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State v. Pena

Court of Appeals of North Carolina

December 19, 2017


          Heard in the Court of Appeals 4 April 2017.

         Appeal 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.

          STROUD, Judge.

         Defendant 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.


         Defendant 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.

         The 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.

         After 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?

         Defendant, 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 then concluded:

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 that.

         Defendant 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.

         The 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.

         The 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?
[Defendant]: Yes.
THE COURT: And that you thereby elected to either represent yourself or hire ...

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