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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. KENDRICK DONTA COLSON
Filed: 2 October 2007
1. Constitutional Law--right to counsel and right to testify--entitlement to both
Forcing defendant to choose between testifying or relinquishing his right to be
represented by counsel constituted constitutional error in an armed robbery prosecution where the
counsel was of the opinion that defendant's testimony would be false and the judge told
defendant that he could proceed pro se if he insisted on testifying. Defendant is entitled both to
testify in his own behalf and to his right to counsel.
2. Sentencing--prior record level--prior probationary status--determination by jury
In a case remanded on other grounds, the trial court must submit defendant's prior
probationary status to the jury for proof beyond a reasonable doubt, unless it is admitted by
defendant, in order to use that status to enhance defendant's prior record level for the purpose of
Appeal by defendant from judgment entered 1 October 2003 by
Judge Michael E. Beale in Anson County Superior Court. Heard in
the Court of Appeals 12 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
Haral E. Carlin, for defendant-appellant.
This Court granted Kendrick Donta Colson's (defendant)
petition for writ of certiorari to review judgment entered after a
jury found him to be guilty of robbery with a dangerous weapon
pursuant to N.C. Gen. Stat. § 14-87. We hold that defendant is
entitled to a new trial.
The State's evidence tended to show that on 19 January 2003,
defendant and an accomplice allegedly entered into a convenience
store, pointed handguns at the owner and the owner's father, and
threatened to shoot both of them if the owner did not hand over his
money. Three days later, on 22 January 2003, defendant was
interviewed by Wadesboro Police Detectives about the 19 January
2003 robbery. Defendant waived his Miranda rights and confessed to
committing the robbery while being interviewed. The alleged
offense occurred approximately one month prior to defendant's
On 25 February 2003, defendant was declared indigent and
Robert Leas, Esq. (Leas) was appointed to represent him. On 7
April 2003, defendant was indicted for robbery with a dangerous
weapon. On 29 September 2003, the day before trial was to begin,
Leas moved to withdraw as counsel and informed the court that he
could no longer competently and professionally represent
Leas told the court that defendant wished to testify in his
own defense and that in Leas's opinion defendant's testimony would
be false. The trial judge stated that a mere disagreement between
the defendant and court appointed counsel was not sufficient to
grant Leas's motion to withdraw. The trial judge explained to
defendant that Leas could not knowingly present evidence to the
court that Leas believed to be false and that another lawyer could
not be appointed to do the same thing Leas was prohibited from
doing. The judge told defendant that if he insisted on testifyingin his own behalf, defendant could discharge Leas as counsel and
proceed pro se.
Defendant responded to the trial court that he wanted to
testify on his own behalf and wanted Leas or other counsel to
represent him. The record shows further questions and
conversations ensued until defendant indicated he would testify and
would like to proceed without a lawyer. The trial court allowed
Leas to withdraw as counsel and placed him on standby to assist
defendant if he had any legal questions during trial.
At trial, the convenience store owner positively identified
defendant as one of the robbers during the State's case-in-chief.
Defendant testified in his own behalf that he was at home on the
night of the robbery and was tricked by the police into signing a
waiver of his rights and giving a confession.
On 1 October 2003, a jury found defendant to be guilty of one
count of robbery with a firearm. The trial court also found
defendant to be a Prior Record Level II offender with one prior
record point at the time the crime was committed. Defendant was
sentenced to a minimum of seventy-two months and a maximum of
ninety-six months imprisonment. On 17 August 2006, this Court
allowed defendant's petition for writ of certiorari.
Defendant argues the trial court erred by: (1) requiring him
to choose between testifying and proceeding to a jury trial without
assistance of counsel and (2) enhancing his prior record level for
being on unsupervised probation at the time of the offense withoutrequiring the State to prove that fact beyond a reasonable doubt
and submitting the issue for the jury to decide.
III. Appearance as a Pro Se Defendant
 Defendant argues the trial court erred in requiring him to
choose between testifying or proceeding to a jury trial without the
assistance of counsel, in the absence of a clear indication that he
wished to and understood the consequences of proceeding pro se. We
A. Right to Counsel - Right to Testify
The Sixth Amendment to the United States Constitution and
Article I, Section 23 of the North Carolina Constitution secure a
defendant's right to the assistance of counsel. State v. Frye,
341 N.C. 470, 493, 461 S.E.2d 664, 675 (1995) (citing State v.
Colbert, 311 N.C. 283, 286, 316 S.E.2d 79, 80-81 (1984)), cert.
denied, 517 U.S. 1123, 134 L. Ed. 2d 526 (1996). Although not
specifically enumerated in the United States Constitution, the
United States Supreme Court has consistently held that a
defendant's absolute right to testify is an inherent part of both
the due process requirements of the Fifth and Fourteenth Amendments
and the compulsory process clause of the Sixth Amendment. See,
e.g., Faretta v. California, 422 U.S. 806, 819, n.15, 45 L. Ed. 2d
562, 572 (1975) (Constitutional stature of rights not literally
expressed in the document, but essential to due process, includes
a defendant's right to testify on his own behalf.); Brooks v.
Tennessee, 406 U.S. 605, 612, 32 L. Ed. 2d 358, 364 (1972) (Whether
to testify is not only an important tactical decision for adefendant, but also a matter of constitutional right.); Harris v.
New York, 401 U.S. 222, 225, 28 L. Ed. 2d 1, 4 (1971) (A criminal
defendant is privileged to testify in his own defense or to refuse
to do so.).
The record reveals the trial court forced defendant to choose
between testifying in his own behalf or being represented by
counsel at trial. By choosing to exercise his constitutional right
to testify in his own defense, defendant was forced to relinquish
his constitutional right to the assistance of counsel. Frye, 341
N.C. at 493, 461 S.E.2d at 675.
This Court and our Supreme Court addressed a similar situation
in State v. Luker, 65 N.C. App. 644, 653, 310 S.E.2d 63, 68 (1983),
rev'd, 311 N.C. 301, 316 S.E.2d 309 (1984). In Luker, this Court
held the trial court committed constitutional error by requiring
the defendant to choose between testifying or having assistance of
counsel at trial. 65 N.C. App. at 652-53, 310 S.E.2d at 67-68.
The relationship between the client and his attorney is that
of principal and agent, with the attorney serv[ing] as counselor
and advocate to his client. Id. at 648, 310 S.E.2d at 65.
Like the decision regarding how to plead, the
decision whether to testify is a substantial
right belonging to the defendant. While
strategic decisions regarding witnesses to
call, whether and how to conduct
cross-examinations, what jurors to accept or
strike, and what trial motions to make are
ultimately the province of the lawyer, certain
other decisions represent more than mere trial
tactics and are for the defendant. These
decisions include what plea to enter, whether
to waive a jury trial and whether to testify
in one's own defense.
Id. at 649, 310 S.E.2d at 66 (emphasis supplied) (citing Wainwright
v. Sykes, 433 U.S. 72, 91, 53 L. Ed. 2d 594, 611 (1977) (Burger,
C.J., concurring); ABA Standards For Criminal Justice, the Defense
Function, § 4-5.2 (1982 Supp.)).
Forcing defendant to elect between having counsel at trial and
testifying in his own behalf was improper. While counsel could
have advised defendant not to testify, the ultimate decision should
have been the defendant's. Defendant's dilemma has been
characterized by other courts as a 'Hobson's choice,' i.e., a
dilemma involving the relinquishment of one constitutional right in
order to assert another. Id. at 652, 310 S.E.2d at 67 (citing
Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247 (1968)).
[B]y choosing to testify, defendant was forced to give up his
constitutional right to counsel. Id. Forcing defendant to choose
between testifying or relinquishing his right to be represented by
counsel constitutes constitutional error. This Court in Luker,
then held the error was harmless under harmless error review. 65
N.C. App. at 652-53, 310 S.E.2d at 67-68.
B. Harmless Error Review
[C]onstitutional error is prejudicial unless it is found by
the appellate court to be harmless beyond a reasonable doubt.
Colbert, 311 N.C. at 286, 316 S.E.2d at 81; N.C. Gen. Stat. §
15A-1443(b) (2005). Our Supreme Court has held that some
constitutional rights, like the right to counsel, are so basic to
a fair trial that their infraction can never be treated as harmlesserror. Colbert, 311 N.C. at 286, 316 S.E.2d at 81 (citing Chapman
v. California, 386 U.S. 18, 17 L. Ed. 2d 705 (1967)).
When our Supreme Court reviewed this Court's holding in Luker,
it held the Court of Appeals erred in concluding that such denial
did not result in reversible error. 311 N.C. at 301, 316 S.E.2d
at 309. The trial court erred by forcing defendant to choose
between testifying or having the assistance of counsel at trial.
We cannot find this error to be harmless beyond a reasonable doubt
and are compelled to grant defendant a new trial. Id. at 301, 316
S.E.2d at 309.
Recognizing this issue may arise on remand, we turn to the
issue of counsel's role on remand. Rule 3.3(a)(3) of the North
Carolina State Bar Rules of Professional Conduct (2007) states:
(a) A lawyer shall not knowingly:
. . . .
(3) offer evidence that the lawyer knows
to be false. If a lawyer, the lawyer's
client, or a witness called by the
lawyer, has offered material evidence and
the lawyer comes to know of its falsity,
the lawyer shall take reasonable remedial
measures, including, if necessary,
disclosure to the tribunal. A lawyer may
refuse to offer evidence, other than the
testimony of a defendant in a criminal
matter, that the lawyer reasonably
believes is false.
(Emphasis supplied). Rule 3.3, Comment 9, of the North Carolina
State Bar Rules of Professional Conduct (2007) offers further
Because of the special protections
historically provided criminal defendants,
however, this Rule does not permit a lawyer torefuse to offer the testimony of such a client
where the lawyer reasonably believes but does
not know that the testimony will be false.
Unless the lawyer knows the testimony will be
false, the lawyer must honor the client's
decision to testify.
Defendant is entitled both to testify in his own behalf and to
his right to counsel. [I]t is the province of the jury . . . to
assess and determine witness credibility. State v. Hyatt, 355
N.C. 642, 666, 566 S.E.2d 61, 77 (2002), cert. denied, 537 U.S.
1133, 154 L. Ed. 2d 823 (2003). Defendant was denied his
constitutional right to counsel and is entitled to a new trial.
IV. Enhancement of Prior Record Level
 Defendant next argues the trial court erred by enhancing
his prior record level by adding one point for being on
unsupervised probation at the time of the offense without first
requiring the State to prove the issue beyond a reasonable doubt
and submitting it for the jury to decide. Since this issue may
arise again at defendant's trial on remand, we address it.
A. Standard of Review
A judgment will not be disturbed because of sentencing
procedures unless there is a showing of abuse of discretion,
procedural conduct prejudicial to defendant, circumstances which
manifest inherent unfairness and injustice, or conduct which
offends the public sense of fair play. State v. Myers, 61 N.C.
App. 554, 557, 301 S.E.2d 401, 403 (1983), cert. denied, 311 N.C.
767, 321 S.E.2d 153 (1984).
The failure to submit a sentencing factor to the jury is
subject to harmless error review. State v. Blackwell, 361 N.C. 41,49-50, 638 S.E.2d 452, 458 (2006) (citing Washington v. Recuenco,
___ U.S. __, 165 L. Ed. 2d 466 (2006)), cert. denied, ___ U.S. ___,
167 L. Ed. 2d 1114 (2007). In conducting harmless error review,
we must determine from the record whether the evidence against the
defendant was so 'overwhelming' and 'uncontroverted' that any
rational fact-finder would have found the disputed aggravating
factor beyond a reasonable doubt. Id. at 50, 638 S.E.2d at 458.
At trial, the State presented the prior record level worksheet
to the judge and stated that defendant was a prior conviction Level
II. The court assigned defendant an additional point because the
offense was committed while he was on unsupervised probation.
Defendant did not object to this finding and the official court
record indicates he was on unsupervised probation for a 2002
Defendant claims the United States Supreme Court's holding in
Blakely v. Washington entitles him to a new sentencing hearing to
allow a jury, rather than a judge, to determine whether he was on
probation at the time he allegedly committed the armed robbery.
542 U.S. 296, 159 L. Ed. 2d 403 (2004). In Blakely, the United
States Supreme Court held that the statutory maximum sentence a
court may impose is determined solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant. 542
U.S. at 303, 159 L. Ed. 2d at 413. The trial court erred in not
submitting this issue to the jury. In light of our decision to grant defendant a new trial and
the clear requirements of Blakely, it is unnecessary to conduct a
harmless error review of this issue. If the State elects to prove
defendant's prior probationary status, unless it is admitted by
defendant, this issue must be proven beyond a reasonable doubt and
submitted to the jury. Id.
Defendant was denied his constitutional right to counsel when
he was forced to choose between testifying in his own defense or
having the assistance of counsel at trial. We cannot conclude such
constitutional error was harmless beyond a reasonable doubt. The
judgment is reversed and this case is remanded for a new trial.
In light of our holding it is unnecessary to conduct a
harmless error review on defendant's assignment of error regarding
the trial court's enhancement of his prior record level and
sentence without the issue first being submitted to the jury.
Judges MCGEE and ELMORE concur.
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