{ "id": 11434941, "name": "STATE OF NORTH CAROLINA v. BRYANT RENARD FULP, Defendant", "name_abbreviation": "State v. Fulp", "decision_date": "2001-06-19", "docket_number": "No. COA00-846", "first_page": "428", "last_page": "433", "citations": [ { "type": "official", "cite": "144 N.C. App. 428" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "391 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "158" } ], "opinion_index": 0 }, { "cite": "326 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305969 ], "year": 1990, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0489-01" ] }, { "cite": "309 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "725", "parenthetical": "quoting G.S. \u00a7 7A-457" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524840 ], "year": 1983, "pin_cites": [ { "page": "504", "parenthetical": "quoting G.S. \u00a7 7A-457" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0498-01" ] } ], "analysis": { "cardinality": 489, "char_count": 10421, "ocr_confidence": 0.771, "pagerank": { "raw": 4.073089038202576e-07, "percentile": 0.9085910027959159 }, "sha256": "d38a51bf2ab81f0c7903df4eb3407688a9d35695b8b90192a8d86fa4de4732ac", "simhash": "1:09aae1643f5fdb4b", "word_count": 1745 }, "last_updated": "2023-07-14T14:55:44.896074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and TIMMONS-GOODSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BRYANT RENARD FULP, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nBryant Renard Fulp (\u201cdefendant\u201d) was indicted by the Forsyth County grand jury for felonious possession of stolen goods and for being an habitual felon on 10 March 1997. Defendant subsequently moved to suppress one of the three convictions used to support the habitual felon indictment. Pursuant to G.S. \u00a7 15A-980, defendant argued that a 1993 Rockingham County conviction used in the habitual felon indictment was obtained in violation of his right to counsel. The trial court denied the suppression motion on the grounds that defendant could not collaterally attack the prior conviction. On appeal, this Court found that the trial court erred by not resolving the factual conflicts and ruling on the merits of defendant\u2019s motion to suppress pursuant to G.S. \u00a7 15A-980. This Court vacated the trial court\u2019s action and remanded the case for a proper determination of defendant\u2019s motion.\nOn 8 March 2000, the trial court conducted a hearing on defendant\u2019s motion to suppress the 1993 conviction. At that hearing, defendant acknowledged that he signed a waiver of rights form on 8 January 1993 when he was seventeen years old. He also admitted that prior to the 1993 conviction, he had been in juvenile court and had been represented by a lawyer. Defendant conceded knowing that he \u201chad a right to a lawyer,\u201d but asserted that he never waived his rights to an attorney.\nDefendant stated that an assistant district attorney approached him on 4 March 1993 and offered to dismiss one of his pending felony charges and to recommend probation on the remaining charges. When defendant entered the courtroom later that day, Judge Peter M. McHugh asked him if he wanted a lawyer. Defendant testified that he told Judge McHugh that he \u201cdidn\u2019t need no lawyer.\u201d He explained that \u201cI already talked to the DA. I knew I was getting probation. I knew I was going home. I ain\u2019t need no lawyer.\u201d\nDefense counsel referred the trial court to the court file, which contained a copy of the waiver of rights form which had been signed by defendant, the deputy clerk of Forsyth County Superior Court and Judge McHugh. Defendant argued that there were important discrepancies in the form, and noted that defendant had failed to check either of the two boxes for waiver of assigned counsel and for waiver of all assistance of counsel. Defense counsel also pointed out that the only box checked in the \u201ccertificate of judge\u201d section of the form indicated that defendant had \u201cvoluntarily, knowingly and intelligently elected in open court to be tried in [the] action ... without the assignment of counsel.\u201d\nIn an order entered 8 May 2000, nunc pro tunc 1 May 2000, the trial made the following findings of fact:\n1. On Jan. 8, 1993, the defendant . . . executed a \u201cWaiver of Counsel\u201d in case number 92 CRS 9157.\n2. The defendant swore before Deputy Clerk of Superior Court Shelley Newcomb that:\na. He had been fully informed of the charges against him;\nb. He had been fully informed of the nature of and the statutory punishment for the charge; and\nc. He had been fully informed of the nature of the proceedings against him.\n3. He further swore before Newcomb that he had BEEN ADVISED OF:\na. His right to have counsel ASSIGNED to assist him AND his right to have the ASSISTANCE of counsel in defending the charge or in handling the proceedings;\n4. He further swore before Newcomb that he fully understood and appreciated the consequences of his decision to waive the right to assigned counsel and the right to assistance of counsel.\n5. Further, the Honorable Peter M. McHugh certified that he FULLY INFORMED defendant in open court of:\na. the charges against him;\nb. the nature of and the statutory punishment for each charge; and\nc. the nature of the proceeding against him and\nd. his right to have counsel ASSIGNED by the court and\ne. his right to have the ASSISTANCE of counsel to represent him in this action.\n6. Judge McHugh further certified that:\na. defendant comprehended the nature of the charges and the proceedings and the range of punishments;\nb. defendant understood and appreciated the consequences of his decision; and that\nc. defendant voluntarily, knowingly and intelligently elected in open court to be tried in the action WIT[]HOUT THE ASSIGNMENT OF COUNSEL.\n7. On January 8th, 1993 the defendant was fully informed of his rights pursuant to G.S. 15A-1[2]42 and voluntarily, knowingly, and intelligently waived his rights to ASSIGNMENT!] of counsel, thus electing either to represent himself or to hire counsel of his own choosing. The mere fact that there is no \u201ccheck mark\u201d placed in the \u201cAcknowledgment Section\u201d does not invalidate this waiver....\n8. The defendant again appeared before Judge McHugh on March 4, 1993. He did not appear with counsel although he knew he had a right to one. He made no motion to continue the matter for any reason but instead entered into a plea agreement with the prosecutor. The judge inquired as to whether the defendant wished counsel but [defendant] told the judge that he did not need a lawyer. He swore that his plea was of his own free will, fully understanding what he was doing. Even at the hearing on this matter, the defendant still asserts he knew he had a right to an attorney and asserted as much to Judge McHugh.\nOn the basis of these findings of fact, the trial court concluded that \u201c[t]he defendant\u2019s waiver of counsel on January 8, 1993 was made knowingly, intelligently, and voluntarily\u201d and that \u201cdefendant also implicitly waived his right to assistance of counsel after having been fully advised of both his right to assigned counsel and his right to assistance of counsel on January 8, 1993.\u201d From the trial court\u2019s order, defendant appeals.\nOn appeal, defendant contends the trial court erred in finding that he had knowingly and voluntarily waived his right to counsel for his 4 March 1993 felony conviction, which was subsequently used to enhance his present sentence pursuant to G.S. \u00a7 14-7.1. He argues the trial court\u2019s order was in error because of his young age at the time of the waiver, his lack of comprehension of its consequences, the incomplete nature of the waiver form, and public policy. We agree.\n\u201cA defendant has the right to suppress the use of a prior conviction that was obtained in violation of his right to counsel... if its use will . . . [r]esult in a lengthened sentence of imprisonment.\u201d G.S. \u00a7 15A-980(a)(3). \u201cWhen a defendant has moved to suppress use of a prior conviction under the terms of subsection (a), he has the burden of proving by the preponderance of the evidence that the conviction was obtained in violation of his right to counsel.\u201d G.S. \u00a7 15A-980(c). Before a defendant may be permitted to proceed without the assistance of counsel, the trial court must make thorough inquiry and be \u201csatisfied that the defendant... [h]as been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel[;] . . . [understands and appreciates the consequences of this decision; and . . . [cjomprehends the nature of the charges and proceedings and the range of permissible punishments.\u201d N.C.G.S. \u00a7 15A-1242. \u201c[A]n indigent person may waive counsel provided \u2018the 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.\u2019 \u201d State v. Williams, 65 N.C. App. 498, 504, 309 S.E.2d 721, 725 (1983) (quoting G.S. \u00a7 7A-457). \u201cIn making such a finding, the court shall consider, among other things, such matters as the person\u2019s age, education, . . . , [and] mental condition[.]\u201d N.C.G.S. \u00a7 7A-457(a).\nThe trial court\u2019s conclusion here that defendant\u2019s waiver of counsel in the 1993 Rockingham County conviction \u201cwas made knowingly, intelligently, and voluntarily\u201d is not adequately supported by its findings of fact. Those findings do not show that the trial court gave consideration to defendant\u2019s age (seventeen years and six days) at the time he signed the wavier, to his ninth grade education, or to defendant having spent approximately three months in jail prior to signing the wavier. Nor do those findings address the effect of defendant\u2019s continued incarceration for two additional months prior to the State presenting him with a plea offer on 4 March 1993.\nThe trial court\u2019s order does not demonstrate that defendant\u2019s waiver was knowing and voluntary or that his waiver is constitutionally valid. Given the \u201csomewhat equivocal\u201d nature of the waiver of counsel form, a waiver cannot be inferred here. We conclude that defendant carried his burden of showing by a preponderance of the evidence, as required by G.S. \u00a7 15A-980(c), that he had not waived his right to counsel. \u201cAdmission of prior convictions obtained in violation of the right to counsel for purposes of impeachment or to affect the length of sentence violates N.C.G.S. \u00a7 15A-980.\u201d State v. Porter, 326 N.C. 489, 510, 391 S.E.2d 144, 158 (1990). Under the circumstances of this case, we hold that the 1993 Rockingham County conviction used in finding defendant to be an habitual felon should have been suppressed. As a result, the habitual felon conviction is vacated, and this matter is remanded for resentencing on defendant\u2019s conviction for possession of stolen goods.\nHabitual felon plea: Vacated.\nPossession of stolen goods sentence: Vacated and remanded.\nJudges GREENE and TIMMONS-GOODSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Kimberly W. Duffley, for the State.", "The Teeter Law Firm, by Kelly Scott Lee, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BRYANT RENARD FULP, Defendant\nNo. COA00-846\n(Filed 19 June 2001)\nConstitutional Law\u2014 habitual offender \u2014 prior felony conviction \u2014 invalid waiver of counsel\nAn habitual felon defendant carried his burden of showing by a preponderance of the evidence that he had not waived his right to counsel for a prior felony conviction used to support the habitual felony indictment where he had said he \u201cdidn\u2019t need no lawyer\u201d when asked by a judge in a prior felony proceeding if he wanted a lawyer, but the trial judge did not make findings showing consideration of defendant\u2019s age at the time he signed the waiver, his ninth-grade education, or his time in jail prior to the waiver.\nAppeal by defendant from order entered 8 May 2000 by Judge Howard R. Greeson, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 28 May 2001.\nAttorney General Michael F. Easley, by Assistant Attorney General Kimberly W. Duffley, for the State.\nThe Teeter Law Firm, by Kelly Scott Lee, for defendant-appellant." }, "file_name": "0428-01", "first_page_order": 456, "last_page_order": 461 }