State v. Tomlinson (Lawyers Weekly No. 012-045-016, 12 pp.) (Robert Hunter Jr., J.) Appealed from Edgecombe County Superior Court (Quentin Sumner, J.) N.C. App. Unpub.
Holding: The pattern jury instructions given by the trial court covered all the essential elements of obtaining property by false pretenses and all substantial features of the case. There was no need for the trial court to also instruct the jury that nonfulfillment of a contract, standing alone, was insufficient to prove an intent to defraud.
We find no error in defendant’s conviction of obtaining property by false pretenses. However, we vacate defendant’s sentence and remand.
After accepting $3,750 from the victim in return for promising to show her how to avoid her mortgage and keep her home, defendant was charged with obtaining property by false pretenses. Defendant now argues that the trial court should have instructed the jury that “evidence of nonfulfillment of a contract obligation standing alone shall not establish the essential element of intent to defraud”; however, at trial, defendant did not object to the trial court’s pattern jury instructions, which instructed on all essential elements of obtaining property by false pretenses and all substantial features of the case. The instruction did not mislead the jury to find defendant guilty solely because he did not fulfill his contractual obligations to the victim.
When a defendant signs a written waiver of counsel and the waiver is certified by the trial court, the waiver is presumed to have been knowing, intelligent, and voluntary unless the rest of the record indicates otherwise. The trial judge informed defendant that he was facing a Class H felony for which he could be imprisoned for six to eight months. Further, the judge explained defendant’s right to appointed counsel, right to proceed pro se, and right to retain private counsel. After learning of his options, defendant said, “I’ll represent myself,” and signed a waiver of counsel form that the court certified. The trial judge made the appropriate inquiry as to whether defendant’s waiver was knowing, intelligent, and voluntary and therefore met the requirements of G.S. § 15A-1242.
The state and defendant agree that the trial court erred in imposing a 6- to 17-month suspended sentence, instead of a 6- to 8-month sentence.