An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-30


Filed: 18 November 2003


v .                         Stokes County
                            No. 94 CRS 352

    Appeal by defendant from judgment entered 8 September 1994 by Judge Clarence W. Carter in Stokes County Superior Court. Heard in the Court of Appeals 15 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Kay Linn Miller Hobart, for the State.

    Reita P. Pendry, for defendant-appellant.

    TYSON, Judge.

    A jury convicted Barry Wayne Welch (“defendant”) of armed robbery on 8 September 1994. This Court granted defendant's “Petition for a Writ of Certiorari” on 13 May 2002. We find no error at trial and remand for a Committed Youthful Offender (“CYO”) benefit hearing.

I. Background
    Prior to trial, defendant filed an Affidavit of Indigency and requested a court-appointed attorney. On 31 January 1994, attorney R. Michael Bruce (“Mr. Bruce”) was appointed to represent defendant. In April, 1994, defendant filed a pro se motion to remove Mr. Bruce as his attorney on the grounds of “insufficient of counseling, failure to comply with client, ask for motion ofdiscovery and did not receive it” [sic]. The court conducted a hearing on the matter.
    Defendant was present and read his motion to the court. He told the court “I can't work with the man [sic] on my case.” The judge informed defendant regarding the seriousness of the offense, including the possible sentences that could be imposed. Defendant testified that he understood the possible penalties. The judge described the process whereby Mr. Bruce was appointed and informed defendant that Mr. Bruce was “the only former Superior Court Judge that I know of that's practicing law anywhere in this part of the state.” The judge also explained a person does not have the right to choose the court-appointed attorney that he or she wants to represent them. The judge stated that he would not appoint another attorney to represent defendant but would ask Mr. Bruce to remain available if defendant needed advice at any stage.
    Mr. Bruce explained to the court that he had taken several plea offers to defendant and given him advice regarding those offers. He stated that defendant maintained his innocence and would not accept a plea agreement. Mr. Bruce also requested the judge to “make sure he understands what you are talking about with reference to him . . . proceeding pro se, that is without a lawyer.” The judge explained the responsibilities that defendant was accepting by agreeing to proceed pro se. Defendant indicated that he understood. The trial court issued an order on 31 August 1994 allowing defendant to proceed pro se and appointing Mr. Bruce as “standby counsel” to assist defendant.    The State's evidence tended to show that on 24 January 1994 a man entered the Friendly Food Mart in Stokes County, North Carolina, displayed a “silver plated gun,” and demanded money. Peggy Johnson (“Johnson”), an employee working at the time, opened the register and handed the robber one hundred dollars in cash. She knew defendant by face as a frequent customer of the store and identified him in a photograph line-up as the perpetrator.
    The court allowed the State to present evidence of another robbery that occurred on 20 January 1994 in Rockingham County. Vicky Sutton (“Sutton”), the owner of Sutton's Mini Mart, was working at the store with Cynthia Carter (“Carter”) when a black male, wearing a dark hooded jacket, entered the store with a “silver gun” in hand. He demanded Carter to, “Give me your money.” Carter complied. Sutton later identified defendant in a line-up as the robber. Both Carter and Sutton were permitted to testify at trial and identified defendant as the perpetrator. After the jury convicted defendant of armed robbery, the court imposed a sentence in the aggravated range of forty years imprisonment.
II. Issues
    Defendant contends the trial court erred by: (1) permitting defendant to proceed to trial without the assistance of counsel; (2) admitting evidence of an uncharged robbery and traffic stop; (3) failing to make a determination regarding whether defendant should be sentenced as a CYO; and (4) imposing a sentence in excess of the presumptive range without making the necessary findings to support the increased sentence.
III. Waiver of Right to Counsel
    Defendant argues the trial court erred by failing to determine whether his counsel was providing adequate representation and forcing him to either accept appointed counsel or represent himself. He contends that he declined to represent himself and never waived his right to counsel.
    In State v. Fulp, our Supreme Court stated that:
        A defendant has a right to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes. However, before allowing a defendant to waive in-court representation by counsel, . . . the trial court must insure that constitutional and statutory standards are satisfied. First, defendant's waiver of the right to counsel and election to proceed pro se must be expressed clearly and unequivocally. Second, in order to satisfy constitutional standards, the trial court must determine whether defendant knowingly, intelligently, and voluntarily waives his right to counsel. In order to determine whether the waiver meets this constitutional standard, the trial court must conduct a thorough inquiry. . . . N.C. Gen. Stat. § 15A-1242 satisfies any constitutional requirements by adequately setting forth the parameters of such inquiries.

355 N.C. 171, 174-175, 558 S.E.2d 156, 158-159 (2002) (citations omitted). N.C. Gen. Stat. § 15A-1242 (2001) allows a defendant to proceed without the assistance of counsel only if the trial judge determines, after thorough inquiry, that the defendant: “(1) [h]as been clearly advised of his right to counsel . . .; (2) [u]nderstands and appreciates the consequences of this decision; and (3) [c]omprehends the nature of the charges and proceedings and the range of permissible punishments.” State law further provides that:
        [a]n indigent person who has been informed of his right to be represented by counsel at any in-court proceeding, may, in writing, waive the right to in-court representation by counsel . . . only if the court finds of record that at the time of waiver the indigent person acted with full awareness of his rights and of the consequences of the waiver.

N.C. Gen. Stat. § 7A-457(a) (2001). In Fulp, the Court held that “[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.” 355 N.C. at 177-178, 558 S.E.2d at 160 (quoting State v. Thacker, 301 N.C. 348, 354, 271 S.E.2d 252, 256 (1980)).
    In defendant's hand-written pro se motion entitled “Motion to Dismiss,” he requested the court to “remove counselor from said Petition Case.” The court held a hearing on this motion. Both defendant and his appointed counsel were present and testified before the court. The court advised defendant of Mr. Bruce's achievements and experiences as an attorney. The court reminded defendant that he had made the choice to apply for an appointed attorney and, as an indigent, was appointed “expert legal advice.” His assigned counsel, Mr. Bruce, is admitted to practice in North Carolina, has formerly served as a Superior Court judge, and possesses extensive experience as a practicing attorney. In disclosing the consequences of waiving the right to counsel, the court stated:
    THE COURT:     Do you understand that if you dismiss your attorney and tell him you don't want his services anymore that all the responsibilities for representing yourself lies upon your own shoulders? In other words, you will have to make any motions, you will have to pick the jury, you will have to make any opening statement that's made to the jury on your behalf, you'll have to cross examine, if you choose to, any or all witnesses that testify against you. You will have to make arguments, if you choose to, to the jury about your guilt or innocence. And it will all rest upon you. If you refuse to accept the services which the Court has made available to you by appointing this attorney to represent you it will all be your responsibility. You understand that?

    MR. WELCH:    Yes, sir, I do.

    The court gave defendant the opportunity to make the decision but informed defendant that another attorney would not be assigned to represent him. The court, however, did assign Mr. Bruce to remain available as standby counsel to defendant during all stages up until final disposition. After explaining this to defendant, the court asked him, “Do you have any questions about what I have just said to you?” Defendant replied, “No.”
    The transcript reflects that the court advised defendant about the serious nature of the charges as well as the range of permissible punishments. The court informed defendant that, “if you were to be convicted that a maximum possible penalty you're facing is 40 years with a minimum of 14 years. You understand that?” Defendant replied, “Yes.”
    After considering the warnings and statements the court made directly to defendant, we conclude that defendant: (1) was clearly advised of his right to counsel; (2) understood and appreciated the consequences of his decision; and (3) could comprehend the natureof the charges and proceedings and the range of permissible punishments. N.C. Gen. Stat. § 15A-1242 (2001).
    We must next consider whether defendant was “voluntarily exercising his own free will.” Fulp, 355 N.C. at 177-178, 558 S.E.2d at 160. During the hearing, the court questioned defendant:
    THE COURT:    And you want to assume all of that responsibility yourself without the assistance of this attorney; is that what you're telling the Court?

    MR. WELCH:    No. I want another attorney, but you said you wouldn't --

    THE COURT:    I already denied that. I'm not going to appoint you another attorney.

    MR. WELCH:    Yes, sir.

    THE COURT:    Are you telling the Court you're willing to assume all the responsibility and you do not want this attorney to help you in this trial?

    MR. WELCH:    No, not at this time.

The trial court unfortunately framed defendant's options in a compound question.
    The record reflects that the trial judge conducted an inquiry regarding all the factors in N.C. Gen. Stat. § 15A-1242, and satisfied constitutional standards for waiver of counsel. Id. Defendant made a pro se “motion to dismiss . . . [to] remove counselor from [his] case.” Before granting his motion, the court thoroughly inquired into the right of the defendant to an attorney, the consequences of waiver, and the nature of the charges against him. The court further informed defendant that if defendant dismissed Mr. Bruce from representation, another attorney would notbe appointed. The court asked defendant numerous times whether he wanted Mr. Bruce to continue to represent him. Defendant replied each time, unequivocally, “No.” The court did not force defendant to allow Mr. Bruce to remain as his attorney but gave defendant the option to dismiss Mr. Bruce and represent himself. Defendant clearly and voluntarily chose to remove Mr. Bruce as his counsel.
    Our Supreme Court has held that “[w]hen it appears to the trial court that the original counsel is reasonably competent to present defendant's case and the nature of the conflict between defendant and counsel is not such as would render counsel incompetent or ineffective to represent that defendant, denial of defendant's request to appoint substitute counsel is entirely proper.” Thacker, 301 N.C. at 352, 271 S.E.2d at 255. “An indigent defendant does not have the right to have counsel of his choice appointed to represent him.” Id. at 351-352, 271 S.E.2d at 255. The court informed defendant that his appointed counsel was experienced and competent to represent defendant. The court was not required to appoint substitute counsel. Defendant requested the court to remove Mr. Bruce with full knowledge of the responsibilities and consequences of proceeding pro se. Defendant asserted his clear intent to voluntarily waive his right to counsel. This assignment of error is overruled.
IV. Evidence of Prior Bad Acts
    Defendant contends the trial court erred in admitting evidence of a prior robbery along with evidence of “suspicious circumstances.” Defendant did not object to this evidence and mustshow plain error. “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
    N.C.R. Evid. 404(b) allows the court to admit evidence of prior bad acts for the limited purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001). N.C.R. Evid. 404(b) is a rule of inclusion. State v. Golphin, 352 N.C. 364, 443, 533 S.E.2d 168, 221 (2000). The use of evidence under N.C.R. Evid. 404(b) is guided by two constraints: “similarity and temporal proximity.” State v. Barnett, 141 N.C. App. 378, 390, 540 S.E.2d 423, 431 (2000), aff'd, 354 N.C. 350, 554 S.E.2d 644 (2001). The issue is whether the prior incidents are “sufficiently similar and not so remote in time as to be more probative than prejudicial . . . .” State v. Moseley, 338 N.C. 1, 42, 449 S.E.2d 412, 437 (1994), cert. denied, 514 U.S. 1091, 131 L. Ed. 2d 738 (1995). The similarities between the incidents must support a reasonable inference that the same person committed both crimes. Id. at 43, 449 S.E.2d at 437-438.
    Defendant argues there are insufficient similarities between the robberies on 24 January 1994 in Stokes County and on 20 January 1994 in Rockingham County to be admissible under N.C.R. Evid. 404(b). The evidence showed that both robberies: (1) occurred around 8:30 p.m., (2) occurred while female employees were working,(3) were committed by a black male, (4) involved a robber wearing a dark, hooded jacket, (5) the robber used a silver plated gun, and (6) the robber demanded money by specifically stating, “Give me your money.” The evidence further showed that defendant had previously stated, “it was easier to rob a place where a woman worked.” The evidence showed sufficient similarities between the two robberies to raise a reasonable inference that the same person committed both crimes.
    Defendant also contends the trial court erred by admitting evidence of “suspicious activity” observed when defendant was questioned by the police on 11 January 1994, thirteen days before the robbery at bar. Around 4:00 p.m., a police officer observed two black males wearing hooded jackets standing in an empty parking lot of the Pit Stop Restaurant talking to a female employee. The restaurant had been robbed on two or three prior occasions. No cars were in the parking lot. The employee told the officer that the men were “hanging around” the window, asking questions about the menu, but would not place an order. When she walked outside, the two men approached her. As the officer pulled into the parking lot, the two males walked away from the employee.
    There was a parked car on a dirt road a short distance from the Pit Stop Restaurant with a black male sitting behind the steering wheel. The driver of this car testified that he had heard defendant and the other male occupant of the car discuss committing a robbery immediately prior to entering the Pit Stop Restaurant'sparking lot. Similarities existed between the crime charged and the testimony regarding the suspicious circumstances of this stop.
    The State presented sufficient evidence showing that the prior bad acts occurred with both “similarity and temporal proximity” to the crime charged. Barnett, 141 N.C. App. at 390, 540 S.E.2d at 431. The court gave a limiting instruction regarding the testimony of these prior bad acts. Defendant has failed to show plain error. This assignment of error is overruled.
V. Committed Youthful Offender
    Defendant assigns error to the trial court's failure to make a “no benefit” finding as required under the CYO Statute. N.C. Gen. Stat. § 148-49.14 (repealed effective January 1, 1995, by Sess. Laws 1993, c. 538, s. 34). The statute stated that:
        [a]s an alternative to a sentence of imprisonment . . . when a person under 21 years of age is convicted of an offense punishable by imprisonment . . . the court may sentence such person . . . as a committed youthful offender. . . . At the time of commitment the court shall fix a maximum term not to exceed the limit otherwise prescribed by law for the offense of which the person is convicted or 20 years, whichever is less. . . . If the court shall find that a person under 21 years of age should not obtain the benefit of release under G.S. 148-49.15, it shall make such “no benefit” finding on the record . . . .

Id. This statute was in full force and effect at the time of defendant's trial. Where “the only error is the failure of the trial judge to make a 'no benefit' finding, remand for resentencing is not required.” State v. Michael, 311 N.C. 214, 222, 316 S.E.2d 276, 281 (1984). The case should be remanded “for the sole purposeof a hearing to determine whether defendant should have the benefit of serving the sentence imposed as a committed youthful offender.” Id.
    Defendant was nineteen years of age at the time of the commission of the offense and was twenty years of age at the time of sentencing. We agree with defendant that the trial court erred by failing to determine whether defendant should benefit from sentencing as a CYO. We remand to the trial court for a hearing to determine “whether defendant should have the benefit of serving the sentence imposed as a committed youthful offender.” Id. If the court determines defendant should have received the benefit, sentence is to be imposed under the CYO statute, N.C. Gen. Stat. § 148-49.14.
VI. Fair Sentencing Act
    Defendant argues the trial court erred by failing to make findings of the aggravating factors to impose a sentence in excess of the presumptive sentence. Defendant failed to object at trial. N.C.R. App. P. 10(b)(1) (2003) permits appellate review of issues that are deemed preserved “by rule or law.” We review this assignment of error under N.C. Gen. Stat. § 15A-1446(d)(18), which allows for review of sentencing errors where there was no objection at trial.
    Under the former Fair Sentencing Act:
        If a judge imposes a prison term for a felony that differs from the presumptive term provided . . . the judge must specifically list in the record each matter in aggravation or mitigation that he finds proved by a preponderance of the evidence. If he imposesa prison term that exceeds the presumptive term, he must find that the factors in aggravation outweigh the factors in mitigation . . . .

N.C. Gen. Stat. § 15A-1340.4(b) (1993) (repealed effective January 1, 1995, by Sess. Laws 1993, c. 538, s. 14).
    The record reflects that defendant testified under oath that he had been previously convicted of larceny with a firearm and possession of a controlled substance with intent to sell. “Defendant's testimony before the court constituted an acceptable form of proof of his prior convictions [for purposes of former N.C. Gen. Stat. § 15A-1340.4].” State v. Graham, 309 N.C. 587, 593, 308 S.E.2d 311, 316 (1983). Following the hearing, the court stated, “[t]he Court will mark the last block on the left under mitigating factors that the Court makes no finding of any mitigating factors.” The court also stated, “the Court will further find that the aggravating factors greatly outweigh any mitigating factor.” The judgment worksheet reflects these oral findings. This assignment of error is overruled.
VII. Conclusion
    Defendant waived his right to counsel by knowingly and voluntarily dismissing Mr. Bruce as his appointed counsel. The trial court did not err in admitting evidence of prior bad acts or in finding aggravating factors. We hold that the trial court erred in failing to make a “no benefit” finding as required by the CYO statute. This case is remanded for a determination of whether defendant should have benefitted under the statute. Should thecourt decide that defendant should have benefitted, sentence is to be imposed as set forth in N.C. Gen. Stat. § 148-49.14.
    No Error at trial. Remanded for CYO benefit hearing.
    Judges MCCULLOUGH and BRYANT concur.
    Report per Rule 30(e).

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