An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-652

NORTH CAROLINA COURT OF APPEALS

Filed: 18 April 2006

STATE OF NORTH CAROLINA

v .                         Davidson County
                            No. 04 CRS 52906-7
ARKIM RIDDICK,
    Defendant.

    Appeal by Defendant from judgment entered 30 September 2004 by Judge Kimberly S. Taylor in Superior Court, Davidson County. Heard in the Court of Appeals 6 March 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State.

    Jarvis John Edgerton, IV, for defendant-appellant.

    WYNN, Judge.

    A criminal defendant, who understands and appreciates the consequences of his decision of self-representation, has the constitutional right to refuse counsel and represent himself at trial.   (See footnote 1)  In this case, Defendant argues that the trial court erroneously denied his request to represent himself after jury selection. Because the trial court was not satisfied that Defendant understood and appreciated the consequences of his decision, we uphold the trial court's denial of Defendant's request to represent himself.     On 19 April 2004, Defendant Arkim Riddick was indicted on, inter alia, one count of trafficking cocaine by manufacture and one count of trafficking cocaine by possession. The trial court appointed counsel, Paul Bollinger, for Defendant. Before jury selection at his trial on 29 September 2004, Defendant asked the trial court to remove Mr. Bollinger as his counsel and appoint another attorney because he felt that Mr. Bollinger “didn't prepare me for my defense[.]” Thereafter, the trial court denied his counsel's motion to withdraw. Defendant then asked, “Can I go without one? I don't want to go with him.” The trial court asked Defendant if he wanted to represent himself. Defendant responded “No, I don't want to represent myself.” The trial court informed Defendant that Mr. Bollinger would remain as his attorney.
    Following jury selection and a lunch recess, Mr. Bollinger informed the trial court that Defendant wanted to represent himself. In response, the trial court again asked Defendant if he wanted to be represented by an attorney. Defendant responded, “Other than Paul Bollinger, yes.” The trial court informed Defendant of the possible sentences he could receive and asked, “You are wanting a lawyer to represent you; is that correct?” To which Defendant responded, “Yes, ma'am, other than Paul Bollinger.” The trial court then denied the motion stating, “I will not let you represent yourself and you are telling me that you want a lawyer to represent you.” The trial judge went on to state that, “The Court does not believe that Mr. Riddick understands the consequences of representing himself in this matter and I will deny his motion.”     The trial continued and Defendant was found guilty of one count of trafficking cocaine by manufacture and one count of trafficking cocaine by possession. Defendant was sentenced to thirty-five to forty-two months imprisonment for each count. Defendant appeals.
        _________________________________________
    On appeal, Defendant argues that the trial court abused its discretion and violated his constitutional rights under the Sixth Amendment to the United States Constitution when it denied him the right to self-representation. We disagree.
    A criminal defendant has the constitutional right to refuse counsel and represent himself at trial. U.S. Const. amend. VI; N.C. Const. art. 1, §23; N.C. Gen. Stat. § 15A-1242. Services of counsel cannot be forced upon an unwilling defendant. State v. Thacker, 301 N.C. 348, 354, 271 S.E.2d 252, 256 (1980). “However, the waiver of counsel, like the waiver of all constitutional rights, must be knowing and voluntary, and the record must show that the defendant was literate and competent, that he understood the consequences of his waiver, and that, in waiving his right, he was voluntarily exercising his own free will.” Id. (citing Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562 (1975)).
    After Mr. Bollinger informed the trial court that Defendant wished to represent himself, the following exchange took place between the trial court and Defendant:
        THE COURT: You have now decided that you want to represent yourself?
        DEFENDANT: Ma'am, I really don't want to represent myself being he came to me yesterday saying he wanted to go to trial and we have not had enough time to prepare my defense, I feel that I cannot get another lawyer to help me represent myself or prepare my case or to get witnesses I need to help defend my case --

        THE COURT: All right. Well, my question to you is do you want to be represented by an attorney, sir?

        DEFENDANT: Other than Paul Bollinger, yes.

        THE COURT: All right. Well, I need to tell you that you are charged with two trafficking offenses, that if you are convicted of those you would receive a sentence of 35 to 42 months active and the minimum fine is 50 thousand dollars for those charges and the Class H Felony, the possible maximum punishment for that offense is 30 months in prison. You are wanting a lawyer to represent you; is that correct?

        DEFENDANT: Yes, ma'am, other than Paul Bollinger.

        THE COURT: I will deny the motion, Mr. Bollinger. He has a lawyer. Have a seat, sir. I will not let you represent yourself and you are telling me that you want a lawyer to represent you. We will proceed.

        ***

        DEFENDANT: Ma'am, I fully understand what I am about to do. I would like to represent myself.

        THE COURT: I understand, sir, but I do not find that you understand the consequences, specifically, the day of the trial.

    Although initially Defendant asked for alternative counsel, eventually he did specifically ask to represent himself. Therefore, the trial court needed to inquire whether Defendant understood the consequences of his decision. Thacker, 301 N.C. at354, 271 S.E.2d at 526. Our Supreme Court has held that following the inquiry set out in section 15A-1242 of the North Carolina General Statutes satisfies the requirement. Id. at 354-55, 271 S.E.2d at 256. Section 15A-1242 provides:
        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.
    The trial court found that Defendant had been informed and understood the possible maximum punishment he could receive for the crimes charged and understood that he had the right to appointed counsel. However, the trial court found that Defendant did not understand the consequences of representing himself in this matter. The trial court stated, “I understand, sir, but I do not find that you understand the consequences, specifically, the day of the trial.” Therefore, the trial court was not satisfied that Defendant fulfilled section 15A-1242(2) of the North Carolina General Statutes. Section 15A-1242 requires that the trial court must be satisfied that the defendant understands all three prongs. See N.C. Gen. Stat. § 15A-1242. Since the trial court was not satisfied that Defendant understood the consequences of his decision, it properly denied Defendant's motion to represent himself.
    Affirmed.
    Chief Judge MARTIN and Judge STEPHENS concur.
    Report per Rule 30(e).


Footnote: 1
     U.S. Const. amend. VI; N.C. Gen. Stat. § 15A-1242 (2005).

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