Appeal by defendant from judgment dated 31 October 1996 by Judge A. Leon Stanback, Jr. in Durham County Superior Court. Heard in the Court of Appeals 14 January 1998.
The opinion of the court was delivered by: Greene, Judge.
Daniel Junior Jackson (defendant) appeals from a jury verdict finding him guilty of possession with intent to sell and deliver a counterfeit controlled substance, the sale and delivery of a counterfeit controlled substance, and of being a habitual felon.
The evidence in this case tends to show the following: On 12 December 1995, T.M. Taylor (Taylor), an undercover drug investigator for the Durham Police Department, was purchasing drugs from a man named Darryl Brown when another individual approached Taylor and offered to sell him drugs. This second individual was identified by Taylor as the defendant. Taylor asked the defendant to sell him ten dollars worth of either powder or rock cocaine. The defendant took the money and later returned with an item similarly shaped to rock cocaine. At the State Bureau of Investigation crime lab, the item tested negative for cocaine or any other controlled substance.
Just before the trial began on 30 October 1996, the defendant's counsel, Russell Hollers (Hollers), at the request of the defendant, filed a motion to withdraw from the case. In open court the defendant indicated to the trial court that "it would be appropriate for to resign from the case . . . ." The defendant then requested permission to proceed pro se, and this request was granted after the trial court made certain inquiries of the defendant. The defendant requested a continuance of the case for "two hours, or something, just to review notes . . . ." In denying the defendant's motion to continue, the trial court stated:
We're going on with this trial, and you will have--now, there will be times when you are calling for a jury and when we will take recesses, so you can use that time as you see fit, and we'll also be breaking for lunch. So you will have time in between these proceedings to review your notes.
After the jury was selected, the court recessed one hour and thirty minutes for lunch before the opening statements were presented. After the opening statements, the State presented its evidence and then the trial court recessed for the day. The next morning the State completed its case and the defendant presented his evidence.
Following the jury's guilty verdict for the substantive charges, but before the beginning of the habitual felon stage of the trial, the defendant requested the trial court to reappoint him counsel. The trial court denied this request.
In the habitual felon phase of the trial, the State offered certified copies of the defendant's plea transcripts entered in three former convictions. One of the underlying convictions was based on a no contest plea entered in April 1987. The jury found the defendant guilty of being a habitual felon and the trial court sentenced the defendant to a minimum of 107 months and a maximum of 138 months of imprisonment.
In the record on appeal the defendant assigned error to "he Court's denial of motion for appointment of new counsel," "he Court's denial of motion to continue to allow him to prepare," "he Court's denial of motion for appointment of counsel for the habitual felony charge," and "he Court's failure to enter a judgment of non-suit on the charge of being a habitual felon on the basis that one of the prior convictions . . . was based on a plea of no contest." In the defendant's brief to this Court he makes arguments in support of each of the above assignments of error, with the exception of his assignment relating to the "appointment of new counsel." He does argue, in support of this assignment of error, that the trial court failed to comply with N.C. Gen. Stat. § 15A-1242 in allowing him to proceed pro se.
The issues are whether: (I) the trial court erred in denying the defendant's request for a continuance; (II) the defendant had a right to the reappointment of counsel in the habitual felon phase of the trial; and (III) a prior "no contest plea" can constitute a "conviction" within the meaning of N.C. Gen. Stat. § 14-7.1.
Criminal defendants have a constitutional right to the assistance of counsel in conducting their defense. State v. Lamb, 103 N.C. App. 646, 647, 406 S.E.2d 654, 655 (1991) (quoting State v. Gerald, 304 N.C. 511, 516, 284 S.E.2d 312, 316 (1981)). Implicit in this right to counsel is the constitutional right to refuse the assistance of counsel and proceed pro se. Id. A denial of a motion to continue by a defendant proceeding pro se, who has just discharged his attorney, therefore implicates constitutional rights and is reversible error if the defendant shows that the denial of the motion was erroneous, unless the State demonstrates that the error was harmless beyond a reasonable doubt. See State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755 (1997). Appellate review of a trial court's denial of such a motion to continue is reviewable de novo upon appeal. Id.
In this case, the defendant has failed to demonstrate that the denial of his motion to continue was error. The defendant only asked for "two hours, or something" to prepare for the trial. The record reveals that he had one and one-half hours during ...