An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1111

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Brunswick County

No. 07 CRS 52264

NORMAN RAY ROBERTS, III,

Defendant.

Appeal by Defendant from order entered 1 April 2013 by 

Judge Ola M. Lewis in Brunswick County Superior Court. Heard in 

the Court of Appeals 23 January 2014

Attorney General Roy A. Cooper, III, by Assistant Attorney 

General Amy Kunstling Irene, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate 

Defender Katherine Jane Allen, for Defendant.

DILLON, Judge.

Norman Ray Roberts, III, (“Defendant”) petitioned this 

Court for certiorari on 26 April 2013 seeking review of an order 

entered by the trial court on 1 April 2013 denying his motion 

for appropriate relief (“MAR”). A panel of this Court granted 
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Defendant’s petition on 14 May 2013 for review of the trial 

court’s denial of his MAR. We affirm.

I. Background

On 19 May 2008, Defendant was indicted on sixteen counts of 

first-degree sexual assault. Attorney Mike Ramos was appointed 

to represent Defendant; however, on 3 June 2008, Mr. Ramos filed 

a motion to withdraw as Defendant’s counsel because Defendant 

had advised Mr. Ramos that he had retained private counsel to 

represent him. On 5 June 2008, Judge Ola M. Lewis heard Mr. 

Ramos’ motion to withdraw. At the hearing, Defendant said he 

had hired Eric Altman to represent him. Mr. Altman confirmed 

that he had never tried a criminal case involving the level of 

felony for which Defendant was charged. Mr. Ramos, however, had 

twenty-six years of experience and was designated by the State 

Bar as a specialist in criminal law. At the conclusion of the 

hearing, Judge Lewis denied Mr. Ramos’ motion to withdraw as 

counsel. However, at no time did Judge Lewis refuse to allow 

Mr. Altman from participating in Defendant’s defense. 

Notwithstanding, Mr. Altman never filed a notice of appearance 

in the matter, either before Mr. Ramos’ motion to withdraw was 

heard, or at any point thereafter.
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Defendant was tried in the 21 September 2009 Criminal 

Session of Brunswick County Superior Court, being represented by 

Mr. Ramos. The jury found Defendant guilty of all charges. 

Judge Lewis entered the judgments against Defendant consistent 

with the jury’s verdicts, sentencing him, as a prior record 

level III felon, to three presumptive range, consecutive 

sentences of 336 to 413 months incarceration.

Defendant appealed to this Court. On direct appeal, he was 

represented by Duncan McCormick. During the course of the 

appeal, however, Mr. McCormick made a number of arguments on 

Defendant’s behalf; however, he did not make any argument 

pertaining to the trial court’s decision to deny Mr. Ramos’

motion to withdraw. This Court found no error, see State v. 

Roberts, 2011 N.C. App. LEXIS 73 (N.C. App., Jan. 18, 2011) 

(unpublished), and our Supreme Court denied Defendant’s petition 

for discretionary review. See State v. Roberts, 365 N.C. 188, 

707 S.E.2d 232 (2011).

On 14 September 2012, Defendant filed the MAR in the 

Superior Court, which is the subject of this present appeal, 

arguing that the trial court had infringed his constitutional

right to retain counsel of his choice and that Mr. McCormick

provided ineffective assistance of counsel (“IAC”) by failing to 
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raise the foregoing constitutional issue during the first 

appeal.

At the 14 March 2013 MAR hearing, Mr. McCormick, Mr. Ramos 

and Mr. Altman testified. Mr. McCormick confirmed that when he 

prepared the original appeal of Defendant’s conviction, he did 

not argue or otherwise give any significance to the trial 

court’s order denying Mr. Ramos’ motion to withdraw as trial 

counsel.

Mr. Ramos testified that he had been an attorney since 1982 

and had been practicing criminal law since that time, including 

serious felony cases. Since 1997, Mr. Ramos had been certified 

by the State Bar as a specialist in state and federal criminal 

law. Mr. Ramos also testified that he has tried approximately 

twenty-five capital cases, approximately one hundred homicide 

cases, and “a bunch” of sex offense cases.

Mr. Altman testified that he had been an attorney for 

almost twelve years, but that his criminal practice was limited 

to, for the most part, speeding ticket cases and court-appointed 

cases in district court. He stated that the only criminal jury 

trial he had ever done was a misdemeanor appeal to Superior 

Court, in which the defendant had pled guilty halfway through 

the trial. Mr. Altman stated that he was having “mental health 
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problems[,]” and he sometimes did not show up for district 

court. When asked, “Do you believe that you should have 

represented Mr. Roberts in 2007/2008 on sixteen counts of B-1 

Felony?” Mr. Altman responded, “I do not believe I should.” Mr. 

Altman said, “Mr. Ramos was in a much better position to take 

care of Mr. Roberts’ case than I was. I just wasn’t – there was 

no way I was going to get up to speed to effectively represent 

him.” When asked whether he had “file[d] any motions for 

discovery” in Defendant’s case, Mr. Altman said, “I do not 

believe I did. . . . ‘Cause I didn’t’ know what I was doing.”

When asked, “So you didn’t even know that you had to file a 

Notice of Appearance in a Superior Court case?” Mr. Altman 

responded, “No.” When Mr. Altman learned that Mr. Ramos had 

been appointed, he was “relieved to be out of it because I knew 

that I’d gotten in over my head.”

On 1 April 2013, the trial court entered a detailed order 

denying Defendant’s MAR. In its order, the trial court made 

findings, inter alia, regarding Mr. Altman’s lack of experience 

and ability in trying B1 felony cases and Mr. Ramos’ extensive 

experience and ability in trying such cases. Also in its order, 

the trial court determined that its denial of Mr. Ramos’ motion 

to withdraw did not amount to a violation of Defendant’s Sixth 
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Amendment rights and that Defendant was not entitled to relief 

for his IAC claim, in part, because “there was no reasonable 

probability that . . . the result of [Defendant’s appeal] would 

have been different” had Mr. McCormick made an argument 

concerning the trial court’s denial of Mr. Ramos’ motion to 

withdraw.

Defendant filed a petition for writ of certiorari in this 

Court on 26 April 2013, seeking review of the trial court’s 

order denying his MAR, which we issued on 14 May 2013.

II. Analysis

Defendant argues that the trial court erred in denying his

MAR. We believe that Defendant’s right to chosen counsel was 

not violated and, accordingly, affirmed the trial court’s order 

denying Defendant’s MAR.

A. Standard of Review

“When a trial court’s findings on a motion for appropriate 

relief are reviewed, these findings are binding if they are 

supported by competent evidence and may be disturbed only upon a 

showing of manifest abuse of discretion.” State v. Armstrong, 

203 N.C. App. 399, 416, 691 S.E.2d 433, 445, (citation and 

quotation marks omitted) disc. review denied, ___ N.C. ___, 702 

S.E.2d 492 (2010). “Competent evidence is evidence that a 
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reasonable mind might accept as adequate to support the 

finding.” Id. at 416-17, 691 S.E.2d at 445 (citation and 

quotation marks omitted). “The trial court’s conclusions of law 

are reviewed de novo.” Id. at 417, 691 S.E.2d at 445 (citation 

and quotation marks omitted).

B. Sixth Amendment Right to Counsel of Choice

Defendant contends the trial court erred by denying his 

motion for appropriate relief because his Sixth Amendment right 

to counsel of choice was infringed. We disagree.

“The Sixth Amendment provides that ‘[i]n all criminal 

prosecutions, the accused shall enjoy the right . . . to have 

the Assistance of Counsel for his defense.’ We have previously 

held that an element of this right is the right of a defendant 

who does not require appointed counsel to choose who will 

represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 

144, 165 L. Ed. 2d 409, 416 (2006) (citation omitted).

In the present case – unlike the facts in Gonzalez-Lopez –

there is nothing in the record to indicate that the trial court 

denied any request by Defendant to allow Mr. Altman to 

participate in his defense. Indeed, during the hearing on Mr. 

Ramos’ motion to withdraw, the trial court stated that Defendant 

was “certainly free to counsel of [his] choice[.]” However, at 
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this pre-trial hearing, the trial court simply refused Mr. 

Ramos’ motion to withdraw. R 27 Defendant was facing sixteen B1 

felonies, and Mr. Altman admitted at the pre-trial hearing that 

he had no experience representing clients with serious felony 

charges and had only been involved in a single jury trial. 

Further, as the trial court noted that Mr. Altman never filed a 

notice of appearance in the case.

The United States Supreme Court has held that “the right to 

counsel of choice is circumscribed in several important 

respects[,]” Gonzalez-Lopez, 548 U.S. at 144, 165 L. Ed. 2d at 

417 (citation and quotation marks omitted), stating as follows:

Nothing we have said today casts any doubt 

or places any qualification upon our 

previous holdings that limit the right to 

counsel of choice and recognize the 

authority of trial courts to establish 

criteria for admitting lawyers to argue 

before them. . . . We have recognized a 

trial court’s wide latitude in balancing the 

right to counsel of choice against the needs 

of fairness, and against the demands of its 

calendar. The court has, moreover, an 

independent interest in ensuring that 

criminal trials are conducted within the 

ethical standards of the profession and that 

legal proceedings appear fair to all who 

observe them.

Id. at 151-52, 165 L. Ed. 2d at 421 (citations omitted)(emphasis 

added).
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In his brief, Defendant contends that, in the present case,

“the trial court’s belief that retained counsel will not be as 

effective as appointed counsel” is not a valid limitation on 

Defendant’s constitutional right to counsel of choice. Although 

we agree with the foregoing assertion, it does not describe this 

case. We believe the record in this case reveals that, to the 

extent the trial court placed a limitation on Defendant’s Sixth 

Amendment right counsel of choice by denying Mr. Ramos’ motion 

to withdraw, the limitation was based on the court’s 

“independent interest in ensuring that criminal trials are 

conducted within the ethical standards of the profession[,]” see 

Gonzalez-Lopez, 548 U.S. at 152, 165 L. Ed. 2d at 421-22

(citation and quotation marks omitted), and, therefore, we 

conclude the trial court did not err in denying Defendant’s MAR.

Rule 1.1 of the North Carolina Rules of Professional 

Conduct states the following:

Competence: A lawyer shall not handle a 

legal matter that the lawyer knows or should 

know he or she is not competent to handle 

without associating with a lawyer who is 

competent to handle the matter. Competent 

representation requires the legal knowledge, 

skill, thoroughness, and preparation 

reasonably necessary for the representation.

The evidence at the MAR hearing included Mr. Altman’s own 

admission that he was wholly incompetent to represent Defendant 
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on his sixteen B1 felony charges. Defendant, in fact, admits on 

appeal that “[u]nless allowing a criminal defendant to be 

represented by his retained counsel of choice would result in. . 

. [inter alia, a violation of] the Rules of Professional 

Conduct, the defendant must be allowed to be represented by 

retained counsel of his choosing.” As such, we believe the 

trial court’s denial of Mr. Ramos’ motion to withdraw, and 

later, the trial court’s denial of Defendant’s MAR, was not 

erroneous. The denial of Mr. Ramos’ motion to withdraw was 

necessary to ensure that Defendant’s trial was “conducted within 

the ethical standards of the profession[,]” see Gonzalez-Lopez, 

548 U.S. at 152, 165 L. Ed. 2d at 421-22, specifically, Rule 1.1 

of the North Carolina Rules of Professional Conduct.

At the hearing on Mr. Ramos’ motion to withdraw – where 

Defendant indicated that he wanted Mr. Altman to represent him 

at trial on sixteen B1 felony counts and where Mr. Altman 

admitted having no experience in such matters - we believe that 

the trial court was caught between the proverbial “Scylla and 

Charybdis.” See Ex Parte McFarland, 163 S.W.3d 743, 759-60

(Tex. Crim. App. 2005). On the one hand, the trial court had a 

legitimate concern that Mr. Altman might not have the ability to 

provide competent representation, which, under the Sixth 
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Amendment, a criminal defendant is entitled to. See Strickland 

v. Washington, 466 U.S. 668, 693, 80 L. Ed. 2d 674, 697-98 

(1984). On the other hand, “a criminal defendant also has a 

Sixth Amendment right to the privately retained counsel of his 

choice[.]” McFarland, supra. (emphasis added) (footnote 

omitted). We believe Judge Lewis satisfied both of these 

constitutional requirements at the pre-trial hearing: She 

denied Mr. Ramos’ motion to withdraw, but she did not otherwise 

disqualify Mr. Altman from participating, stating:

And you are certainly free to hire counsel 

of your choice; but, I have an obligation to 

let you know that Mr. Altman does not handle 

this level of felony. It is a very serious 

charge for which you are facing a very long 

time if you plead guilty or you are found 

guilty. . . . And so, whatever the 

relationship is with Mr. Altman, it is what 

it is. But Mr. Ramos is not going to be 

allowed to withdraw as your attorney.”1

 

1 We note that in its order denying Defendant’s MAR, the 

trial court determined that Defendant’s Sixth Amendment rights 

were not violated because the court “refused to allow [Mr.] 

Altman . . . to represent the Defendant[.]” This statement 

could be interpreted to mean that the trial court had refused to 

allow Mr. Altman to represent Defendant even with Mr. Ramos also 

serving; however, this interpretation is not supported by the 

record. A better interpretation of this statement, which finds 

support in the record, is that the trial court – by denying Mr. 

Ramos’ motion to withdraw – merely “refused” to allow Mr. Altman 

to serve as Defendant’s sole counsel.
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Notwithstanding, there is nothing in the record to indicate that 

following the pre-trial hearing that Defendant sought to include 

Mr. Altman in his defense.

II. Findings of Fact/Conclusions of Law

Defendant presents several arguments challenging the trial 

court’s findings of fact, and ultimately, its conclusions of law 

in its order denying Defendant’s motion for appropriate relief. 

We find each of the following arguments unmeritorious.

Defendant first argues that findings of fact 9 through 112

are merely recitations of testimony of the witnesses. In cases 

such as this, “the trial court . . . is entrusted with the duty 

to hear testimony, weigh and resolve any conflicts in the 

evidence, find the facts, and, then based upon those findings, 

render a legal decision . . . as to whether or not a 

constitutional violation of some kind has occurred.” State v. 

Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619-20 (1982). “[I]t 

is not the role of the trial court as fact finder to simply 

restate the testimony given.” In re O.W., 164 N.C. App. 699, 

703, 596 S.E.2d 851, 854 (2004). Inasmuch as the trial court 

 

2 The trial court did not enumerate its findings of fact in 

its order denying Defendant’s motion for appropriate relief. 

However, on appeal, Defendant supplied a copy of the order, upon 

which Defendant numbered the findings of fact, so as to more 

effectively and conveniently present his argument. 
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found as fact that Mr. Altman, Mr. Ramos, and Mr. McCormick 

“testified to the following[,]” the trial court did not perform 

its duty of weighing and resolving conflicts in the evidence. 

However, in this case, it does not appear that there were 

conflicts in the evidence to resolve. No one, including Mr. 

Altman, testified that Mr. Altman was competent to represent 

Defendant. See generally State v. Smith, 346 N.C. 794, 800, 488 

S.E.2d 210, 214 (1997) (stating that “[i]f there is no conflict 

in the evidence on a fact, failure to find that fact is not 

error”). Moreover, the trial court made sufficient other 

findings of fact upon which to base its conclusion that 

Defendant’s Sixth Amendment right to counsel of choice was not 

abridged.

Defendant next argues that findings of fact 9p, 11, and 12 

are not supported by competent evidence. According to 

Defendant’s enumeration, findings of fact 9p, 11, and 12 state 

the following:

9p. The Court was also privy to Mr. 

Altman’s past mental health conditions at 

the time of Mr. Ramos’ appointment.

. . . .

11. Mr. McCormick did not know of Mr. Eric 

Altman’s representation of the Defendant, 

and if he was aware of such would have made 
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a constitutional argument as to the Court’s 

appointment of Mr. Ramos. 

. . . .

12. The Court finds there was nothing to 

lead Mr. McCormick to note Mr. Altman’s 

purported appearance in the case file or any 

and all related documents.

We agree with Defendant that there was no evidence 

presented at the hearing showing that the trial court was “privy 

to Mr. Altman’s past mental health conditions.” However, there 

was evidence, including Mr. Altman’s testimony, that he suffered 

from mental health conditions. Moreover, the trial court found 

as fact in a different portion of the order that “Mr. Altman 

has, in the past, suffered from mental health problems.” We 

would caution the trial court not to make findings of fact 

regarding things the trial court is “privy to[,]” as there was 

no evidence to support it was presented at the hearing. 

Although we agree with Defendant that this finding was made in 

error, the trial court made sufficient other findings upon which 

to base its conclusion that Defendant’s Sixth Amendment right to 

counsel of choice was not abridged in this case.

Findings of fact 11 and 12 pertain to the question of 

whether Defendant received ineffective assistance of appellate 

counsel, which, as Defendant points out in his previous 
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argument, is separate and apart from the question of whether 

Defendant’s Sixth Amendment right to chosen counsel was 

violated. On certiorari, although Defendant challenges the 

trial court’s conclusion of law that he did not receive 

effective assistance of appellate counsel, Defendant does not 

present any argument showing how Defendant’s appeal was 

prejudiced by Mr. McCormick’s purported ineffective assistance.

See State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 

(1985) (stating that in addition to showing counsel’s 

performance was deficient, “the defendant must show that the 

deficient performance prejudiced the defense.”). Therefore, 

Defendant has failed to meet his burden on the question of 

ineffective assistance of counsel. See id. Because the 

foregoing findings of fact have no bearing on the question of 

whether Defendant’s Sixth Amendment right to counsel of choice 

was violated, they are superfluous to the trial court’s ruling 

thereon, and we need not address whether they are supported by 

competent evidence in our analysis of whether Defendant’s right 

to counsel of choice was violated.

Based on the foregoing, we conclude Defendant’s right to 

chosen counsel was not violated. We therefore affirm the trial 

court’s order denying Defendant’s MAR.
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AFFIRMED.

Judge STROUD and Judge HUNTER, JR. concur

Report per Rule 30(e).