On appeal from the decision of the Court of Appeals reported at
Carlton, Justice. Justice Mitchell concurs in the result. Justice Britt dissenting. Justices Copeland and Meyer join in the dissenting opinion.
Defendant was arrested in Raleigh on 27 July 1980 for the sale and delivery of the controlled substance methaqualone and for possession with intent to sell and deliver the controlled substance methaqualone. Counsel was appointed to represent defendant and his co-defendant, Laurence Edward Whittis, but in early August they retained private counsel, Daniel Work. Defendant agreed to waive venue on 12 August 1980 and the case was transferred to Carteret County on 26 August 1980.
Although defendant was originally indicted for possession with intent to sell and sale of methaqualone, subsequent laboratory tests indicated that the substance in the tablets allegedly sold by defendant was diazepam, also a controlled substance. On 17 November 1980 new indictments were returned which charged defendant with possession and sale of diazepam. These indictments were issued on 17 November 1980 and were served on defendant on 20 November 1980. On 19 November, Mr. Work appeared before the court and requested that he be allowed to withdraw as counsel for the defendant because of a conflict of interest. Judge DeRamus granted the motion to withdraw. On that same day, Allen King, an associate of Reginald Frazier, defendant's trial counsel, appeared before Judge DeRamus and informed
him that Frazier had been retained to represent defendant. At that time Work reportedly told the judge that he had the case ready for trial and that he would assist Frazier in preparing for trial. King was told by the prosecutor, George Beswick, on Thursday, 20 November, that that the case would be called for trial on Monday, 24 November. King advised the court that Frazier was involved in a rape trial in Camp Lejeune which was expected to last the rest of that week and part of the next. He moved for a continuance and the motion was denied.
The case was called for trial on 24 November 1980 and Frazier, appearing for defendant, moved for a continuance on the grounds of lack of time for adequate preparation and of his involvement in a trial in progress in federal court. He told Judge Barefoot that he had been unable to prepare the case and had not even talked with defendant. The judge denied the motion to continue, and Frazier moved to be permitted to withdraw. This motion was likewise denied. A colloquy among the court, the district attorney and Frazier then ensued. Frazier advised the court, "I can say I am totally unprepared to render to this defendant competent, effective assistance of counsel." Judge Barefoot then advised Frazier, "I will give you 15 minutes to talk to him, but we will try him in 15 minutes." The court then recessed for fifteen minutes and the case proceeded to trial.
The jury returned verdicts of guilty of possession with intent to sell and deliver diazepam and of sale and delivery of diazepam. Defendant was sentenced to three to four years' imprisonment for possession and was given a consecutive sentence of three to four years' imprisonment for the sale and delivery.
Defendant appealed to the Court of Appeals. That court, in an opinion by Chief Judge Morris in which Judges Hedrick and Wells concurred, found no error. Defendant gave notice of appeal to this Court on the basis of a substantial constitutional question pursuant to G.S. 7A-30(1) and alternatively petitioned our discretionary review pursuant to G.S. 7A-31. The Attorney General moved to dismiss the appeal on the ground that no substantial constitutional question was presented. On 14 January 1982, we allowed defendant's petition for discretionary review and denied the Attorney General's motion to dismiss.
The question dispositive of this appeal is this: Under the facts of this case, did the trial court's denial of defendant's motion for a continuance operate to deprive defendant of his constitutional right to effective assistance of counsel? To answer the issue so posited, we must determine whether, because of the refusal to allow a continuance, defendant's attorney had adequate time to investigate, prepare and present a defense. The issue is not as incorrectly assumed by the Court of Appeals, whether defendant actually suffered prejudice by virtue of defense counsel's performance at trial. We are here concerned with the relationship between defendant's sixth amendment guarantee of effective assistance of counsel of his own choosing and the implicit constitutional guarantee that an accused and his counsel shall have a reasonable time to investigate, prepare and present defendant's defense. We have previously addressed this bifocal constitutional guarantee in State v. McFadden, 292 N.C. 609, 234 S.E.2d 742 (1977), and find that decision controlling here.
Although a motion for a continuance is ordinarily addressed to the discretion of the trial judge and is reviewable only upon a showing of an abuse of discretion, when the motion is based on a constitutional right the ruling of the trial judge is reviewable on appeal as a question of law. E.g., State v. McFadden, 292 N.C. 609, 234 S.E.2d 742. Defendant's motion for a continuance in this case was based on his constitutional right to effective assistance of counsel and, thus, is fully reviewable as a question of law.
Defendant's claim here is based not on his attorney's competency or performance at trial, but on the adequacy of the time given his attorney to prepare for trial. The record discloses the relevant circumstances to be these: Defendant's privately retained counsel, Daniel Work, who had prepared the case for trial, withdrew as defendant's attorney four days prior to trial. Frazier was retained by defendant and entered an appearance in the case through his associate, Allen King, on that same day. The court was informed that Frazier was then trying a case in federal court which was expected to last into the next week. On Monday, 24 November, Frazier appeared with defendant for the first time. He stated to the court that he had been unable to prepare the case for trial due to the shortness of time and his involvement in
another trial. Frazier told the court that the only information he knew about the case had come from Work and involved a plea bargain arrangement, the terms of which he did not understand. Frazier was given ...