Appeal by defendant from judgments dated 12 September 2005 by
Judge W. Osmond Smith, III, in Person County Superior Court. Heard
in the Court of Appeals 30 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Ebony J. Pittman, for the State.
James N. Freeman, Jr., for defendant-appellant.
Joseph Casey McGhee (defendant) appeals the revocation of his
probation and activation of his sentences by judgments dated 12
September 2005, entered after a hearing before the Honorable W.
Osmond Smith, III. We affirm the judgments of the trial court.
Facts and Procedural History
Defendant was convicted of possession with intent to
sell/deliver a counterfeit controlled substance on 13 November 2002
and possession of stolen goods on 13 August 2003. The trial court
suspended defendant's sentences and placed defendant on supervised
probation for thirty-six months. Defendant's probation officer
filed probation violation reports on 22 March 2005 and 26 May 2005
alleging that defendant violated the conditions of his probation. Defendant's probation violation hearing was held before Judge
W. Osmond Smith, III, on 12 September 2005. At the beginning of
the hearing, defendant's trial counsel, Daniel Long, informed the
court that he had been privately retained by defendant's family to
represent him in the probation violation matters and had been
court-appointed in other pending criminal charges. Mr. Long then
informed the trial court that defendant wishes to represent
himself and wants me to withdraw. The trial court asked Mr. Long
about the issue of defendant's capacity to proceed and was informed
defendant had been found competent to proceed by judicial order.
The trial court asked what defendant had to say and the
[DEFENDANT]: On these case[s], right here, on
the probation, I'd rather take my chances and
try all of them because, really, I didn't know
what I was getting into taking these plea
bargains. I was really just manipulated by
other people with these plea bargains, not
realizing what I was getting into.
I'll take my chances and face whatever I've
got to face as far as just trying the whole
cases on both of them for what they are.
THE COURT: Okay. That's what you want me to
[DEFENDANT]: I'm not interested in an
attorney. I'd just like to get it all over
THE COURT: You already have an attorney.
[DEFENDANT]: Well, that's what he said.
THE COURT: It's what I said. So you still got
Mr. Long noted that he had not made a written notice to withdrawand informed the court he was making a formal motion to withdraw,
with him being present, to withdraw as his attorney in all matters
that are pending. Mr. Long further informed the court that he was
prepared to proceed if defendant chose Mr. Long to represent him.
The trial court then asked Mr. Long what was the basis of his
motion to withdraw and Mr. Long responded, He's saying that he
wants to fire me, basically, is my understanding, that he wants to
proceed on his own without an attorney. When given an opportunity
to speak on his counsel's formal motion to withdraw, defendant
I'd rather get it all over with. I've been
held in the jail too long for not to get these
cases over with, and I'm tired of hearing him
coming to me with a plea bargain, trying to
bribe me with a plea bargain.
I'm willing to face it, for all of it, the
probation violation and all of it. I want to
try it for what it's worth.
The following colloquy then took place:
THE COURT: That does not appear to me to be a
sufficient basis to consider - - - [his]
motion to discharge or waive his rights to an
attorney. With that being said, I don't
consider it sufficient for counsel to be
discharged on the probation violations. I'll
let you take up next week's cases with the
trial judge presiding at that time.
MR. LONG: I would ask to have just a few
minutes with the defendant, but then I think
we'll be ready to proceed on - - -
THE COURT: All right.
MR. LONG: - - on the probation violations.
THE COURT: All right.
THE COURT: As I said, the Court does notconsider that the defendant has asked to waive
his rights to a lawyer.
The probation violation hearing proceeded, with Mr. Long
After the trial court concluded that defendant had willfully
violated conditions of probation, the State asked the trial court
to revoke defendant's probation and activate defendant's sentences.
Defendant's counsel noted that defendant had 234 days in jail
credit and that defendant spent 60 days on house arrest as a
result of another previous violation. The trial court revoked
defendant's probation and activated his sentences, to run
concurrently. The trial court gave defendant credit for 234 days
spent in confinement on his activated sentence. Defendant appeals.
Defendant argues the trial court erred by: (I) denying
defendant's trial counsel's motion to withdraw; and (II) failing to
credit defendant's time spent under house arrest towards his
activated sentences. For the reasons below, we disagree.
Defendant first assigns as error the trial court's denial of
trial counsel's Motion to Withdraw as counsel for Defendant in
contravention of Defendant's stated wishes to no longer have
counsel represent him in violation of the Sixth and Fourteenth
Amendments[.] In his brief, defendant argues that by denying his
attorney's motion to withdraw, the trial court denied defendant's
right to represent himself. Defendant asserts that the trial court
should have conducted a hearing pursuant to N.C. Gen. Stat. § 15A-1242 to determine whether defendant wished to represent himself
once Mr. Long moved to withdraw. We disagree.
A criminal defendant has a [federal] constitutional right to
the assistance of counsel in his defense, which implicitly includes
the right to refuse the assistance of counsel and to conduct his
own defense. State v. Johnson
, 341 N.C. 104, 110, 459 S.E.2d 246,
249 (1995) (citation omitted). In North Carolina, this right of
self-representation is also guaranteed by Article I, Section 23 of
the North Carolina Constitution and by Chapter 15A, Section 1242 of
the North Carolina General Statutes. State v. LeGrande
, 346 N.C.
718, 725, 487 S.E.2d 727, 730 (1997), reh'g denied
, 351 N.C. 365,
542 S.E.2d 650-51 (2000). N.C. Gen. Stat. § 15A-1242 sets forth
the prerequisites necessary before a defendant may waive his
constitutional right to counsel and represent himself at trial.
N.C. Gen. Stat. § 15A-1242 (2005).
A defendant's waiver of the right to counsel and concomitant
election to proceed pro se
must be clearly and unequivocally
expressed. State v. Thomas
, 331 N.C. 671, 673-74, 417 S.E.2d 473,
475 (1992). In the absence of a clear expression of desire to have
counsel removed and proceed pro se
, the trial court need not make
an inquiry under N.C. Gen. Stat. § 15A-1242 to determine if the
defendant understands the consequences of his election and
voluntarily and intelligently waives his right to representation.
, 341 N.C. at 111, 459 S.E.2d at 250. In the absence of a
clear expression by the defendant of a desire to proceed pro se
trial judge faced with a claim of conflict between defendant andhis attorney must determine only that the defendant's present
counsel is able to render competent assistance and that the nature
of the conflict will not render such assistance ineffective. Id.
Here, defendant initially stated, I'm not interested in an
attorney. However, when asked to respond to his counsel's formal
motion to withdraw, defendant stated that he was tired of hearing
him coming to me with a plea bargain and would rather get it all
over with. The trial court then found that defendant had set
forth no legal or factual basis for Mr. Long's dismissal and denied
the motion. Defendant did not equivocally state that he wanted to
represent himself. As appellate counsel notes in his brief,
defendant's statements to the Court were not completely clear as
to his intentions. Although defendant expressed his
dissatisfaction with the plea bargains, at no time did he request
that his retained attorney be removed from his case and that he be
allowed to represent himself.
Based on the record, we conclude that defendant did not
clearly and unequivocally request to proceed pro se.
trial court's determination that defendant's counsel had provided
competent assistance was sufficient and no further inquiry was
necessary. The trial court's inquiry into defendant's reasons for
wishing to dismiss Mr. Long and its determination that defendant's
counsel was ready to proceed and provide competent assistance with
the probation violation hearing was sufficient. Having failed to
properly assert the right to represent himself, defendant cannot
successfully claim that he was denied that right. This assignmentof error is overruled.
Defendant also assigns error to the trial court not counting
the sixty days defendant spent under house arrest as part of his
suspended sentence as time served and crediting to those days of
confinement towards his sentence However, this Court has held
that house arrest does not constitute confinement and therefore
does not qualify as time that can be credited against a
defendant's sentence pursuant to section 15-196.1. State v.
140 N.C. App. 198, 206, 535 S.E.2d 875, 880 (2000). Thus,
the trial court properly did not credit defendant's sixty days of
house arrest toward defendant's sentence. This assignment of error
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***