Opinion
No. COA 11–834.
2012-07-17
STATE of North Carolina v. Noria Pritt JOHNSON.
Attorney General Roy Cooper by Assistant Attorney General John A. Payne for the State. Winifred H. Dillon for defendant-appellant.
Appeal by defendant from the final judgment entered 2 December 2010 by Judge Theodore S. Royster in Cabarrus County Superior Court. Heard in the Court of Appeals 11 January 2012. Attorney General Roy Cooper by Assistant Attorney General John A. Payne for the State. Winifred H. Dillon for defendant-appellant.
STEELMAN, Judge.
The trial court erred in allowing defendant to proceed pro se without conducting the inquiry required by N.C. Gen.Stat. § 15A–1242.
I. Factual and Procedural History
On 29 March 2010, defendant was indicted for the crimes of possession of drug paraphernalia; possession of a Schedule III controlled substance; trafficking in opium or heroin, 28 grams or more; conspiracy to traffic opium or heroin, 28 grams or more; and possession with intent to sell or deliver a Schedule III controlled substance.
Defendant was appointed counsel in District Court. Defendant subsequently retained counsel, Mr. Grossman. On 27 October 2010, Mr. Grossman moved to withdraw from representation of defendant. The motion to withdraw was heard by Judge Bridges. Mr. Grossman advised the trial court that he and defendant were “at loggerheads” and had gotten into shouting matches. He asserted that he was not sure that he could represent defendant. On 27 October 2010, Judge Bridges granted Mr. Grossman's motion to withdraw. On that date, defendant signed a waiver of assigned counsel.
The matter was set for trial on 29 November 2010. On that date, defendant appeared, without counsel, and moved for a continuance before Judge Royster. That motion was denied. Trial was to commence the next day. On that date, defendant requested that an attorney be appointed to represent her. Judge Royster denied the request, and defendant proceeded to trial without counsel.
A jury found defendant guilty of trafficking in opium by possession, 28 grams or more; possession with intent to sell or deliver a Schedule III controlled substance; possession of drug paraphernalia; possession of a Schedule III controlled substance, 100 tablets or more; and conspiring to traffic in opium by possession, 28 grams or more. The trial court consolidated the convictions and imposed the statutorily mandatory sentence of 225–279 months imprisonment.
Defendant appeals.
II. Analysis
Defendant argues that the trial court erred in requiring defendant to proceed to trial without counsel. We agree.
A waiver of the right to assigned counsel is not a waiver of the right to all counsel. “Given the fundamental nature of the right to counsel, we ought not to indulge in the presumption that it has been waived by anything less than an express indication of such an intention.” State v. White, 78 N.C.App. 741, 745, 338 S.E.2d 614, 616 (1986). “Statements of a desire not to be represented by court-appointed counsel do not amount to expressions of an intention to represent oneself. Thus, a defendant's waiver of his right to assigned counsel does not constitute a waiver of all right to counsel.” Id. (internal citation and quotation marks omitted).
“Once a defendant clearly and unequivocally states that he wants to proceed pro se, the trial court ... must determine whether the defendant knowingly, intelligently, and voluntarily waives the right to in-court representation by counsel.” State v.. Moore, 362 N.C. 319, 322, 661 S.E.2d 722, 724 (2008).
N.C. Gen.Stat. § 15A–1242 requires that the trial court make a “thorough inquiry” before permitting a defendant to proceed pro se.N.C. Gen.Stat. § 15A–1242 (2011). The trial court must be satisfied that the defendant has been clearly advised of the right to counsel; that the defendant understands and appreciates the consequences of this decision; and that the defendant comprehends the nature of the charges and proceedings and the range of permissible punishments. Id. This inquiry “is mandatory in every case where the defendant requests to proceed pro se.” White, 78 N.C.App. at 746, 338 S.E.2d at 616.
In the instant case, at the hearing on Mr. Grossman's motion to withdraw, Judge Bridges noted that a “waiver of court-appointed counsel” was not in defendant's file. He advised defendant that she had the right to a court-appointed lawyer. He asked defendant whether she wanted an appointed attorney or intended to retain counsel. Defendant signed a waiver of her right to assigned counsel. Defendant did not sign a waiver of the right to all counsel. Judge Bridges did not conduct the inquiry required by N.C. Gen.Stat. § 15A–1242.
On 29 November 2010, Judge Royster denied defendant's motion for a continuance. Defendant then requested an appointed attorney.
THE DEFENDANT: ... [C]an you please appoint me one? I'm facing very serious charges.
THE COURT: I understand that, but we don't have the mandatory minimum on trafficking under the old rules, do we, or do we?
[THE STATE]: Yeah. There is—it's the same.
THE COURT: That's right. It's thirty-five to forty-two months, plus a fifty thousand dollar fine. It's the same, I guess, isn't it?....
Defendant was charged with, among other offenses, trafficking in 28 grams or more of opium or heroin. This carries a minimum term of imprisonment of 225 months and a fine of $500,000. N.C. Gen.Stat. § 90–95(h)(4) (2011).
THE COURT: All right. Well, ma‘am, under those circumstances, another judge has already heard what you've told me and found it, for whatever reason, appropriate to allow Mr. Grossman to withdraw, so that's not an issue now. The issue is you're the first case up.... You're next up....
THE DEFENDANT: If the jury came, is there nothing I—let me get a lawyer?
THE COURT: I'm saying you had a lawyer appointed. You elected for whatever reason to hire an attorney. For whatever reason, the judge felt it appropriate to let that lawyer withdraw and the matter's been put back on for the trial calendar now and you should have made whatever arrangements you were going to make to have an attorney today after Mr. Grossman was allowed to withdraw....
THE DEFENDANT: I'll take this trial, then....
THE COURT: ... I'm going to deny your request at this point for the Court to consider appointing you an attorney, so it's my understanding you're ready to proceed, is that correct, pro se or by representing yourself?
THE DEFENDANT: Yes, sir.
Our Supreme Court in Moore suggested a list of fourteen questions that would satisfy the inquiry required by N.C. Gen.Stat. § 15A–1242. Moore, 362 N.C. at 327–28, 661 S.E.2d at 727. In Moore, the trial court “deferred to defendant's assigned counsel to provide defendant with adequate constitutional safeguards” by conducting a thorough inquiry. Moore, 362 N.C. at 322, 661 S.E.2d at 724. Our Supreme Court held that the trial court erred without first making the inquiry itself. Moore, 362 N.C. at 326, 661 S.E.2d at 727.See also State v. Paterson, ––– N.C.App. ––––, ––––, 703 S.E.2d 755, 760 (2010), disc. review denied,365 N.C. 196, 710 S.E2d 36 (2011) (emphasizing that the exact questions are not required).
Even assuming arguendo that defendant voluntarily desired to proceed pro se, there is no indication that the trial court inquired whether defendant understood and appreciated the consequences of proceeding pro se. In her request, defendant appears aware that she faced “very serious charges.” However, defendant was indicted on five counts, and there is no indication in the record that the trial court inquired whether defendant understood the nature of those charges. There is no indication that defendant comprehended the range of permissible punishments. This inquiry was insufficient to satisfy the requirements of N.C. Gen.Stat. § 15A–1242.
The trial court erred in permitting defendant to proceed to trial without conducting the inquiry mandated by N.C. Gen.Stat. § 15A–1242. This error was prejudicial. See Moore, 362 N.C. at 326, 661 S.E.2d at 727. Therefore, defendant is entitled to a new trial.
NEW TRIAL. Judges GEER and HUNTER, JR., ROBERT N., concur.
Report per Rule 30(e).