The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedu re.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-102
Filed 4 February 2026
Wake County, Nos. 22CR205465-910, 23CR015237-910
STATE OF NORTH CAROLINA
v.
JESSIAH JAMES HUBBARD
Appeal by Defendant from judgment entered 21 February 2024 by Judge A.
Graham Shirley II in Wake County Superior Court. Heard in the Court of Appeals
14 October 2025.
Attorney General Jeff Jackson, by Assistant Attorney General Clarence Turpin,
V, for the State.
Caryn Strickland, for the Defendant.
WOOD, Judge.
Jessiah James Hubbard (“Defendant”) appeals from jury verdicts finding him
guilty of failing to report his change of address for the sex offender registry in
violation of N.C. Gen. Stat. § 14-208.11(a)(2) and of having attained habitual felon
status. Defendant raises two issues on appeal. First, Defendant argues the trial
STATE V. HUBBARD
Opinion of the Court
court failed to conduct a competency hearing in response to “red flags” relevant to his
competency. Second, Defendant argues his waiver of his Sixth Amendment right to
counsel was invalid because the trial court erred by failing to comply with N.C. Gen.
Stat. § 15A-1242.
I. Factual and Procedural Background
On 3 April 2022, Defendant was arrested by Cary Police Department Officer
Matthew Watson for failing to report his change of address for the sex offender
registry in violation of N.C. Gen. Stat. § 14-208.11(a)(2). At his arrest, Defendant
had been living in a homeless encampment in the woods adjacent to the Embassy
Suites in Cary, while the sex offender registry listed his current address in Raleigh.
Those on the sex offender registry must report a change of address, including when
residing in temporary housing or out-of-doors like “in a tent” or “under a bridge,”
within three business days to the last registering sheriff and within ten days to the
sheriff of the new county to which they have moved, if applicable. N.C. Gen. Stat. §§
14-208.11(a)(2), 14-208.9(a).
On 19 April 2022, Defendant was indicted for failing to report his change of
address for the sex offender registry in violation of N.C. Gen. Stat. § 14-208.11(a)(2).
Defendant’s initial hearing was held on 26 October 2022. From the outset,
Defendant’s court appointed attorney, Assistant Public Defender Patrick Koch
(“Attorney Koch”), informed the trial court of Defendant’s intention to represent
himself. Specifically, Attorney Koch stated:
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Opinion of the Court
MR. KOCH: Your Honor, I believe it is my client’s wish to
represent himself so I think he also wants to be heard on
some matters. I’ve advised him of his right to remain silent
and that the court reporter is recording everything he’s to
say, but he’s informed me some time ago that he wants to
represent himself. And we’ve been brought over a couple
times, and we weren’t reached, but I think that’s still his
wish.
THE COURT: All right. [Defendant], I understand you
want to address the Court. Let me remind you of a couple
things before you do that. First of all, you do have a right
to remain silent. Anything you say can and will be used
against you.
Secondly, Mr. Koch at this moment is your attorney. If you
have any questions about what you should say to me or if I
ask you any questions and you want to confer with your
counsel before you answer, you are welcome to do that. But
if you wish to speak to me, I’ll be happy to hear from you,
sir.
THE DEFENDANT: Okay. Is there any questions you
want to ask me about the self-representation?
...
THE COURT: Well, I want to know what the concern about
your attorney is first. You’re asking for your attorney to
withdraw, or do you just - -
THE DEFENDANT: Standby counsel.
THE COURT: So you’ve just decided you want to represent
yourself?
THE DEFENDANT: I decided this a while back, yes.
THE COURT: Do you understand you have a right to
counsel?
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Opinion of the Court
THE DEFENDANT: Yeah.
THE COURT: You understand that, if you can’t afford
counsel, one will be appointed for you?
THE DEFENDANT: Okay.
The trial court explained the role of standby counsel to Defendant and explained what
would be expected of him if he represented himself. Attorney Koch informed the trial
court that Defendant faced a class F felony and that he faced a maximum possible
punishment of up to 59 months incarceration. Defendant acknowledged he
understood.
The trial court further inquired into Defendant’s level of reading and writing
comprehension, and Defendant informed the trial court he has a GED. After further
inquiries into Defendant’s desire to represent himself, the trial court ultimately
concluded Defendant had knowingly waived his right to counsel after explicitly
asking him twice if it was his wish to represent himself in the matter and to waive
his right to counsel. Defendant answered in the affirmative.
The trial court then proceeded to ask if there were any issues before the Court
other than the “attorney issue.” Defendant replied, “[w]ell, can we at least - - out of
respect to the families, will the State give a minute of silence for the deceased
children?” The trial court responded, “[a]ll right. What’s before the Court at this time
is the motion to allow you to represent yourself, which I have now granted. I need you
to sign that form. That’s what we are doing today.” Defendant then requested
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Opinion of the Court
standby counsel, was administered the oath affirming his waiver of counsel, and
signed the written waiver of counsel form. As the hearing concluded, Defendant
commented, “[w]hy can’t we do a moment of silence for them? Why can’t we do a
minute of silence for them, huh? Why can’t we do a minute of silence for the children
in this matter? Why can’t we do that?”
On 4 January 2023, Defendant appeared pro se with standby counsel, Attorney
Nicholas Saparilas (“Attorney Saparilas”), at his arraignment hearing on the charge
of failing to report his change of address for the sex offender registry in violation of
N.C. Gen. Stat. § 14-208.11(a)(2). Defendant attempted to “not plead[] to anything,”
and insisted, “I am entering no plea.” The trial court entered a plea of not guilty on
his behalf. Defendant became argumentative, insisted the trial court read aloud a
letter he had written and stated, “[y]ou all are endangering the women and children
- - ,” and asked, “[w]hy did you extradite me from Michigan - - ?” The trial court asked
Defendant if he was able to understand instructions and what he was being asked to
do; Defendant answered, “I don’t understand what you’re saying.” The trial court
then considered whether Defendant needed to be evaluated. That same day the trial
court entered a motion and order sua sponte committing Defendant to Central
Regional Hospital for examination to determine his capacity to proceed.
On 31 January 2023, Susan Hurt, Ph.D. (“Dr. Hurt”) from Central Regional
Hospital evaluated Defendant and prepared a forensic evaluation summary for the
trial court. The summary indicated that when asked why Defendant thought the
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Opinion of the Court
capacity evaluation was ordered, he responded that he had “kind of pissed the judge
off.” Dr. Hurt’s evaluation summary stated, in relevant part:
[Defendant] may be factually mistaken in the relevance or
importance of his assertions, but in this evaluation, he
exhibited no signs that delusions or other cognitive
distortions are driving his priorities in managing his legal
circumstances . . . . Even in light of those difficulties, this
evaluation could find no evidence of current symptoms of
mental disorder and could not find any signs at all of
intellectual disorder.
At the current time, [Defendant] presents with adequate
capacity to manage his own impulses . . . he is able to
choose actions according to his own reasoned motivations.
....
Ability to Assist in his Defense This evaluation
acknowledges the concern for [Defendant] choosing to
represent himself or any choice he might make to talk over
others in court out of anger. This evaluation does not,
however, find the presence of current mental health
symptoms which undermine [Defendant’s] ability to assist
in his own defense.
On 15 March 2023, the trial court heard Attorney Saparilas’ motion to
withdraw as standby counsel. The trial court acknowledged Defendant was
proceeding pro se at this hearing with standby counsel, Attorney Saparilas, present.
In support of his motion, Attorney Saparilas stated, “[i]t’s no reflection on his
potential case or anything like that, but we just don’t see eye to eye, and I think even
in a standby posture, I think he’s going to need somebody that he can get along with
better than with me.” The trial court again discussed the role of standby counsel with
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Opinion of the Court
Defendant and he reiterated his desire to represent himself. The trial court granted
Attorney Saparilas’ motion to withdraw and agreed to assign new standby counsel.
Thereafter, the State informed the trial court it would pursue an indictment against
Defendant as a habitual felon since Defendant appeared to have rejected its plea offer
and further informed the trial court that the habitual felon status would elevate
Defendant to “the record level six, Class C category.” Defendant was indicted on the
charge of attaining habitual felon status on 9 May 2023.
On 26 July 2023, Defendant appeared in court pro se with new standby counsel,
Attorney Douglas Brown (“Attorney Brown”), for arraignment on the charge of having
attained habitual felon status. Defendant pleaded not guilty. Desiring to make all
communications with his standby counsel public, Defendant requested to file copies
of letters he had written to his standby counsel. The trial court explained to
Defendant that communications between him and his standby counsel are
confidential and privileged. Defendant agreed at the trial court’s request that he
would consult with standby counsel before filing any of their communications to the
public record.
On 6 October 2023, Defendant appeared pro se with standby counsel, Attorney
Brown, at a pretrial motions hearing. The trial court began the hearing by noting no
hearing had taken place in regard to Defendant’s mental health evaluation done in
January 2023 nor had a determination regarding Defendant’s capacity to proceed
been made. The trial court examined the forensic evaluation report from Central
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Opinion of the Court
Regional Hospital and found that, “Defendant is able to understand the nature and
object of the proceedings against him, he is able to comprehend his own situation in
reference to these proceedings, and he is able to assert his defense in a rational and
reasonable manner; therefore, this matter shall proceed.” Defendant did not object
to the trial court’s determination or request a hearing on the matter.
The trial court proceeded to hear Defendant’s numerous motions, including
motions for a moment of silence during trial, a fair and speedy trial, and “to withdraw
waiver of amendment of right to counsel,” about which the trial court made further
inquiries. The trial court once again explained to Defendant that in order for him to
represent himself, he must waive his right to counsel. Defendant again reiterated
that he wished to represent himself at trial with the assistance of standby counsel.
Ultimately the trial court denied the motion “to withdraw waiver of amendment of
right to counsel” after stating, “this motion does not accomplish what you are seeking
it to accomplish.” Defendant next appeared pro se at document exchange hearings on
22 and 23 January 2024.
On 20 February 2024, Defendant’s trial came on for hearing in Wake County
Superior Court. Defendant appeared pro se along with standby counsel, Attorney
Brown and Attorney Taylor Manning (“Attorney Manning”). Defendant requested
that standby counsel represent him during jury selection but continued to express his
desire to represent himself before the jury. Additional facts regarding the trial are
included in the analysis below.
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Opinion of the Court
On 21 February 2024, the jury found Defendant guilty of failing to report his
change of address for the sex offender registry in violation of N.C. Gen. Stat. § 14-
208.11(a)(2), and guilty of having attained habitual felon status. The trial court found
Defendant to be a prior felony record level six and sentenced him to 87 to 117 months
of imprisonment. Defendant gave oral notice of appeal in open court.
II. Analysis
On appeal, Defendant argues his waiver of his Sixth Amendment right to
counsel was invalid. First, Defendant argues the trial court failed to adequately
conduct the inquiry required by N.C. Gen. Stat. § 15A-1242 on the charge of attaining
habitual felon status and misinformed him of his possible sentencing exposure on
both charges. Second, Defendant argues the trial court erred by allowing Defendant
to represent himself without first conducting a competency hearing to determine
whether he was competent to proceed. After careful review of the record and
applicable law, we hold Defendant received a fair trial free from error.
A. Standard of Review
Issues addressing waiver of counsel pursuant to N.C. Gen. Stat. § 15A-1242
are reviewed de novo. See State v. Lindsey, 271 N.C. App. 118, 124, 843 S.E.2d 322,
327 (2020). “The standard of review for alleged violations of constitutional rights is
de novo.” State v. Hollars, 266 N.C. App. 534, 540, 833 S.E.2d 5, 9 (2019). “We review
questions of law de novo, considering the matter anew and freely substituting our
own judgment for those of the lower courts.” State v. Wilkins, 386 N.C. 923, 928, 909
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S.E.2d 215, 219 (2024).
B. Competency
First, we address Defendant’s argument that the trial court failed to hold a
meaningful competency hearing to determine whether he was competent to proceed
prior to allowing him to waive his Sixth Amendment right to counsel. Defendant
argues that notwithstanding its concerns during the 4 January 2023 arraignment
hearing which prompted the trial court to commit him and order the capacity
evaluation, the trial court allowed him to represent himself during subsequent
pretrial hearings and at trial without first conducting a proper competency hearing
and determination of his competency to stand trial. Additionally, Defendant argues
the trial court failed to appoint counsel for him on the issue of competency.
[A] question regarding a defendant’s capacity to proceed
“may be raised at any time on motion by the prosecutor,
the defendant, the defense counsel, or the court” and that,
once a defendant’s capacity to stand trial is called into
question, the trial court is required to “hold a hearing to
determine the defendant’s capacity to proceed.” When a
competency hearing is conducted, “reasonable notice shall
be given to the defendant and prosecutor, and the State
and the defendant may introduce evidence.”
State v. Flow, 384 N.C. 528, 546, 886 S.E.2d 71, 85 (2023) (quoting N.C. Gen. Stat. §
15A-1002). Our Courts have held that a defendant may generally waive a statutory
right, including the right to a competency hearing, by failing to assert the right to the
trial court at the appropriate time. Wilkins, 386 N.C. at 929, 909 S.E.2d at 219. Our
Supreme Court has further held when “the defendant has been committed and
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Opinion of the Court
examined relevant to his capacity to proceed, and all evidence before the court
indicates that he has that capacity, he is not denied due process by the failure of the
trial judge to hold a hearing subsequent to the commitment proceedings.” State v.
Young, 291 N.C. 562, 568, 231 S.E.2d 577, 581 (1977). Statutory rights to a
competency hearing are not equivalent to the constitutional right; the constitutional
right to a competency hearing cannot be waived. Wilkins, 386 N.C. at 930, 909 S.E.2d
at 220.
However, for the constitutional right to apply, “there must be substantial
evidence of the defendant’s incompetency.” Id. “Substantial evidence which
establishes a bona fide doubt as to a defendant’s competency may be established by
considering ‘a defendant’s irrational behavior, his demeanor at trial, and any prior
medical opinion on competence to stand trial.’” State v. Hollars, 376 N.C. 432, 442,
852 S.E.2d 135, 142 (2020) (quoting Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct.
896, 908 (1975)). While any one of the Drope factors listed above may have “the
potential to give rise to a bona fide doubt as to the defendant’s competency in some
circumstances,” “the relevant period of time for judging a defendant’s competence to
stand trial is ‘at the time of trial.’” Hollars, 376 N.C. at 442, 852 S.E.2d at 142 (quoting
State v. Cooper, 286 N.C. 549, 565, 213 S.E.2d 305, 316 (1975)).
Here, Defendant has waived his statutory right to a competency hearing
because there is no evidence in the record, he asserted his right to a competency
hearing or objected at any time to the question of his capacity. See Wilkins, 386 N.C.
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Opinion of the Court
at 927, 909 S.E.2d at 219. Defendant argues for the first time on appeal that the trial
court failed to hold the competency hearing prescribed by N.C. Gen. Stat. § 15A-1002
following his capacity evaluation. Defendant had ample opportunity during pretrial
hearings to object or to assert his right to a competency hearing. Further, Defendant
was never declared incompetent to stand trial. Notwithstanding the “bizarre, erratic,
and irrational behaviors” Defendant now points to regarding his capacity, the
capacity evaluation by Dr. Hurt specifically addressed some of these behaviors as
discussed supra and concluded in relevant part:
[Defendant] may be factually mistaken in the relevance or
importance of his assertions, but in this evaluation, he
exhibited no signs that delusions or other cognitive
distortions are driving his priorities in managing his legal
circumstances . . . . Even in light of those difficulties, this
evaluation could find no evidence of current symptoms of
mental disorder and could not find any signs at all of
intellectual disorder.
At the current time, [Defendant] presents with adequate
capacity to manage his own impulses, to attend to input
from others in his environment, to process information, and
to make decisions in a goal directed manner. While he may
not be fully willing to cooperate with processes which
undermine his own goals, he is able to choose actions
according to his own reasoned motivations. Under these
circumstances, failures to comply with court directives are
a matter of ordinary structure and consequences in the
courtroom; they do not give rise to a need for treatment of
an underlying mental disorder.
Following this evaluation, the trial court examined the report and found Defendant
capable of proceeding, to which Defendant did not object or request a competency
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Opinion of the Court
hearing. While Defendant could not have waived his constitutional right to a
competency hearing, the record lacks substantial evidence that would support
Defendant being found incompetent at the time of trial. Hollars, 376 N.C. at 442, 852
S.E.2d at 142; see Wilkins, 386 N.C. at 930-31, 909 S.E.2d at 220-21. Further,
Defendant points only to specific instances of behavior “establishing real doubt” of his
competency prior to trial while the relevant period of time to consider his competency
is at the time of trial. Hollars, 376 N.C. at 442, 852 S.E.2d at 142. Therefore, the trial
court did not err by failing to hold a competency hearing on statutory or constitutional
grounds.
C. Compliance with N.C. Gen. Stat. § 15A-1242
Next, we consider Defendant’s argument that the trial court failed to comply
with the requirements of N.C. Gen. Stat. § 15A-1242. Defendant argues the trial
court’s inquiry during the initial 26 October 2022 hearing was not adequate to
support his waiver of his right to counsel for the charge of being a habitual felon
because he had not yet been indicted on the charge. Further, Defendant argues the
trial court repeatedly misinformed him of his sentencing exposure on both the charge
of failing to report his change of address for the sex offender registry and attaining
habitual felon status.
“The Sixth Amendment of the Constitution of the United States as applied to
the states through the Fourteenth Amendment guarantees an accused in a criminal
case the right to assistance of counsel for his defense.” Lindsey, 271 N.C. App. at 126,
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Opinion of the Court
843 S.E.2d at 328 (quoting State v. White, 78 N.C. App. 741, 744, 338 S.E.2d 614, 616
(1986)). A criminal defendant has the right to handle his own case; however, the trial
court must first “establish both the defendant clearly and unequivocally expressed a
desire to proceed without counsel, and that the defendant knowingly, intelligently,
and voluntarily waived the right to counsel.” Lindsey, 271 N.C. App. at 126, 843
S.E.2d at 328. This Court has held compliance with N.C. Gen. Stat. § 15A-1242
satisfies both constitutional and statutory standards. Lindsey, 271 N.C. App. at 126-
27, 843 S.E.2d at 329.
N.C. Gen. Stat. § 15A-1242 states,
A defendant may be permitted at his election to proceed in
the trial of his case without the assistance of counsel only
after the trial judge makes thorough inquiry and is
satisfied that the defendant:
(1) Has been clearly advised of his right to the assistance
of counsel, including his right to the assignment of counsel
when he is so entitled;
(2) Understands and appreciates the consequences of this
decision; and
(3) Comprehends the nature of the charges and proceedings
and the range of permissible punishments.
N.C. Gen. Stat. § 15A-1242 (2023). It is prejudicial error to allow a “defendant to
proceed pro se at any critical stage of criminal proceedings without making the
inquiry required by N.C. Gen. Stat. § 15A-1242.” Lindsey, 271 N.C. App. at 128, 843
S.E.2d at 330 (quoting State v. Frederick, 222 N.C. App. 576, 584, 730 S.E.2d 275, 281
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(2012)).
Here, as discussed supra, the trial court repeatedly informed Defendant of his
right to be represented by counsel and obtained a written waiver of counsel during
the initial 26 October 2022 hearing. Additionally, for almost two years during
subsequent pretrial hearings, Defendant clearly expressed his desire to represent
himself and the trial court continued to remind him of his right to counsel. On appeal,
Defendant does not argue the trial court’s colloquy at the 26 October 2022 hearing
was inadequate in regard to the charge of failing to report his change of address for
the sex offender registry, rather Defendant argues this colloquy cannot also apply to
the charge of being a habitual felon. Irrespective of whether the 26 October 2022
colloquy applies to both charges, we conclude the trial court’s inquiries at trial
comport with the requirements set forth in N.C. Gen. Stat. § 15A-1242.
On the first day of trial, Defendant informed the trial court of his desire to
simultaneously enter a plea of no contest and make a policy argument in front of the
jury. In response, the trial court informed Defendant of the differences between a
plea of no contest, accepting a plea deal, and pleading not guilty, as well as the
possible sentencing risk exposure he faced if the jury found him guilty:
THE COURT: So if a jury finds you guilty - - it’s my
understanding that you are a prior record level five for
habitual sentencing purposes. And if the jury finds you
guilty of this offense and finds you guilty of being - - or finds
that you’ve attained the status of habitual felon, in the
presumptive range, the minimum sentences run from 101
to 127 months. If you plead - - if the jury finds you guilty,
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Opinion of the Court
but they do not find that you’re a habitual felon, the
sentences will - - minimum sentences go from 26 to 33
months. Those are the minimums. And so what would
happen if they find you guilty of the charge alleged, we’d
have another proceeding after that to determine whether
you have attained the status of habitual felon. And if you
have, that increases the penalty by four classes. So it
would go from an F to a C.
Next, the trial court heard a number of pretrial motions by Defendant, including a
“withdrawal of your waiver of right to counsel . . . .” The trial court again asked
Defendant, “[d]o you want to be represented by counsel?” The following colloquy took
place:
THE DEFENDANT: I’m going to answer that question. My
intention is to waive my right of counsel during trial, not
before. So that’s mainly my intention here.
THE COURT: So you want counsel right now?
THE DEFENDANT: Yeah, until - - until trial, until we get
in front of a jury, then yeah. Once we get in front of a jury,
I’ll present my case and waive counsel then.
THE COURT: All right. You understand policy arguments
- - the jury determines facts.
THE DEFENDANT: Yes.
After ruling on Defendant’s remaining pretrial motions, the trial court
recapped by stating in part:
The speedy trial motion was heard on October - - in October
2023, was denied by Judge Hill, as was a motion to
withdraw a waiver of counsel. The defendant, subsequent
to those hearings, filed a motion to withdraw waiver of
counsel and a new motion for speedy trial.
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....
The defendant has had one regular counsel, two standby
counsel on the underlying charge, one standby counsel on
the habitual felon and any prejudice that has been shown
is insufficient to constitute a due process violation.
The trial court then revisited the issue of whether Defendant was waiving his right
to counsel at trial or not:
THE COURT: . . . The motion with respect to assistance of
counsel, you’re seeking to have counsel with you through
voir dire and you’re going to make your - -
THE DEFENDANT: I’ll do my presentation at trial.
THE COURT: All right. I will grant that. You all will be
his - - I’m going to appoint you as counsel through voir dire
and then, per his wish, you will return to standby status
after voir dire.
The trial court then instructed Defendant’s standby counsel to contact the
public defender’s officer to have Defendant outfitted with clothes before trial officially
began that afternoon. After court reconvened, the trial court and Defendant
continued to discuss Defendant’s various motions and arguments about his prior
convictions. Once the potential jurors entered the court room, the trial court
introduced the parties and stated, “the defendant in this case . . . at this point he is
represented by [Attorney] Manning and [Attorney] Brown.” The trial court then
informed the potential jurors that Defendant had entered a plea of not guilty.
The State began voir dire, with Defendant making his own objection to the
potential juror the State excused for cause. Defendant’s standby counsel stepped in
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Opinion of the Court
and asked to hear more about why the potential juror was being excused. The trial
court, after discussion with Defendant on the potential juror, informed the jury that
Defendant had asked standby counsel to assist him with voir dire but after the jury
was selected and impaneled, Defendant would then take over the defense of the case.
The next day, the trial court began by informing Defendant of the following:
THE COURT: All right. Before we bring the jury back in,
[Defendant], two things I need to address with you on the
record. I looked over your prior record level sheet and will
go over it in more depth in the event this jury finds you
guilty, but as I calculate the points, you have 20 points,
which makes it a prior record level six, which would mean
the maximum punishment that could be imposed if they - -
if they do not - - if they find you guilty of the underlying
felonies but not of the habitual felon would be a minimum
of 25 to a maximum of 39 months. If they find that you
have attained the status of habitual felon, the maximum
punishment that could be imposed would be a minimum of
146 months to a maximum of 188 months.
The reason I tell you this is I don’t know when you were - -
when you waived right to counsel what you were advised of
in terms of the maximum sentence, but if you’re a prior
record level six, the maximum sentence that would be
imposed would be a minimum of 146 months to a maximum
of 188 months.
I just need to ask, does that in any way change your view
on whether you want to represent yourself or not?
THE DEFENDANT: No.
THE COURT: And yesterday we addressed your motion to
withdraw your waiver of counsel and you indicated that
you were doing that because you wanted your attorneys to
do the voir dire and then you do the rest of the case. Do
you recall that?
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Opinion of the Court
THE DEFENDANT: Yeah, I did.
Jury selection proceeded and Defendant continued to ask his own questions to
the prospective jurors and to excuse jurors. Once all jurors and alternate jurors were
selected, the trial court confirmed with Defendant whether he was satisfied to which
he responded that he was. The jury was impaneled. Defendant presented his own
defense during trial. The jury found Defendant guilty of failing to report his change
of address for the sex offender registry in violation of N.C. Gen. Stat. § 14-208.11(a)(2)
and guilty of attaining habitual felon status. At sentencing, the trial court found
Defendant to be a prior record level six, having twenty-one points and stated
Defendant would be sentenced as a class C felon. The trial court sentenced Defendant
to 87 to 117 months of imprisonment.
Defendant argues the trial court misinformed him of the maximum sentencing
range he faced when it informed him on the first day of trial, prior to jury selection,
that he faced a potential maximum punishment of 101 to 127 months of imprisonment
if found to be a habitual felon or 26 to 33 months of imprisonment if found not to be
a habitual felon. Defendant argues he should have been informed of the maximum
“theoretical” punishment of 231 months1 of imprisonment if found guilty on both
1 188 months is the maximum possible punishment in the presumptive range at the highest
prior record level for a class C felony. N.C. Gen. Stat. § 15A-1340.17. 231 months is the maximum
possible punishment in the aggravated range at the highest prior record level for a class C felony. Id.
The trial court was aware Defendant was a prior record level six, the highest prior record level for a
class C felony, which carries a 188 month maximum in the presumptive range and a 231 month
maximum in the aggravated range for a class C felony. Id. Thus, as the trial court was aware,
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Opinion of the Court
charges or 59 months of imprisonment if found guilty of the registry charge but not
of attaining the status of habitual felon, “assuming the highest prior record level and
aggravating factors.” Defendant further argues that on the second day of jury
selection, the trial court “recognized that it had failed to determine whether
[Defendant] knowingly and voluntarily waived his right to counsel on the habitual
felon charge.” At this point, the trial court informed Defendant he was facing 25 to
39 months or 146 to 188 months of imprisonment if found guilty of both the registry
charge and attaining the status of habitual felon. Defendant contends the trial court’s
inquiry into his waiver of counsel on the second day was too late and the inconsistent
maximum possible punishment ranges were likely confusing to him. We disagree.
While the trial court inquired further into Defendant’s waiver of counsel on the
second day of trial during jury selection and jury selection is considered a critical
stage at trial, Defendant was represented by counsel during voir dire as discussed
supra. State v. Veney, 259 N.C. App. 915, 920, 817 S.E.2d 114, 118 (2018). Thus, even
if prior to this point the requirements of N.C. Gen. Stat. § 15A-1242 were not met,
Defendant was represented by counsel at that time. See Lindsey, 271 N.C. App. at
128, 843 S.E.2d at 330.
“[A] mistake in the number of months which a trial judge employs during a
Defendant was not facing aggravating factors, the trial court informed Defendant of the true
maximum possible punishment he was facing if found guilty on both charges and further was
ultimately sentenced for less time than he was informed.
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STATE V. HUBBARD
Opinion of the Court
colloquy with a defendant contemplating the assertion of his right to proceed pro se”
does not constitute “a per se violation of N.C. Gen. Stat. § 15A-1242.” State v. Gentry,
227 N.C. App. 583, 599-600, 743 S.E.2d 235, 246 (2013). Further, “such a calculation
error would only contravene N.C. Gen. Stat. § 15A-1242 if there was a reasonable
likelihood that the defendant might have made a different decision with respect to
the issue of self-representation had he or she been more accurately informed about
‘the range of permissible punishments.’” Id. at 600, 743 S.E.2d at 246 (emphasis
added). While the trial court did inform Defendant of different maximum possible
sentences on the first and second day of trial, on the second day the trial court
informed him of the correct maximum possible sentence he faced considering his
charges and prior record level. N.C. Gen. Stat. § 15A-1340.17. Further, Defendant
has not established there was any reasonable likelihood he would have made a
different decision regarding self-representation had he been informed of what he
alleges is the proper maximum possible sentence.
The record is clear Defendant had expressed and maintained a desire to
represent himself since the 26 October 2022 hearing, more than a year prior to trial.
While Defendant was not yet aware he would face habitual felon status at the time
of the 26 October 2022 hearing, he expressed and maintained his decision to represent
himself even after becoming aware of his exposure to habitual felon status months
prior to trial. Defendant does not argue that his waiver at the 26 October 2022
hearing was invalid at the time. We acknowledge Defendant filed motions to
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STATE V. HUBBARD
Opinion of the Court
“withdraw waiver of amendment of right to counsel,” notwithstanding, the record
clearly demonstrates that the trial court thoroughly discussed each motion with
Defendant, and ultimately determined Defendant’s motions to “withdraw waiver of
amendment of right to counsel” did not support Defendant’s ultimate goal of
representing himself. Further, the trial court sentenced Defendant at the bottom of
the mitigated range for a class C felony to 87 to 117 months of imprisonment. N.C.
Gen. Stat. § 15A-1340.17. This term of imprisonment is less than both the potential
maximum sentence ranges the trial court informed Defendant he could face if found
guilty of both charges on the first and second day of trial.
The trial court performed thorough inquiries at pretrial hearings and prior to
the jury being impaneled, and the record shows Defendant had been clear and
consistent in his expression of intent to represent himself and his understanding
regarding the consequences of representing himself. Thus, we conclude the trial court
adequately complied with the requirements set forth in N.C. Gen. Stat. § 15A-1242;
further, there was not a reasonable likelihood that Defendant’s decision to represent
himself would have been different had the trial court informed him of the theoretical
maximum possible punishment of 231 months of imprisonment. Gentry, 227 N.C.
App. at 600, 743 S.E.2d at 246.
III. Conclusion
For the foregoing reasons, we hold Defendant received a fair trial free from
error.
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STATE V. HUBBARD
Opinion of the Court
NO ERROR.
Judges STROUD and MURRY concur.
Report per Rule 30(e).
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