United States District Court, W.D. North Carolina, Asheville Division
L. Howell, United States Magistrate Judge.
before the Court are Defendant's Motion to Proceed Pro Se
[# 94] and Defendant's Counsel's Motion to Withdraw
[# 59]. In the motions, Defendant and Attorney Ben C. Scales
Jr. make clear that there was a disagreement or
misunderstanding about how to handle Defendant's case,
specifically setting a bond revocation hearing. On April 4,
2018, the Court held a hearing on the motions. Defendant and
counsel were present. The Government was present and
represented through AUSA Daniel Bradley. The Court makes the
February 23, 2018, the Court found Defendant indigent and
appointed him counsel. Attorney Scales was assigned
Defendant's case. It is the Court's view that
Attorney Scales has given Defendant a more than adequate
defense. Defendant is currently detained awaiting a hearing
on a supervised release violation [# 87].
March 6, 2018, Scales met with Defendant and Defendant
inquired about asking the Court for a bond hearing. While
attorney Scales advised his client of the pros and cons of
conducing such a hearing, Defendant and Scales clashed over
the need of a bond hearing. Several days later, Defendant
again inquired about a bond hearing and Scales began to
investigate Defendant's claims. On March 26, 2018,
Defendant filed his Motion to Proceed Pro Se [# 94] alleging
ineffective assistance of counsel. On April 2, 2018, Attorney
Scales filed his Motion to Withdraw [# 95]
April 4, 2018, the Court conducted a sealed hearing on the
motions because inquiry could reveal confidential information
between Defendant and Attorney Scales. At the conclusion of
the hearing, the Court granted Defendant's request for a
bond hearing and scheduled it for April 6, 2018.
Defendant's sentencing is scheduled for April 12, 2018.
indigent defendant has no right to have a particular lawyer
represent him or her and can demand a different appointed
attorney only for good cause. Miller v. Smith, 115
F.3d 1136, 1143-44 (4th Cir. 1997). The determination of
whether the motion for substitution of counsel should be
granted is within the discretion of the trial court and the
court is entitled to take into account the countervailing
government interest in proceeding on schedule. Morris v.
Slappy, 461 U.S. 1, 14-15 (1983). Regarding the motion
to withdraw, the Court has considered the following factors:
(1) timeliness of the motion; (2) inquiry as to the reasons
why the defendant does not wish counsel to represent him
further; and (3) whether or not there is such a conflict
between the defendant and counsel that is so great that is
has resulted in a total lack of communication preventing an
adequate defense. U.S. v. Smith, 640 F.3d 580, 588
(4th Cir. 2011) (citing U.S. v. Gallop, 838 F.2d
105, 108 (4th Cir. 1988)). Further, the Court seriously
considers Defendant's right to represent himself. See
Faretta v. California, 422 U.S. 806, 835 (1975).
January 31, 2018, the U.S. Probation Office filed a petition
for a warrant alleging Defendant violated his terms and
conditions of supervised release [# 87]. On February 22,
2018, Defendant was arrested. On February 26, 2018, the Court
issued an order of detention as to Defendant [# 91].
Defendant now awaits his final hearing and sentencing before
the District Court on April 12, 2018. The Court finds that
being so close to sentencing as a factor that weighs against
granting the motion to withdraw.
April 4, 2018, sealed hearing the Court inquired as to the
reasons for the conflict between Defendant and Attorney
Scales. The Court finds the reasons stated in the sealed
hearing as a factor for allowing the motion.
at this time, it appears to the Court that a conflict exists
between Attorney Scales and Defendant such that there is a
total lack of communication between them preventing an
adequate defense. This factor weighs for allowing the motion.
considering all factors, it appears that while the hearing is
imminent, Defendant seems capable and desires to represent
himself; as a result of the inquiry made, the Court finds
good reason to allow Defendant to proceed pro se with standby
counsel; and there appears to be a lack of communication
between Attorney Scales and Defendant that would prevent an
on the foregoing, the Court has determined to enter an order
granting the motion to proceed pro se ...