An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedure.



                                NO. COA14-593
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 6 January 2015


STATE OF NORTH CAROLINA

      v.                                       Guilford County
                                               Nos. 03 CRS 96775-88
CHRISTOPHER ALLEN REESE,
     Defendant.


      Appeal     by   defendant     from   judgments     entered    18   September

2013 by Judge James M. Webb in Guilford County Superior Court.

Heard in the Court of Appeals 20 October 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Anne M. Middleton, for the State.

      Kevin P. Bradley, for defendant-appellant.


      DIETZ, Judge.


      Defendant       Christopher      Allen     Reese     appeals       from   his

convictions and sentences on thirteen counts of statutory rape

and thirteen counts of taking indecent liberties with a child.

Reese argues on appeal that he was denied his constitutional

right to self-representation and that the trial court improperly

advised    him   of   the   risks    of    testifying    at   trial.      For   the

reasons that follow, we find no error.
                                          -2-
                         Facts and Procedural History

     On 3 November 2003, Reese was indicted on fourteen counts

of   statutory      rape    and     fourteen      counts      of    taking      indecent

liberties with a child.            On 4 October 2005, a jury found Reese

guilty   of   all    charges,      and    the    court   sentenced        him    to   six

consecutive      terms     of     288-355       months   imprisonment.            Reese

appealed to this Court, and we granted him a new trial on the

ground that his trial attorney had an impermissible conflict of

interest.      State v. Reese, 187 N.C. App. 510, 653 S.E.2d 256

(2007) (unpublished).

     The State began a new trial against Reese on 9 September

2013.     Reese had a court-appointed attorney                      for this second

trial.    At the start of the new trial, before jury selection

began, Reese twice moved to represent himself                        but the trial

court ignored his requests.              At the end of the day, still during

jury selection, Reese again moved to represent himself.                               The

trial    court   briefly         questioned      Reese     about    his    desire      to

represent     himself      and    made    note    that   he    is    on   his     eighth

attorney for this case.            The trial court told Reese to consider

his request overnight and stated that the court would address

the issue in the morning.
                                             -3-
      The    next     morning,    the    trial      court    conducted        a   thorough

inquiry to determine whether Reese’s desire to waive his right

to counsel and represent himself was knowing, intelligent, and

voluntary as required under N.C. Gen. Stat. § 15A-1242 (2013).

During      this    lengthy     colloquy,       Reese      repeatedly    expressed          a

desire to represent himself, but also hedged by stating that he

did   not    have    discovery    and        that   he   would   “find    it       hard    to

represent      [himself]      with      no    discovery.”        The     trial       court

informed Reese that if he were allowed to represent himself, the

trial would not be delayed despite his discovery claim:

              THE COURT: Do you understand this Court is
              not going to continue this trial based upon
              that statement from you?

              THE DEFENDANT: I do not understand that.

              THE COURT: It means that your statement that
              it's hard to represent yourself with no
              discovery is not a basis for which this
              Court, if the Court allows you to represent
              yourself, will continue this trial from this
              day. Do you understand that?

              THE DEFENDANT: No, I do not understand that.

      The     trial     court    also        questioned      Reese     regarding          his

understanding       that   the    court       was    not    required     to       reappoint

counsel if Reese later changed his mind:

              THE COURT: Do you understand that if I allow
              you to represent yourself and during the
              course of the trial you should change your
                              -4-
         mind   and  request   that   [court-appointed
         counsel] re-enter the role as your counsel,
         that that is unlikely to occur?

         THE DEFENDANT: Excuse      me?   No,   I    do   not
         understand that.

         THE COURT: Do you understand that if I grant
         your request to allow you to represent
         yourself, and if, during the course of the
         trial, you change your mind again and decide
         that you want [court-appointed counsel] to
         represent you, it is unlikely that the Court
         will allow that.

         THE DEFENDANT: I believe under the sixth
         amendment that at some point in time if I'm
         unable to proceed, co-counsel can be -- can
         take over.

         THE COURT: Again,    I'm   asking    you,   do   you
         understand that?

         THE DEFENDANT: No.

    Reese continued to assert that he did not understand this

issue stating, “[b]ecause, like I said, the sixth amendment, if

I'm unable to proceed, standby counsel is supposed to take over.

So if I say that, then I'm     agreeing that if I'm unable to

proceed, I'm just unable to proceed.”        When questioned further

on his understanding of this issue, Reese stated,

         THE DEFENDANT: No. My understanding is if at
         some point in time I cannot represent
         myself, standby counsel should be taking
         over. And I say that because of the fact if
         I get the discovery and I haven't had a
         chance to go all the way through it, at some
         point in time, if I can't go any further,
                    -5-
what am I to do? Because co-counsel can't
take over, is what you're saying.

Now, you ask me do I understand that, and I
know somewhere in the constitution that
doesn't agree with what you're saying. So I
can't say that I understand it when I know
in the constitution it's different. And I
can't say that I understand it when I know
that if I get the discovery today, there may
be witnesses today that I got five seconds
to go through and find something wrong, and
then I can't sit up and say, well, I need a
private investigator to go check this out
because of the fact I can't stop or delay
the trial. But at the same time, co-counsel
-- well, standby counsel can't take over and
do anything about it. That hinders me from
defending myself.

THE COURT: If I -- is it correct that you
are of the opinion that if at some point
during   the  trial,  while   representing
yourself, you can't continue to represent
yourself, then you believe that standby
counsel should be appointed to represent
you?

THE DEFENDANT: I believe that if I'm not
allowed to go any further, standby counsel
should be able to take over, but --

. . . .

So, no -- and like I said, a part of the
fifth and sixth amendment, if I can't
proceed, you're telling me that I can't --
standby counsel can't take over. But in the
fifth and sixth amendment, under one of the
statutes it says that if I'm unable to
proceed, standby counsel should be allowed
to take over.

. . . .
                                   -6-


           THE COURT: And you anticipate that if you're
           allowed to represent yourself, at some point
           during the trial before the jury reaches a
           verdict, there will be a problem where you
           believe   the  standby  counsel   should  be
           allowed to take over the representation of
           you. Is that correct?

           THE DEFENDANT: That is my interpreting of
           the -- that is my interpretation of the
           constitution.

           THE COURT: And is that what you believe?

           THE DEFENDANT: I believe the constitution,
           yes.

       Finally, toward the end of this lengthy colloquy, Reese

again stated that he expected problems at trial due to his lack

of discovery, and the trial court again questioned him on his

understanding of the consequences of self-representation.

           THE COURT: And if there's a problem, you
           believe then that standby counsel should be
           reappointed to represent you and take over
           the trial in representing you; is that
           correct?

           THE DEFENDANT: That is my understanding, and
           I say that not wanting [my counsel] to take
           over my case, and I say that reserving my
           right to represent myself.

       After finishing its colloquy with Reese, the trial court

made   numerous   findings   of   fact   regarding   Reese’s   motion   to

represent himself.    The court found that Reese understood he had

a right to counsel and that he understood the possible range of
                                 -7-
punishments.    The court also found that Reese believed if he

could no longer represent himself “that standby counsel, upon

his request, should be appointed to represent him.”            The trial

court then found that:

          [T]he defendant, if allowed to represent
          himself, is of the opinion that at some
          point during the trial a problem will arise.

          Next, that if he is allowed to represent
          himself, and if, at some point during the
          trial, a problem arises that he is unable to
          adequately deal with, he is of the opinion
          that standby counsel should be appointed as
          trial counsel and allowed to take over the
          defense and representation of the defendant.

      From these findings, the trial court concluded that Reese

was   clearly   advised   of   his     right   to   counsel,   that   he

comprehended the nature of the charges and proceedings and the

range of permissible punishments, and that he voluntarily waived

his right to counsel.     But the court also concluded that Reese

did not intelligently waive his right to counsel because he did

not understand the    consequences of his decision—specifically,

the fact that Reese would not have a right to have counsel

reappointed if he changed his mind.       The trial court then denied

Reese’s motion to represent himself and Reese proceeded to trial

represented by his court-appointed lawyer.
                                           -8-
       During      the    trial,    the    two     juvenile      victims        testified

against Reese, describing the sexual intercourse and other sex

acts that occurred.              After the State rested, the trial court

asked Reese whether he intended to testify on his own behalf.

When    he    answered      yes,   the     trial    court     engaged      in    another

colloquy questioning Reese on his understanding of his right not

to testify.        The trial court discussed with Reese that the State

would   get     the      final   closing    argument        if   he    testified     and

informed     him    that    some   scholars       find   that    having     the    final

argument offers some advantage.                  The court also informed Reese

that not testifying does not create a presumption of guilt and

that the court would instruct the jury as such.                       The trial court

then asked:

              THE COURT: And while I do not know, but if
              you have any prior criminal convictions for
              an offense which you could have received 60
              or more days' confinement, then the district
              attorney   may  ask   you   if  you've   been
              convicted   of   such   offense   on   cross-
              examination. Do you understand that?

              THE DEFENDANT: Yes.

              THE COURT: And the purpose of that would be
              to attempt to impeach your testimony by the
              state. Do you understand that?

              THE DEFENDANT: Yes.
                                          -9-
       The trial court stated that it would ask Reese again if he

wished to testify or to present any evidence on his behalf, but

that he was “free to privately consult with                      [his] attorney”

before answering.        Reese stated that he did not need to speak

with his attorney and that he did not intend to testify on his

own behalf.    Reese did not present any evidence at trial.

       The jury convicted Reese of all charges, but the trial

court set aside the verdict on one count of statutory rape.                      He

was sentenced to two consecutive sentences of 288-355 months

imprisonment with credit for 3,050 days confinement prior to the

date    of   judgment    for   the     statutory      rape      convictions,    and

fourteen consecutive sentences of 19-23 months imprisonment for

his taking indecent liberties with a child convictions.                        Reese

timely appealed.

                                     Analysis

I.     Reese’s Request to Represent Himself

       Reese first argues that the trial court erred in denying

his motion to represent himself.                  “Criminal defendants have a

constitutional right to the assistance of counsel in conducting

their   defense.        Implicit     in    this    right   to    counsel   is   the

constitutional right to refuse the assistance of counsel and

proceed pro se.”        State v. Leyshon, 211 N.C. App. 511, 514-15,
                                         -10-
710 S.E.2d 282, 286 (2011) (citations and internal quotation

marks omitted).         This Court reviews a claim for denial of the

right to self-representation de novo.                Id.

      Section       15A-1242    of    the   General    Statutes        describes   the

inquiry      that    trial     courts    must    undertake      when    a    defendant

requests to represent himself:

              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.             Our Supreme Court has held that the

inquiry required by N.C. Gen. Stat. § 15A–1242 satisfies the

constitutional requirement to ensure that a defendant’s decision

to   waive    the    right     to    counsel    is   knowing,    intelligent,      and

voluntary.      State v. Thomas, 331 N.C. 671, 674, 417 S.E.2d 473,

476 (1992).
                                          -11-
       “In order to preserve both the right to counsel and the

right to self-representation, a trial court must proceed with

care in evaluating a defendant's expressed desire to forgo the

representation of counsel and conduct his own defense.”                                State

v. Wheeler, 202 N.C. App. 61, 67, 688 S.E.2d 51, 55 (2010)

(internal quotation marks omitted).                     Importantly, of the two

rights,    “the    right    to    counsel       is   preeminent      and   hence,       the

default position.”         Id. at 68, 688 S.E.2d at 56.               Thus, “[w]here

the two rights are in collision, the nature of the two rights

makes it reasonable to favor the right to counsel which, if

denied, leaves the average defendant helpless.”                       Tuitt v. Fair,

822 F.2d 166, 174 (1st Cir. 1987).

       Here,     the   trial     court    did    not    err   by    denying       Reese’s

request to represent himself.               The Court’s colloquy with Reese

concerning his desire to represent himself lasted 90 minutes.

During    that    time,    Reese       repeatedly      stated      that    he    did    not

understand some of the basic consequences of waiving counsel.

Most     significantly,        Reese     refused       to   acknowledge         that    his

decision to proceed pro se operated as a potentially permanent

waiver of his right to counsel.                      Reese insisted that, if he

found he was unable to adequately represent himself at trial,

standby counsel could “take over.”
                                            -12-
       This   is    wrong.       A    defendant       who     chooses     to    represent

himself does not have a right to standby counsel—the decision to

provide     standby    counsel       is    in   the    trial    court’s    discretion.

N.C. Gen. Stat. § 15A-1243 (2013); State v. Brincefield, 43 N.C.

App.    49,   52,    258   S.E.2d         81,   83    (1979).      Similarly,       if   a

defendant begins to represent himself but later decides he needs

the assistance of counsel, he does not have a right to have

counsel reappointed—again, that decision is in the trial court’s

discretion.        See State v. Rogers, 194 N.C. App. 131, 139, 669

S.E.2d 77, 83 (2008) (indicating that a trial court’s denial of

defendant’s motion to withdraw waiver of right to counsel is

reviewed for abuse of discretion).

       Given Reese’s confusion concerning these key consequences

of his decision to represent himself, the trial court properly

concluded     that    Reese   did         not   understand      and   appreciate       the

consequences of his decision.                   As a result, the court did not

err in denying Reese’s request to waive his constitutional right

to counsel and proceed pro se.

II.    Reese’s Right to Testify

       Reese next argues that the trial court erred in advising

him    of   the    consequences      of     choosing     to     testify    on    his   own

behalf.
                                         -13-
       The North Carolina Supreme Court has “never required trial

courts to inform a defendant of his right to testify or to make

an inquiry on the record regarding his waiver of the right to

testify.”     State v. Smith, 357 N.C. 604, 618, 588 S.E.2d 453,

463 (2003).        However, trial courts are not prohibited from doing

so, and our Supreme Court has upheld inquiries by the trial

court exercised as “an abundance of caution.”                 State v. Carroll,

356 N.C. 526, 533, 573 S.E.2d 899, 905 (2002).

       Here, Reese argues that the trial court focused only on the

reasons why        not    to testify     and that this      one-sided     approach

interfered with his decision-making and his counsel’s ability to

give advice.         But Reese’s counsel was sitting beside him for

this    entire     discussion    and    was     actively   consulting     with   his

client.     At one point, when Reese expressed a desire to submit

an   affidavit      rather    than     testifying,    Reese   and   his    counsel

engaged in a private discussion that lasted long enough that it

is     reflected     in    the   trial    transcript       with   the   notation,

“Whereupon, there was a pause in the proceedings.”                      In short,

Reese has not shown either that the court interfered with his

right to choose whether to testify or with his right to receive

advice from counsel.
                                       -14-
    Reese    also   argues      that    the   court’s        discussion    of   the

State’s right to cross-examine Reese about “prior convictions”

might have led Reese to mistakenly conclude that the State could

ask about his 14 convictions of rape and indecent liberties in

his first trial (which was set aside on appeal).                   But nothing in

the record indicates that Reese actually believed that his first

trial was a “prior conviction” that could be used against him if

he testified.     And again, Reese’s counsel was sitting beside him

during this discussion and could have provided Reese with more

details or clarification if he needed it.

    In   sum,     Reese   has    not     shown        that   the   trial   court’s

discussion   of     the   consequences           of     testifying     improperly

interfered with his decision to testify or deprived him of the

assistance of counsel.

                                 Conclusion

    The trial court did not err in denying Reese’s request to

represent himself and in discussing with Reese, in the presence

of his counsel, the consequences of the decision to testify in

his own defense.

    NO ERROR.

    Chief Judge McGEE and Judge STEPHENS concur.

    Report per Rule 30(e).
