Lawrence v. State

MORRIS, Judge.

The only question for our determination is whether defendant was entitled to court-appointed counsel at his trial.

On 12 June 1972 the Supreme Court of the United States held “that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” Argersinger v. Hamlin, 407 U S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed. 2d 530, 538 (1972). In denying defendant Lawrence’s petition for writ of habeas corpus, Judge McLean held that since defendant was tried for the misdemeanor offenses prior to the Argersinger decision, and since the authorized punishment did not exceed six months’ imprisonment or a five hundred dollar fine, defendant was not entitled to court-appointed counsel. At the time defendant Lawrence was tried and sentenced G.S. 7A-451 (a)(1) provided that an indigent defendant was entitled to court-appointed counsel in “[a]ny felony case, and any misdemeanor case for which the authorized punishment exceeds six months imprisonment or a five hundred dollars ($500.00) fine.”

Defendant contends that (1) Argersinger should be applied retroactively, and (2) irrespective of the application of Arger-singer, taking the eleven charges against him together, which could and did result in imprisonment for more than six months, he was denied his rights under G.S. 7A-451(a) (1) as then in force.

In answer to defendant’s second contention it was held in State v. Speights, 280 N.C. 137, 185 S.E. 2d 152 (1971), that an indigent defendant’s Sixth Amendment right to counsel was not violated by the refusal of the trial court to appoint counsel to represent him in a trial of two petty misdemeanors arising out of the same incident even though the combined punishment for both offenses could have exceeded six months’ imprisonment. Each offense was examined separately, and since neither exceeded the six months’ limit, defendant was not entitled to appointed counsel.

Here defendant pleaded guilty to eleven counts of violating G.S. 14-107. G.S. 14-107 provides, in pertinent part, the following:

“Any person, firm or corporation violating any provision of this section shall be guilty of a misdemeanor and upon conviction shall be punished as follows:
*262(1) If the amount of such check or draft is not over fifty dollars ($50.00), the punishment shall be by a fine not to exceed fifty dollars ($50.00) or imprisonment for not more than 30 days. Provided, however, if such person has been convicted three times of violating G.S. 14-107, he shall on the fourth and all subsequent convictions be punished in the discretion of the district or superior court as for a general misdemeanor.
(2) If the amount of such check or draft is over fifty dollars ($50.00), the punishment shall be by a fine not to exceed five hundred dollars ($500.00) or imprisonment for not more than six months, or both. Provided, however, if such person has been convicted three times of violating G.S. 14-107, he shall on the fourth and all subsequent convictions be punished in the discretion of the district or superior court as for a general misdemeanor.” (Emphasis supplied.)

As to punishment upon conviction of a misdemeanor, G.S. 14-3(a) provides, in pertinent part:

“[E] very person who shall be convicted of any misdemeanor for which no specific punishment is prescribed by statute shall be punishable by fine, by imprisonment for a term not exceeding two years, or by both, in the discretion of the court.” (Emphasis supplied.)

Of the eleven charges against defendant Lawrence under G.S. 14-107, six were for issuing worthless checks in amounts below $50 and five were for amounts above $50. In any event, upon his fourth conviction for any of these, defendant could have been incarcerated for as long as two years as a general misdemeanant. We are of the opinion that defendant, faced initially with eleven charges of violating G.S. 14-107 consolidated for trial, was entitled to court-appointed counsel, absent a knowing and intelligent waiver. This result, in our opinion, is required by reason of the punishment provisions of G.S. 14-107, and decision is not inconsistent with State v. Speights, supra. For the reason stated, defendant must be given a new trial.

We do not reach the question of whether Argersinger applies retroactively, nor do. we discuss the fact that the record *263does not meet the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969), with respect to the voluntariness of the pleas of guilty.

New trial.

Judges Britt and Vaughn concur.