# State v. Anderson > Court of Appeals of North Carolina · August 16, 2011 · 215 N.C. App. 169 URL: https://www.frixlaw.com/law-library/cases/9780760 ## Case - **Full name:** State of North Carolina v. Jackie Ray Anderson - **Court:** Court of Appeals of North Carolina - **Decided:** August 16, 2011 - **Citations:** 215 N.C. App. 169; 721 S.E.2d 233; 2011 N.C. App. LEXIS 1743 - **Precedential status:** Published - **Opinion:** Dissent by Bryant - **Judges:** Beasley, Geer, Bryant - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9780760 ## Opinion text BRYANT, Judge, dissenting. The majority holds that the trial court failed to adequately engage in the constitutional inquiry set forth in N.C. Gen. Stat. § 15A-1242 (2009) and therefore grants a new trial. However, because this Court has previously established that unless the record indicates otherwise, a court certified waiver of counsel is presumed to be knowing, intelligent, and voluntary, I must respectfully dissent. The majority holds that defendant was not informed of both of the charges for which he was indicted such that his waiver would not be knowing, voluntary, and intelligent as the trial court did not inquire as to whether defendant comprehended the nature of the proceedings and possible punishments for conviction of the offenses. I disagree. Pursuant to N.C.G.S. § 15A-1242, a defendant may elect to represent himself pro se only after the trial judge makes a thorough inquiry and is satisfied that the defendant has been advised of his right to counsel, understands and appreciates the consequences of this decision, and comprehends the nature of the charges, the proceedings, and the range of permissible punishments. N.C.G.S. § 15A-1242 (2009). “When a defendant executes a written waiver which is in turn certified by the trial court, the waiver of counsel will be presumed to have been knowing, intelligent, and voluntary, unless the rest of the record indicates otherwise.” State v. Warren, 82 N.C. App. 84, 89 , 345 S.E.2d 437, 441 (1986). “In our opinion, the statute[ 1 ] does not require *175 successive waivers in writing at every court level of the proceeding. The trial in the district court and the further trial in the superior court on appeal together constituted one in-court proceeding.” State v. Watson, 21 N.C. App. 374, 379 , 204 S.E.2d 537, 540 (1974). In the case sub judice, defendant signed two waivers of counsel. In his first appearance before the district court on 9 September 2009, defendant signed a waiver of counsel which in turn was certified by Judge Anthony Brown. Subsequently, on 9 February 2010, defendant appeared before the superior court and signed a second waiver of counsel which was certified by Judge Walter H. Godwin, Jr. Where, as here, defendant executes a waiver of counsel certified by the trial court, unless the record indicates otherwise, waiver of counsel is presumed to be knowing, intelligent, and voluntary. Warren, 82 N.C. App. at 89 , 345 S.E.2d at 441 . The majority opinion acknowledges that defendant’s waiver in district court, signed by the district court judge created a presumption that the waiver was knowing, intelligent, and voluntary. However, the majority states the district court waiver was insufficient as a valid waiver at defendant’s subsequent trial in Superior Court because defendant had not yet been indicted for attaining the status of habitual felon. I accept that premise. However, the record shows that defendant was subsequently advised of his right to counsel in Superior Court in accordance with N.C.G.S. § 15A-1242, that he stated orally and in writing he was going to represent himself, signed a waiver of counsel, which waiver was certified by a superior court judge dated 9 February 2010, creating a presumption that the second waiver was also knowing, intelligent, and voluntary. At the 9 February 2010 hearing, defendant asked for *176 clarification of the charges against him, and the assistant district attorney informed defendant, “You got a sale of cocaine and a habitual felon.” Further, defendant’s statements and conduct throughout the trial in which he represented himself lend support to the presumption that defendant understood the charges and potential punishments against him. Defendant testified that “It’s not my first time on the stand. ... I have had so many cases.” In addition, the record demonstrates that defendant made multiple objections, extensively cross-examined witnesses, had evidence published to the jury, and at the conclusion of the state’s evidence, made a motion to dismiss for lack of evidence. Throughout his trial, defendant neither made any subsequent request to withdraw his waiver of counsel nor requested assistance of counsel. Therefore, instead of supporting a failure to conduct a proper inquiry, this record, noting the actions of the trial court, along with defendant’s statements and conduct throughout the course of the trial, supports the presumption that his waiver of counsel was knowing, intelligent, and voluntary. Therefore, the constitutional inquiry set forth in N.C.G.S. § 15A-1242 was satisfied. As the majority noted, our State “has not set out specific requirements for how the statutory inquiry must be carried out.” State v. Patterson, -N.C. App. -, -, 703 S.E.2d 755, 759 (2009) (citation omitted). Therefore, to hold that defendant is entitled to a new trial under circumstances as exist in this record would elevate form over substance. For the foregoing reasons, I respectfully dissent from the majority opinion granting defendant a new trial. . The waiver of consent form exists per N.C.G.S. § 7A-457 (Waiver of counsel; pleas of guilty) and N.C.G.S. § 15A-1242 (2009) (Defendant’s election to represent himself at trial). The “Acknowledgement of Rights and Waiver” signed by defendant is set out, as follows: As the undersigned party in this action, I freely and voluntarily declare that I have been fully informed of the charges against me, the nature of and the statutory punishment for each such charge, and the nature of the proceedings against me; that I have been advised of my right to have counsel assigned to assist me and my right to have the assistance of counsel in defending against these charges or in handling these proceedings, and that I fully understand and *175 appreciate the consequences of my decision to waive the right to assigned counsel and the right to assistance of counsel. “Certificate of Judge” signed by the judge is set out, as follows: • I certify that the above named defendant has been fully informed in open court of the charges against him/her, the nature of and the statutory punishment for each charge, and the nature of the proceedings against the defendant and his/her right to have counsel assigned by the court and his/her right to have the assistance of counsel to represent him/her in this action; that the defendant comprehends the nature of the charges and proceedings and the range of punishments; that he/she understands and appreciates the consequences of his/her decision and that the defendant has voluntarily, knowingly, and intelligently elected in open court to be tried in this action:... without the assignment of counsel. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9780760. Public record. Not legal advice.