this case.

To that, we don’t disagree. But there are other

circumstances that, at least from privileged

communication, that I’m not sure would be appropriate to

discuss in open court, given the prosecutor is - -

THE COURT: I didn’t ask you to discuss them, I just asked

if there were any ideological differences between y’all. And

neither one of you have said yes to that.

[COURT-APPOINTED DEFENSE COUNSEL]: I would

say there is, Your Honor.

THE COURT: And have you usually talked to another

lawyer?

DEFENDANT: Yes, I talked to several. As of - - after the

court date - -

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Thompson, J., dissenting

THE COURT: That was a yes or no question.

DEFENDANT: Yes, I talked to several.

THE COURT: And have you employed another lawyer?

DEFENDANT: They won’t allow me to - -

THE COURT: That’s not what - - just answer yes or no,

have you employed another lawyer?

DEFENDANT: No, sir.

THE COURT: Motion to withdraw[] is denied.

[COURT-APPOINTED DEFENSE COUNSEL]:

Understood, Your Honor.

(Emphases added).

Upon careful review of the transcript from the first hearing on the denial of

court-appointed defense counsel’s motion to withdraw—which necessarily implicated

defendant’s right to counsel of choice—I would conclude that the trial court

“misapprehend[ed] the law and employ[ed] the incorrect standard in resolving

[d]efendant’s request, [and therefore,] the trial court failed to properly exercise

discretion.” Id.

The court’s initial line of questioning, whether there were “ideological

differences” between defendant and court-appointed defense counsel, cannot be

characterized as the trial court considering the McFadden standard, that is, whether

the motion to withdraw “w[ould] result in significant prejudice” to defendant, or “a

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Thompson, J., dissenting

disruption of the orderly processes of justice unreasonable under the circumstances

of the particular case[,]” as is required not only by our Supreme Court’s jurisprudence,

but the United States Supreme Court’s jurisprudence as well. See McFadden, 292

N.C. at 613–14, 234 S.E.2d at 746 (quoting Powell v. Alabama, 287 U.S. 45, 53 S. Ct.

457, 77 L. Ed. 158).

Instead, the court’s line of questioning, whether “there were any ideological

differences between [defendant and court-appointed defense counsel,]” was the court

“treat[ing] [defendant’s] request as an ineffective assistance of counsel claim, [and

the court] evaluat[ed] [d]efendant’s request accordingly.” Goodwin, 267 N.C. App. at

442, 833 S.E.2d at 383. Whether there were “ideological differences[,]” goes to

whether there was an “impasse” between defense counsel and defendant, or a

disagreement over “tactical decisions[,]” pursuant to North Carolina’s ineffective

assistance of counsel jurisprudence. See State v. Ali, 329 N.C. 394, 404, 407 S.E.2d

183, 189 (1991) (holding that “when counsel and a fully informed criminal defendant

client reach an absolute impasse as to such tactical decisions, the client’s wishes must

control”); see also State v. Brown, 339 N.C. 426, 434, 451 S.E.2d 181, 187 (1994), cert.

denied, 516 U.S. 825, 133 L. Ed. 2d 46 (1995) (holding that “tactical decisions—such

as which witnesses to call, which motions to make, and how to conduct cross-

examination—normally lie within the attorney’s province”).

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Thompson, J., dissenting

As in Goodwin, by employing the ineffective assistance of counsel standard in

resolving defense counsel’s motion to withdraw, instead of the correct McFadden

standard, the trial court “misapprehend[ed] the law and . . . failed to properly exercise

discretion.” Goodwin, 267 N.C. App. at 441, 833 S.E.2d at 382.

The trial court’s second line of questioning, whether defendant had “employed

another lawyer[,]” and the court’s subsequent denial of court-appointed defense

counsel’s motion to withdraw when defendant had failed to “employ[ ] another

lawyer[,]” cannot be construed as a well-reasoned consideration of the aforementioned

McFadden standard, because defendant could not have employed private counsel of

choice without the court granting his court-appointed counsel’s motion to withdraw.

Therefore, I would conclude, assuming arguendo, that this second line of

questioning sought to evaluate whether granting the motion would result in

“significant prejudice to the defendant or in a disruption of the orderly processes of

justice unreasonable under the circumstances of the particular case[,]” McFadden,

292 N.C. at 613–14, 234 S.E.2d at 746, that the trial court abused its discretion in its

ruling on court-appointed defense counsel’s motion to withdraw. The trial court

denied the motion because defendant had failed to “employ[ ] another lawyer[,]” while

failing to recognize that defendant’s ability to “employ[ ] another lawyer” necessarily

required that the court grant the motion. For this reason, I would conclude that the

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Thompson, J., dissenting

trial court’s basis for denial of the motion when applying the McFadden standard was

so arbitrary that it could not have been the result of a reasoned decision.1

Therefore, at the first hearing on the motion to withdraw, at best, the trial

court failed to properly exercise discretion in considering the motion to withdraw by

applying the incorrect ineffective assistance of counsel standard in resolving

defendant’s request; at worst, the court abused its discretion by denying the motion

on a basis that was manifestly unsupported by reason and could not have been the

result of a reasoned decision.

By the second hearing, on 13 September 2022, the structural error had already

been committed, and if I were to “affirm[ ] the trial court’s denial of [d]efendant’s

request[,] [I] would implicitly endorse the use of an incorrect standard for the right

to counsel of choice[,] [an abuse of discretion,] and a structural error that violated

[d]efendant’s Sixth Amendment rights.” Goodwin, 267 N.C. App. at 441–42, 833

S.E.2d at 382–83. Again, “[t]he Supreme Court of the United States has repeatedly

held that erroneous deprivation of the right to counsel of choice, with consequences

1 I would also contend that the trial court did not give proper consideration of “the

circumstances of the particular case” when considering whether defendant’s request would result in a

“disruption in the orderly processes of justice” or “significant prejudice to [ ] defendant.” This was the

first time that defendant’s case had been calendared for trial; there had been no prior continuances or

delays in the matter coming on for trial. Defendant’s request to substitute his court-appointed counsel

for the private counsel of his choosing was not a request whereby defendant sought to “weaponize his

right to chosen counsel for the purpose of obstructing and delaying his trial[,]” Goodwin, 267 N.C. App.

at 440, 833 S.E.2d at 382 (citation and internal quotation marks omitted), but one where defendant

earnestly was “trying to hire an attorney[,] [A.D.,] and they wouldn’t allow [defendant] [to hire] one.”

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Thompson, J., dissenting

that are necessarily unquantifiable and indeterminate, unquestionably qualifies as

structural error.” Id. at 440, 833 S.E.2d at 381 (citation and internal quotation marks

omitted). Therefore, “[I] [would] vacate the judgment and remand for a new trial.” Id.

at 442, 833 S.E.2d at 383.

b. Second hearing on motion to withdraw

Finally, the majority is correct to identify that generally, “one Superior Court

judge may [neither] correct another’s errors of law; [nor] modify, overrule, or change

the judgment of another Superior Court judge previously made in the same action[,]”

State v. Woolridge, 357 N.C. 544, 549, 592 S.E.2d 191, 194 (2003), but that there exists

an exception to this rule, whereby one judge is authorized to overrule another under

certain circumstances. See Crook v. KRC Mgmt. Corp., 206 N.C. App. 179, 189, 697

S.E.2d 449, 456 (2010). Those circumstances, as noted by the majority, occur when

“the original order was (1) interlocutory, (2) discretionary, and (3) there has been a

substantial change of circumstances since the entry of the prior order.” Id. (internal

marks and citation omitted). The majority is also correct to note that the party

seeking the modification bears the burden of showing there has since been a

substantial change in circumstances, that is, “an intervention of new facts which bear

upon the propriety of the previous order.” First Fin. Ins. Co. v. Com. Coverage, 154

N.C. App. 504, 507, 572 S.E.2d 259, 262 (2002) (internal marks and citation omitted).

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Thompson, J., dissenting

However, the majority concludes that although the motion to withdraw “was

both interlocutory and discretionary, [d]efendant did not argue that there had been a

substantial change in circumstances since the day before when [the trial court] denied

the motion. Likewise, the record does not reflect a substantial change in

circumstance.” I do not agree, and write separately to address the second opportunity

for the trial court to correct the structural error committed against defendant at the

first hearing on the motion to withdraw.

Unlike the majority, I would contend that defendant met his burden of

“introducing new facts which b[ore] upon the propriety of the previous order” and

allowed the second judge to overrule the first on the motion to withdraw. At the

second hearing, defendant requested that the court reconsider the motion and

explained to the court that he had been in contact with a private attorney. This

revelation led to the State’s acknowledgment, for the first time before the court, that

the State had also been in contact with—and extended a plea deal to—a private

attorney who was not defendant’s court-appointed attorney. The trial court being

made privy to the following facts: (1) that a private attorney was prepared to

represent defendant if the State would grant a continuance, (2) that the State had

denied the request for a continuance, and (3) that the State had offered a plea deal to

the private attorney who had been in contact with the State, was “a substantial

change of circumstances since the entry of the prior order” which warranted the trial

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Thompson, J., dissenting

court judge at the second hearing overruling the denial of the motion to withdraw

from the first hearing.

Indeed, on 13 September 2022, the matter came on for hearing a second time

before a different judge than the judge who had ruled on defense counsel’s initial

motion to withdraw. Prior to jury selection, defendant again expressed his desire to

retain counsel of his choice before the court:

DEFENDANT: I have - - the severity of my case hasn’t been

brought to my attention. I’ve been corresponding with

[court-appointed defense counsel] to no avail. I have

received no responses. And I have . . . reached out to other

lawyers in which there was a deal that was brought on the

table that [court-appointed defense counsel] never

presented me with the deal. He never told me [nothing], no

particulars about the case, whereas another lawyer had

presented me with the deal outside of my attorney with the

DA. As far as I had been led to believe the jury - - that’s

grounds for ineffective counsel. And I would like to let that

be on the record that I [have] been trying to hire an attorney

and they wouldn’t allow me one. They wouldn’t allow me to

hire one.

(Emphasis added).

At this point, the State acknowledged, for the first time before the court, that a

plea offer had been extended to an attorney, A.D., who was not defendant’s court-

appointed counsel, on 9 September 2022:

[THE STATE]: Yes, Your Honor. First, the State would

oppose this matter being re-addressed. It was addressed at

the appropriate time at calendar call before the Honorable

Stanley Allen.

....

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Thompson, J., dissenting

[A] different attorney [A.D.] reached out to me, had asked

if I was willing to continue the case [un]til she could get

into it. I told her no. I reached back out to her and told her

that I did have an issue come up and that she’d also

inquired about a potential plea. So I told her if - - based on

this new information if [defendant] wants to enter this plea

- - and I reduced it to writing - - then I would be willing to

do that now.

THE COURT: Okay.

[THE STATE]: She responded to me within a few minutes

- - and this all transpired Friday afternoon - - that

[defendant] was rejecting the plea.

The court denied the motion, stating that:

[T]he issue that the [c]ourt’s dealing with[,] and that is a

superior court judge has already denied this motion. My

understanding is one superior court judge can’t overrule

another. So that’s where we are. . . . this was heard on

Monday and denied, and so I think my hands are tied here.

So the motion to continue is denied and the motion to

withdraw as counsel is denied.

(Emphasis added).

“When a motion addressed to the discretion of the trial court is denied upon

the ground that the trial court had no power to grant the motion in its discretion, the

ruling is reviewable.” State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d 374, 378 (1999).

“In addition, there is error when the trial court refuses to exercise its discretion in

the erroneous belief that it has no discretion as to the question presented.” Id.

Although the trial court thought it was without authority to overrule the initial

motion to withdraw, stating that “my hands are tied here[,]” it was incorrect,

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Thompson, J., dissenting

operating under the “erroneous belief that it ha[d] no discretion as to the question

presented[,]” id., and thereby failed to exercise its discretion when it reconsidered the

initial motion to withdraw. This failure to exercise discretion constituted error and

compounded the structural error that had been committed at the first hearing on the

motion to withdraw. For this reason, I would conclude that the trial court erred in

failing to overrule the initial motion to withdraw, as that order was interlocutory,

discretionary, and there were new facts introduced at the second hearing which bore

upon the propriety of the order entered in the initial motion to withdraw.

Again, our Supreme Court has held that the “[S]tate should keep to a necessary

minimum its interference with the individual’s desire to defend himself in whatever

manner he deems best, using any legitimate means within his resources[,]” and

defendant’s request to substitute counsel “can constitutionally be forced to yield only

when it will result in significant prejudice to the defendant or in a disruption of the

orderly processes of justice unreasonable under the circumstances of the particular

case.” McFadden, 292 N.C. at 613–14, 234 S.E.2d at 746 (emphases added). For these

reasons, I respectfully dissent.

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