An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1424


Filed: 6 September 2005


         v.                        Mecklenburg County
                                No. 03 CRS 235909

    Appeal by defendant from judgment entered 13 July 2004 by Judge Nathaniel J. Poovey in the Superior Court in Mecklenburg County. Heard in the Court of Appeals 22 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State.

    Bryan Gates, for defendant-appellant.

    HUDSON, Judge.

     Defendant was charged by warrant with communicating threats. From a conviction in district court, he appealed to superior court, where a jury found him guilty. The court sentenced him to an active term of 120 days.
    The issue presented by defendant's sole assignment of error is whether the court conducted adequate inquiry pursuant to N.C. Gen. Stat. § 15A-1242 before allowing defendant to proceed pro se. The record shows the following transpired at the call of the case for trial:
        THE COURT: Is there anything before we bring in the jury?

        MR. OSHO: Yes, Your Honor. Before the jury does come in, Your Honor, in District Court myclient tried this case on his own. And I think he's a very intelligent young man and he knows his case better than anybody else, and I'd ask the Court just that I should be a stand by to, you know, assist him in any way that he wants to. I don't know if the Court wants to make inquiry of that as to that decision. He told me that's what he wants to do and I'd like the Court to establish that before we begin this.

        THE COURT: All, right, Mr. Bloomfield, you've got a lawyer, Mr. Lucky Osho. Stand up, sir.

        THE DEFENDANT: Yes, sir.

        THE COURT: Do you intend to represent yourself in this case or are you going to have Mr. Osho represent you?

        THE DEFENDANT: I intend on doing it myself, Your Honor, as long as Mr. Osho can be stand by if Your Honor please.

        THE COURT: All right. I don't know that I totally understand. Mr. Osho, are you appointed to represent him or _

        MR. OSHO: Yes, sir, I was appointed.

        THE COURT: And, Mr. Bloomfield, you're now saying that you do not wish to have a court- appointed lawyer and you want to represent yourself in this case?

        THE DEFENDANT: Yes, Your Honor, if that would please the Court, yes, sir.

        THE COURT: But you say you still want Mr. Osho to stand by, is that right?

        THE DEFENDANT: If that's possible, yes, Your Honor, in case I have any questions.

        THE COURT: I'm going to allow you to do that. You certainly have the right to represent yourself and not have a lawyer.

        But do you understand by making that choice, Mr. Osho's not going to be able to step in for you and start asking questions? It's either going to be one way or another. Either Mr.Osho's going to ask all the questions and either he's going to be the lawyer, or you're going to be your own lawyer and represent yourself and you're going to have to ask all the questions.

        And do you understand also, sir, that you're going to be bound by the same rules of conduct that a lawyer would?

        THE DEFENDANT: Yes.

        THE COURT: You're going to be bound by the same rules of evidence and everything else that a lawyer would be. I'm not going to give you any special favors or anything else just because you don't know what to do.

        THE DEFENDANT: Yes, sir, I understand. I understand, Judge Poovey.

        THE COURT: All right, if you all would take your seats.

        MR. OSHO: Yes, sir.

        THE COURT: Is there anything else before we bring in the jury?

        THE DEFENDANT: No, Your Honor.

N.C. Gen. Stat. § 15A-1242 mandates the following inquiry before a court may allow a defendant to proceed in propria persona:
        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 (2004). The Supreme Court has held that a court's failure to conduct the statutory inquiry requires reversal. State v. Bullock, 316 N.C. 180, 186, 340 S.E. 2d 106, 109 (1986). The availability or participation of standby counsel does not excuse the failure to make the inquiry. State v. Dunlap, 318 N.C. 384, 389, 348 S.E.2d 801, 805 (1986). Although the court did inquire into the defendant's understanding of the role of standby counsel, the colloquy does not satisfy all of the statutory requirements. The court's inquiry here fails to establish that the court “clearly advised” defendant of his right to assistance of counsel and does not show that defendant comprehended either the nature of the charges and proceedings or the range of permissible punishments. Because the court's inquiry failed to comply with the dictates of N.C. Gen. Stat. § 15A-1242, defendant is entitled to a new trial. State v. Pruitt, 322 N.C. 600, 604, 369 S.E.2d 590, 593 (1988)(holding the defendant was entitled to new trial when the inquiry failed to establish defendant understood the consequences of representing himself, the nature of the proceedings, and the range of permissible punishments).
    New trial.
    Judge MCGEE concurs.
    Judge LEVINSON concurs with separate opinion.
    Report per Rule 30(e).

NO. COA04-1424


Filed: 6 September 2005

v .                         Mecklenburg County
                            No. 03CR235909

LEVINSON, Judge concurring.

    I agree with the majority that nothing in the record, including the district court judgment, reflects that defendant was aware of the “range of permissible punishments” for the offense of communicating threats. Unlike the majority, however, I am satisfied that the remaining requirements of N.C.G.S. § 15A-1242 (2003) were met.    

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