Opinion
No. COA10-1110
Filed 15 March 2011 This case not for publication
Appeal by Defendant from judgments entered 18 March 2010 by Judge Laura J. Bridges in Buncombe County Superior Court. Heard in the Court of Appeals 14 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General Kenneth A. Sack, for the State. Jon W. Meyers for Defendant.
Buncombe County Nos. 10 CRS 1246-47, 10 CRS 1249-52.
On 23 July 2008, in Halifax County Superior Court, the Honorable Alma L. Hinton presiding, Defendant Michael Thomas Carter ("Carter") pled guilty to the following charges in the following cases: (1) two counts of felonious breaking or entering, two counts of felonious larceny after breaking and entering, three counts of felonious possession of stolen goods or property, one count of felonious breaking or entering a motor vehicle, and one count of misdemeanor larceny in file number 07 CRS 54478; (2) one count of felonious conspiracy to obtain property by false pretenses and one count of exploiting the elderly or disabled in file number 07 CRS 54505; (3) one count of felonious breaking or entering, two counts of felonious breaking or entering a motor vehicle, one count of misdemeanor larceny, and one count of misdemeanor attempted larceny in file number 07 CRS 55522; (4) one count of felonious possession of stolen goods or property, three counts of misdemeanor injury to personal property, one count of misdemeanor larceny, one count of misdemeanor possession of stolen goods or property, one count of felonious breaking or entering a motor vehicle, and one count of misdemeanor first degree trespass in file number 07 CRS 55524; (5) three counts of felonious breaking or entering a motor vehicle, one count of misdemeanor larceny, and one count of misdemeanor injury to personal property in file number 07 CRS 56415; and (6) one count of felonious attempted breaking or entering a building in file number 07 CRS 57045.
In each of the six judgments, the trial court sentenced Carter to terms of six to eight months imprisonment, which terms were to run consecutively. The court suspended Carter's sentences, placed him on supervised probation for a period of 60 months, and ordered Carter to pay a total of $20,767.50 in costs, fees and restitution. As conditions of his probation, Carter was required, inter alia, to (1) attend FIRST at Blue Ridge, a residential treatment program located in Buncombe County, North Carolina, for 18 months and "abide by all rules and after care regulations of that program[,]" (2) submit to intensive supervision for six months, and (3) complete 50 hours of community service upon completion of the residential treatment program.
On 15 February 2010, Carter's probation officer filed probation violation reports in Buncombe County alleging that Carter had violated the rules of FIRST at Blue Ridge — and therefore had violated the terms of his probation — by "stay[ing] away from his residence over night" on 29, 30, and 31 January 2010 and on 6 and 7 February 2010, "thus not complying with his curfew."
At an 18 March 2010 probation revocation hearing in Buncombe County Superior Court, the Honorable Laura J. Bridges presiding, Carter, who was represented by a public defender, moved the court for a continuance "to try to hire his own attorney." Judge Bridges denied the motion. Subsequently, Carter admitted that he willfully violated the terms of his probation. Thereupon Judge Bridges revoked Carter's probation and again sentenced Carter to six consecutive terms of six to eight months imprisonment. Carter filed written notice of appeal on 23 March 2010.
The Buncombe County probation revocation file numbers are 10 CRS 1246, 10 CRS 1247, 10 CRS 1249, 10 CRS 1250, 10 CRS 1251, and 10 CRS 1252.
Carter's sole argument on appeal is that the trial court erred in denying his motion to continue the probation revocation hearing so that he could hire private counsel. Carter argues the denial of his motion to continue denied him his constitutional right to retain the counsel of his choice. Carter further argues that "his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion."
As an initial matter, we note that Carter failed to raise before the trial court any constitutional issue with respect to his motion to continue. Accordingly, we will not address any constitutional aspects of Carter's argument on appeal. State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001) ("Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.")
It is [] axiomatic that a motion for a continuance is ordinarily addressed to the sound discretion of the trial judge whose ruling thereon is not subject to review absent a gross abuse. . . . Denial of a motion for a continuance, regardless of its nature, is[] grounds for a new trial only upon a showing by defendant that the denial was erroneous and that this case was prejudiced thereby.
State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981). In this case, Carter has failed to demonstrate any prejudicial error in Judge Bridges' order.
To demonstrate that he was prejudiced by an erroneous denial of a motion to continue, "the defendant must show how his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion." State v. Williams, 355 N.C. 501, 540-41, 565 S.E.2d 609, 632 (2002) (internal quotation marks omitted). Carter's only support for a finding of prejudice is the statement that "[Carter's] appointed counsel issued no subpoenas and submitted no exhibits or written documents on [Carter's] behalf." However, this statement, while perhaps true, fails to explain how Carter was prejudiced by the lack of subpoenas, exhibits, or documents. Because no such explanation is presented by Carter on appeal, it is unclear to this Court how any subpoenas, exhibits, or documents would have affected Judge Bridges' decision to revoke Carter's probation based on his admitted failure to comply with the curfew requirements at FIRST at Blue Ridge. Accordingly, we conclude that Carter was not
prejudiced by Judge Bridges' denial of Carter's motion to continue, and, therefore, we affirm the judgments entered upon the revocation of Carter's probation.
AFFIRMED.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).