An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 December 2005
STATE OF NORTH CAROLINA
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.
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
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
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
THE COURT: Excuse me?
[DEFENDANT]: I'm seeking counsel.
THE COURT: What kind of counsel?
[DEFENDANT]: I'm seeking Mr. Smothers to represent
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
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
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
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.
Judges McGEE and JACKSON concur.
Report per Rule 30(e).
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