STEPHENS, Judge.
This appeal concerns the proper procedure a trial court should follow when appointed counsel for an indigent criminal defendant moves during trial for mandatory withdrawal of his representation pursuant to Rule 1.16(a) of the North Carolina Rules of Professional Conduct. We hold that a trial court does not abuse its Rule 1.16 as grounds for withdrawal and that the court is not required to appoint substitute counsel in such circumstances.
Defendant Artie Stevenson Smith, Jr., was indicted on eight counts of offering bribes pursuant to N.C. Gen.Stat. § 14-218 (2013). Those charges arose from Smith's operation of "sweepstakes" or video poker gambling machines in various locations. The evidence at trial tended to show the following:
Lieutenant Bryan Gordon of the Cleveland County Sheriff's Department met Smith in early 2011 while inspecting sweepstakes machines Smith was operating. On 22 March 2011, Gordon was called to a meeting between Smith and Gordon's captain at the sheriff's station. Gordon was asked to escort Smith out of the station. Smith returned to the sheriff's station the following day and met with Gordon again. On 29 March 2011, Smith called Gordon to request a "voluntary video poker inspection" at South Post Grill the next day. Gordon asked Sergeant Rodney Fitch to accompany him on the inspection, but had no intention of conducting any type of "sting" or undercover operation into bribery. Gordon described the inspection as a "waste of time" because the sweepstakes machines were all unplugged, turned to face the walls, and lacked any software installations. The next meeting between Gordon and Smith took place on 31 March 2011, by which time Gordon had come to believe that Smith was trying to manipulate or trick him. As a result of this intuition, Gordon recorded the meeting, at which Smith sought informant status in exchange for being able to continue to operate his sweepstakes machines. Gordon and Fitch told Smith such an exchange would be illegal and felt convinced that Smith was attempting to bribe them. After Gordon consulted his superiors and the FBI about Smith's behavior, an undercover investigation was initiated with Fitch taking a lead role. Fitch and Smith met multiple times from April to August 2011, with Smith ultimately giving Fitch money totaling almost $15,000.00 during more than a half dozen "money drops." Law enforcement officers recorded all but one of the money drops on video with audio. Smith was subsequently indicted on eight counts of bribery.
On 9 November 2012, Defendant was found indigent and attorney Robert E. Campbell was appointed to represent him. The matter came on for trial at the 12 May 2014 session of Cleveland County Superior Court. Smith's theory of the case was that he had been entrapped by Fitch. On 12 May, when Campbell informed the trial court that Smith planned to admit that he had paid money to Fitch, the trial court discussed the possible consequences of admitting to this element of bribery. Smith confirmed that he understood the risk and affirmed that it was his sole decision to rely on an entrapment defense. Campbell forecast Smith's entrapment theory during his opening argument.
At trial, the money drop videos were admitted and published to the jury without objection. Among other witnesses for the State, Gordon and Fitch testified in detail about their interactions with Smith. On the afternoon of Friday, 16 May 2014, the State closed its case-in-chief, and Campbell moved to dismiss all charges against Smith. The trial court denied that motion and recessed for the weekend. Campbell informed the court that he and Smith would use the weekend to decide whether to present a case for the defense.
When court resumed on Monday morning, 19 May 2014, the following exchange occurred:
The trial court allowed the motion and continued the case to allow Smith time to obtain private counsel.
At 9:30 a.m. on Tuesday, 20 May 2014, Larry G. Simonds, Jr., made a general appearance for Smith. Campbell also appeared and informed the court that he had discussed Smith's case with Simonds and given Simonds his case file and a copy of his planned closing argument. Simonds suggested altering the proposed verdict sheets to clarify the issue of entrapment, which he confirmed would be Smith's defense. The State countered that the jury instructions should be sufficient to explain entrapment and the court reserved any decision on the matter until a later time. Simonds requested and received a continuance until 2:00 that afternoon to prepare, and a room was made available for him to meet with Smith.
When court resumed that afternoon, the defense called two witnesses, including Smith. As forecast, Smith admitted giving money to Fitch, but stated that Fitch had been the one to suggest an exchange of money for Fitch's assistance. Smith claimed that he felt intimidated and threatened by Fitch and believed he had no choice but to cooperate with this "crooked cop." Smith admitted to all of the events depicted in the videos, but explained that he had been "scared" and "afraid" of Fitch and had only given him money "to have him go away" and not for any "special treatment." At the close of the evidence, the jury deliberated for less than two hours before returning verdicts finding Smith guilty on all eight bribery charges. The trial court consolidated two of the convictions for sentencing and imposed seven consecutive sentences totaling 175-210 months imprisonment. From those judgments, Smith appeals.
On appeal, Smith brings forward three arguments: that the trial court erred by (1) allowing Smith's trial counsel to withdraw on the sixth day of trial and (2) failing to appoint substitute counsel for Smith thereafter, and (3) that the private substitute counsel Smith retained was presumptively ineffective based upon the amount of time he had to review Smith's case before proceeding with the trial. We find no error in the trial court's actions and conclude that Smith has failed to establish that he received ineffective assistance from Simonds.
Smith first argues that the trial court abused its discretion by permitting Campbell to withdraw on the sixth day of trial. We disagree.
Our State's Criminal Procedure Act provides that a trial "court may allow an attorney to withdraw from a criminal proceeding upon a showing of good cause." N.C. Gen.Stat. § 15A-144 (2013). The decision whether to permit withdrawal of counsel is left to the trial court's discretion. State v. McGee, 60 N.C. App. 658, 662, 299 S.E.2d 796, 798 (1983). Appellate courts "will not second-guess a trial court's exercise of its discretion
Here, Campbell's written motion to withdraw cited Rule 1.16(a) and asserted:
Campbell's oral motion before the court was limited to an assertion that "withdrawal is mandatory as professional considerations require. I think that's required by comment number 3 in Rule 1.16." Rule 1.16(a) provides:
N.C. Rules of Prof'l Conduct R. 1.16(a) (2013). In turn, Comment 3 to Rule 1.16 is listed under the heading "Mandatory Withdrawal" and provides:
Id. cmt. 3 (emphasis added).
We first note that, in light of the direction provided by Comment 3, the course of action suggested by the State as the "best solution" to the conflict facing Campbell, to wit, an in camera discussion among Campbell, Smith, and the court, would not have been a workable procedure for the trial court to follow. At most, perhaps, the trial court could have asked Campbell whether he had considered the distinction discussed in Comment 2 to Rule 1.16. See id. cmt. 2 ("A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation.") (emphasis added).
However, we may not consider the correctness of the court's ruling de novo or second guess its exercise of discretion. See Buford, 339 N.C. at 406, 451 S.E.2d at 298. Rather, we are limited to a determination of whether the court's decision was "manifestly unsupported by reason or ... so arbitrary that it could not have been the result of a reasoned decision." See Hennis, 323 N.C. at 285, 372 S.E.2d at 527 (citation omitted). Here, the trial court heard Campbell's assertion of the need for his mandatory withdrawal with specific reference to Comment 3 to Rule 1.16 and also heard the State's arguments
Smith next argues that the trial court erred in failing to appoint substitute counsel for Smith after allowing Campbell's mandatory withdrawal pursuant to Rule 1.16(a). We disagree.
Once a criminal defendant is determined to be indigent, "it is the responsibility of the State to provide him with counsel and the other necessary expenses of representation. The professional relationship of counsel so provided to the indigent person he represents is the same as if counsel had been privately retained by the indigent person." N.C. Gen.Stat. § 7A-450(b) (2013). Further,
State v. Nelson, 76 N.C. App. 371, 372-73, 333 S.E.2d 499, 500-01 (1985) (citations omitted; emphasis added), modified and affirmed, 316 N.C. 350, 341 S.E.2d 561 (1986). In other words, "[a] trial court is constitutionally required to appoint substitute counsel whenever representation by counsel originally appointed would amount to denial of [the] defendant's right to effective assistance of counsel, that is, when the initial appointment has not afforded [the] defendant his constitutional right to counsel." State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980) (citations omitted; emphasis added).
Here, Campbell's representation did not fail to afford Smith his constitutional right to counsel nor did Smith show good cause for the appointment of substitute counsel. Nothing in the record suggests a complete breakdown in communications or a conflict of interest between Campbell and Smith. Indeed, there was no indication that Campbell's work was in any way deficient. Rather, Campbell's withdrawal was caused by Smith himself demanding that Campbell engage in unprofessional conduct. The constitutional right to effective assistance of counsel does not encompass a right to have appointed counsel who is willing to engage in unprofessional conduct.
Smith next argues that Simonds was presumptively ineffective because he entered the case on the seventh day of trial and requested only a four-hour recess to meet with Smith and prepare. We disagree.
Generally,
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and internal quotation marks omitted), cert. denied, 549 U.S. 867, 127 S.Ct. 164, 166 L.Ed.2d 116 (2006). As Smith acknowledges, the United States Supreme Court has emphasized that
Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674, 694-95 (1984) (citations and internal quotation marks omitted). However, Smith cites cases in which appellate courts have held that the presumption of effective assistance does not apply where counsel fails to obtain a reasonable understanding of the facts of a case or to conduct reasonable investigations as needed. See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Horton v. Zant, 941 F.2d 1449 (11th Cir.1991), cert. denied, 503 U.S. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992). Here, Smith contends that Simonds could not have adequately prepared for the remainder of trial during the approximately four hours between his general appearance on Tuesday morning and the resumption of trial after lunch the same day. Therefore, Smith argues that the presumption of effectiveness does not apply here and that we must hold that Simonds was instead presumptively ineffective. Alternatively, Smith suggests that Simonds' performance was deficient in that he failed to request a longer or an additional continuance to further prepare for the remainder of trial. We are not persuaded by either argument.
Smith cites State v. Rogers, 352 N.C. 119, 529 S.E.2d 671 (2000), as an example of a case where a new trial was granted based on insufficient time to prepare. We find Rogers easily distinguishable on multiple points. There, the defendant faced charges of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a firearm into occupied property in connection with a violent altercation at a nightclub and a related assault the following day. Id. at 119-22, 529 S.E.2d at 672-73. After his private counsel had been permitted to withdraw, the defendant was appointed counsel thirty-four days before trial. Id. at 122-23, 529 S.E.2d at 674. Appointed counsel reviewed the case file and learned that the defendant's previous counsel had not interviewed any of the numerous witnesses to the attack and sought funds to hire a private investigator to locate the witnesses. Id. at 122, 529 S.E.2d at 674. The trial court allowed the motion for funds just over two weeks before the trial date. Id. Eleven days before trial, the defendant's appointed attorneys moved for a continuance and
Id. at 123, 529 S.E.2d at 674. The trial court denied the motion for a continuance, trial proceeded, and the defendant was convicted and sentenced to death. Id. at 119-23, 529 S.E.2d at 672-74. Our Supreme Court granted the defendant a new trial, and noted that, "[t]aking into account the unique factual circumstances of this case, we hold the presumption of ineffective assistance of counsel is applicable here." Id. at 126, 529 S.E.2d at 676.
In contrast, in this case, Smith, with the assistance of Campbell, had formed a theory of the case and prepared fully to present it to the jury. All of the State's witnesses had been cross-examined. Campbell has already given Simonds the case file and discussed the case with him before Simonds made his general appearance on Tuesday morning.
When court reconvened at 2:00 p.m., Simonds delivered copies of the case law he had researched in support of his instruction request. We conclude that this exchange reveals that Simonds, even before the continuance was granted, had a strong understanding of Smith's trial strategy, the pertinent legal issues, and the relevant law. In sum, "the unique factual circumstances" of Rogers which made the presumption of ineffective assistance of counsel applicable, see id. at 126, 529 S.E.2d at 676, are not present in Smith's case.
We likewise reject Smith's suggestion that Simonds' performance was deficient in that he failed to request a longer or an additional continuance to further prepare. As noted supra, Simonds both claimed and appeared to be prepared to proceed even without the four-hour continuance. Smith notes that Simonds told the trial court "I don't know the courtroom rules." However, read in context, Simonds was plainly asking the court whether he could "send a text to a staff member" about researching the case law on the instruction motion just discussed. Smith cites no example of any decision Simonds made or action he took or failed to take when the trial resumed which could be considered deficient. See Allen, 360 N.C. at 316, 626 S.E.2d at 286 (citation omitted).
Moreover, Smith admitted giving thousands of dollars to Fitch and relied solely on his defense of entrapment. Therefore, the only issue before the jury was the relative credibility of Smith versus the law enforcement witnesses for the State. Simonds did not cross-examine the State's witnesses, and Smith makes no complaint about Simonds' direct examination of Smith or of the other defense witness, or of Simonds' closing argument. Thus, even if, arguendo, Smith could show some deficient preparation by Simonds, Smith has utterly failed to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See id. This argument is overruled.
NO ERROR.
Judges STEELMAN and McCULLOUGH concur.