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Criminal Practice – Right to Counsel – Voluntary Waiver – Incomplete Form – Judge’s Colloquy

State v. Paterson. (Lawyers Weekly No. 10-07-1236, 14 pp.) (Robert C. Hunter, J.) Appealed from Forsyth County Superior Court. (Richard L. Doughton, J.) N.C. App. Click here for the full text of the opinion.

Holding: Even though defendant’s waiver-of-counsel form was incomplete, and even though the trial judge did not follow the colloquy suggested in State v. Moore, 362 N.C. 319, 661 S.E.2d 722 (2008), the judge correctly informed defendant of the consequences of representing himself, and defendant knowingly, intelligently and voluntarily waived his right to counsel.

We find no error in defendant’s convictions of speeding and driving while impaired.

First, defendant contends that his waiver of counsel was ineffective because the appropriate box was not checked on the waiver of counsel form and because the form was executed prior to his being advised of the nature of the charges against him and the range of permissible punishments.

While a defendant may complete a waiver of counsel form, doing so is not mandatory. If a form is filled out but is deficient, the deficiency will not render the waiver invalid so long as the defendant’s waiver was given knowingly, intelligently, and voluntarily.

Consequently, even though defendant’s waiver form was incomplete, his waiver of counsel is not rendered invalid on this ground.

We further hold that defendant’s waiver of counsel was not rendered invalid because the trial judge did not, prior to defendant signing the waiver form, go over the charges against him and the potential punishments associated with those charges. The trial judge did discuss the charges and potential punishments with defendant the following day, and defendant confirmed his desire to represent himself in open court.

Although the waiver form requires the trial judge to certify that he has apprised the defendant of the charges against him and the potential punishments, given the fact that this form is not mandatory, we see no prejudice so long as the trial court does, in fact, provide that information in accordance with the statute and the defendant subsequently asserts his right to represent himself.

Defendant in this case provided an oral waiver of counsel prior to trial, after the trial judge fully informed him of the charges and potential punishments.

Defendant focuses on inadequacies in the written waiver, but the real issue is whether the trial judge adequately performed the statutory inquiry and defendant knowingly and intelligently waived counsel.

Neither our statutes nor our courts have set out a mandatory formula for complying with G.S. § 15A-1242.

Although Judge Doughton did not ask any of the questions listed in Moore, the colloquies that occurred at the calendar call and prior to trial were sufficient to satisfy G.S. § 15A-1242. Judge Doughton explicitly informed defendant of his right to counsel and the process one must undertake in order to secure a court-appointed attorney. Defendant acknowledged that he understood his rights after Judge Doughton asked him repeatedly whether he understood his rights and whether he was sure that he wanted to forgo his right to counsel.

Judge Doughton informed defendant of the charges against him and the potential punishments. Furthermore, Judge Doughton explained to defendant that he would be treated the same at trial regardless of whether he had an attorney.

The trial judge’s colloquies at the calendar call and before trial, coupled with defendant’s repeated assertion that he wished to represent himself, demonstrate that defendant clearly and unequivocally expressed his desire to proceed pro se and that such expression was made knowingly, intelligently and voluntarily.

No error.

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