An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-152
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Robeson County
No. 08 CRS 053583
JONATHAN MICHAEL ALLEN
Appeal by defendant from judgment entered 16 August 2013 by
Judge Robert F. Floyd, Jr. in Robeson County Superior Court.
Heard in the Court of Appeals 13 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Michael E. Bulleri, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jon H. Hunt, for defendant-appellant.
HUNTER, Robert C., Judge.
Jonathan Michael Allen (“defendant”) appeared pro se and
entered an Alford plea on 16 August 2013 for: five counts of
larceny of a motor vehicle, ten counts of breaking and entering,
eleven counts of larceny after breaking and entering, five
counts of breaking and entering a motor vehicle, two counts of
felony larceny, two counts of misdemeanor larceny, and one count
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of first degree burglary; as part of the plea agreement
defendant also attained habitual felon status. All of the
charges were consolidated into a class D felony for sentencing,
for which defendant received an active sentence of 120 months to
153 months imprisonment. On appeal, defendant argues that the
trial court erred by allowing him to proceed pro se without
establishing that he (1) comprehended the nature of the charges
against him and the range of permissible punishments, and (2)
understood the consequences of proceeding without an attorney.
After careful review, we agree with defendant in part,
vacate the judgment, and remand the case to the trial court.
Background
On 28 May 2008, emergency services were contacted after
defendant was seen walking nude down a public highway.
Sheriff’s officers and EMS arrived on scene to find defendant
sleeping in a truck bed. Defendant was transported to
Southeastern Regional Medical Center, where he was placed under
arrest after being identified as a suspect in a series of motor
vehicle break-ins spanning three weeks in May 2008. After being
discharged from the hospital and transported to the police
station, defendant waived his Miranda rights and confessed to
several break-ins and related crimes. On three separate
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indictments entered 9 July 2008, 8 September 2008, and 16
February 2009, defendant was indicted on multiple charges of
larceny of a motor vehicle; larceny and possession of a stolen
motor vehicle; breaking and entering; larceny after breaking and
entering; and several other offenses related to the series of
motor vehicle break-ins for which he was arrested. Defendant
was also formally charged with attaining habitual felon status.
On 16 May 2013, defendant appeared with his court-appointed
attorney for a plea hearing in Robeson County Superior Court.
At the beginning of the hearing, defendant told the trial court
that he wished to proceed pro se. The trial court reminded
defendant that he had been appointed an attorney and had the
right to consult with that attorney. Defendant replied that he
understood this right but still wished to proceed pro se.
During this exchange, the trial court informed defendant that
“if you choose to represent yourself . . . you would be required
to know the law and courtroom procedure just like a lawyer
would.” Defendant asserted that he understood.
After defendant informed the trial court that he could read
and write, the trial judge gave defendant a Waiver of Right to
Counsel, form AOC-CR-227 (“Waiver of Counsel form”), and
instructed defendant not to sign it until he had read and
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understood its contents. Defendant signed the Waiver of Counsel
form, informed the trial judge that he understood its contents,
and further informed the trial judge that he was sure of his
choice to proceed pro se. After defendant signed the Waiver of
Counsel form, the trial judge asked, “[h]ave the charges been
explained to you by your prior lawyers and do you understand the
nature of the charges and every element of the charges against
you?” Defendant answered in the affirmative.
Soon thereafter defendant entered an Alford plea to
multiple charges of breaking and entering, larceny, and several
other related offenses, including having attained the status of
being an habitual felon. The plea agreement had been arranged
by defendant’s court-appointed attorney at an earlier date. The
trial judge sentenced defendant to a term of 120 to 153 months
imprisonment and gave defendant credit for 1,980 days previously
spent in confinement. Defendant filed timely notice of appeal.
Discussion
I. Compliance with Section 15A-1242
On appeal, defendant contends that the trial court failed
to satisfy the requirements of N.C. Gen. Stat. § 15A-1242 (2013)
by allowing him to proceed pro se without establishing that he
(1) comprehended the nature of the charges against him and the
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range of permissible punishments, and (2) understood the
consequences of proceeding without an attorney. Because we
agree that the trial court failed to inquire as to whether
defendant understood the range of permissible punishments, we
vacate the underlying judgment and remand for further
proceedings.
Inherent in the right to counsel guaranteed by the Sixth
Amendment to the United States Constitution and by Article I,
Section 23 of the North Carolina Constitution is the right to
refuse the assistance of counsel and proceed pro se. State v.
Sorrow, 213 N.C. App. 571, 573, 713 S.E.2d 180, 182 (2011). A
defendant’s waiver of his right to be represented by counsel
must be “clearly and unequivocally” expressed and the trial
court “must make a thorough inquiry into whether the defendant’s
waiver was knowingly, intelligently and voluntarily made.”
State v. Hyatt, 132 N.C. App. 697, 702, 513 S.E.2d 90, 94
(1999). Section 15A-1242 provides the guidelines for satisfying
the constitutional requirements that a defendant’s waiver of
counsel be voluntary, intelligent, and knowing:
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:
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(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.
The inquiry under section 15A-1242 is “mandatory and must
be made in every case in which a defendant elects to proceed
without counsel.” State v. Callahan, 83 N.C. App. 323, 324, 350
S.E.2d 128, 129 (1986). The inquiry is required at “every
critical stage of the criminal process,” which includes any
hearing after “adversar[ial] judicial proceedings have been
instituted . . . .” State v. Frederick, __ N.C. App. __, __,
730 S.E.2d 275, 278 (2012) (citations omitted). “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.” Callahan, 83 N.C. App. at 324, 350 S.E.2d at
129. While a signed written waiver by a defendant creates a
presumption that the defendant knowingly, intelligently, and
voluntarily waived his right to counsel, the trial court must
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still perform the mandatory inquiry under section 15A-1242.
State v. Whitfield, 170 N.C. App. 618, 620, 613 S.E.2d 289, 291
(2005). Failure to conduct a proper inquiry under section 15A-
1242 automatically amounts to prejudicial error. State v.
Pruitt, 322 N.C. 600, 603, 369 S.E.2d 590, 592 (1988).
The circumstances of this case are comparable to State v.
Sorrow, 213 N.C. App. 571, 713 S.E.2d 180 (2011), in which the
defendant opted to waive counsel in a probation revocation
hearing. In Sorrow, the trial court engaged in a colloquy
nearly identical to that of the instant case, informing the
defendant that he was entitled to have counsel appointed to him,
asking the defendant if he was sure of his decision to waive
counsel, and giving the defendant a waiver of counsel form to
read and sign. Id. at 576, 713 S.E.2d at 183-184. On appeal,
this Court held that the defendant’s waiver of counsel was not
proven to be “knowing, intelligent and voluntary” since the
trial court did not engage in any inquiry regarding the range of
permissible punishments for the crimes charged. Id. at 577, 713
S.E.2d at 184. Therefore, because the trial court failed to
comply with section 15A-1242(3), the trial court’s order
revoking defendant’s probation was vacated and the case was
remanded to the trial court. Id. at 579, 713 S.E.2d at 185.
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Here, although defendant’s court-appointed counsel arranged
the plea agreement, the record does not demonstrate that
defendant comprehended the range of permissible punishments for
the charges he was facing before he was allowed to proceed pro
se. A defendant may be permitted to proceed without the
assistance of counsel “only after the trial judge makes thorough
inquiry and is satisfied that the defendant[] [c]omprehends . .
. the range of permissible punishments.” N.C. Gen. Stat. § 15A-
1242(3) (emphasis added); see also State v. Gentry, __ N.C. App.
__, __, 743 S.E.2d 235, 245 (“The trial court, however, must
insure that constitutional and statutory standards are satisfied
before allowing a criminal defendant to waive in-court
representation.” (emphasis added)), disc. rev. denied, __ N.C.
__, 747 S.E.2d 552 (2013).
Before defendant signed his Waiver of Counsel form, the
only time that the trial court mentioned that defendant was
facing an active sentence was when the trial judge stated,
“[b]ecause of the fact that you are facing a prison sentence,
you have three rights[.]” At that time, defendant did not make
any indication that he was aware of the “range of permissible
punishments” as required by section 15A-1242(3). It was not
until well after defendant had signed his Waiver of Counsel form
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that the trial judge asked, “[h]ave the charges been explained
to you by your prior lawyers and do you understand the nature of
the charges and every element of the charges against you?” By
this point, the trial court had already accepted defendant’s
signed Waiver of Counsel form and discussed the terms of
defendant’s plea agreement. Much later, after further
discussing the plea agreement with defendant, the trial court
specifically mentioned the 120 to 153 month sentence that was
part of the negotiated plea agreement. However, the trial court
never asked defendant if he was aware of the range of
permissible punishments that defendant faced if he opted out of
the plea arrangement. If defendant was unaware of the potential
punishment he faced for the crimes charged, it would have been
impossible for him to assess whether the terms of the plea
agreement were desirable. Therefore, we cannot say that his
waiver of counsel was “knowing, intelligent and voluntary” as
required by law. Sorrow, 213 N.C. App. at 577, 713 S.E.2d at
184.
Since the record failed to affirmatively show that
defendant comprehended the range of permissible punishments for
his crimes before he was allowed to proceed pro se, the trial
court failed to fully comply with section 15A-1242(3). See
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Callahan, 83 N.C. App at 325, 350 S.E.2d at 130. Thus, we
vacate the underlying judgment and remand this matter to the
trial court. See Sorrow, 213 N.C. App. at 577, 713 S.E.2d at
184. Given this disposition, we need not reach defendant’s
alternative arguments on appeal.
Conclusion
For the foregoing reasons, we hold that the trial court
failed to conduct the mandatory inquiry under section 15A-1242.
Thus, we vacate the underlying judgment and remand this matter
to the trial court.
VACATED AND REMANDED.
Judges DILLON and DAVIS concur.
Report per Rule 30(e).