State v. Bradley

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure. NO. COA13-524 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 STATE OF NORTH CAROLINA v. Iredell County Nos. 11 CRS 51731-32 MARCUS LAWRENCE BRADLEY Appeal by defendant from judgments entered 17 December 2012 by Judge Jerry Cash Martin in Iredell County Superior Court. Heard in the Court of Appeals 21 October 2013. Attorney General Roy Cooper, by Special General Harriet Worley, for the State. Deputy Attorney Mary McCullers Reece for defendant-appellant. STEELMAN, Judge. Where the trial courts, on multiple occasions, advised the defendant of the possible range of punishments for the charges against him, defendant s waiver of counsel and his decision to proceed to trial without counsel was knowing, intelligent and voluntary. I. Factual and Procedural Background -2On 13 February 2012, Marcus Lawrence Bradley (defendant) was indicted for five felonies: (1) altering serial numbers on a motor vehicle; (2) altering the title to a motor vehicle; (3) a notary public act violation; (4) obtaining property by false pretenses; and (5) possession of a stolen motor vehicle. January 2012, district defendant court, waived before Judge his right to Hedrick. all On 25 On 19 counsel April in 2012, defendant waived his right to all counsel in district court, before Judge Church. On 26 April 2012, defendant waived his right to all counsel in superior court, before Judge Bragg. 10 December 2012, defendant again waived his right On to all counsel in superior court, before Judge Martin. This case proceeded to trial before Judge defendant representing himself, without counsel. Martin, with On 17 December 2012, the jury found defendant guilty of all five charges. The jury also found an aggravating factor submitted by the State. Defendant was imprisonment sentences. sentenced of 10-12 to two months consecutive from the active terms of aggravated range of As to the remaining three charges, the court imposed three sentences of 8-10 months, at the expiration of the first two sentences. These three sentences were suspended and defendant was to be placed upon supervised probation for 36 -3months at the expiration of the first two sentences. The latter three sentences were to run concurrently. Defendant appeals. II. Validity of Defendant s Waiver of Counsel Defendant contends that the trial court erred in allowing him to waive his right to counsel without properly advising him of the range of permissible punishments[.] We disagree. As a corollary to the constitutional right to counsel, a criminal defendant has a right to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes. State v. Hyatt, 132 N.C. App. 697, 702, 513 S.E.2d 90, 94 (1999) (quoting State v. Mems, 281 N.C. 658, 670-71, 190 S.E.2d 164, 172 (1972)). Before allowing a defendant to proceed pro se, however, the court must determine whether the defendant knowingly, intelligently, and voluntarily waives the right to in-court representation by counsel. A trial court s inquiry will satisfy this constitutional requirement if conducted pursuant to N.C.G.S. § 15A-1242. State v. Moore, 362 N.C. 319, 322, 661 S.E.2d 722, 724 (2008) (citations omitted). Section 15A-1242 provides that, prior to accepting a waiver of counsel, the court must make a thorough inquiry and find that the defendant: -4(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 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 (2011). the It is well-established that a properly performed inquiry, conducted at a preliminary stage of a proceeding, meets the requirements of N.C.G.S. § 15A-1242 even if it is conducted by a judge other than the judge who presides at the subsequent trial. State v. Wall, 184 N.C. App. 280, 283, 645 S.E.2d 829, 831 (2007) (quoting State v. Kinlock, 152 N.C. App. 84, 89, 566 S.E.2d 738, 741 (2002)). [I]t is not statutory necessary inquiry. for the trial judge to repeat Id. at 282-83, 645 S.E.2d at 831. the Once given, a waiver of counsel is good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he desires to withdraw the waiver[.] State v. Hyatt, 132 N.C. App. at 700, 513 S.E.2d at 93. The record shows that defendant signed written waivers of counsel in district court on 19 January and 25 April 2012. At his first appearance in superior court on 26 April 2012, Judge -5Bragg notified defendant that he was charged with (1) two Class H felonies, obtaining property by false pretenses and possession of a stolen vehicle, each of which carried a 30-month maximum sentence, and (2) three Class I felonies with maximum sentences of 15 months each: violation of the Notary Public Act as well as altering a serial number and altering a title[.] Bragg then clarified, So that s 45, plus 60. sentence of 105 months, and asked, you ve Yes. been charged with, Mr. Judge Maximum possible Do you understand what Bradley? Defendant replied, At the conclusion of Judge Bragg s inquiry pursuant to N.C. Gen. Stat. § 15A-1242, defendant declared his desire to [r]epresent [him]self. He was sworn in open court and signed a written waiver of all assistance of counsel[,] his third to date. We conclude that the proceeding on 26 April 2012 satisfied the requirements of N.C. Gen. Stat. § 15A-1242, and that Judge Bragg properly advised defendant of the maximum possible sentences for the charged offenses in accordance with subsection (3) of the statute. See State v. Whitfield, 170 N.C. App. 618, 621, 613 S.E.2d 289, 291 (2005); see also N.C. Gen. Stat. § 15A1340.17(c), (d) (2009).1 1 Because defendant committed his offenses in 2010, he was not -6In challenging the validity of his waiver under N.C. Gen. Stat. § 15A-1242(3), defendant points out that the trial judge revisited his decision to proceed without counsel prior to trial on 10 December 2012. After noting defendant s previous waivers, including the waiver executed on 26 April 2012, Judge Martin ascertained proceeding attorney that pro or defendant se and obtain was understood aware of the his court-appointed options inquiry, however, Judge to counsel. reiterated his wish to represent [him]self. his consequences Martin hire of an Defendant In the course of misidentified the classification of possession of a stolen vehicle as a Class I felony punishable by up to 15 months of imprisonment. He later corrected the offense classification, as follows: THE COURT: . . . [T]hat s going to be five charges; obtaining property by false pretense, Class H; felonious possession of stolen motor vehicle, Class H; and then three that are Class I s. Do you think you understand what you re charged with? THE DEFENDANT: Having previously Yes. advised defendant of the 30-month maximum sentence for the Class H felony of obtaining property by false pretenses, the judge did not reiterate the 30-month maximum for subject to the increased maximum sentences enacted in the Justice Reinvestment Act of 2011, N.C. Session Laws 2011-142, sec. 2(e). -7Class H possession of a stolen vehicle. Therefore, defendant argues, the 10 December 2012 waiver hearing left [him] with a false understanding of the amount of time he might receive for this charge. We informed find no of merit the in range of this claim. permissible Defendant punishments waived assistance of counsel on 26 April 2012. § 15A-1242(3). with notice factors of until was fully when he N.C. Gen. Stat. Although defendant argues that he was not served the 27 prosecutor s April 2012, intent see N.C. to use Gen. aggravating Stat. § 15A- 1340.16(a6) (2011), we hold that Judge Bragg accounted for the possibility of aggravation maximum possible sentences. when he advised defendant of the Because defendant never indicated a desire to withdraw the waiver, the trial judge was not required to engage in a second colloquy under N.C. Gen. Stat. § 15A-1242. See Wall, 184 N.C. App. at 284-85, 645 S.E.2d at 832-33. did Judge Martin s minor lapsus linguae mislead or defendant otherwise AFFIRMED. Judges CALABRIA and STROUD concur. Report per Rule 30(e). on 10 December 2012 undermine voluntary nature of his waiver. Nor the knowing and

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