State v. Hales, ___ N.C. App ___, 2022-NCCOA-134 (Mar. 1, 2022)

The defendant was charged with violating G.S. 14-4 for violation of a city ordinance. The defendant was issued a criminal summons stating that his property was in violation of City of Fayetteville Code of Ordinances Section 22-16(a) for failure to remove all metal items from his yard after due notice. The defendant was convicted and appealed to superior court. At a hearing, the defendant waived his right to counsel, elected to proceed pro se, and waived his right to a jury trial. The trial court denied the defendant’s motions to dismiss for selective prosecution and to suppress all evidence. 

The trial court found the defendant guilty of violating a local ordinance under G.S. 14-4. The trial court found that the defendant had one prior conviction, giving him a prior record level II, and sentenced him to 15 days’ confinement. The trial court suspended the sentence, placed him on supervised probation for 18 months, and ordered him to comply with the regular conditions of probation and several special conditions of probation. The trial court also imposed a $100.00 fine plus $372.50 in costs. The probation and payment of the fine and costs was stayed pending appeal, and the court imposed the following conditions of pretrial release: post a $500.00 bond; not violate any criminal law; not violate any city code, ordinance, rule, or regulation; and allow the city inspectors to inspect the defendant’s property upon 48 hours’ written notice either delivered to the defendant or posted on his door. The defendant appealed.

(1) On appeal, the defendant argued that the trial court erred by denying his motion to dismiss for selective prosecution. The defendant alleged that a neighbor “solicited” the code enforcer to target the defendant, who is white, because of the defendant’s interracial marriage to his wife, who is black, but offered no evidence to support his allegations. The Court of Appeals rejected this argument, concluding that the defendant offered no evidence to show the State targeted or discriminated against the defendant in prosecuting him.

(2) The defendant next argued that the trial court erred by denying his motion to suppress all evidence on the ground that the evidence was obtained in violation of his Fourth Amendment rights. The Court of Appeals rejected this argument, reasoning that the inspector testified that he viewed and took photos of the defendant’s property from a public roadway and from a neighboring property where he had secured permission from the neighbor to be on their property.

(3) The defendant argued the trial court erred by not holding separate hearings on his motion to dismiss for selective prosecution and motion to suppress all evidence, but instead heard arguments on both motions at trial. The Court rejected this argument, noting that the record reflects the trial court heard arguments from the parties on both motions immediately preceding the trial. The trial court denied the defendant’s motion to dismiss prior to trial and held in abeyance its ruling on the motion to suppress until the trial court had heard all the evidence. The Court thus held that the defendant failed to show any legal error or abuse of discretion.

(4) The defendant also argued that the summons delivered to him was defective because it referenced the incorrect statutory subsection. In rejecting this argument, the Court noted that the summons listed G.S. 14-4 as the statutory basis for the charge against the defendant, correctly identifying the crime with which he was charged. The summons also indicated that the charge was based on the defendant’s failure to remove all metal items from the yard, indicating to the defendant the proper city ordinance subsection of which he was in violation. The Court thus concluded that the summons was not defective in that the defendant had sufficient notice of the charge against him.

(5) The defendant argued, and the State conceded, that the trial court erred in applying the sentencing requirements for a Class 3 misdemeanor with one prior conviction. Pursuant to G.S. 15A-1340.23, unless otherwise provided for a specific offense, the judgment for a person convicted of a Class 3 misdemeanor who has no more than three prior convictions shall consist only of a fine. An individual convicted of violating a city ordinance pursuant to G.S. 14-4 is guilty of a Class 3 misdemeanor and shall be fined not more than five hundred dollars, and no fine shall exceed fifty dollars unless the ordinance expressly states that the maximum fine is greater than fifty dollars. G.S. 14-4(a). The Court thus held that the trial court erred by sentencing the defendant to a 15-day term of incarceration and 18 months’ probation and by imposing a $100.00 fine. The Court vacated the defendant’s sentence and remanded to the trial court for resentencing. However, the Court also held that the trial court did not err by imposing conditions of pretrial release upon the defendant.

(6) Because the defendant waived his right to counsel at trial and chose to proceed pro se, the Court rejected the defendant’s ineffective assistance of counsel claim.

(7) The defendant argued that the trial court gave him contradictory rules regarding his right to self-incrimination, contending that the trial court told him both that he cannot be made to testify against himself and that by choosing to take the stand, he loses his right against self-incrimination. The Court rejected this argument, concluding that the rule was a correct statement of law.