State v. Doisey, ___ N.C. App. ___, 2021-NCCOA-181 (May. 4, 2021)

The defendant was convicted in 1997 of two counts of first-degree statutory sex offense and was sentenced as a prior record level IV to 339 - 416 months in prison.  He filed a motion for appropriate relief (MAR), arguing that he should have been sentenced at prior record level III.  Before the hearing on the MAR, the trial judge asked the defendant whether he wanted to continue representing himself.  The defendant said he did. The trial court asked the defendant to sign a waiver indicating that he had been apprised of his right to have counsel and indicating that he would like to represent himself. The trial court then proceeded with the hearing, which culminated in the defendant being resentenced as a prior record level III to 336 - 413 months imprisonment. The defendant appealed.

The Court of Appeals held that the trial court failed to ensure that the defendant validly waived his right to counsel before the resentencing hearing. The Court explained that the colloquy between the trial court and the defendant did not comply with the requirements for a valid waiver under G.S. 15A-1242. That statute requires a trial judge to make a thorough inquiry to determine whether the defendant: (1) has been clearly advised of his right to counsel, including appointed counsel; (2) understands and appreciates the consequences of the decision to waive counsel; and (3) comprehends the nature of the charges and proceedings and the range of permissible punishments. The surface inquiry conducted by the trial court in this case did not suffice.

The Court did not consider the State’s argument on appeal that the trial court erred in granting the MAR in the first place. The Court explained that the State failed to cross-appeal or seek discretionary review of this issue; nor did it oppose the defendant’s MAR before the trial court.

Finally, the Court rejected the State’s argument that the defendant was required to show prejudice resulting from the invalid waiver of counsel for resentencing on an MAR, which the State characterized as denial of a statutory rather than a constitutional right. The Court held that a constitutional right to counsel attaches at a resentencing proceeding; thus, the defendant was not required to show prejudice resulting from the invalid waiver.