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Judy Carol Pender Self v. John Carroll Self

Filed: February 2, 1982.

JUDY CAROL PENDER SELF
v.
JOHN CARROLL SELF



Appeal by defendant from Washburn, Judge. Order entered 7 January 1981 in District Court, Alamance County. Heard in the Court of Appeals 10 December 1981.

Whichard, Judge. Judges Clark and Becton concur.

Whichard

Defendant contends denial of his motion for continuance of the show cause hearing abridged his constitutional right to

counsel. Holt v. Virginia, 381 U.S. 131, 14 L. Ed. 2d 290, 85 S. Ct. 1375 (1965); In Re Oliver, 333 U.S. 257, 92 L. Ed. 682, 68 S. Ct. 499 (1948).

A motion for continuance is ordinarily addressed to the sound discretion of the trial judge and not subject to review on appeal absent an abuse of that discretion. However, when the motion is based on a right guaranteed by the United States or North Carolina Constitutions, the question presented is a reviewable question of law. (Citations omitted.) Implicit in the constitutional guarantees of the effective assistance of counsel and the right to confront witnesses is the right to a reasonable time in which to investigate and prepare a defense. However, no set length of time is guaranteed and whether a defendant is denied due process of law by a trial court's denial of his motion to continue must be determined after consideration of the circumstances in each case.

State v. Parton, 303 N.C. 55, 68, 277 S.E.2d 410, 419 (1981).

The pertinent circumstances here were as follows:

Plaintiff obtained from defendant an absolute divorce and custody of two minor children born of the marriage. The court subsequently, on plaintiff's motion, ordered defendant to pay child support. An order was entered and served on 15 December 1980 requiring defendant to appear on 6 January 1981 at 9:30 a.m. to show cause why he should not be adjudged in contempt for noncompliance with the support order. Defendant appeared as ordered and advised the court that he had made arrangements to employ Clyde C. Randolph, Jr., as his attorney; that he had contacted Randolph during the afternoon of 5 January 1981; that Randolph had informed him that, because of a previous commitment, he would not be able to appear; and that Randolph had instructed him to request a continuance so that he might have opportunity to obtain counsel. B. F. Wood, Esq., informed the court that his partner, James F. Latham, Esq., had talked with Randolph, and that Randolph had requested that Latham "appear in his stead and move for continuance." Wood further informed the court "that Randolph was unable to appear because of previous commitment and had not had opportunity to prepare for Hearing due to the fact that he had not been contacted until the

afternoon of January 5, 1981." Following these representations, the court denied continuance.

"Due process is not denied every defendant who is refused the right to defend himself by means of his chosen retained counsel . . . particularly where defendant is inexcusably dilatory in securing legal representation." People v. Brady, 275 Cal. App. 2d 984, 993, 80 Cal. Rptr. 418, 423 (1969) (cited with approval in State v. McFadden, 292 N.C. 609, 612-613, 234 S.E.2d 742, 745 (1977)). See also People v. Simeone, 132 Cal. App. 2d 593, 232 P. 2d 971 (1955) (also cited with approval in McFadden). As Justice (now Chief Justice) Branch noted in McFadden : "[A]n accused may lose his constitutional right to be represented by counsel of his choice when he perverts that right to a weapon for the purpose of obstructing and delaying his trial." 292 N.C. at 616, 234 S.E.2d at 747.

Defendant here was allegedly at least $16,650.00 in arrears in his payments. He was served on 15 December 1980 with an order directing him to appear on the morning of 6 January 1981. He made no effort to contact counsel of his choice until the afternoon of 5 January 1981, three weeks subsequent to service of the order and less than 24 hours prior to the scheduled time of hearing. Under these circumstances, we are unable to say, as a matter of law, that the ...


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