Criminal Practice – Constitutional – Right to Counsel – Re-Sentencing Hearing – Appeals – Guilty Plea

State v. Rouse (Lawyers Weekly No. 14-07-0468, 7 pp.) (Rick Elmore, J.) Appealed from Pender County Superior Court (Phyllis Gorham, J.) N.C. App.

Holding: Since defendant’s plea agreement required an active sentence of at least 12 years, he was entitled to be represented by counsel at his re-sentencing hearing.

We vacate the trial court’s judgments and remand for further proceedings.

It is true that defendant pled guilty and that the constitutional right to counsel does not fall within the limited right of appeal under G.S. § 15A-1444. However, pursuant to a petition for writ of certiorari during the appeal period, this court may review a claim that the procedural requirements of G.S. Chapter 15A, Article 58 (Procedures Relating to Guilty Pleas in Superior Court) were violated.

Although Article 58 does not expressly address the appointment of counsel to assist an indigent defendant who pleads guilty in superior court, we believe a defendant’s constitutional right to representation by counsel is implicit in these statutory procedures. We therefore allow defendant’s petition for writ of certiorari for the purpose of reviewing his claim.

Since defendant was subject to the threat of imprisonment at his re-sentencing hearing, he had an absolute right to counsel under the Sixth Amendment and G.S. § 7A-451.

Vacated and remanded.