State v. Surratt, ___ N.C. App. ___, 2021-NCCOA-407 (Aug. 3, 2021)

In this Cleveland County case, the defendant was charged with multiple drug crimes and with being a habitual felon. On the day of trial, the defendant made a motion to continue, telling the court that he did not have time to go over the case with his lawyer. After a discussion with the defendant’s lawyer, the trial judge denied the motion to continue. The defendant was convicted of the drug crimes and then pled guilty to having attained habitual felon status. (1) On appeal, the defendant argued that he was deprived of effective assistance of counsel when his appointed attorney made him argue pro se for a continuance and failed to advocate on his behalf. Noting inconsistencies in the appellate record regarding the extent and timing of the defendant’s contact with his lawyer, the Court of Appeals dismissed the claim without prejudice to allow the defendant to raise the argument in the trial court through a motion for appropriate relief.

(2) The defendant also argued on appeal that the trial court erred by denying his motion to continue. The Court of Appeals disagreed, noting that defense counsel had over a month to prepare for a case that the court did not deem complicated—a controlled drug buy captured on video and audio recording. In the absence of any evidence of prejudice (and with no prejudice presumed due to the lack of complexity in the case), the appellate court concluded that the trial court did not err.