People v. Session.
2020 COA 158. No. 14CA2083. Criminal Law—Sixth Amendment—Right to Counsel—Habitual Criminal—Prior Convictions—Sentencing—Proportionality Review.
November 12, 2020
Defendant was convicted of possession of more than four grams of a schedule II controlled substance. The trial court adjudicated him a habitual criminal based on the possession conviction and five previous felony convictions. The court denied defendant’s request for an extended proportionality review of his sentence, and he was sentenced to 24 years in prison.
On appeal, defendant contended that the trial court violated his Sixth Amendment right to counsel by denying his requests to substitute appointed counsel without adequate inquiry. Four factors are used to determine whether a district court erred by denying a defendant’s request for substitution of counsel: (1) the timeliness of the defendant’s motion, (2) the adequacy of the court’s inquiry, (3) whether the conflict between the defendant and his or her attorney resulted in a total lack of communication or otherwise prevented an adequate defense, and (4) whether the defendant substantially and unreasonably contributed to the conflict. Here, defendant made three requests to substitute counsel; the second and third were late and would have required the court to continue the trial a fourth time. Second, the trial court was able to evaluate defendant’s dispute with counsel on the basis of his written motions and statements, so the court wasn’t required to conduct further inquiry into the second and third requests. Third, defendant failed to demonstrate that his counsel’s performance was detrimental to his defense. Fourth, while the record is unclear whether defendant contributed to any conflict with this counsel, the other factors adequately support the trial court’s decision. Therefore, the court didn’t abuse its discretion when it denied the requests for substitution of counsel.
Defendant also argued that his Sixth Amendment right to a jury trial was violated because a judge, rather than a jury, adjudicated the habitual criminal counts. Defendant didn’t allege that there were flaws in the proceedings resulting in his prior convictions, and the trial court made findings of fact regarding the prior convictions in accordance with law. Further, the habitual criminal statute is constitutional under the prior conviction exception, and there was a sufficient basis for the trial court, instead of a jury, to make findings of fact regarding defendant’s habitual criminal charge. Accordingly, there was no Sixth Amendment violation.
Defendant further argued that the trial court erred by imposing a habitual criminal sentence without conducting a proportionality review. During an abbreviated proportionality review of a habitual criminal sentence, the court must consider each triggering offense and the predicate offenses together and determine whether, in combination, they are so lacking in gravity or seriousness as to raise an inference that the sentence imposed on that triggering offense is grossly disproportionate. If that inference exists, an extended proportionality review must be undertaken. If not, the sentence is proportionate. Here, defendant’s prior convictions consisted of three drug possession charges, second degree burglary, and attempted second degree burglary. None of defendant’s offenses are per se grave and serious under current case law, so a proportionality review is necessary.
The judgment of conviction was affirmed, the sentence was vacated, and the case was remanded for a new proportionality review.