An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-93

NORTH CAROLINA COURT OF APPEALS

Filed: 18 October 2005

STATE OF NORTH CAROLINA

v .                         Wake County
                            No. 02 CRS 104735
MARK DANIEL STEPHENS,             03 CRS 086325
        Defendant.

    Appeal by defendant from judgment entered 28 January 2004 by Judge James C. Spencer in Wake County Superior Court. Heard in the Court of Appeals 21 September 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Rudy E. Renfer, for the State.

    Jarvis John Edgerton, IV, for defendant.

    STEELMAN, Judge.

    Melanie Shekita (Shekita) was working as a Wake County Assistant District Attorney in the Spring of 2001 when defendant approached her for assistance concerning his son's pending criminal charges. Shekita apparently handled the pending cases in an expeditious, professional and polite manner, and defendant thanked her. Shekita testified that from this first innocuous encounter, defendant developed an uninvited and unwanted attachment to her. She testified that defendant wrote her letters, came to her office, sent her flowers, and made other unwanted advances and contacts. Defendant professed his love for Shekita, asked for her hand in marriage, and seemed to believe, in spite of her repeated requests that he cease all contact, that Shekita shared his affections. On19 March 2002 defendant pled guilty to misdemeanor stalking in connection with this unwanted attention, and was ordered to refrain from contacting her in any manner as part of his suspended sentence.
    Defendant did not abide by this condition of his sentence, and contacted, or attempted to contact, Shekita on numerous occasions from May through October of 2002. Defendant was charged with felony stalking on 4 November 2002, and indicted as an habitual felon on 18 November 2003. On 13 January 2004 defendant appeared before Judge Evelyn Hill for arraignment, where Judge Hill also heard and denied defendant's motion for new appointed counsel, and allowed defendant's request to represent himself pro se. Defendant was convicted of felony stalking and of being an habitual felon on 28 January 2004 after a jury trial in front of Judge James C. Spencer. From this judgment defendant appeals.
    In defendant's fourth argument he contends that the trial court committed reversible error in failing to conduct the relevant inquiry pursuant to N.C. Gen. Stat. § 15A-1242 before allowing him to proceed pro se. We agree.
    N.C. Gen. Stat. § 15A-1242 (emphasis added) 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 the consequences of this decision; and

        (3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.

This Court has stated:

         Waiver of counsel, like the waiver of all constitutional rights, must be knowing and voluntary. The record must affirmatively show that the inquiry mandated by N.C.G.S. § 15A-1242 was made and that the defendant, by his answers, was literate, competent, understood the consequences of his waiver, and voluntarily exercised his own free will. The inquiry is mandatory and failure to conduct it constitutes prejudicial error.

State v. Lamb, 103 N.C. App. 646, 648, 406 S.E.2d 654, 655 (1991).
    In the instant case, after Judge Hill denied defendant's request for appointment of different counsel, the following exchange took place:
        MR. TYNDALL [attorney for defendant]: My client says     he wishes to represent himself.

        THE COURT: That's not the question I asked, so please ask him.

        MR. TYNDALL: Your Honor, I'm going to be ready next     week, but it's my _ based on my conversation with my client, it appears that he doesn't want to go to trial with me under any circumstances.

        THE COURT: All right. Very well, I would allow you     to withdraw as trial and standby counsel. Next week for trial. You will be on trial next week, sir, with or without an attorney as you chose, okay? Any other questions, folks? [To defendant] Put your hand down. I have no further conversation to have with you. I've made my ruling.
    When defendant came before Judge Spencer for trial, defendant's stand-by counsel, Mr. Tyndall, informed the court that defendant was representing himself. Judge Spencer asked defendant:
        THE COURT: Now, my first inquiry to you, Mr.              Stephens, is whether you wish to continue to represent yourself, or whether you wish to have Mr. Tyndall resume his place as your counsel.

        THE WITNESS: I'd prefer to represent myself.

        THE COURT: You want to represent yourself. I'm sure     Judge Hill made inquiry prior about that when she allowed your previous motion. You will be allowed to represent yourself, if that's your desire.

    In this case, no inquiry was made as mandated by N.C. Gen. Stat. § 15A-1242. There is no written waiver of counsel contained in the record on appeal. State v. Hargrove, 104 N.C. App. 194, 198, 408 S.E.2d 757, 760 (1991) . In light of the complete failure to comply with the mandate of N.C. Gen. Stat. § 15A-1242, we are compelled to find reversible error and grant a new trial. Lamb, 103 N.C. App. at 648, 406 S.E.2d at 655.
    We do not discuss the defendant's other arguments as they may not recur at a new trial.
    NEW TRIAL.
    Judges HUNTER and TYSON concur.
    Report per Rule 30(e).

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