State v. Faulkner

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-319

Filed: 15 November 2016

Person County, Nos. 13 CRS 154 - 155, 14 CRS 50889 - 90

STATE OF NORTH CAROLINA, Plaintiff,

v.

CHARLES DREW FAULKNER, Defendant.

Appeal by defendant from judgment entered 16 October 2015 by Judge W.

Osmond Smith, III in Person County Superior Court. Heard in the Court of Appeals

6 October 2016.

Attorney General Roy Cooper, by Assistant Attorney General Christine Wright,

for the State.

Patterson Harkavy LLP, by Paul E. Smith, for defendant-appellant.

ZACHARY, Judge.

Charles Drew Faulkner (defendant) appeals from judgments revoking his

probation and activating the corresponding sentences that were imposed upon his

convictions of criminal offenses in 2013 and 2014. Defendant argues on appeal that

the trial court erred by allowing him to represent himself without first determining

that his request to proceed pro se was knowing and voluntary. We conclude that the

trial court properly conducted the inquiry required under N.C. Gen. Stat. § 15A-1242

(2015), and thus did not err by allowing defendant to represent himself at the

probation revocation hearing.

STATE V. FAULKNER

Opinion of the Court

I. Factual and Procedural History

On 14 August 2013, defendant pleaded guilty to the sale of marijuana,

possession of marijuana with intent to sell or deliver, possession of drug

paraphernalia, and possession of a firearm by a convicted felon. The drug-related

charges were consolidated and defendant was sentenced to a term of 10-21 months’

imprisonment; the sentence was suspended and defendant was placed on supervised

probation for 24 months. Defendant received a consecutive suspended sentence of

17-30 months’ imprisonment for possession of a firearm by a felon.1 On 20 November

2014, defendant pleaded guilty to possession of marijuana with intent to sell or

deliver, possession of drug paraphernalia, and maintenance of a dwelling for the

purpose of selling marijuana. The court imposed two consecutive sentences of 6-17

months imprisonment, which were suspended, and defendant was placed on

probation for a period of 36 months.

On 19 May 2015, defendant’s probation officer filed violation reports alleging

violations by defendant of the terms of the probationary sentences imposed in 2013,

including his commission of the offenses to which he pleaded guilty in 2014, and being

in arrears on court-ordered payments. It was also alleged that defendant had violated

the terms of the 2014 probationary sentences in several respects, including having

1 Defendant later filed a motion for appropriate relief on the grounds that his prior record

level was miscalculated in the judgment sentencing him for possession of a firearm by a felon.

Defendant’s motion was granted and he was resentenced to a term of 14-26 months’ for possession of

a firearm by a felon.

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Opinion of the Court

tested positive for the presence of marijuana. On 8 June 2015, defendant appeared

in court on the charges of violating the terms of his probation. The trial court

informed defendant that if he were indigent he would qualify for court-appointed

counsel and that he also could hire an attorney or represent himself. After discussing

the issue with defendant, the trial court granted defendant’s request to represent

himself with the assistance of standby counsel.

On 30 August 2015, the trial court conducted a probation revocation hearing.

Defendant, who appeared pro se, did not offer evidence or raise any arguments

pertaining to the substantive merits of the probation violation reports. Instead,

defendant relied solely on the argument that he was a “Moorish National” or

“sovereign citizen” and therefore was not subject to the court’s jurisdiction. At the

end of the hearing, the trial court found that defendant had violated the terms of his

probation. The court activated the suspended sentences previously imposed on

defendant and consolidated the judgments into two consecutive sentences of 14 - 26

months’ followed by 6 -17 months’ imprisonment. Defendant gave oral notice of

appeal.

II. Standard of Review

On appeal, defendant contends that the trial court erred by allowing him to

represent himself without making a valid determination that defendant’s decision to

proceed pro se was knowing, intelligent, and voluntary. We do not agree.

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STATE V. FAULKNER

Opinion of the Court

It is well-established that “[t]he right to counsel provided by the Sixth

Amendment to the United States Constitution also provides the right to self-

representation.” State v. White, 349 N.C. 535, 563, 508 S.E.2d 253, 270-71 (1998)

(citing Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562 (1975), and N.C. Const.

art. I, § 23). “Before allowing a defendant to waive in-court representation by counsel,

however, the trial court must insure that constitutional and statutory standards are

satisfied.” State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992). “[I]t is

error for a trial court to allow a criminal defendant to release his counsel and proceed

pro se unless, first, the defendant expresses ‘clearly and unequivocally’ his election to

proceed pro se and, second, the defendant knowingly, intelligently, and voluntarily

waives his right to in-court representation.” White, 349 N.C. at 563, 508 S.E.2d at 271

(citation omitted).

Under North Carolina law, “ ‘Once a defendant clearly and unequivocally

states that he wants to proceed pro se, the trial court . . . must determine whether the

defendant knowingly, intelligently, and voluntarily waives the right to . . .

representation by counsel.’ A trial court’s inquiry will satisfy this constitutional

requirement if conducted pursuant to N.C.G.S. § 15A-1242.” State v. Moore, 362 N.C.

319, 322, 661 S.E.2d 722, 724 (2008) (quoting Thomas, 331 N.C. at 674, 417 S.E.2d at

476). N.C. Gen. Stat. § 15A-1242 provides as follows:

A defendant may be permitted at his election to proceed in

the trial of his case without the assistance of counsel only

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STATE V. FAULKNER

Opinion of the Court

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.

“We review a trial court’s decision to permit a defendant to represent himself

de novo.” State v. Garrison, __ N.C. App. __, __, 788 S.E.2d 678, 679 (2016) (citing

State v. Watlington, 216 N.C. App. 388, 393-94, 716 S.E.2d 671, 675 (2011)).

III. Discussion

Defendant argues that the trial court committed reversible error by allowing

him to proceed pro se at the probation revocation hearing without first determining

that defendant’s decision was knowing, intelligent, and voluntary. Analysis of this

issue is best understood by reviewing the colloquy between the trial court and

defendant, which is set out below:

PROSECUTOR: . . . Charles Drew Faulkner. It’s on for a

first appearance for his probation violation. Needs to be

advised.

DEFENDANT: For the record, let the record show I’m

Charles Drew Faulkner. I’m Moorish American National.

THE COURT: Please stand, sir. You’re charged with

violating probation. If you were to be found in violation, you

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Opinion of the Court

could have probation revoked. Your suspended sentences

are 10 to 21 months, 14 to 26 months, 6 to 17 months and

6 to 17 months. Those are the sentences you could possibly

be required to serve if you were found in violation and

subject to revocation. Because of that, you’re entitled to be

represented by a lawyer. If you desire a lawyer and cannot

afford one, the Court will appoint a lawyer to represent you

at no cost to you at this time. An appointed lawyer is not

necessarily free, in that if you were to be found in violation

of probation, one of the conditions of judgment would be

that you be required to reimburse the State for the value of

your court-appointed attorney’s services. You have the

right to represent yourself, retain a lawyer to represent you

or to apply for a court-appointed lawyer. Do you

understand those matters, sir?

DEFENDANT: Yes, I understand.

THE COURT: What do you want to do about a lawyer?

DEFENDANT: Represent myself.

THE COURT: All right. The law requires me to have

additional discussion with you. Do you understand if you

choose to represent yourself, that I may not serve as a legal

adviser to you?

DEFENDANT: I understand.

THE COURT: That you would be expected to know and

follow the rules and procedures that would be applicable as

if you had a lawyer. Do you understand that?

DEFENDANT: Yes.

THE COURT: At a probation violation hearing, the State’s

not required to prove violations beyond a reasonable doubt,

but only to the reasonable satisfaction of a judge. Do you

understand that?

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STATE V. FAULKNER

Opinion of the Court

DEFENDANT: Yes. Can you state your jurisdiction for the

record?

THE COURT: Further, do you understand that there might

be things about the law that you don’t understand because

you’re not schooled in law? There might be things that you

couldn’t take advantage of that would be to your benefit if

you knew about. If you choose to represent yourself, you

are, in effect, understanding all the circumstances you

have, you are knowing the consequences and you further

understand there might be things about the law that you

can’t use to your benefit? Do you understand that?

DEFENDANT: I don’t.

THE COURT: There may be things about the law and

procedures in probation violations. If you don’t know those

things . . . there might be some rights that you would lose

or waive or give up or not be able to take advantage of.

Sometimes people even refer to them as technicalities. So

do you understand that if you choose to represent yourself,

and you don’t know something about the law, then that’s

just the way you find yourself. Do you understand that?

DEFENDANT: No.

THE COURT: Do you have any questions about that?

DEFENDANT: No.

THE COURT: Do you want to represent yourself?

DEFENDANT: I would ask to have standby counsel.

THE COURT: You'd like to have standby counsel?

DEFENDANT: Yes.

THE COURT: Then do you understand if you choose to

represent yourself, I’m required to have this conversation

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STATE V. FAULKNER

Opinion of the Court

with you about your decision to be sure that you

understand[.] . . . I don’t have to decide whether it's a good

decision, but that you understand your decision to

represent yourself. So knowing all that you know about

yourself, the circumstances that you find yourself in, the

potential consequences, everything I’ve discussed with you

and everything else that you know about your situation,

you choose now to give up your rights to a lawyer and

represent yourself, but you request standby counsel. Is that

right?

DEFENDANT: Yes, sir.

THE COURT: All right. Have the defendant sign a waiver

of all counsel. This is a document agreeing to what you just

said to me.

...

THE COURT: The Court has complied with 15A-1242. The

defendant should be allowed to represent himself as he has

requested. Further, pursuant to 15A-1243, the defendant’s

request to have standby counsel appointed to assist him

when called upon and to bring to the Judge’s attention

matters favorable to the defendant upon which the Judge

should rule upon his own motion is granted. That is,

defendant’s request for standby counsel is granted.

...

DEFENDANT: Could you state your jurisdiction for the

record, sir?

THE COURT: I think I understood your question. But

would you say it a little slower and clearer?

DEFENDANT: Would you state your jurisdiction for the

record, sir?

THE COURT: Yes, sir. I’m a Superior Court Judge.

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STATE V. FAULKNER

Opinion of the Court

DEFENDANT: I didn’t ask what kind of judge you were.

THE COURT: You can move . . . on to the next case.

In the trial court’s discussion with defendant, the court explained the “nature

of the charges and proceedings and the range of permissible punishments” and

informed defendant of “his right to the assistance of counsel, including his right to

the assignment of counsel when he is so entitled,” as required by N.C. Gen. Stat. §

15A-1242. In response, defendant “clearly and unequivocally” asked to represent

himself. The trial court then informed defendant that (1) if defendant represented

himself, the trial court would not serve as a legal adviser to defendant; (2) if defendant

proceeded pro se he would be expected to know and follow the rules and procedures

of court; and (3) that at a probation violation hearing, the State is not required to

prove violations beyond a reasonable doubt, but only to the reasonable satisfaction of

the court. Defendant indicated that he understood each of these warnings regarding

the consequences of representing himself. We conclude that the trial court’s inquiry

of defendant met the standard set out in N.C. Gen. Stat. § 15A-1242 and that the trial

court did not err by allowing defendant to proceed pro se.

We note that this conclusion is also supported by our jurisprudence

interpreting N.C. Gen. Stat. § 7A-457 (a) (2015), which provides in relevant part that:

An indigent person who has been informed of his right to

be represented by counsel . . . may, in writing, waive the

right to in-court representation by counsel[.] . . . Any

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STATE V. FAULKNER

Opinion of the Court

waiver of counsel shall be effective only if the court finds of

record that at the time of waiver the indigent person acted

with full awareness of his rights and of the consequences

of the waiver. In making such a finding, the court shall

consider, among other things, such matters as the person’s

age, education, familiarity with the English language,

mental condition, and the complexity of the crime charged.

N.C. Gen. Stat. § 7A-457 requires the trial court to find “that at the time of

waiver, the defendant acted with full awareness of his rights and of the consequences

of the waiver. . . . This is similar to the inquiry required under N.C.G.S. § 15A-1242

and may be satisfied in a like manner.” State v. Heatwole, 344 N.C. 1, 18, 473 S.E.2d

310, 318 (1996). Accordingly, in determining whether the trial court properly allowed

defendant to represent himself, it is appropriate to consider the defendant’s “age,

education, familiarity with the English language, mental condition, and the

complexity of the crime charged” as set out in N.C. Gen. Stat. § 7A-457. In this case,

the record indicates that defendant was 23 years old, spoke English, had a G.E.D.

degree, had attended college for one semester, and had no mental defects of record.

In addition, there were no factual or legal complexities involved in the determination

of whether defendant had violated his probation. The alleged violations -- defendant’s

conviction of other offenses while on probation, testing positive for the presence of

marijuana, and being in arrears on court-ordered payments -- were easily established

by means of the official records of the defendant’s 2014 convictions and the testimony

of defendant’s probation officer. Moreover:

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STATE V. FAULKNER

Opinion of the Court

“A proceeding to revoke probation [is] often regarded as

informal or summary, and the court is not bound by strict

rules of evidence. An alleged violation by a defendant of a

condition upon which his sentence is suspended need not

be proven beyond a reasonable doubt. All that is required

is that the evidence be such as to reasonably satisfy the

judge in the exercise of his sound discretion that the

defendant has violated a valid condition upon which the

sentence was suspended. The findings of the judge, if

supported by competent evidence, and his judgment based

thereon are not reviewable on appeal, unless there is a

manifest abuse of discretion.”

State v. Williams, 230 N.C. App. 590, 597, 754 S.E.2d 826, 830 (2013) (quoting State

v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000)), disc. review denied,

367 N.C. 298, 753 S.E.2d 670 (2014). As a result of the relative informality of and the

lower burden of proof at a probation revocation hearing, defendant’s decision to

represent himself did not require defendant to navigate complex evidentiary or

procedural rules. We conclude that the inquiry conducted by the trial court in this

case complied with N.C. Gen. Stat. § 15A-1242, that the factors set out in N.C. Gen.

Stat. § 7A-457 also support the court’s decision, and that the trial court did not err by

allowing defendant to represent himself.

Defendant’s argument for a contrary result is primarily based upon the fact

that during his colloquy with the trial court, defendant twice indicated that he did

not understand a statement by the trial court. The relevant excerpt from the

transcript is as follows:

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Opinion of the Court

THE COURT: At a probation violation hearing, the State’s

not required to prove violations beyond a reasonable doubt,

but only to the reasonable satisfaction of a judge. Do you

understand that?

DEFENDANT: Yes. Can you state your jurisdiction for the

record?

THE COURT: Further, do you understand that there might

be things about the law that you don’t understand because

you're not schooled in law? There might be things that you

couldn’t take advantage of that would be to your benefit if

you knew about. If you choose to represent yourself, you

are, in effect, understanding all the circumstances you

have, you are knowing the consequences and you further

understand there might be things about the law that you

can’t use to your benefit? Do you understand that?

DEFENDANT: I don’t.

THE COURT: There may be things about the law and

procedures in probation violations. If you don’t know those

things . . . there might be some rights that you would lose

or waive or give up or not be able to take advantage of.

Sometimes people even refer to them as technicalities. So

do you understand that if you choose to represent yourself,

and you don’t know something about the law, then that’s

just the way you find yourself. Do you understand that?

DEFENDANT: No.

THE COURT: Do you have any questions about that?

DEFENDANT: No.

Defendant contends on appeal that because he twice indicated that he did not

understand a statement by the trial court, the trial court’s determination that

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Opinion of the Court

defendant’s waiver of counsel was knowing, intelligent, and voluntary was erroneous.

We conclude that defendant’s argument lacks merit.

First, the statements about which defendant indicated confusion were not

essential to the trial court’s inquiry. The two questions to which defendant answered

“No” when he was asked whether he understood consisted of reminders by the trial

court that defendant was not a lawyer and therefore might not be aware of all of the

legal rules applicable to his case. However, the trial court asked other questions that

established defendant’s understanding of the most important consequences of self-

representation: that the trial court would not provide legal assistance to defendant,

that defendant would be held to the same standards as a litigant with legal

representation, and that the burden of proof in a probation revocation case was lower

than that in a criminal trial and required only proof to the judge’s satisfaction. We

conclude that the trial court’s decision to allow defendant to represent himself would

have been valid even if the court had omitted these questions.

In addition, “[i]t is axiomatic that ‘it is within a trial court’s discretion to

determine the weight and credibility that should be given to all evidence that is

presented during the trial.’ ” Don’t Do It Empire, LLC v. Tenntex, __ N.C. App. __, __,

782 S.E.2d 903, 910 (2016) (quoting Clark v. Dyer, __ N.C. App. __, __, 762 S.E.2d

838, 848 (2014), cert. denied, 368 N.C. 424, 778 S.E.2d 279 (2015)). Thus, the trial

court could properly evaluate the credibility of defendant’s contention that he did not

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STATE V. FAULKNER

Opinion of the Court

understand one or more of the trial court’s statements. In this regard, the trial court

was also allowed to consider the fact that defendant consistently asserted that

because he was a “Moorish National” or “sovereign citizen” he was not subject to the

court’s jurisdiction.

“[S]o-called ‘sovereign citizens’ are individuals who believe they are not subject

to courts’ jurisdiction[.] . . . [C]ourts repeatedly have been confronted with sovereign

citizens’ attempts to delay judicial proceedings, and summarily have rejected their

legal theories as frivolous.” United States v. Davis, 586 Fed. Appx. 534, 537 (11th

Cir. 2014), adopted by, relief dismissed at 2015 U.S. Dist. LEXIS 118200 (N.D. Ga.

2015). The courtroom behavior of adherents to the “sovereign citizen” philosophy is

sometimes frustrating to trial judges:

The sovereign citizen typically files lots of rambling,

verbose motions and, in court proceedings, will often refuse

to respond coherently to even the simplest question posed

by the Court. Each question by the judge is volleyed back

with a question as to what is the judge’s claim and by what

authority is the judge even asking a question. . . . In

proceedings, the observant sovereign citizen clings

doggedly to the sovereign citizen script[.] . . . For the most

part, the defendant’s statements to the Court are

gibberish.

United States v. Cartman, 2013 U.S. Dist. LEXIS 79137 *3 (N.D. Ga. 2013), aff'd, 607

Fed. Appx. 888 (11th Cir. Ga. 2015). A defendant’s contention that he “does not

understand” the proceedings is a common aspect of a “sovereign citizen” defense. For

example, in State v. Mee, 233 N.C. App. 542, 756 S.E.2d 103 (2014), the defendant

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Opinion of the Court

challenged the court’s jurisdiction, asserting that he was “a sovereign from [Moorish]

descent” and a “free indigenous man” with rights under “the United Nations

Declaration of Rights of Indigenous Peoples.” When the trial court tried to determine

whether the defendant wanted appointed counsel, the defendant repeatedly claimed

that he understood nothing about the proceedings. On appeal, this Court upheld the

trial court’s ruling that the defendant had forfeited the right to counsel, noting the

trial court’s statement that:

THE COURT: . . . [T]he Court finds as a fact that Mr. Mee

is intentionally disrupting these proceedings and

intentionally trying to impede his trial. And that was

apparent from his demeanor yesterday when I saw him. . .

. So despite Mr. Mee’s protestations that he does not

understand these proceedings, the Court is of the opinion

that he understands these proceedings very well, and just

is not recognizing the Court[.] . . . He’s obstructing these

proceedings.

Mee, 233 N.C. App. at 559, 756 S.E.2d at 112-113. Similarly, in United States v.

Rowell, 2016 U.S. Dist. LEXIS 134510 *7, adopted by 2016 U.S. Dist. LEXIS 134511

(E.D. Wis. 2016), the defendant, who claimed to be “a citizen of the Moorish Republic

Nation,” represented himself at trial. On appeal, the court held that the defendant

was competent to waive counsel, notwithstanding the fact that the defendant had

claimed not to understand the charges against him:

. . . Mr. Ali Bey has chosen to proceed pro se and made his

jurisdictional arguments without the assistance of counsel.

Based on my in-court interactions with Mr. Ali Bey, I have

concluded that he is intelligent, aware of his surroundings,

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Opinion of the Court

and cognizant of the adverse consequences that can attend

self-representation. . . . To be sure, at times Mr. Ali Bey

asserted that he did not understand the charges against

him or the penalties he faced. But his statements stemmed,

from my observation, from his refusal to recognize the

authority of the United States and not from a failure of

comprehension.

We wish to be clear that this Court is not expressing an opinion on the sincerity

of defendant’s claim not to have understood two of the trial court’s questions. Rather,

we are simply noting that the trial court was charged with determining the credibility

of defendant’s statements. We also observe that after defendant indicated that he did

not understand the trial court’s statements, the court gave defendant an opportunity

to ask questions and defendant indicated that he had no questions. We conclude that,

on the facts of this case, the trial court’s determination that defendant had made a

voluntary, intelligent, and knowing waiver of counsel was not invalidated merely

because defendant answered “No” when asked if he understood two of the trial court’s

questions.

Defendant also argues that the trial court failed to inform him of the nature of

the charges and the proceedings and of the possible sentences that might be imposed.

Defendant acknowledges that the trial court reviewed these matters immediately

before asking defendant whether he wished to retain counsel, seek assignment of

counsel, or represent himself. Defendant contends, however, that the court’s

statements on the charges and possible penalties were not valid because the trial

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Opinion of the Court

court did not repeat the same information after defendant asked to proceed pro se.

Defendant cites no authority in support of this argument, and we conclude that

defendant is not entitled to relief on this basis.

Finally, defendant asserts that when he requested that the trial court appoint

standby counsel, defendant “was no longer unequivocally requesting to proceed pro

se.” In support of this position, defendant cites Thomas, in which the defendant

stated that he did not want to proceed pro se or to be represented by counsel, but

instead sought a “hybrid representation” in which the defendant would function as

the “lead attorney” along with assigned counsel. Thomas is inapplicable to the

present case, and defendant cites no authority holding that a defendant’s request for

standby counsel automatically invalidates his otherwise clear and unequivocal

request to proceed pro se.

For the reasons discussed above, we conclude that the trial court did not err by

granting defendant’s request to represent himself at the probation revocation

hearing. Defendant has raised no other challenges to the judgments that activated

his suspended sentences and we conclude that these judgments should be

AFFIRMED.

Judges STROUD and McCULLOUGH concur.

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