An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-33


Filed: 2 August 2005


         v.                        McDowell County
                                Nos. 01 CRS 3332-4
                                    01 CRS 3427

    On a writ of certiorari from judgments entered 11 June 2002 by Judge Zoro J. Guice, Jr. in McDowell County Superior Court. Heard in the Court of Appeals 18 July 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State.

    Carol Ann Bauer, for defendant-appellant.

    MARTIN, Chief Judge.

     Defendant was convicted on 11 June 2002 of possession with intent to sell and deliver marijuana; maintaining a place for keeping controlled substances; carrying a concealed weapon; and habitual felon status. He was sentenced to two terms of a minimum of 116 months and a maximum of 149 months, to run concurrently. Notice of appeal was not given. His petition for a writ of certiorari was allowed by this Court on 10 July 2003. The record on appeal was filed in this Court on 10 January 2005.
    The sole issue is whether the court erred by allowing defendant to represent himself at trial. The State concedes that the court committed error and that defendant is entitled to a new trial.    The record shows that at an administrative hearing on 8 April 2002, the following transpired:
        MR. MUNDY: Your honor, margin 20, James Casselman. Sir, if you will step up. That is on for administrative setting.

        THE COURT: All right. I take it counsel inquiry needs to be made.

        MR. MUNDY: Yes.

        THE COURT: Mr. Casselman, do you wish to be considered for a court-appointed attorney, represent yourself, or hire your own lawyer, sir?

        MR. CASSELMAN: I will try to hire my own.

        THE COURT: All right. You are going to hire your own lawyer. Please see the clerk, sign a waiver saying you don't want a court-appointed lawyer. All right. June the 10th?

        MR. MUNDY: Yes, ma'am, if we can put that for June the 10th.

The matter came on for trial on 10 June 2002. Defendant represented himself. The stenographic transcript of the trial fails to show any proceedings regarding defendant's waiver of counsel. During his presentation of evidence, defendant made the following statement to the jury:
        I really have no defense for these charges. I made mistakes in my life that I've regretted. I hope that you all have mercy on me.

        I got these charges on me. And one of the charges I accepted to cover somebody else up. I didn't know it would ruin my life like it has.

        And I don't know nothing about the law as you seen earlier. I try to defend myself because I couldn't get a lawyer. I made a mistake of waiving my rights for a court-appointedattorney because I was waiting for some _ my disability to come through. It doesn't come until next month and it's too late. I really have no defense. It's whatever you decide. That's all.

    “Before allowing a defendant to waive in-court representation by counsel, . . . the trial court must insure that constitutional and statutory standards are satisfied.” State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992). First, defendant's “waiver of the right to counsel and election to proceed pro se must be expressed 'clearly and unequivocally.'” Id. at 673, 417 S.E.2d at 475 (quoting State v. McGuire, 297 N.C. 69, 81, 254 S.E.2d 165, 173, cert. denied, 444 U.S. 943, 62 L. Ed. 2d 310 (1979)). Second, “[o]nce a defendant clearly and unequivocally states that he wants to proceed pro se, the trial court, to satisfy constitutional standards, must determine whether the defendant knowingly, intelligently, and voluntarily” waived his right to counsel. Id. at 674, 417 S.E.2d at 476.
    To provide a procedure to comply with the foregoing constitutional requirements, the General Assembly enacted N.C. Gen. Stat. § 15A-1242, which states:
        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 theconsequences 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 (2003). The trial court's failure to conduct the foregoing inquiry before permitting a defendant to represent himself is prejudicial error. State v. Bullock, 316 N.C. 180, 186, 340 S.E.2d 106, 109 (1986).
    The record in the case at bar clearly indicates that when defendant signed the waiver of counsel, he did it with the expectation of retaining counsel. Absent from the present record is any evidence to indicate that defendant ever intended to proceed to trial without the assistance of some counsel. Also absent from the present record is any inquiry by the court pursuant to N.C. Gen. Stat. § 15A-1242 to determine that defendant intelligently and voluntarily waived assistance of counsel. The absence of such inquiry entitles defendant to a new trial. See State v. McCrowre, 312 N.C. 478, 481, 322 S.E.2d 775, 777 (1984).
    New trial.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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