An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-454

NORTH CAROLINA COURT OF APPEALS

Filed: 18 May 2004

STATE OF NORTH CAROLINA

         v.                        Lenoir County
                                Nos.    01 CRS 54199
MICHAEL ANTHONY STARKEY                    02 CRS 160
    

    Appeal by defendant from judgment entered 16 July 2002 by Judge Thomas D. Haigwood in Lenoir County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Jill F. Cramer, for the State.

    Parish & Cooke, by James R. Parish, for defendant-appellant.

    CALABRIA, Judge.

    On 25 February 2002, the Lenoir County Grand Jury indicted Michael Anthony Starkey (“defendant”) on a charge of possession of a controlled substance and also indicted him for attaining the status of an habitual felon. Defendant signed waivers of counsel on 17 September 2001, 15 October 2001, and 11 March 2002. He then filed an affidavit of indigency on 27 March 2002 and requested court-appointed counsel. On 16 April 2002, defendant appeared in open court with his appointed counsel, Mr. Rogerson, and rejected a plea arrangement which the State had offered.
    When the case was called for trial on 28 May 2002, defendant moved for a continuance. After Judge Paul Jones (“Judge Jones”)denied the motion, defendant asked that his counsel not continue to represent him and that he be given another attorney. The following exchange then occurred at a bench conference:
        THE COURT: Well the court is _ _ if he wants to dismiss you he can, but the court is going to proceed, if there is not another lawyer here right now ready to proceed _ _

        DEFENDANT: Well what I could do with all due respect, Judge Jones, if you continue this I will personally _ _

        THE COURT: I'm not going to continue it.

            . . . .

        THE COURT: Do you want Mr. Rogerson today? If not, you can represent yourself. Those are your choices.

        DEFENDANT: Well, Judge, _ _

        THE COURT: Those are your only choices.

        DEFENDANT: Well I don't think I can be adequately defended by myself. Well, I mean, I don't think I can _ _

        THE COURT: You have two choices. You have yourself or you have Mr. Rogerson.

        DEFENDANT: I don't _ _ I don't think I can defend myself without adequately being _ _ I really don't to be honest with you.

        THE COURT: It appears to be an easy choice.

        DEFENDANT: But I don't _ _

        THE COURT: We're getting ready to get started, Mr. Starkey.

        DEFENDANT: But I don't have no way to represent myself, Judge Jones.

        THE COURT: Well you understand your options.

        DEFENDANT: Yes, sir.
        THE COURT: Do you want Mr. Rogerson to stay with you?

        DEFENDANT: No, sir.

        THE COURT: Sir?

        DEFENDANT: No, sir.

        THE COURT: You do not?

        DEFENDANT: No, sir.

        THE COURT: You're going to represent yourself?

        DEFENDANT: I'd rather have a lawyer that to my interest. And Mr. Rogerson is a good man. And we if we could have time to bring this witness to court _ _

        THE COURT: We're going to proceed.

        DEFENDANT: Well I don't have any way to defend myself.

        THE COURT: Are you going to represent yourself, Mr. Starkey? That's either a yes or a no answer. If you're not, I'll excuse him and I'll let you select your jury and represent yourself.

        DEFENDANT: I cannot get another lawyer?

        THE COURT: No, sir. Not at this point.

        DEFENDANT: Well see the only reason that is he did not know _ _

        THE COURT: Sir, I've already told you one time.

        DEFENDANT: Yes, sir.

        THE COURT: What do you want to do?

        DEFENDANT: I guess I have to come on God's hands and represent myself.

        THE COURT: You're going to represent yourself?

        DEFENDANT: Yes, I have no choice.
        THE COURT: Okay, that's fine. Mr. Rogerson is hereby allowed to withdraw at the request of the defendant. Okay.

        MR. ROGERSON: Thank you.

After the bench conference, the trial court informed the jury that defendant would be representing himself and proceeded to jury selection.
    At the conclusion of jury selection, the trial court announced a fifteen-minute recess and directed the jury to return at 3:25. Defendant failed to return after the recess, and the trial court excused the jury for the day. Defendant was late for court on the morning of 29 May 2002. Because the trial court had smelled the odor of alcohol on defendant's breath during the bench conference on 28 May 2002, the trial court had ordered that defendant be given a breathalyzer test. A court bailiff testified that defendant blew a .12 on an alcosensor about thirty minutes earlier. The trial court continued the matter, then found defendant to be in direct criminal contempt for failing to return on the afternoon of 28 May 2002 and for coming to court impaired on 29 May 2002. The trial court imposed a sentence of thirty days for the contempt.
    On 15 July 2002, defendant's case was again called for trial. Prior to jury selection, defendant complained that he had “wrotten [sic] the court, also [his] lawyer to request for an attorney and I never got no type of response whatsoever, and all of a sudden I'm here in the courtroom.” Defendant admitted to having discharged Mr. Rogerson as his appointed counsel on 28 May 2002, but he complained that Judge Jones had “forced” that decision upon him. He did request that Judge Haigwood appoint another attorney to represent him.
    The State informed the trial court that defendant had “three or four waivers in the file” and that “Judge Jones engaged in a very lengthy dialogue with the defendant telling him once he made the decision to discharge Mr. Rogerson he had to represent himself.” After permitting defendant to state why he discharged Mr. Rogerson, the trial court stated that “[i]t appears to the court that Judge Jones and you apparently hashed this out to some significant extent last time you were here in court and you made an informed decision to discharge Mr. Rogerson.” The matter then proceeded to trial with defendant representing himself.
    On 16 July 2002, the jury found defendant to be guilty of possession of cocaine and of having attained the status of an habitual felon. The trial court then sentenced defendant to a term of 100 to 129 months' imprisonment. From the trial court's judgment, defendant appeals.
    Defendant argues the trial court failed to conduct the mandatory inquiry pursuant to N.C. Gen. Stat. § 15A-1242 (2003) before allowing defendant's appointed counsel to withdraw upon defendant's request. He further contends he was denied his rights to due process and to effective representation by the trial court when it allowed him to discharge his appointed counsel while he may have been impaired by alcohol. We agree that at neither proceeding did the trial court conduct the mandatory inquiry required by N.C. Gen. Stat. § 15A-1242.    A defendant's waiver of the right to counsel and election to proceed pro se must be expressed “clearly and unequivocally.” State v. McGuire, 297 N.C. 69, 81, 254 S.E.2d 165, 173 (1979). The trial court must then determine whether a defendant knowingly, intelligently, and voluntarily waives the right to in-court representation by counsel. State v. Bullock, 316 N.C. 180, 185, 340 S.E.2d 106, 108 (1986). A trial court will satisfy these constitutional requirements by conducting the inquiry required by N.C. Gen. Stat. § 15A-1242. State v. Gerald, 304 N.C. 511, 519, 284 S.E.2d 312, 317 (1981). The statute states 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.

N.C. Gen. Stat. § 15A-1242. Failure by the trial court to conduct this mandatory inquiry is prejudicial error. State v. Pruitt, 322 N.C. 600, 603, 369 S.E.2d 590, 592 (1988).
    The trial court must also obtain a written waiver of the right to counsel and
        find[] 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. In making such a finding, the courtshall consider, among other things, such matters as the person's . . . mental condition . . . .

N.C. Gen. Stat. § 7A-457(a) (2003).
    Defendant here did not “clearly and unequivocally” state a desire to proceed in propria persona. His actions and responses to the trial court on 28 May 2002 about his desire to discharge his appointed counsel appear to be a failed attempt to obtain a continuance so that a witness could be brought to court. At both proceedings, defendant clearly requested new counsel. Although the trial court correctly informed defendant that he was not entitled to appointed counsel of his choosing, see State v. Anderson, 350 N.C. 152, 168, 513 S.E.2d 296, 306 (1999), the trial court nevertheless did not conduct the mandatory inquiry pursuant to N.C. Gen. Stat. § 15A-1242. The trial court therefore erred in allowing defendant to represent himself, and defendant is entitled to a new trial. Because defendant's other issues are not likely to arise upon retrial, we decline to discuss his remaining assignments of error.
    New trial.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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