Criminal Practice — Constitutional – Ineffective Assistance Claim – Motion to Withdraw – Continuance Motion

The record provides conflicting evidence regarding defendant’s claim that he was unaware that attorney Joshua Valentine had been appointed to represent him and that he and Valentine met only once, briefly on the day before his trial. In fact, Valentine filed a motion to withdraw 22 days before defendant’s trial, citing as one ground for withdrawal “Irreconcilable differences … in this attorney-client relationship.” “Irreconcilable differences” indicates that defendant and Valentine had had some sort of communication and that defendant was aware Valentine had been appointed to represent him.

Since we do not have a sufficient record to determine whether counsel’s performance was deficient, the appropriate remedy is to remand to the trial court to address defendant’s claims. Defendant’s ineffective assistance claim is dismissed without prejudice. We find no prejudicial error in the trial court’s denial of defendant’s motion to continue.

Assuming, without deciding, that the trial court erred by denying defendant’s motion to continue, defendant cannot show prejudice. The case was assigned to Valentine sometime in June 2019. Defendant’s trial began on 30 July 2019. There is nothing in the record to indicate that a month was not enough time for Valentine to prepare for trial; furthermore, Valentine indicated that he had “spent a good amount of time over the weekend and [the day before trial] preparing if the case did go to trial.”

Finally, the case was not complicated. It involved a single incident that occurred on one day: the controlled purchase of cocaine that was captured on video and audio recording. The record appears to demonstrate that Valentine spent adequate time preparing for defendant’s trial, and defendant makes no other argument regarding prejudice.

Dismissed without prejudice in part; no error in part.

State v. Surratt (Lawyers Weekly No. 011-145-21, 13 pp.) (Hunter Murphy, J.) Appealed from Cleveland County Superior Court (Daniel Kuehnert, J.) James Bernier for the state; Leslie Rawls for defendant. 2021-NCCOA-407