DOBSON — Former County Commissioner Paul Johnson had planned to go to trial, and his attorney intended to dump him.
That conclusion comes from records obtained by the The Mount Airy News, which made a public-records request to the Surry County Clerk of Court’s office, county commissioners and county staff, Superior Court Judge A. Moses Massey and staff, and the N.C. Attorney General’s office. The hundreds of pages of information supplied in response to that request reveal a convoluted set of circumstances regarding Johnson’s decision to plead guilty and the manner in which public officials handled the happenings.
Johnson, a 19-year veteran county commissioner, was indicted in February 2015 on four counts of obtaining property by false pretense. A State Bureau of Investigation probe had uncovered about $8,000 in falsified travel vouchers for which Johnson had received compensation from the county.
Johnson maintained his innocence for nearly a year. However, on Jan. 19, in an unannounced hearing which never appeared on the court calendar, Johnson pleaded guilty to all four felony charges. Prior to those happenings, Johnson’s case was set for a jury trial before a visiting judge on Feb. 15.
The missing motion
About a week prior to Johnson’s change of plea, rumors began to swirl regarding a mysterious motion — one filed by Johnson’s defense attorney, Scott Lowry.
Lowry had supposedly filed a motion to withdraw as Johnson’s counsel. However, Johnson’s case file contained no written motion. Therefore, the rumors could not be validated.
The missing motion was apparently alarming for more than just journalists covering the case.
“The lady from The Mount Airy News asked to see the motion to withdraw that was filed by Scott Lowry two weeks ago. When we were looking through the files, the motions were not in his files,” explained assistant clerk of court Sonia Schmidt in an email to Superior Court Judge A. Moses Massey. “Do you know if they were included in the paperwork that was in the file today?”
Massey, in an interview which occurred after Johnson’s case had been disposed, explained no written motion had been filed.
“Scott (Lowry) came into my office and said he was going to have to do something he had never done,” explained Massey. “He said he would make a motion to withdraw as (Johnson’s) council. I agreed to hear the motion.”
Massey went on to explain Lowry had stated he would set up a date on which the motion could be heard with Special Deputy Attorney General Ryan Haigh, who was prosecuting the case.
Lowry did set that meeting up. He and Haigh agreed to have the hearing on Lowry’s motion to withdraw on Jan. 19 at 2 p.m. However, the public would never know of the hearing, as the online court calendar continued to reflect Johnson’s next court date as Feb. 15. However, both parties, Massey and the office of the clerk were aware of the meeting.
“I just wanted to let you know that Scott (Lowry) has filed a motion to withdraw as counsel from Paul Johnson’s cases. He said it would be addressed on Tuesday, Jan. 19. I don’t know any other details,” Schmidt wrote in an email to Surry County Clerk of Courts Teresa O’Dell on Jan. 13.
On Jan. 15 another Mount Airy News reporter asked Schmidt about the motion. She replied simply by showing the Johnson case files, which contained no written motion. She also did not inform the reporter Johnson’s next court appearance had been changed or that she was indeed aware of the motion to withdraw.
Even when reporters continued to inquire as to the rumors about movement in Johnson’s case, personnel at the clerk’s office simply pointed them to a file with no written motion and a court calendar which reflected Johnson’s next court date as Feb. 15.
A quiet stage
With few people aware of Johnson’s hearing, the stage was set for a quiet appearance. Though the meeting was held in open court, as confirmed by Massey and Haigh, O’Dell seemed concerned about the audience.
At 1:04 p.m. on Jan. 19 Schmidt reminded O’Dell of the hearing on Lowry’s motion to withdraw via a text message.
“Hey Teresa just wanted 2 (to) give u (you) a heads up. We r (are) supposed 2 (to) do the motion on Paul Johnson at 2:00 (p.m.) today.”
O’Dell’s attention immediately turned to the day’s attendees.
“Ok,., is Paul there?” asked O’Dell.
“They haven’t said, but I assume he will be,” answered Schmidt.
At 2:52 p.m. Schmidt relayed news to O’Dell.
“Paul (Johnson) just walked in,” wrote Schmidt.
“Ok. Is the newspaper reporter in there?” O’Dell asked, referring to News court reporter Terri Flagg.
“No. She called this am (morning) and asked about a jury. Haven’t seen her today,” answered Schmidt.
Change of plans
Johnson apparently had a change of heart. At a hearing which was set but never placed on the court’s calendar, Johnson decided he was guilty.
“He’s pleading guilty right now. Think they r (are) going 2 (to) hold off sentencing him till (until) next week,” typed Schmidt as she supplied O’Dell’s update from the court room.
O’Dell answered with, “Ready…”
Johnson’s change of plea had surprised at least one person. Haigh, the Special Deputy Attorney General prosecuting the case, had travelled to Surry County to attend a hearing in which Lowry was expected to withdraw as counsel.
County Attorney Ed Woltz, who had been told of Lowry’s motion by Haigh about a week prior, received word of an expected plea on the day of the hearing.
Woltz received a “phone call from Ryan Haigh indicating he hoped to obtain a plea from Paul Johnson today,” wrote Woltz in a memorandum summarizing his conversation. “He arrived in Dobson only to address Scott Lowry’s Motion to Withdraw. As it turns out, Paul Johnson had not been in touch with Scott (Lowry) in months despite Scott’s best efforts. Although Scott (Lowry) was talking to Paul (Johnson), Ryan (Haigh) suspected a (guilty) plea would be entered by the end of the day.”
Johnson did, in fact, plead guilty to all four counts of obtaining property by false pretense. A bargain was struck which involved probation, restitution, a fine and community service.
Upon Lowry’s motion and with Haigh’s consent, the proposed deal was sealed until Johnson’s sentencing hearing a week later.
When the Mount Airy News’ reporter Terri Flagg, who learned of the prior day’s happenings from a source, spoke to O’Dell on Jan. 20, the clerk would not confirm Johnson had been in court or had entered a plea. O’Dell simply pointed Flagg, the likely topic of text messages the previous day, to the clerk’s notes, case file and calendar. None of those records contained any information about the Jan. 19 appearance.
“The only thing that was sealed was the plea arrangement,” explained Massey.
Massey went on to state the fact Johnson had appeared in court could not be sealed. The retiring judge also said Johnson’s guilty plea wasn’t sealed. Only the terms and conditions of the plea bargain fell outside the realm of public scrutiny for the week-long period between the plea and Johnson’s sentencing hearing.
Massey stopped just short of apologizing for media outlets being blocked in their endeavors to learn what had happened in court on Jan. 19.
“I regret that that happened,” remarked Massey.
While O’Dell would not go on record to confirm Johnson’s appearance and plea on Jan. 19, Schmidt was relaying word of news coverage to O’Dell.
“Did u (you) see the article online by Mount Airy News on Paul Johnson tonight?” Schmidt asked O’Dell via a text message at 8:54 p.m. on Jan. 20.
“No,” answered O’Dell.
Schmidt replied, “They got some info (information) on what he was pleading 2 (to) from Noelle Talley w (with) the AG’s (Attorney General’s) office.”
The Mount Airy News had indeed confirmed Johnson’s appearance and plea with Talley, the Attorney General’s office spokesperson, late in the afternoon on Jan. 20.
Talley indicated Johnson had pleaded guilty at the Jan. 19 court appearance. She stated, “The details of the plea agreement will be made public at the sentencing next Tuesday.”
Massey said the order to seal the plea arrangement was made verbally.
On Jan. 26, at a court appearance which did appear on the court calendar, Massey verbally unsealed the arrangement.
Closing the chapter
Massey said he “got the impression” Lowry’s motion to seal the plea bargain for the week between the plea and the sentencing hearing was “about getting restitution together.”
In the end, the man who maintained his innocence until his attorney intended to withdraw from the case was sentenced to 36 months of supervised probation, ordered to pay $8,299 in restitution to Surry County, fined $2,000 and ordered to complete 100 hours of community service.
After a situation which was dragged out over the course of at least a year, Lowry delivered Johnson’s letter of resignation from his seat as the county’s East District Commissioner to Surry County officials on the same day he was sentenced.
Concerning turn of events
“For whatever reason, there was a failure to appropriately document the business of the court,” remarked Jonathan Jones, an attorney from the N.C. Open Government Coalition.
Jones said there were many disconcerting matters at play in the happenings surrounding Johnson’s case. Jones, like Massey, said a court cannot seal the fact a person appeared in court or a plea entry.
“It’s strange the clerk’s office would not acknowledge the plea or court date,” remarked Jones.
The former prosecutor also took issue with the sealing of the plea bargain, saying he couldn’t think of an instance in which it would be appropriate to seal the proceedings of a criminal case such as Johnson’s.
“Criminal proceedings are usually only sealed when pertaining to juveniles,” explained Jones. “There seems to be no compelling government interest in protecting his (Johnson’s) privacy.”
Jones also said orders sealing and unsealing the proceedings ought to appear in the case file, saying even if the order was given verbally a written order should be added to the file eventually.
“There must be a written finding regarding why it (the plea bargain) was sealed,” said Jones.
The office of the clerk of courts doesn’t have to answer the questions of a media outlet. However, Jones said staff at the clerk’s office should have been able to provide documentation outlining what had occurred in the courtroom that day.
“That’s very bizarre,” remarked Jones when told of the court records which contained no information regarding Johnson’s Jan. 19 court appearance. “The docket should reflect the business of the court that day.”
Andy is a staff writer and can be reached at 415-4698.