Opinion
No. COA10-1252
Filed 16 August 2011 This case not for publication
Appeal by defendant from judgments entered 11 February 2010 by Judge Arnold O. Jones, II, in Wayne County Superior Court. Heard in the Court of Appeals 22 March 2010.
Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for the Defendant.
Wayne County No. 07 CRS 50456-57.
Defendant John David Brinson appeals from judgments sentencing him to three consecutive terms of a minimum of six months and a maximum of eight months imprisonment in the custody of the North Carolina Department of Correction based upon his convictions for three counts of obtaining property by means of false pretenses. On appeal, Defendant argues that the trial court erred by allowing him to represent himself at trial without first conducting the inquiry required by N.C. Gen. Stat. § 15A-1242 or ensuring that the required inquiry had been conducted. After careful consideration of Defendant's challenge to the trial court's judgments in light of the record and the applicable law, we conclude that Defendant is entitled to receive a new trial because the record is devoid of any indication that the inquiry required by N.C. Gen. Stat. § 15A-1242 had been conducted before Defendant was allowed to represent himself.
I. Factual Background
On 23 January 2007, warrants for arrest charging Defendant with six counts of obtaining property by false pretenses were issued. On 4 September 2007, the Wayne County grand jury returned a bill of indictment charging Defendant with three counts of obtaining property by false pretenses. In essence, each count alleged that Defendant had obtained various amounts of money from different individuals by falsely stating that he represented a program backed by the federal government which provided low-cost home loans and other benefits for participating individuals; that Defendant further stated that, in the event that the alleged victim provided him with an up-front payment, he would advance the remainder of the required amount so as to permit the alleged victim to purchase a home and receive other benefits through the program; that the alleged victims made various payments to Defendant in reliance on these representations; that the program described by Defendant did not exist; and that Defendant had failed to return the funds advanced by the alleged victims.
Defendant had a first appearance in Wayne County District Court before Judge Rodney Goodman on 24 January 2007. At the time of his first appearance, Defendant was determined to be ineligible for court-appointed counsel. Although Defendant subsequently retained counsel, his privately employed counsel was allowed to withdraw. At a hearing held before Judge Thomas D. Haigwood on 15 October 2007, Defendant stated that he was attempting to retain other counsel and would represent himself if that effort proved unsuccessful. At that point, Judge Haigwood told Defendant he could either retain counsel or represent himself. Even though Defendant "beg[ged] the Court to get this attorney to help me get this process done" and claimed to be "confused and all that stuff," Judge Haigwood simply noted that Defendant "appear[ed] to be fairly well educated;" reminded Defendant that "if you were to be convicted of any of these charges, you could be sent to prison;" and told Defendant that he was "entitled to represent [him]self or [he could] hire a lawyer to represent [him]."
At a hearing held on 19 November 2009 after Defendant was taken into custody following a failure to appear, Defendant informed Judge Ripley E. Rand that he intended to represent himself because he had been "denied the right for an attorney [on] October 15, 2007." Similarly, when Judge Jack W. Jenkins informed Defendant on 14 December 2009 that he would appoint a lawyer to represent Defendant in the event that he could not afford one, Defendant replied that "it's been established that my financial situation is too good for that." After noting that Defendant's financial situation might have changed, Judge Jenkins asked Defendant if he was making a request for court-appointed counsel. Defendant responded in the negative. Judge Jenkins did inform Defendant during the course of this discussion that, "if you handle this on your own, you'll be held to the same standards as a lawyer would be held to", that "you'll be expected to know the rules and . . . the procedures and the law and everything[,]" and that "neither the judge [n]or the district attorney can help you with that or give you advice or lead you through the trial or anything like that."
At a final pre-trial hearing held before Judge Arnold O. Jones, II, on 2 February 2010, Defendant stated that he had been denied the right to the assistance of counsel. After reviewing the court file, Judge Jones noted that the only relevant documents that he could find in that location were an order signed by Judge Goodman denying Defendant's request for the appointment of counsel and a letter from Defendant dated 3 March 2008 indicating that he intended to "sign a waiver and represent [himself]" in these cases.
As a result, the record clearly reflects that the issue of whether Defendant would exercise his right to the assistance of counsel or represent himself was discussed at several pre-trial proceedings involving multiple members of the trial judiciary during the time that this case was pending in the trial courts. Even so, the record on appeal does not contain a written waiver of counsel, any clear indication that such a waiver was ever executed, or any indication that a formal inquiry of the type mandated by N.C. Gen. Stat. § 15A-1242 ever occurred.
Out of an abundance of caution, the Clerk of this Court requested the Clerk of Superior Court in Wayne County to examine the files relating to this case for the purpose of ascertaining if those files contained a written waiver of counsel and was informed that no such waiver appears in those files.
The charges against Defendant came on for trial before Judge Jones and a jury at the 8 February 2010 criminal session of the Wayne County Superior Court. At the beginning of the trial proceedings, Judge Jones informed Defendant that he could be incarcerated in the event that he was convicted of the charges that had been lodged against him. At the conclusion of the trial, at which Defendant represented himself, the jury returned verdicts finding Defendant guilty as charged. At the ensuing sentencing hearing, the trial court found that Defendant had no prior record points and should be sentenced as a Level I offender. Based upon these determinations, the trial court sentenced Defendant to three consecutive terms of a minimum of six months and a maximum of eight months imprisonment in the custody of the North Carolina Department of Correction. In addition, the trial court recommended that Defendant be ordered to pay a total of $6,540.00 in restitution as a condition of post-release supervision or work release. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis
On appeal, Defendant contends that the trial court erred by allowing him to represent himself without conducting an adequate inquiry into the extent to which Defendant's decision to waive his federal and state constitutional right to the assistance of counsel was knowing, intelligent and voluntary. Defendant's argument has merit.
The Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 23 of the North Carolina Constitution guarantee individuals charged with committing criminal offenses the right to be represented by counsel. In addition, a criminal defendant has "the right . . . to refuse counsel and to conduct his or her own defense." State v. Pruitt, 322 N.C. 600, 602, 369 S.E.2d 590, 592 (1988) (citation omitted). "Before a defendant is allowed to waive in-court representation by counsel, the trial court must [ensure] that constitutional and statutory standards are satisfied." State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994) (citing State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992)), cert. denied, 515 U.S. 1107, 132 L. Ed. 2d 263, 115 S. Ct. 2256 (1995). "[T]he right to assistance of counsel may only be waived where the defendant's election to proceed pro se is `clearly and unequivocally' expressed and the trial court makes a thorough inquiry as to whether the defendant's waiver was knowing, intelligent and voluntary." State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002) (quoting Carter, 338 N.C. at 581, 451 S.E.2d at 163). An inquiry which fully complies with the requirements of N.C. Gen. Stat. § 15A-1242 is sufficiently thorough to satisfy applicable constitutional standards. Thomas, 331 N.C. at 674, 417 S.E.2d at 476 (citing State v. Gerald, 304 N.C. 511, 519, 284 S.E.2d 312, 317 (1981)).
N.C. Gen. Stat. § 15A-1242 provides that:
A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:
(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
(2) Understands and appreciates the consequences of this decision; and
(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.
The subjects of discussion specified in N.C. Gen. Stat. § 15A-1242 are mandatory rather than discretionary, so that a trial court commits prejudicial error in the event that he or she permits a defendant to represent himself without conducting an inquiry that addresses all three prongs of the relevant statutory provision. Pruitt, 322 N.C. at 603, 369 S.E.2d at 592 (citing State v. Bullock, 316 N.C. 180, 186, 340 S.E.2d 106, 109 (1986)).
A careful review of the record indicates that the trial court failed to ensure that the requirements of N.C. Gen. Stat. § 15A-1242 had been complied with before allowing Defendant to represent himself at trial. The transcripts of the various proceedings that led to Defendant's conviction disclose that no trial judge ever conducted an inquiry of Defendant that complied with N.C. Gen. Stat. § 15A-1242. Although various judges conducted inquiries that addressed some, but not all of the issues specified in N.C. Gen. Stat. § 15A-1242, none of them conducted an inquiry that fully satisfied the applicable statutory requirements.
Even if we were to examine each of these instances of partial compliance with N.C. Gen. Stat. § 15A-1242 on a cumulative basis, we would still be compelled to conclude that an adequate inquiry into Defendant's decision to waive counsel was never conducted. Instead, the record reflects that Judge Haigwood informed Defendant on 15 October 2007 that he could be imprisoned in the event that he was convicted, that Judge Jenkins informed Defendant on 14 December 2009 that he had a right to the assistance of counsel and that he would be held to the same standards as an attorney in the event that he represented himself, and that Judge Jones also informed Defendant on 8 February 2010 that he could receive an active sentence in the event that he was convicted of the charges that had been lodged against him. Even considered cumulatively, these exchanges do not comply with N.C. Gen. Stat. § 15A-1242 since the record does not reflect that any trial judge ascertained whether Defendant "comprehend[ed] the nature of the charges and proceedings and the range of permissible punishments." N.C. Gen. Stat. § 15A-1242. The mere fact that the trial judge informed Defendant that he might receive an active prison sentence in the event that he was convicted, without any discussion of the length of the sentence that Defendant might receive or the fact that the trial court might recommend that Defendant be required to make restitution as a condition of post-release supervision or work release, is simply not sufficient to ensure that Defendant's waiver of his right to counsel was knowing, intelligent, and voluntary. See State v. Taylor, 187 N.C. App. 291, 294, 652 S.E.2d 741, 743 (2007) (holding that the trial court failed to comply with N.C. Gen. Stat. § 15A-1242 when it correctly informed the defendant that he was subject to a "maximum 60-day imprisonment penalty for a Class 2 misdemeanor" while failing "to inform defendant that he also faced a maximum $1,000.00 fine"); State v. Michael, 74 N.C. App. 118, 120-21, 327 S.E.2d 263, 265 (1985) (awarding the defendant a new trial where the trial court failed, among other things, to explain the range of permissible punishments which could be imposed upon the defendant in the event that he was convicted of the offenses with which he was charged); State v. Jackson, 2010 N.C. App. LEXIS 1574, at *14 (holding that the trial court failed to comply with the requirement set out in N.C. Gen. Stat. § 15A-1242 to the effect that the court must satisfy itself that the defendant understood the range of permissible punishments by stating merely that defendant could be "`shipped to prison'" if convicted).
The fact that Defendant clearly expressed his desire to waive counsel in his 3 March 2008 letter does not obviate the necessity for the trial court to conduct the inquiry required by N.C. Gen. Stat. § 15A-1242. Similarly, we do not believe that Judge Jones' conclusion that, based upon his review of the transcripts and "other paperwork in the file from 2007," Defendant "was advised of his right to counsel," justifies a decision to deny Defendant's request for relief on appeal. Judge Jones' determination is of limited relevance to the proper resolution of the issue raised by Defendant's challenge to his convictions since it speaks to only one, as opposed to all three, of the subjects that a trial judge is required to address with a defendant before allowing him to represent himself. Finally, the fact that Defendant knew that he had the opportunity to retain counsel, that he believed that he had been held ineligible for the appointment of counsel, and that he may have actually comprehended the range of possible punishments and understood what he needed to do during a criminal trial does not excuse the noncompliance with N.C. Gen. Stat. § 15A-1242 revealed by the present record. As a result, since the record before us on appeal discloses that an adequate inquiry addressing all three of the issues listed in N.C. Gen. Stat. § 15A-1242 was never conducted, either at the same time or cumulatively, and since compliance with N.C. Gen. Stat. § 15A-1242 is a necessary prerequisite to a defendant's ability to properly waive his right to counsel and represent himself, we conclude that the trial court's judgments should be reversed and that this case should be remanded to the Wayne County Superior Court for a new trial at which Defendant is either represented by competent counsel or elects to represent himself after an appropriate inquiry concerning the extent to which he wishes to waive his right to the assistance of counsel conducted in accordance with N.C. Gen. Stat. § 15A-1242.
III. Conclusion
Thus, for the reasons set forth above, we conclude that the trial court erred by allowing Defendant to represent himself at trial without making a thorough inquiry into the extent to which Defendant's decision to waive his right to the assistance of counsel was knowing, intelligent and voluntary in conformity with N.C. Gen. Stat. § 15A-1242. As a result, we reverse the trial court's judgments and remand this case to the Wayne County Superior Court for a new trial.
NEW TRIAL.
Judges ROBERT C. HUNTER and STEPHENS concur.
Report per Rule 30(e).