An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-664


Filed: 4 March 2003


         v.                        Transylvania County
                                Nos. 01CRS1013 and 1029

    Appeal by defendant from judgments entered 31 October 2001 by Judge James U. Downs in Transylvania County Superior Court. Heard in the Court of Appeals 24 February 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Clara D. King, for the State.

    James L. Goldsmith, Jr. for defendant.

    TYSON, Judge.

    Jonathan Bruno Mallwitz (“defendant”) appeals his felony convictions for assault and child abuse. We find no error.

I. Background

    The State's evidence tended to show that defendant assaulted and seriously injured his girlfriend and infant child during a stand off with police on 20 March 2001. Police were dispatched to the couple's residence after defendant's girlfriend requested assistance in having defendant removed from their residence. Defendant assaulted his girlfriend, and took their infant daughter from his girlfriend's arms, threatening to “throw [the] baby to the floor and send her back to God, where she came from.” Defendant'sgirlfriend escaped further assault by climbing out of a bedroom window. Defendant locked himself and the infant child in the bathroom, and threatened to kill the infant if responding officers tried to come in the bathroom. Defendant kept kicking the door, and eventually put a hole through the bathroom door with his fist. Officers sprayed defendant with pepper spray to subdue him, entered the bathroom, and pulled the infant to safety. The infant was examined by a pediatrician, who testified that the child had suffered a “significant concussion,” which was consistent with “significant rotational force . . . [as if] she'd been whipped significantly so that her head was accelerating at a significant speed hitting the ground.”
    After the State had presented five witnesses, defendant's attorney asked for a recess and a conference in chambers. When court resumed, defendant stated, “I'd like to defend myself, if that would be okay. I'd like to invoke that right.” The trial judge then questioned defendant as to his request. After ascertaining that defendant was knowingly and voluntarily waiving his right to counsel, the judge allowed defendant to represent himself, with defendant's attorney “stand[ing] by to assist [defendant] in any questions [he] might have regarding procedure or anything else.”
    Defendant presented the testimony of two witnesses and his own narrative, which tended to show that his girlfriend was an alcoholic. Defendant testified that the 20 March 2001 incident was a big misunderstanding. He explained that he was attempting to gethis girlfriend to seek help for her alcoholism, and she called law enforcement to have him removed from the home out of resentment. Defendant testified that his girlfriend hurt herself when she fell while being drunk. Defendant testified that he took the baby from his girlfriend's arms in an effort to protect the child. Defendant detailed an attack by his girlfriend while he was holding the infant. Defendant explained that the statements he made about hurting the baby were said sarcastically, and that he upended objects throughout the residence, in an effort to get the child removed from the home so that his girlfriend would get help for her alcoholism. Defendant stated that when officers arrived at his residence on 20 March 2001, he offered the baby to one of the responding officers, but the officer declined to take the child as she had a soiled diaper. Defendant explained that he then closed the bathroom door to use the bathroom, whereupon the door got stuck. It was then that he put his fist through the door to extricate himself and his infant daughter from the bathroom. Defendant contended that it was when he was sprayed with mace that he became disoriented and dropped the baby, who had become limp after being sprayed with mace also.
    After hearing the evidence, the jury found defendant guilty of assault inflicting serious bodily injury and felony child abuse by inflicting serious bodily injury. The trial judge sentenced defendant to concurrent sentences of 100-129 months imprisonment for the felony child abuse conviction, and 19-23 months imprisonment for the assault conviction. Defendant appeals.
II. Issue

    Defendant argues only one assignment of error. Defendant contends that the trial court erred in allowing him to represent himself at trial without proper inquiry. We disagree.
III. Self-Representation

    “'Implicit in defendant's constitutional right to counsel is the right to refuse the assistance of counsel and conduct his own defense.'” State v. Love, 131 N.C. App. 350, 354, 507 S.E.2d 577, 580 (1998), aff'd, 350 N.C. 586, 516 S.E.2d 382-83, cert. denied, 528 U.S. 944, 145 L. Ed. 2d 280 (1999)(quoting State v. Gerald, 304 N.C. 511, 516, 284 S.E.2d 312, 316 (1981)). The waiver of counsel must be knowledgeable and voluntary. Id. (quoting State v. Thacker, 301 N.C. 348, 354, 271 S.E.2d 252, 256 (1980)). “[T]he record must show that the defendant was literate and competent, that he understood the consequences of his waiver, and that, in waiving his right, he was voluntarily exercising his own free will.” State v. Thacker, 301 N.C. 348, 354, 271 S.E.2d 252, 256 (1980). N.C.G.S. 15A-1242 sets out an inquiry that ensures a defendant's waiver is knowingly and voluntarily made. Thacker, 301 N.C. at 355, 271 S.E.2d at 256. N.C.G.S. 15A-1242 provides,
        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 a 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 theconsequences of this decision; and

        (3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.
N.C. Gen. Stat. § 15-1242 (2001). “The provisions of [G.S. 15A- 1242] are mandatory and failure to conduct this inquiry constitutes prejudicial error.” State v. Hyatt, 132 N.C. App. 697, 703, 513 S.E.2d 90, 94 (1999).
    Defendant contends that the trial judge “did not make a thorough inquiry” under G.S. 15A-1242. The record shows quite the opposite. Defendant was arrested on 20 March 2001 and proceeded through pre-trial proceedings and the testimony of five witnesses at trial on 30 October 2001 before asserting that he wished to represent himself. After defense counsel requested a recess and spoke with the trial judge off of the record, the following exchange occurred:
            MR. MALLWITZ: Yes, Your honor, I'd like to defend myself, if that would be okay. I'd like to invoke that right.

            THE COURT: Well.

            MR. MALLWITZ: He could sit here and he could help me with some legal matters but I think I could do better.

            THE COURT: You understand that you're facing -- what's that assault with a deadly weapon with intent to kill, inflicting serious injury, what class is that?

            MR. BRITTAIN: C, Your honor.

            THE COURT: Class C. And that other one is what?

            MR. BRITTAIN: The same, Your honor, Class C.
            THE COURT: You're facing two Class C felonies, you understand that?

            MR. MALLWITZ: Yes, sir.

            THE COURT: You understand the total amount of time of those, if you were convicted -- well, I can't tell you exactly what it is, but it's substantial, many, many years.

            MR. MALLWITZ: Oh, yes, sir.

            THE COURT: What's your education, Mr. Mallwitz?

            MR. MALLWITZ: I've got my GED. I've run my own business, and I've got my driver's license.

            THE COURT: And you feel like you want to do some questioning of the witness, do you; is that what it is?

            MR. MALLWITZ: Oh, yes, definitely.

            THE COURT: I see. And that's your desire?

            MR. MALLWITZ: Please.

            THE COURT: You're not under the influence of any alcohol, drugs, narcotics, medicine, pills, or any intoxicants; are you?

            MR. MALLWITZ: I've been locked up seven months, sir.

            THE COURT: Well, that didn't answer my question.

            MR. MALLWITZ: No, sir. I've been isolated.

            . . . .

            THE COURT: Well, the Court will grant your wish, Mr. Mallwitz. But we'll continue to have Mr. McKeller stand by to assist you in any questions you might have regarding procedure or anything else. . . .
We conclude that defendant was aware of his right to counselinasmuch as he elected to be represented by appointed counsel during pre-trial proceedings. Although the trial judge did not state the specific range of permissible punishments if defendant were convicted of the crimes charged, the trial court made it clear to defendant that he faced a “substantial” term of imprisonment, “many, many years.” Defendant had already been represented through pre-trial proceedings with the assistance of counsel. Defendant was undoubtedly apprised of the exact charges against him and the punishment he faced. We conclude that the mandates of G.S. 15A- 1242 were fulfilled. The trial court did not err in allowing defendant's request to represent himself. Defendant's assignment of error is overruled.

IV. Conclusion

    Defendant has failed to bring forth his two remaining assignments of error, and they are, therefore, deemed abandoned. N.C.R. App. P. 28(a). Defendant received a fair trial, free from prejudicial error.
    No error.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

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