State v Young, (05-721) 02/07/2006

Appeal by defendant from judgment entered 21 July 2004 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 23 January 2006.

Attorney General Roy Cooper, by Assistant Attorney General Melissa H. Taylor, for the State.

Charlotte Gail Blake for defendant-appellant.

MARTIN, Chief Judge

    Michael Rass Young (“defendant”) appeals from his conviction for obtaining property by false pretense. For the reasons stated below, we hold defendant is entitled to a new trial.
    Following his arrest, defendant posted a secured bond and was released from custody on 3 July 2003. He signed a waiver of assigned counsel on 7 July 2003, and the Buncombe County grand jury indicted him on 3 November 2003 on a charge of obtaining property by false pretense. On 17 December 2003, the minutes of the Clerk of Buncombe County Superior Court reflect that defendant requested a court appointed attorney, but the trial court denied that motion on the grounds of the waiver signed by defendant on 7 July. While there is no record of those proceedings, defendant's notice ofappeal sets forth that defendant was represented by retained counsel at the time he signed the waiver but, due to the closing of his attorney's office, his retained counsel could not represent him and his attempts to retain another attorney were unsuccessful due to insufficient funds for legal fees. In addition to denying defendant's request for court-appointed counsel, the trial court set the case for trial on 26 January 2004.
    After several continuances, defendant's case came to trial on 20 July 2004. Defendant was arraigned and pled not guilty. The record before this Court does not show that the trial court inquired before the start of trial as to whether defendant understood and appreciated the consequences of proceeding pro se. See N.C. Gen. Stat. § 15A-1242 (2) (2003). The trial court made no inquiry as to whether defendant comprehended the nature of the charge, the proceedings, or the range of permissible punishments before it allowed him to proceed pro se. See N.C. Gen. Stat. § 15A-1242 (3). The trial court merely informed the jury that defendant had “elected to represent himself as his own attorney.” At the conclusion of the evidence, the jury found defendant guilty of obtaining property by false pretense. The trial court sentenced defendant to a term of six to eight months imprisonment, the execution of which was suspended, and defendant was placed on sixty months supervised probation. The trial court also ordered restitution in the amount of $9310.00. From the trial court's judgment, defendant appeals.
    Defendant contends the trial court erred by requiring him toproceed pro se at trial and asserts, in relevant part, that even if he waived his right to court-appointed counsel on 7 July 2003, he properly withdrew that waiver by his request to the trial court on 17 December 2003. We agree.
    “The right to counsel is one of the most closely guarded of all trial rights.” State v. Colbert, 311 N.C. 283, 285, 316 S.E.2d 79, 80 (1984). Nonetheless, a criminal defendant may “waive his [constitutional] right to be represented by counsel so long as he voluntarily and understandingly does so.” State v. Sexton, 141 N.C. App. 344, 346, 539 S.E.2d 675, 676 (2000) (citation omitted). A waiver of counsel remains “good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he desires to withdraw the waiver and have counsel assigned to him.” Id. at 346-47, 539 S.E.2d at 676. “[T]he burden is on the defendant not only to move for withdrawal of the waiver, but also to show good cause for the delay.” State v. Smith, 27 N.C. App. 379, 381, 219 S.E.2d 277, 279 (1975). This Court has noted that it is sufficient for a “criminal defendant [to] move or request the trial court to withdraw a previous waiver of counsel.” State v. Hyatt, 132 N.C. App. 697, 701, 513 S.E.2d 90, 93 (1999).
    For purposes of this appeal, we assume defendant properly waived his right to counsel before the district court on 7 July 2003. Nonetheless, the minutes of the Superior Court clearly reflect, and defendant has carried his burden of showing under Hyatt, that he requested court-appointed counsel on 17 December 2003. While defendant would generally have the burden of furthershowing good cause for any delay occasioned by his motion to withdraw waiver of court-appointed counsel, nothing in the record indicates a delay resulted from his request. The record indicates only that defendant lost the attorney he retained due to reasons beyond his control, could not afford another retained attorney, and therefore sought to have the court appoint him representation. Under these facts, we hold defendant properly requested the withdrawal of his waiver of the right to court-appointed counsel, and the trial court erred in requiring defendant to proceed pro se at his trial without making the inquiry and finding required by Article 36 of Chapter 7A of the General Statutes and N.C. Gen. Stat. § 15A-1242. Accord State v. Bullock, 316 N.C. 180, 186, 340 S.E.2d 106, 109 (1986) (noting that the case was not one involving “a situation where the record shows that a criminal defendant, capable of employing counsel, has attempted to prevent his trial by refusing to employ counsel and also refusing to waive counsel and respond to the inquiry required by N.C. Gen. Stat. § 15A-1242”).
    New trial.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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