STATE OF NORTH CAROLINA
v. Buncombe County
No. 05 CRS 63585
ROBERT JAMES BLACKMON
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Spurgeon Fields, III, for the State.
Thorsen Law Office, by Haakon Thorsen, for defendant-
appellant.
JACKSON, Judge.
Robert James Blackmon (“defendant”) was found guilty in
district court of driving while his license was revoked and
operating a motor vehicle without insurance. He appealed his
convictions to superior court, where a jury again found him guilty
of both offenses. The trial court suspended a sentence of forty-
five days in the county jail, and placed defendant on supervised
probation for a period of eighteen months.
At trial, North Carolina Highway Patrolman Mike Gahagan
(“Gahagan”) testified that defendant drove a dark blue van to a
driver's license checkpoint on Bear Creek Road on the afternoon of
7 October 2005. When defendant was unable to produce a driver'slicense, Gahagan ran his name and date of birth through the
computer and determined that defendant's driver's license had been
revoked in the 1980's. Gahagan further noticed that defendant's
van did not have a North Carolina license tag or registration
stickers. Defendant told Gahagan that he had no insurance for the
vehicle, and believed that he was not subject to North Carolina's
motor vehicle laws due to his religious beliefs. The State
introduced a certified letter from the Division of Motor Vehicles,
notifying defendant of his license revocation.
Proceeding pro se, defendant cross-examined Gahagan but did
not testify. Citing the Interstate Commerce Clause, he argued that
the State had no authority to regulate his use of a motor vehicle,
because “[t]he regulation of traffic is a federally-mandated
situation that supercedes the laws of North Carolina.” U.S. Const.
art. I, § 8, cl. 3.
On appeal, defendant claims the superior court violated his
constitutional right to counsel, as well as the provisions of North
Carolina General Statutes, section 15A-1242 (2005), by allowing him
to proceed pro se at trial without ensuring that his waiver of
counsel was knowing and voluntary. Defendant argues that the
record does not clearly and unambiguously reflect his desire to
waive counsel. He further asserts that the trial court failed to
determine whether he “understood and appreciated the consequences
of representing himself as required by [section] 15A-1242(2).”
Although a criminal defendant has a constitutional right to
self-representation, the decision to proceed pro se must be made ina manner that safeguards the defendant's corresponding right to
counsel. The record must show both that the defendant “clearly and
unequivocally” intended to proceed pro se, and that he reached the
decision to waive counsel “knowingly, intelligently and
voluntarily.” State v. Hyatt, 132 N.C. App. 697, 702, 513 S.E.2d
90, 94 (1999) (citations omitted). A trial court satisfies each of
these requirements if it complies with section 15A-1242, which
provides as follows:
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 (2005); see also State v. King, 158 N.C.
App. 60, 63, 580 S.E.2d 89, 92, disc. rev. denied, 357 N.C. 509,
588 S.E.2d 376 (2003).
The transcript of proceedings held 22 May 2006 reflects that
the trial court asked defendant if he wanted a lawyer to represent
him at trial. When defendant asked if the court was referring to
a pending charge of failure to appear, the judge clarified that
defendant was to be tried “for Driving While License Revoked and
Operating a Vehicle with No Insurance,” having appealed hisconviction from district court. The court then engaged defendant
in the following colloquy:
Q. Do you want a lawyer?
A. No, trial de novo --
Q. You think you can try a jury trial
without a lawyer?
A. Well, I can present the basic argument,
sir.
Q. You have a right to a lawyer. Do you
understand depending on your record, that
you could get up to 120 day[s] on each of
these two charges?
A. Okay.
Q. Now, if you want to waive your right to
Court appointed counsel, you may do that.
You need to come up here -- or the Clerk
will take back to you a waiver of your
right to Court appointed counsel, if
that's what you want to do.
After explaining why he had failed to appear at his original court
date, defendant advised the court, “If we could reschedule[] this
for trial, I would be more than willing to do that.” When asked by
the court if he was “ready to proceed this week[,]” defendant
replied, “Yes, sir.” The trial court then instructed defendant to
approach the bench and sign a written waiver of appointed counsel,
“if that's what you want to [do].” Defendant executed a written
waiver of his right to assigned counsel on 22 May 2006. He then
appeared at trial without counsel on 5 June 2006, and proceeded
without objection.
When a defendant challenges the sufficiency of the trial
court's inquiry under North Carolina General Statutes, section 15A-1242, “the critical issue is whether the statutorily required
information has been communicated in such a manner that defendant's
decision to represent himself is knowing and voluntary.” State v.
Carter, 338 N.C. 569, 583, 451 S.E.2d 157, 164 (1994). “The record
must affirmatively show that the inquiry 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.” State v. Callahan, 83 N.C. App. 323, 324, 350 S.E.2d 128,
129 (1986) (citing State v. Gerald, 304 N.C. 511, 518.19, 284
S.E.2d 312, 317 (1981)).
We believe that the trial court's exchange with defendant was
sufficient to satisfy the requirements of section 15A-1242 and to
demonstrate defendant's knowing and voluntary waiver of the right
to counsel. In addition to advising defendant of his right to
counsel, the two charges he was facing, and the maximum punishment
for each offense, the trial court verified defendant's
understanding that he would be required to “try a jury trial
without a lawyer” if he chose to proceed pro se. Given the nature
of the charges at issue, we believe defendant was adequately
apprised of the “consequences” of his decision to waive counsel
under section 15A-1242(2). See State v. Proby, 168 N.C. App. 724,
726.27, 608 S.E.2d 793, 794 (2005); State v. Seraphem, 90 N.C. App.
368, 371, 368 S.E.2d 643, 645 (1988) (finding compliance with
section 15A-1242 where “[t]he trial judge explained to the
defendant the maximum penalties for the charges against her and
emphasized the seriousness of her plight.”). The record reflectsthat defendant expressed his intention to proceed without counsel
both orally and in writing on 22 May 2006, and that he appeared at
trial prepared to present his defense. Accordingly, we overrule
his assignments of error.
No error.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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