An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-152
                         NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 October 2014


STATE OF NORTH CAROLINA

      v.                                      Robeson County
                                              No. 08 CRS 053583
JONATHAN MICHAEL ALLEN



      Appeal by defendant from judgment entered 16 August 2013 by

Judge Robert F. Floyd, Jr. in Robeson County Superior Court.

Heard in the Court of Appeals 13 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Michael E. Bulleri, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Jon H. Hunt, for defendant-appellant.


      HUNTER, Robert C., Judge.


      Jonathan Michael Allen (“defendant”) appeared pro se and

entered an Alford plea on 16 August 2013 for: five counts of

larceny of a motor vehicle, ten counts of breaking and entering,

eleven     counts   of    larceny    after    breaking    and    entering,     five

counts of breaking and entering a motor vehicle, two counts of

felony larceny, two counts of misdemeanor larceny, and one count
                                           -2-
of   first    degree      burglary;        as     part    of     the    plea     agreement

defendant    also       attained    habitual          felon     status.        All    of   the

charges were consolidated into a class D felony for sentencing,

for which defendant received an active sentence of 120 months to

153 months imprisonment.             On appeal, defendant argues that the

trial court erred by allowing him to proceed pro se without

establishing that he (1) comprehended the nature of the charges

against him and the range of permissible punishments, and (2)

understood the consequences of proceeding without an attorney.

     After    careful      review,        we    agree    with     defendant      in     part,

vacate the judgment, and remand the case to the trial court.

                                     Background

     On 28 May 2008, emergency services were contacted after

defendant     was       seen     walking        nude     down     a    public        highway.

Sheriff’s officers and EMS arrived on scene to find defendant

sleeping     in     a    truck     bed.         Defendant        was    transported        to

Southeastern Regional Medical Center, where he was placed under

arrest after being identified as a suspect in a series of motor

vehicle break-ins spanning three weeks in May 2008.                            After being

discharged    from       the   hospital         and    transported        to   the     police

station, defendant waived his Miranda rights and confessed to

several     break-ins      and     related       crimes.          On    three        separate
                                            -3-
indictments       entered    9    July      2008,    8    September     2008,       and   16

February 2009, defendant was indicted on multiple charges of

larceny of a motor vehicle; larceny and possession of a stolen

motor vehicle; breaking and entering; larceny after breaking and

entering; and several other offenses related to the series of

motor vehicle break-ins for which he was arrested.                             Defendant

was also formally charged with attaining habitual felon status.

      On 16 May 2013, defendant appeared with his court-appointed

attorney for a plea hearing in Robeson County Superior Court.

At the beginning of the hearing, defendant told the trial court

that he wished to proceed pro se.                        The trial court reminded

defendant that he had been appointed an attorney and had the

right to consult with that attorney.                     Defendant replied that he

understood    this       right    but      still    wished    to   proceed      pro       se.

During this exchange, the trial court informed defendant that

“if you choose to represent yourself . . . you would be required

to   know   the    law    and    courtroom        procedure    just     like    a   lawyer

would.”     Defendant asserted that he understood.

      After defendant informed the trial court that he could read

and write, the trial judge gave defendant a Waiver of Right to

Counsel,     form    AOC-CR-227          (“Waiver        of   Counsel     form”),         and

instructed    defendant         not   to    sign    it    until    he   had    read       and
                                 -4-
understood its contents.    Defendant signed the Waiver of Counsel

form, informed the trial judge that he understood its contents,

and further informed the trial judge that he was sure of his

choice to proceed pro se.     After defendant signed the Waiver of

Counsel form, the trial judge asked, “[h]ave the charges been

explained to you by your prior lawyers and do you understand the

nature of the charges and every element of the charges against

you?”   Defendant answered in the affirmative.

    Soon    thereafter   defendant     entered   an   Alford   plea   to

multiple charges of breaking and entering, larceny, and several

other related offenses, including having attained the status of

being an habitual felon.     The plea agreement had been arranged

by defendant’s court-appointed attorney at an earlier date.           The

trial judge sentenced defendant to a term of 120 to 153 months

imprisonment and gave defendant credit for 1,980 days previously

spent in confinement.    Defendant filed timely notice of appeal.

                             Discussion

               I. Compliance with Section 15A-1242

    On appeal, defendant contends that the trial court failed

to satisfy the requirements of N.C. Gen. Stat. § 15A-1242 (2013)

by allowing him to proceed pro se without establishing that he

(1) comprehended the nature of the charges against him and the
                                            -5-
range     of       permissible     punishments,          and        (2)    understood        the

consequences         of   proceeding       without   an        attorney.         Because      we

agree    that      the    trial   court     failed       to    inquire     as    to    whether

defendant understood the range of permissible punishments, we

vacate       the     underlying          judgment    and        remand       for       further

proceedings.

       Inherent in the right to counsel guaranteed by the Sixth

Amendment to the United States Constitution and by Article I,

Section 23 of the North Carolina Constitution is the right to

refuse the assistance of counsel and proceed pro se.                                  State v.

Sorrow, 213 N.C. App. 571, 573, 713 S.E.2d 180, 182 (2011).                                    A

defendant’s waiver of his right to be represented by counsel

must    be     “clearly     and    unequivocally”         expressed        and   the     trial

court “must make a thorough inquiry into whether the defendant’s

waiver       was    knowingly,      intelligently             and    voluntarily        made.”

State    v.    Hyatt,      132    N.C.    App.    697,    702,       513   S.E.2d      90,    94

(1999).       Section 15A-1242 provides the guidelines for satisfying

the    constitutional        requirements         that    a    defendant’s        waiver      of

counsel be voluntary, intelligent, and knowing:

               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:
                                          -6-
            (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.

       The inquiry under section 15A-1242 is “mandatory and must

be made in every case in which a defendant elects to proceed

without counsel.”           State v. Callahan, 83 N.C. App. 323, 324, 350

S.E.2d    128,   129    (1986).        The     inquiry   is   required      at   “every

critical    stage      of    the    criminal    process,”     which   includes      any

hearing    after    “adversar[ial]           judicial    proceedings     have     been

instituted . . . .”               State v. Frederick, __ N.C. App. __, __,

730 S.E.2d 275, 278 (2012) (citations omitted).                        “The record

must affirmatively show that the inquiry was made and that the

defendant, by his answers, was literate, competent, understood

the consequences of his waiver, and voluntarily exercised his

own free will.”         Callahan, 83 N.C. App. at 324, 350 S.E.2d at

129.     While a signed written waiver by a defendant creates a

presumption      that       the    defendant    knowingly,    intelligently,        and

voluntarily waived his right to counsel, the trial court must
                                         -7-
still    perform     the    mandatory    inquiry        under   section        15A-1242.

State v. Whitfield, 170 N.C. App. 618, 620, 613 S.E.2d 289, 291

(2005).     Failure to conduct a proper inquiry under section 15A-

1242    automatically       amounts     to    prejudicial       error.         State    v.

Pruitt, 322 N.C. 600, 603, 369 S.E.2d 590, 592 (1988).

       The circumstances of this case are comparable to State v.

Sorrow, 213 N.C. App. 571, 713 S.E.2d 180 (2011), in which the

defendant      opted   to     waive   counsel      in    a   probation      revocation

hearing.       In   Sorrow,     the   trial    court      engaged     in   a    colloquy

nearly identical to that of the instant case, informing the

defendant that he was entitled to have counsel appointed to him,

asking the defendant if he was sure of his decision to waive

counsel, and giving the defendant a waiver of counsel form to

read and sign.         Id. at 576, 713 S.E.2d at 183-184.                   On appeal,

this Court held that the defendant’s waiver of counsel was not

proven    to   be   “knowing,     intelligent       and      voluntary”     since      the

trial court did not engage in any inquiry regarding the range of

permissible punishments for the crimes charged.                      Id. at 577, 713

S.E.2d at 184.          Therefore, because the trial court failed to

comply     with     section     15A-1242(3),       the       trial    court’s     order

revoking    defendant’s       probation      was   vacated      and   the      case    was

remanded to the trial court.            Id. at 579, 713 S.E.2d at 185.
                                            -8-
      Here, although defendant’s court-appointed counsel arranged

the   plea     agreement,       the      record    does      not    demonstrate    that

defendant comprehended the range of permissible punishments for

the charges he was facing before he was allowed to proceed pro

se.      A    defendant       may   be    permitted    to     proceed    without    the

assistance of counsel “only after the trial judge makes thorough

inquiry and is satisfied that the defendant[] [c]omprehends . .

. the range of permissible punishments.”                    N.C. Gen. Stat. § 15A-

1242(3) (emphasis added); see also State v. Gentry, __ N.C. App.

__, __, 743 S.E.2d 235, 245 (“The trial court, however, must

insure that constitutional and statutory standards are satisfied

before       allowing     a     criminal        defendant      to     waive     in-court

representation.” (emphasis added)), disc. rev. denied, __ N.C.

__, 747 S.E.2d 552 (2013).

      Before defendant signed his Waiver of Counsel form, the

only time that the trial court mentioned that defendant was

facing   an    active     sentence        was   when   the    trial     judge   stated,

“[b]ecause of the fact that you are facing a prison sentence,

you have three rights[.]”                At that time, defendant did not make

any indication that he was aware of the “range of permissible

punishments” as required by section 15A-1242(3).                          It was not

until well after defendant had signed his Waiver of Counsel form
                                          -9-
that the trial judge asked, “[h]ave the charges been explained

to you by your prior lawyers and do you understand the nature of

the charges and every element of the charges against you?”                             By

this point, the trial court had already accepted defendant’s

signed   Waiver     of    Counsel      form     and    discussed      the    terms    of

defendant’s      plea     agreement.            Much     later,    after       further

discussing the plea agreement with defendant, the trial court

specifically mentioned the 120 to 153 month sentence that was

part of the negotiated plea agreement.                 However, the trial court

never    asked    defendant       if   he     was     aware   of   the      range      of

permissible punishments that defendant faced if he opted out of

the plea arrangement.           If defendant was unaware of the potential

punishment he faced for the crimes charged, it would have been

impossible    for   him    to    assess     whether     the   terms    of    the     plea

agreement were desirable.              Therefore, we cannot say that his

waiver of counsel was “knowing, intelligent and voluntary” as

required by law.         Sorrow, 213 N.C. App. at 577, 713 S.E.2d at

184.

         Since    the    record     failed      to     affirmatively        show     that

defendant comprehended the range of permissible punishments for

his crimes before he was allowed to proceed pro se, the trial

court failed to fully comply with section 15A-1242(3).                                See
                                  -10-
Callahan, 83 N.C. App at 325, 350 S.E.2d at 130.      Thus, we

vacate the underlying judgment and remand this matter to the

trial court.    See Sorrow, 213 N.C. App. at 577, 713 S.E.2d at

184.     Given this disposition, we need not reach defendant’s

alternative arguments on appeal.

                                Conclusion

       For the foregoing reasons, we hold that the trial court

failed to conduct the mandatory inquiry under section 15A-1242.

Thus, we vacate the underlying judgment and remand this matter

to the trial court.



       VACATED AND REMANDED.

       Judges DILLON and DAVIS concur.

       Report per Rule 30(e).
