1. Constitutional Law--resentencing--probation conditions--no right to
counsel
The trial court did not err by not appointing counsel for a
resentencing hearing for the unauthorized practice of law because the
resentencing in this case was not a critical stage of the criminal
proceeding where the trial court, on remand from the Court of Appeals, only
addressed the issue of how to modify the special condition of probation
that defendant not file documents in any court without prior approval of
his probation officer, and the trial court was not likely to either
sentence defendant to an active term of imprisonment or fine defendant five
hundred dollars or more. N.C.G. S. § 7A-451(a)(l).
2. Sentencing--resentencing--pro se representation--required inquiry not
made
The trial court did not err by not making the inquiry required by
N.C.G.S. § 15A-1242 before allowing defendant to represent himself at a
resentencing hearing because defendant was not entitled to counsel at the
hearing.
3. Probation and Parole--term longer than statutory period-- no findings
The trial court erred at a resentencing for the unauthorized practice
oflaw by ordering a term of probation longer than the statutorily
prescribed period without making the required findings that a longer term
of probation was necessary. N.C.G.S. § 15A-1343.2(d).
4. Probation and Parole--probation--condition--curfew--relation to
rehabilitation
The trial court did not err when sentencing defendant for the
authorized practice of law by imposing as a condition of probation that
defendant remain in his residence from 7:00 p.m. until 6:00 a.m. The
challenged condition is permitted by N.C.G.S. § 15A-1343(b1) (1999); the
legislature has deemed all of the special conditions enumerated by the
statute appropriate to the rehabilitation of criminals and their
assimilation into a law-abiding society and the condition need not be
reasonably related to defendant's rehabilitation.
5. Probation and Parole--conditions--written notice required
The trial court erred when sentencing defendant for the unauthorized
practice of law by imposing as a condition of probation that defendant file
documents with the court only when the documents were signed and filed by a
licensed attorney. The record on appeal was devoid of any evidence that
defendant was served with a written copy of this particular condition of
probation; oral notice of conditions of probation is not a satisfactory
substitute for the written statement required by statute.
6. Appeal and Error--probation condition--earlier decision in same case
by different panel--binding
The trial court did not err when sentencing defendant for theunauthorized practice of law by imposing as a conditio
n of probation that
defendant not work as a private investigator or paralegal. This condition
of probation was upheld in the earlier unpublished opinion in this case.;
one panel of the Court of Appeals may not overrule the decision of another
panel on the same question in the same case.
Attorney General Roy Cooper, by Assistant Attorney General Kristine L.
Lanning, for the State.
Anthony Lambert, pro se, defendant appellee.
McCULLOUGH, Judge.
Defendant Anthony C. Lambert was indicted for obtaining property by
false pretenses and the unauthorized practice of law on 2 December 1996. The
pertinent facts are as follows: On 2 July 1996, Rosa Harvey visited
defendant's home and spoke with defendant about a divorce action. During
their conversation, defendant told Ms. Harvey that he was a licensed attorney
and agreed to draft her divorce documents for a fee of fifty dollars. The
next day, during a meeting with Ms. Harvey and her fiancé, defendant
presented the documents to her. Defendant also promised to provide Ms.
Harvey with other necessary documents, but failed to deliver the documents to
her by the morning of her district court appearance. The district court
refused to grant Ms. Harvey a divorce because of the insufficient and
incorrect documents prepared by defendant. Following the divorce hearing,
the district court judge advised Ms. Harvey to speak with a detective at the
Elizabeth City Police Department concerning her dealings with defendant.
As a result of the information provided by Ms. Harvey, defendant was
charged with one count of obtaining property by false pretenses and one count
of the unauthorized practice of law. On 4 March 1998, a jury found defendant
not guilty of obtaining property by false pretenses, but convicted him of the
unauthorized practice of law. Defendant received a sentence of forty-five
days in jail, suspended for thirty-six months, with regular and special termsof probation. Defendant appealed.
On appeal, defendant contended that, because the jury acquitted him of
obtaining property by false pretenses, he could not be guilty of the
unauthorized practice of law. Defendant also argued that the trial court
erred in finding sufficient evidence to support his conviction for the
unauthorized practice of law, resulting in denial of his motion to dismiss.
Defendant further assigned error to the jury instruction on the unauthorized
practice of law and two special conditions of his probation: (1) the
condition that defendant not file documents in any court without prior
approval from his probation officer, and (2) the condition that defendant not
practice as a paralegal or private investigator. A panel of this Court found
no error in defendant's trial, but vacated in part the trial court's
sentencing judgment and remanded defendant's case for resentencing.
On 22 May 2000, defendant appeared pro se at the resentencing hearing.
Once again, the trial court imposed an intermediate punishment and sentenced
defendant to forty-five days in jail, suspended for thirty-six months, with
regular and special terms of probation. From this resentencing judgment,
defendant appeals.
Defendant brings forward five assignments of error, one challenging the
trial court's failure to appoint counsel to represent defendant during
resentencing and four relating to special conditions of probation, namely (1)
the thirty-six months of supervised probation; (2) the condition that
defendant is under curfew from 7:00 p.m. until 6:00 a.m. and may not leave
his residence during that time without authorization from his probation
officer; (3) the condition that defendant may file documents with the court
only when the documents are signed and filed by a licensed attorney; and (4)
the condition that defendant not practice as a paralegal. For the reasons
set forth below, we vacate in part the trial court's resentencing judgment
and remand defendant's case for resentencing.
[1]Defendant first argues that the trial court erred by not appointingcounsel for him at his resentencing hearing,
thereby violating his Sixth
Amendment right to counsel under the United States Constitution. We
disagree. The sources of an indigent person's right to appointed counsel are
the Sixth Amendment and the due process clause of the Fourteenth Amendment of
the United States Constitution, Jolly v. Wright, 300 N.C. 83, 90, 265 S.E.2d
135, 141 (1980), overruled on other grounds by McBride v. McBride, 334 N.C.
124, 431 S.E.2d 14 (1993), and Article I, Section 23 of the North Carolina
Constitution. Under the Sixth and Fourteenth Amendments, a criminal
defendant is entitled to effective assistance of counsel during trial, Gideon
v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799 (1963); during the penalty phase
of a capital case, Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,
reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984); and during every
critical stage of a criminal proceeding where "substantial rights of a
criminal accused may be affected." Mempa v. Rhay, 389 U.S. 128, 134, 19 L.
Ed. 2d 336, 340 (1967).
Sentencing is a critical stage of the criminal proceeding during which
the criminal defendant is entitled to effective assistance of counsel.
Gardner v. Florida, 430 U.S. 349, 358, 51 L. Ed. 2d 393, 402 (1977). In
Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530 (1972), the United
States Supreme Court held that "absent a knowing and intelligent waiver, no
person may be imprisoned for any offense, whether classified as petty,
misdemeanor, or felony, unless he was represented by counsel at trial." Id.
at 37, 32 L. Ed. 2d at 538. The Supreme Court in Argersinger emphasized
imprisonment as the event triggering an absolute right to counsel under the
Sixth Amendment. Jolly, 300 N.C. at 91, 265 S.E.2d at 141. In Scott v.
Illinois, 440 U.S. 367, 59 L. Ed. 2d 383 (1979), the Supreme Court reaffirmed
that "the central premise of Argersinger--that actual imprisonment is a
penalty different in kind from fines or the mere threat of imprisonment--is
eminently sound and warrants adoption of actual imprisonment as the line
defining the constitutional right to appointment of counsel." Id. at 373, 59L. Ed. 2d at 389. See also State v. Neeley, 307 N
.C. 247, 297 S.E.2d 389
(1982).
N.C. Gen. Stat. § 7A-451 enumerates those actions and proceedings in
which an indigent person is entitled to the services of counsel. Subdivision
(1) is the only subdivision that applies to criminal proceedings, and defines
the scope of an indigent's entitlement to court-appointed counsel. Jolly,
300 N.C. at 90, 265 S.E.2d at 141. N.C. Gen. Stat. § 7A-451(a)(1) (1999)
provides that
(a) An indigent person is entitled to services of
counsel in the following actions and proceedings:
(1) &nbs
p; Any case in which imprisonment, or a fine of
five hundred dollars ($500.00), or more, is
likely to be adjudged[.]
The language in N.C. Gen. Stat. § 7A-451(a)(1) responds to the "precise
holding of Argersinger, which states that the Sixth Amendment precludes
imprisonment of a person for 'any offense,' however classified, unless he
[is] represented by counsel at his trial. . . .[T]he right to appointed
counsel [also] attaches in felony or misdemeanor cases where the authorized
punishment exceeds a five hundred dollar fine." Jolly, 300 N.C. at 88, 265
S.E.2d at 140 (emphasis in original).
Defendant Lambert's resentencing hearing was not a critical stage of the
criminal proceeding in which he was entitled to counsel. At trial, defendant
was represented by counsel through the sentencing phase and received a
suspended sentence with regular and special terms of probation. On
defendant's first appeal, this Court in an unpublished opinion found no error
in defendant's trial, but vacated in part the trial court's sentencing
judgment and remanded defendant's case for resentencing, consistent with the
panel's opinion that the trial court erred in delegating a judicial function
to defendant's probation officer. State v. Lambert, No. COA98-1222, slip op.
at 9-10 (N.C. App. Nov. 16, 1999). On remand, the trial court only addressed
the issue of how to modify the special condition of probation that defendant
not file documents in any court without prior approval from his probationofficer. Thus, during resentencing, none of defendant's substanti
al rights
were at stake. The trial court was not likely to either sentence defendant
to an active term of imprisonment or fine defendant five hundred dollars or
more. Therefore, we determine that none of defendant's constitutional rights
were violated during resentencing because under the provisions of N.C. Gen.
Stat. § 7A-451, defendant was not entitled to counsel.
[2]Defendant also contends that the trial court failed to make the
mandatory inquiry under N.C. Gen. Stat. § 15A-1242 (1999) before allowing him
to represent himself at his resentencing hearing. 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.
Defendant correctly argues that this inquiry is required in every
case in which the defendant has a right to counsel but waives that
right. "[N.C. Gen. Stat.] § 15A-1242 sets forth the prerequisites
necessary before a defendant may waive his right to counsel and
elect to represent himself at trial." State v. Gerald, 304 N.C.
511, 517, 284 S.E.2d 312, 316 (1981) (footnote omitted).
Defendant's argument fails because under N.C. Gen. Stat. § 7A-451,
defendant was not entitled to counsel at his resentencing hearing.
Since defendant could not waive a right to counsel he did not have
in the first place, the trial court was not required to make the
inquiry mandated by N.C. Gen. Stat. § 15A-1242. Defendant's firstassignment of error is overruled.
[3]Defendant next argues that the sentence imposed by the
trial court, particularly the length of supervised probation for
thirty-six months, is disproportionate to the crime for which
defendant was convicted and violative of the Eighth Amendment to
the United States Constitution. While we agree with defendant that
the trial court erred by ordering a thirty-six-month term of
probation, we do not agree with defendant that his sentence was
unconstitutionally disproportionate to the crime of the
unauthorized practice of law. Where the sentence ultimately
imposed falls within statutory limits prescribed for the offense,
we defer to the wisdom of our Legislature regarding the
appropriateness of the minimum or maximum punishment. State v.
Ahearn, 307 N.C. 584, 598, 300 S.E.2d 689, 698 (1983). N.C. Gen.
Stat. § 15A-1343.2(d) (1999) prescribes lengths of probation under
the North Carolina Structured Sentencing Act and provides that
[u]nless the court makes specific findings
that longer or shorter periods of probation
are necessary, the length of the original
period of probation for offenders sentenced
under Article 81B shall be as follows:
. . . .
(2) For misdemeanan
ts sentenced to
intermediate punishment, not less
than 12 nor more than 24 months;
. . . .
If the court finds at the time of
sentencing that a longer period of probation
is necessary, that period may not exceed a
maximum of five years.
In the present case, the trial court found that defendant had
a prior conviction level of 2, and sentenced him to an intermediate
punishment for committing a Class 1 misdemeanor by placing him on
probation for thirty-six months. Pursuant to N.C. Gen. Stat.
§ 15A-1343.2(d), such a term of probation was within the discretionof the trial court; however, an examination of the record and
transcript of the hearing reveals that the trial court failed to
make the required findings of fact that a longer term of probation
was necessary. Accordingly, we vacate this condition of
defendant's probation and remand this portion of defendant's case
for resentencing. The trial court must reduce defendant's
probation to the statutory period of twelve to twenty-four months
or enter appropriate findings of fact that a longer period of
probation is necessary. See State v. Cardwell, 133 N.C. App. 496,
516 S.E.2d 388 (1999) (resentencing required when trial court
imposed twelve months' supervised and forty-eight months'
unsupervised probation for reckless driving without finding that
the extended period of probation was necessary); and State v.
Hughes, 136 N.C. App. 92, 524 S.E.2d 63 (1999), disc. review
denied, 351 N.C. 644, 543 S.E.2d 878 (2000) (resentencing required
when trial court imposed sixty months' supervised probation on a
felon sentenced to intermediate punishment without finding that the
extended period of probation was necessary).
[4]Defendant next argues that the trial court erred by
imposing the condition of probation that defendant remain under
curfew and not be away from his place of residence from 7:00 p.m.
until 6:00 a.m. because the condition is "unreasonable, oppressive,
unduly burdensome and has no relationship to the crime of which
defendant was convicted for [sic]." We disagree. The challenged
condition of probation is permitted by N.C. Gen. Stat. § 15A-
1343(b1)(3c) (1999), which provides in pertinent part:
(b1) Special Conditions.--In addition to
the regular conditions of probation specified
in subsection (b), the court may, as a
condition of probation, require that during
the probation the defendant comply with one or
more of the following special conditions:
. . . .
&
nbsp; (3c) Remain at his or her residence
unless the court or the probation
officer authorizes the offender to
leave for the purpose of employment,
counseling, a course of study, or
vocational training.
Defendant contends that nothing in the record supports the
imposition of this condition as related to the crime of the
unauthorized practice of law, and that the condition is not
reasonably related to his rehabilitation. To support this argument,
defendant relies on the "reasonably related" standard articulated
in N.C. Gen. Stat. § 15A-1343(b1)(10) (1999). Under N.C. Gen. Stat.
§ 15A-1343(b1)(10), "the trial court may in addition to the
statutorily described conditions impose 'any other conditions . . .
reasonably related to [defendant's] rehabilitation." State v.
Harrington, 78 N.C. App. 39, 48, 336 S.E.2d 852, 857 (1985).
The language of N.C. Gen. Stat. § 15A-1343(b1)(10) operates as
a check on the discretion of trial judges in devising special
conditions of probation other than those enumerated in the statute.
State v. Parker, 55 N.C. App. 643, 645-46, 286 S.E.2d 366, 368
(1982). However, when the trial judge imposes one of the special
conditions of probation enumerated by N.C. Gen. Stat. § 15A-
1343(b1), the condition need not be reasonably related to
defendant's rehabilitation because the Legislature has deemed all
those special conditions appropriate to the rehabilitation of
criminals and their assimilation into law-abiding society. Parker,
55 N.C. App. at 646, 286 S.E.2d at 368. In this case, the
challenged condition of probation is not a creation of the trial
court, but rather one of those appropriate and reasonable
conditions of probation expressly authorized by the Legislature
under N.C. Gen. Stat. § 15A-1343(b1)(3c). We conclude that
defendant's argument is without merit and overrule this assignment
of error. [5]Defendant next argues that the trial court erred by
imposing as a condition of probation that he file documents with
the court only when the documents were signed and filed by a
licensed attorney whose signature was affixed thereto. Defendant
maintains that this condition violates his constitutional right of
access to the courts, and is unreasonable and beyond the power of
the trial court to devise. We agree that the trial court erred by
imposing this condition, but disagree with defendant as to why the
trial court erred.
It is the settled policy of this Court that when a case can be
disposed of on appeal without reaching the constitutional issue, it
is to be first disposed of on non-constitutional grounds. Burwell
v. Griffin, 67 N.C. App. 198, 209, 312 S.E.2d 917, 924, appeal
dismissed, disc. review denied, 311 N.C. 303, 317 S.E.2d 678
(1984).
N.C. Gen. Stat. § 15A-1343(c) (1999) mandates that
[a] defendant released on supervised probation
must be given a written statement explicitly
setting forth the conditions on which he is
being released. If any modification of the
terms of that probation is subsequently made,
he must be given a written statement setting
forth the modifications.
Here, the trial court orally modified the original terms of
defendant's probation in light of the Court of Appeals' remand
order:
THE COURT: . . . I believe the only thing
[the Court of Appeals] said I couldn't do was
require him not to file papers. . . .
* * * *
THE COURT: With regard to that during
the [thirty-six] month period of probation he
may file documents with the clerk of Superior
Court when it has been--when it is filed by an
attorney, a licensed attorney practicing law
in the State of North Carolina, filed on his
behalf by a licensed attorney practicing law
in North Carolina. Or has been reviewed by alicensed attorney practicing law in North
Carolina who has affixed his signature
thereto.
The trial court's recital does not appear anywhere in the written
record on appeal, including the text of the trial court's
resentencing judgment. The record on appeal is completely devoid
of any evidence that defendant was served with a written copy of
this particular condition of probation, so this condition is
invalid as prescribed by the trial court. Oral notice to defendant
of his conditions of probation is not a satisfactory substitute for
the written statement required by statute. State v. Suggs, 92 N.C.
App. 112, 113, 373 S.E.2d 687, 688 (1988). Accordingly, we vacate
this condition of defendant's probation and remand this portion of
defendant's case for resentencing.
We emphasize that our ruling today does not determine the
propriety or reasonableness of this contested condition of
defendant's probation. However, we note that the right to counsel
guaranteed to all criminal defendants by the federal and state
constitutions implicitly gives a defendant the right to refuse
counsel and conduct his or her own defense pro se. State v.
Thacker, 301 N.C. 348, 353-54, 271 S.E.2d 252, 256 (1980).
Integral to a defendant's right to proceed pro se is his ability to
prepare and submit legal documents to the trial court. This Court
is well aware that the trial court has substantial discretion in
devising conditions of probation under N.C. Gen. Stat. § 15A-
1343(b1)(10). Harrington, 78 N.C. App. at 48, 336 S.E.2d at 857.
Nevertheless, any condition which violates defendant's
constitutional rights is per se unreasonable and beyond the power
of the trial court to impose. State v. Simpson, 25 N.C. App. 176,
180, 212 S.E.2d 566, 569, cert. denied, 287 N.C. 263, 214 S.E.2d
436 (1975). [6]Lastly, defendant argues that the trial court erred by
imposing the condition of probation that "[defendant] not engage in
the practice [as a] paralegal or be permitted to engage in any work
as a private investigator and surrender to the probation officer
any license or permit as to either of these occupations."
Defendant urges this Court to hold the challenged condition invalid
as to his ability to practice before the Social Security
Administration because paralegal work before the Administration is
not itself criminal and is governed by federal, not state, law. We
do not find defendant's argument persuasive.
The North Carolina Supreme Court has held that one panel of
the Court of Appeals may not overrule the decision of another panel
on the same question in the same case. N.C.N.B. v. Virginia
Carolina Builders, 307 N.C. 563, 566-67, 299 S.E.2d 629, 631-32
(1983). Defendant's previous appeal challenged the exact same
condition of probation prohibiting defendant from practicing as a
paralegal and private investigator. In Lambert, slip op. at 9-10,
this Court upheld the trial court's special condition of probation
under N.C. Gen. Stat. § 15A-1343(a) (Cum. Supp. 1998), which gives
the trial court authority to impose conditions of probation
"reasonably necessary to insure that the defendant will lead a law-
abiding life or to assist him to do so." The first panel decided
that the contested condition bore some relation to defendant's
offense, and that the condition was aimed at preventing defendant
from engaging in similar offenses. Lambert, slip op. at 10.
Where one panel of this Court has decided an issue, a subsequent
panel is bound by that precedent unless it has been overturned by
a higher court. Heatherly v. Indus. Health Council, 130 N.C. App.
616, 621, 504 S.E.2d 102, 106 (1998). Defendant's final assignment
of error is therefore overruled. For the foregoing reasons, we vacate in part the trial court's
resentencing judgment and remand defendant's case for resentencing
consistent with this opinion.
Vacated in part, and remanded for resentencing.
Judges MARTIN and BIGGS concur.
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