State v. Pena, ___ N.C. App. ___, 809 S.E.2d 1 (Dec. 19, 2017)

(1) In this sexual assault case the court reversed and remanded for a new trial, finding that even if the defendant had clearly and unequivocally asked to proceed pro se, the record did not establish that the defendant’s waiver of counsel complied with G.S. 15A-1242. The defendant was indicted on multiple sexual assault charges. He later was found to be indigent and Timothy Emry was appointed as counsel. Emry later moved to withdraw claiming that he and the defendant were at an impasse regarding representation. He asserted that the defendant was unwilling to discuss the case with him and the defendant was upset with Emry to asking him to sign a form acknowledging that he understood a plea offer and the consequences of taking or rejecting the plea. At a January hearing on the motion, the State asserted that if Emry was allowed to withdraw, the defendant would be on his fourth lawyer. Emry however clarified that this was inaccurate. The trial court told the defendant that he could have Emry continue as counsel, have the trial court find that the defendant had forfeited his right to counsel, or hire his own lawyer. The defendant opted to proceed pro se and the trial court appointed Emry as standby counsel. A waiver of counsel form was signed and completed. However, on the form the defendant only indicated that he waived his right to assigned counsel, not his right to all assistance of counsel. The case came to trial before a different judge. Although the trial court engaged in a colloquy with the defendant about counsel, the transcript of this event was indecipherable in parts. The defendant was convicted and appealed. On appeal, the defendant argued that the trial court erred by requiring him to proceed to trial pro se when he did not clearly and unequivocally elect to do so. Although the defendant did say that he wished to represent himself, he only did so after being faced with no other option than to continue with Emry’s representation. The court noted: “This case is a good example of the confusion that can occur when the record lacks a clear indication that a defendant wishes to proceed without representation.” Here, even assuming that the defendant did clearly and unequivocally assert his wish to proceed pro se, he still would be entitled to a new trial because the waiver was not knowing and voluntary as required by G.S. 15A-1242. At the January hearing, after explaining the defendant’s options to him the court asked that the defendant “be sworn to [his] waiver.” At this point the clerk simply asked the defendant if he solemnly swore that he had a right to a lawyer and that he waived that right. This colloquy did not meet the requirements of the statute. The court stated: “The fact that defendant signed a written waiver acknowledging that he was waiving his right to assigned counsel does not relieve the trial court of its duty to go through the requisite inquiry with defendant to determine whether he understood the consequences of his waiver.” Additionally, the written waiver form indicates that the defendant elected only to waive the right to assigned counsel, not the right to all assistance of counsel. With respect to the colloquy that occurred at trial, defects in the transcript made it unclear what the defendant understood about the role of standby counsel. In any event, “simply informing defendant about standby counsel’s role is not an adequate substitute for complying with [the statute].” Additionally, there is no indication that the trial court inquired into whether the defendant understood the nature of the charges and permissible punishments as required by the statute. The court rejected the State’s suggestion that the fact that Emry had informed the defendant about the charges could substitute for the trial court’s obligation to ensure that the defendant understood the nature of the charges and the potential punishments before accepting a waiver of counsel.

(2) The defendant did not engage in conduct warranting forfeiture of the right to counsel. Although the state and the trial court hinted that the defendant was intentionally delaying the trial and that he would be on his fourth attorney after counsel was dismissed, the record indicates that this was an inaccurate characterization of the facts. As explained by Emry, although other attorneys had been listed as the defendant’s counsel at various points early in the proceedings, the defendant received substantial assistance only from Emry. Additionally, nothing in the transcript indicates any type of “flagrant” tactics that would constitute extreme misconduct warranting forfeiture. Specifically, there is no indication that the defendant sought other delays of his trial or that he engaged in any inappropriate behavior either in court or with counsel.