An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1643


Filed: 6 December 2005


     v .                          Guilford County
                                 Nos. 03 CRS 095102-105 SHAYNIO MARCUS THOMAS                 03 CRS 095109-110                                  03 CRS 095113

    Appeal by defendant from judgments entered 9 June 2004 by Judge Judson D. DeRamus, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 14 September 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General John F. Maddrey, for the State.

    Russell J. Hollers III, for defendant appellant.

    McCULLOUGH, Judge.

    Shaynio Marcus Thomas (defendant) appeals from conviction and judgment for possession of a firearm by a felon, attempted robbery with a dangerous weapon, and five counts of second-degree kidnapping. Because the trial court failed to comply with the mandates of N.C. Gen. Stat. § 15A-943(b), defendant must receive a new trial.
    A Guilford County grand jury returned true bills of indictment against defendant on 9 February 2004 for possession of a firearm by a felon, attempted robbery with a dangerous weapon, and five counts of kidnapping. In these indictments, it was alleged that defendantentered a KFC restaurant, forced customers and employees to the rear of the restaurant at gunpoint and demanded money.
    On 26 February 2004, a Form AOC-CR-215 “Notice of Return of Bill of Indictment” was forwarded to defendant's attorney, Thomas Smothers, along with attached copies of the indictments. This notice did not include a warning to defendant that he was required to request an arraignment within the twenty-one-day period following service of the indictments if he wished to be indicted pursuant to section 15A-941 of the General Statutes.
    On 19 March 2004, defendant appeared in superior court and waived his right to counsel. The judge allowed defendant to represent himself and appointed defendant's former court-appointed attorney, Thomas Smothers, as standby counsel.
    On 4 April 2004, defendant wrote the trial judge a letter in which he indicated, “I haven't been arraigned . . . and [am] hoping that I can get into court as soon as possible.” On 7 May 2004, defendant filed with the superior court a handwritten document styled “Motion for Arraignment” in which he sought an arraignment pursuant to sections 15A-941 and 15A-943 of the General Statutes. Apparently, no action was taken on defendant's requests for arraignment prior to defendant's trial.
    On 7 June 2004, defendant's cases were called for trial. The judge noted that defendant's files did not indicate whether or not he had been formally arraigned. The following colloquy then ensued:
        THE COURT: I'm asking you at this time, and now it's your time to advise me whether you wish to have a formal arraignment at this time on these charges - -
        [DEFENDANT]: Yes, I do.

        THE COURT: All right. Very well. [Prosecutor], if you will proceed with formal arraignment of the defendant.

    The prosecutor read the indictments and defendant entered pleas of not guilty to all but one of the charges. Defendant did not enter a plea on one of the kidnapping charges because the prosecutor moved to amend the indictment. After hearing the State's motion to amend the indictment, the trial court and defendant had the following exchange:
        THE COURT: Is this [amendment] going to affect your ability to defend the case on the merits?

        [DEFENDANT]: Personally, your Honor, personally, I'm seeking counsel.

        THE COURT: Excuse me?

        [DEFENDANT]: I'm seeking counsel.

        THE COURT: What kind of counsel?

        [DEFENDANT]: I'm seeking Mr. Smothers to represent me.

        THE COURT: You want him to be your attorney?

        [DEFENDANT]: Yes, your Honor, because it seems like, you know, they're putting a monkey wrench, and I'm quite aware of it, so I need counsel on this, because my motion was denied. I haven't been heard on my motions. I mean, come on. It just don't make no sense, you know what I'm saying?

        THE COURT: You are aware you previously waived counsel and wanted to represent yourself, and you now wish to - -

        [DEFENDANT]: I wish to have my counsel back.

        THE COURT: And he is already familiar with the case?
        [DEFENDANT]: I mean, I'm also gonna ask for a continuance, you know what I'm saying? A motion to continue, because I don't want to be, uh, I don't want to start a trial next week. He's not ready.

    The prosecution opposed defendant's request for reappointment of counsel and indicated that the State was ready for trial. The trial court denied defendant's request for reappointment of Mr. Smothers as trial counsel. Consequently, defendant represented himself at the trial that commenced on 8 June 2004, the day after the formal arraignment.
    On 9 June 2004, a jury returned verdicts of guilty for all charges, and the trial court imposed consecutive sentences totaling 355 to 485 months' imprisonment. Defendant now appeals.

    In his first argument on appeal, defendant contends that the trial court erred by holding defendant's trial in the same week in which he was arraigned. We agree.
    An arraignment is the process of “bringing a defendant in open court . . . before a judge having jurisdiction to try the offense, advising him of the charges pending against him, and directing him to plead.” N.C. Gen. Stat. § 15A-941(a) (2003). Section 15A-941 (d) of the General Statutes limits the right to an arraignment as follows:
        A defendant will be arraigned . . . only if the defendant files a written request with the clerk of superior court for an arraignment not later than 21 days after service of the bill of indictment. If a bill of indictment is not required to be served pursuant to G.S. 15A-630, then the written request for arraignment must be filed not later than 21days from the date of the return of the indictment as a true bill. Upon the return of the indictment as a true bill, the court must immediately cause notice of the 21-day time limit within which the defendant may request an arraignment to be mailed or otherwise given to the defendant and to the defendant's counsel of record, if any. If the defendant does not file a written request for arraignment, then the court shall enter a not guilty plea on behalf of the defendant.

N.C. Gen. Stat. § 15A-941(d) (2003). Notice of the return of a bill of indictment need not be given where, as here, a defendant is represented by counsel of record at the time the indictment was returned. N.C. Gen. Stat. § 15A-630 (2003); State v. Miller, 42 N.C. App. 342, 346, 256 S.E.2d 512, 515 (1979).
    Pursuant to section 15A-943 of the North Carolina General Statutes, special rules apply to arraignments held in counties with a large criminal docket:
            (a) In counties in which there are regularly scheduled 20 or more weeks of trial sessions of superior court at which criminal cases are heard, and in other counties the Chief Justice designates, the prosecutor must calendar arraignments in the superior court on at least the first day of every other week in which criminal cases are heard. No cases in which the presence of a jury is required may be calendared for the day or portion of a day during which arraignments are calendared.

            (b) When a defendant pleads not guilty at an arraignment required by subsection (a), he may not be tried without his consent in the week in which he is arraigned.

N.C. Gen. Stat. § 15A-943 (2003). Our Supreme Court has held that, where subsection (a) applies, “subsection (b) clearly sets forth a statutory right of each such defendant 'not [to] be tried withouthis consent in the week in which he is arraigned.'” State v. Shook, 293 N.C. 315, 319, 237 S.E.2d 843, 846 (1977). This Court has reiterated that “subsection (b) vests defendant with a right to at least a week's interim between his arraignment and trial in order to prepare his case.” State v. Richardson, 308 N.C. 470, 482, 302 S.E.2d 799, 806 (1983). Where a defendant makes known his request to receive the preparation time required by section 15A-943(b), our appellate courts do not consider whether a denial prejudiced the defendant:
        To require a defendant to show prejudice when asserting the violation of this statutory right which he has insisted upon at trial would be manifestly contrary to the intent of the legislature, which has provided that the week's time between arraignment and trial must be accorded him unless he consents to an earlier trial. Prejudice under these circumstances must necessarily be presumed.

Shook, 293 N.C. at 319, 237 S.E.2d at 847.
    “[A] defendant must affirmatively assert the right; and when a defendant fails to object, this statutory right is waived, and a defendant is deemed to have implicitly consented for the trial to occur within the week.” State v. Roache, 358 N.C. 243, 277, 595
S.E.2d 381, 404 (2004). Moreover, this Court has held that a defendant may waive his right to a post-arraignment continuance under section 15A-943 if he fails make a request for an arraignment in accordance with section 15A-941. See State v. Lane, 163 N.C. App. 495, 503, 594 S.E.2d 107, 112-13 (2004); State v. Trull, 153 N.C. App. 630, 633-34, 571 S.E.2d 592, 595 (2002), disc. review denied, appeal dismissed, 356 N.C. 691, 578 S.E.2d 597 (2003). Both Lane and Trull involved a defendant who had failed to file even an untimely request for an indictment.
    In the instant case, defendant was indicted in a county in which he was entitled to have an arraignment calendared pursuant to section 15A-943, and defendant filed numerous requests for such an arraignment. Though such requests were not within the twenty-one- day period required by section 15A-941(d), defendant was never given the requisite notice of the twenty-one-day period, and his requests for formal arraignment were submitted to the trial court well before the time that the charges against him were called for trial. When defendant finally was arraigned, the trial court denied defendant's request to exercise his right under section 15A- 943(b) to at least a one-week interim between his arraignment and trial. This failure to abide by the dictates of section 15A-943(b) was reversible error. Accordingly, defendant is entitled to a new trial on all of the charges which are the subject of this appeal.
    This disposition obviates the need to address defendant's argument that the trial court erred by denying his request for reappointment of counsel. However, we note that if, on remand, defendant renews his request for counsel, the trial court shall conduct an appropriate inquiry and, if appropriate, provide defendant with an attorney.
    New trial.
    Judges McGEE and JACKSON concur.
    Report per Rule 30(e).

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