in the Court of Appeals 4 April 2017.
by defendant from judgments entered 23 April 2015 by Judge
Robert T. Sumner and amended judgments entered 6 November
2015 by Judge Eric L. Levinson in Superior Court, Mecklenburg
County No. 12 CRS 223248-51.
Attorney General Joshua H. Stein, by Assistant Attorney
General Joseph L. Hyde, for the State.
Goodman Carr, PLLC, by W. Rob Heroy, for defendant-appellant.
Bernardo Roberto Pena ("defendant") appeals from
the trial court's judgments convicting him of attempted
second degree sex offense, attempted second degree rape,
second degree sex offense, second degree kidnapping, and
sexual battery. On appeal, defendant's primary argument
is that the trial court denied his constitutional right to
counsel by requiring him to proceed to trial pro se
when he did not clearly and unequivocally elect to do so and
without performing a proper inquiry into whether defendant
knowingly, intelligently, and voluntarily elected to proceed
without an attorney. After review, we conclude that it is not
clear from the record or trial transcript that defendant
clearly and unequivocally requested to proceed pro
se, and we agree that the trial court did not complete a
proper inquiry into his purported waiver as required under
N.C. Gen. Stat. § 15A-1242 (2015). Accordingly, we
reverse and remand for a new trial.
was initially charged by arrest warrant on 29 May 2012 and
then later indicted on or about 20 August 2012 for second
degree sexual offense, second degree kidnapping, sexual
battery, attempted second degree sexual offense, and
attempted second degree rape. He signed a waiver of counsel
form on or about 30 May 2012 waiving his right to assigned
counsel. Defendant was later found to be indigent and Timothy
Emry was appointed as his counsel by the public defender. On
26 January 2015, Mr. Emry filed a motion and order to
withdraw as counsel, claiming that he and defendant were at a
"complete impasse with regard to representation."
In the motion, Mr. Emry explained that defendant "is
unwilling to discuss the facts, evidence, and theory of
defense with counsel any further in preparation of
trial." In addition, defendant was upset with Mr. Emry
for asking him to sign a form acknowledging that he
understood a plea offer and the consequences of either taking
or rejecting it.
court held a hearing on that same day, 26 January 2015,
addressing Mr. Emry's motion to withdraw as counsel. At
the hearing, the State claimed that "if the Court grants
[defendant]'s request for a new attorney, this will be
his fourth attorney since these cases were pending." Mr.
Emry later clarified for the court that this was an
inaccurate representation of the events that had occurred,
noting there had been an attorney who made one brief district
court appearance on behalf of defendant at a bond hearing
early in the process, and another attorney at the Public
Defender's Office who was initially appointed as
defendant's counsel after he was found indigent, but that
Mr. Emry quickly spoke with that attorney and had the case
reassigned to him, as he had already been working on it. Mr.
Emry stated that he had "been on this case throughout
its Superior Court life." Mr. Emry also explained to the
court that while it was an old case -- dating back to 2012 --
it had only been put on a calendar for trial once previously,
and there had been no previous delay due to the defendant.
hearing from both sides, the trial court asked defendant:
Just one final thing, sir, what do you want me to do? Do you
want me to -- do you want to rep -- what do you want to do?
Do you want to represent yourself? Do you want to hire your
own lawyer? Do you want me to appoint another lawyer? What do
you want me to do?
helped by his translator, replied: "I just need some
time because I will undergo surgery that is going to put me
out of commission for about four weeks." The trial court
All right. Very well. Sir, under these circumstances, I'm
going to find that there's no just basis for appointing
another counsel for you. It appears from your statement there
as long -- as the other things that you're interested in
a delay in this matter. I can't find anything before me
to think that your attorney's done anything inappropriate
or that he would not adequately represent you.
So your options are this at this point. If you want to have
Mr. Emry continue on as your lawyer, that will be fine. If
you want me to release him, if you want to sign a waiver
saying that you will represent yourself, that'll be fine.
Or I may need to determine whether or not you've
forfeited your right for right to counsel, which seems to be
the place we are given what I've just indicated.
So do you want Mr. Emry to continue to assist you or do you
want to represent yourself? Or course, if you represent
yourself or if I find that you've forfeited your right to
counsel, there's nothing to say that you can't hire
an attorney to come in here and represent you, but given how
soon your trial date is, that may not be a practical thing
for you to be able to do. May be impractical for you to do
asked, through his translator: "Are you saying I must
make a decision about one of those options?" After being
told that, yes, that is what he must do, this conversation
between defendant and the court took place:
[Defendant]: Like I say, Mr. Emry is a great person, but
he's been all the time wanting to take one choice -- or
two choices, and I want (inaudible).
THE COURT: I've heard what you've had to say,
I've listened to what everyone has said, and I made the
decision that I've made. So right now, I need for you to
tell me what you want me to do. Do you want Mr. Emry to
continue to help you or do you want me to release him and
find that you've forfeited your right to counsel, and you
can either hire your own lawyer or come to represent yourself
in court. Those are your choices.
[Defendant]: Yeah, I want to give up Mr. Emry.
THE COURT: All right. What do you want to do about a lawyer?
Do you want to represent yourself?
[Defendant's translator]: Could I get four to six months
to find a new attorney?
THE COURT: No, sir. That's what I'm - that's what
I'm telling you. Your case is scheduled for trial. I
don't find there's a reason to delay; find that Mr.
Emry has not done anything improper in his representation.
He's able to represent you. Don't -- haven't
heard anything from you saying why it would be appropriate
for him to be removed. He's perfectly able to assist you,
if you'd like.
. . . .
[Defendant's translator]: I'm going to have surgery
the next month, and I cannot come to court.
THE COURT: Well, sir, if you don't come to court, you
don't present some valid reason for the judge to excuse
you, very likely an order for arrest will be issued.
But beyond that, that's not what's before me right
now. What I want to know is do you want me to release your
attorney at this point and find that you are either going to
represent yourself or that you've forfeited your right to
counsel or do you want Mr. Emry to continue to try to help
you as best he can?
[Defendant]: I'll be by myself.
THE COURT: Pardon?
[Defendant]: Prefer to be by myself.
trial court then appointed Mr. Emry as standby counsel.
Afterwards, the court then asked that defendant "be
sworn to [his] waiver." The clerk asked defendant:
"Do you solemnly swear that you have the right to an
appointed attorney, you've waived that right to represent
yourself (inaudible)?" Defendant replied: "I so
swear." A waiver of counsel form was signed by defendant
and filed on that same day, 26 January 2015. On the form,
defendant checked the box indicating he "freely,
voluntarily, and knowingly declare[d] that . . . I waive my
right to assigned counsel and that I, hereby, expressly waive
that right." In addition, defendant checked the box
indicating that he elected in open court to be tried in this
matter "without the assignment of counsel." He did
not check either box indicating that he elected to
waive his right to all assistance of counsel.
case proceeded to a jury trial before a different Superior
Court judge on 20 April 2015. The transcript from trial is
indecipherable in many spots, and portions of the transcript
are in italics to note they are just based on the court
reporter's notes, because they were not captured by a
recording. Before trial began, the State noted that Mr. Emry
was present as standby counsel and asked that the court
inquire into defendant's need for a translator and to
address the issue of counsel. This colloquy between the trial
court and defendant ensued:
THE COURT: Okay, and it's my understanding that you have,
through a conversation with . . . some other judge . . .
waived court-appointed counsel, is that correct?
THE COURT: And that you thereby elected to either represent
yourself or hire ...