{ "id": 4034117, "name": "STATE OF NORTH CAROLINA v. TORREY JERMAINE FREDERICK", "name_abbreviation": "State v. Frederick", "decision_date": "2012-08-21", "docket_number": "No. COA12-76", "first_page": "576", "last_page": "585", "citations": [ { "type": "official", "cite": "222 N.C. App. 576" } ], "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": "656 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640331, 12640332, 12640333 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/656/0280-01", "/se2d/656/0280-02", "/se2d/656/0280-03" ] }, { "cite": "362 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640330, 12640331, 12640332, 12640333, 12640334, 12640211, 12640351 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/656/0279-02", "/se2d/656/0280-01", "/se2d/656/0280-02", "/se2d/656/0280-03", "/se2d/656/0281-01", "/se2d/655/0406-01", "/se2d/656/0592-02" ] }, { "cite": "650 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639390 ], "opinion_index": 0, "case_paths": [ "/se2d/650/0656-01" ] }, { "cite": "613 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632943 ], "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0289-01" ] }, { "cite": "652 S.E.2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639794 ], "year": 2007, "pin_cites": [ { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0741-01" ] }, { "cite": "661 S.E.2d 722", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2008, "pin_cites": [ { "page": "724", "parenthetical": "citations and quotation omitted" }, { "page": "724", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "362 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149576, 12641225 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "321", "parenthetical": "citations and quotation omitted" }, { "page": "327-28" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0319-01", "/se2d/661/0891-01" ] }, { "cite": "512 U.S. 1246", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 39440, 39593, 39192 ], "year": 1994, "pin_cites": [ { "parenthetical": "stating, \"[the] defendant's Sixth Amendment right to counsel attached during his first appearance on 4 June, when the State's position against him solidified as to the murder charges and counsel was appointed\"" } ], "opinion_index": 0, "case_paths": [ "/us/512/1246-03", "/us/512/1246-01", "/us/512/1246-02" ] }, { "cite": "186 N.C. App. 281", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8156008 ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0281-01" ] }, { "cite": "569 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "675" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 313", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249743 ], "year": 2002, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0313-01" ] }, { "cite": "170 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006333 ], "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0618-01" ] }, { "cite": "187 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373781 ], "year": 2007, "pin_cites": [ { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0291-01" ] }, { "cite": "714 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "502" }, { "page": "502" } ], "opinion_index": 0 }, { "cite": "350 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "129" }, { "page": "129" }, { "page": "129", "parenthetical": "stating that in cases where \"the record is silent as to what questions were asked of defendant and what his responses were,\" this Court has held, \"[we] cannot presume that [the] defendant knowingly and intelligently waived his right to counsel\"" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 323", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358510 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "324" }, { "page": "324-25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0323-01" ] }, { "cite": "558 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "159", "parenthetical": "citations and quotation omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219980 ], "year": 2002, "pin_cites": [ { "page": "175", "parenthetical": "citations and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0171-01" ] }, { "cite": "716 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "675" }, { "page": "675", "parenthetical": "stating, \"the trial court must make a thorough inquiry into whether the defendant's waiver was knowingly, intelligently and voluntarily made\"" } ], "opinion_index": 0 }, { "cite": "129 L. Ed. 2d 881", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "pin_cites": [ { "parenthetical": "stating, \"[the] defendant's Sixth Amendment right to counsel attached during his first appearance on 4 June, when the State's position against him solidified as to the murder charges and counsel was appointed\"" } ], "opinion_index": 0 }, { "cite": "114 S. Ct. 2767", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1994, "pin_cites": [ { "parenthetical": "stating, \"[the] defendant's Sixth Amendment right to counsel attached during his first appearance on 4 June, when the State's position against him solidified as to the murder charges and counsel was appointed\"" } ], "opinion_index": 0 }, { "cite": "436 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "335 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531885 ], "year": 1993, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0001-01" ] }, { "cite": "339 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "838", "parenthetical": "stating \" [t]he suppression hearing was the critical stage for developing any weaknesses in the State's evidence\"" }, { "page": "838" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 623", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522480 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "626", "parenthetical": "stating \" [t]he suppression hearing was the critical stage for developing any weaknesses in the State's evidence\"" }, { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0623-01" ] }, { "cite": "260 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "579", "parenthetical": "stating, \"the right to counsel attaches and applies not only at trial but also at and after any pretrial proceeding that is determined to constitute a critical stage in the proceedings against the defendant\"" }, { "page": "579", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "298 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573800 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "619", "parenthetical": "stating, \"the right to counsel attaches and applies not only at trial but also at and after any pretrial proceeding that is determined to constitute a critical stage in the proceedings against the defendant\"" }, { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0604-01" ] }, { "cite": "152 L. Ed. 2d 221", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2002, "pin_cites": [ { "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "122 S. Ct. 1312", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2002, "opinion_index": 0 }, { "cite": "535 U.S. 934", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 355072, 352646, 351943, 354248, 354057, 352170, 354475, 352013, 351696, 353681, 353339, 352126, 352159 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/0934-04", "/us/535/0934-02", "/us/535/0934-13", "/us/535/0934-10", "/us/535/0934-11", "/us/535/0934-09", "/us/535/0934-06", "/us/535/0934-03", "/us/535/0934-01", "/us/535/0934-05", "/us/535/0934-08", "/us/535/0934-12", "/us/535/0934-07" ] }, { "cite": "550 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "147" } ], "opinion_index": 0 }, { "cite": "354 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138382 ], "year": 2001, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0028-01" ] } ], "analysis": { "cardinality": 980, "char_count": 23493, "ocr_confidence": 0.737, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1266430977250025 }, "sha256": "70375ffe9709e3d97bd0ab2fe61c3c0d202fdccf527d37a9ea14418537a5649c", "simhash": "1:a3e9735293691d95", "word_count": 3851 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TORREY JERMAINE FREDERICK" ], "opinions": [ { "text": "THIGPEN, Judge.\nDefendant appeals from judgments entered convicting him of trafficking in cocaine, intentionally keeping or maintaining a vehicle for the purpose of keeping a controlled substance, and possession of a firearm by a felon. Defendant presents five issues on appeal: (I) whether the trial court erred by denying Defendant\u2019s motion to dismiss the charge of trafficking in cocaine; (II) whether the trial court erred by denying Defendant\u2019s motion to dismiss the charge of maintaining a vehicle; (III) whether the trial court erred by denying Defendant\u2019s request for discovery of SBI drug testing protocol and procedures; (IV) whether the trial court erred by summarily dismissing Defendant\u2019s pro se motion to suppress after Defendant had been improperly allowed to waive counsel; and (V) whether appointed counsel provided ineffective assistance of counsel due to a conflict of interest in her representation of Defendant, for which she withdrew as counsel of record.\nThe evidence of record tends to show the following: Around midnight on 29 August 2010, Michael Wallace (\u201cWallace\u201d), the driver of a GMC Sierra Z-71 pickup truck, and passengers Torrey Jermaine Frederick (\u201cDefendant\u201d) and Natasha Smith (\u201cSmith\u201d), were stopped by police officers at a driver\u2019s license checkpoint in Clinton, North Carolina. The vehicle was registered to Alicia Washington, Defendant\u2019s fiancee. Defendant was in the front passenger seat, and Smith was in the middle of the back seat.\nSergeant Robbie King (\u201cSergeant King\u201d) discovered that Wallace had an expired license and instructed him to pull over to the shoulder of the road in front of the patrol cars. Wallace complied, got out of the vehicle, and proceeded to walk towards the officers, who then instructed him to return to the vehicle. Wallace again complied, returning to the vehicle, after which he backed the vehicle closer to the patrol cars. However, the officers observed that Wallace drove the truck in reverse in a manner that may have been calculated to obscure the officers\u2019 view of the passenger side of the vehicle. Sergeant King then walked to the passenger side of the vehicle and had a conversation with Defendant, who explained that he and Wallace were on their way to drop Smith off at home. Wallace, however, told Corporal Edgar Carter (\u201cCorporal Carter\u201d) a different story.\nThe officers conferred with one another about Wallace, and Defendant\u2019s conflicting stories and became suspicious. The officers then asked Wallace for consent to search the vehicle. Wallace refused, insisting that the vehicle belonged to his boss. Corporal Carter went to his patrol car to get his K-9 dog. As soon as the K-9 dog got out of the patrol car, it signaled that drugs were near. Corporal Carter walked the K-9 dog from the front of the truck to the back, first on the driver side and then on the passenger side. As Corporal Carter came to the passenger door, the K-9 dog alerted and began to bark and scratch at the ground under the passenger side door. The officers ordered Wallace, Smith and Defendant out of the vehicle, searched the vehicle, and discovered drugs and paraphernalia near the driver\u2019s seat and in the back seat. A cigarette package containing a white rock substance was found under the driver\u2019s seat in the vehicle. The officers also found bullets in the glove box, and a measuring cup with powder residue, baking soda, butter knives with powder residue, a digital scale, a marijuana cigarette and Ziploc bags in the vehicle.\nCorporal Carter, while walking the K-9 dog around the front of the vehicle, noticed a white brick lying on the side of the road which appeared to be cocaine. In the grass next to the white brick, Corporal Carter also found a handgun, a bag with residue, and a bag containing crack cocaine and marijuana. The bullets in the glove box of the truck matched the bullets in the handgun found in the grass. The officers also searched Defendant\u2019s person and found $1335.00 in cash in his pocket. Defendant was questioned by Detective Alpha Clowney. Defendant admitted to possession of the blunt and marijuana found in the grass near the brick of cocaine, but Defendant recanted these admissions during the same interview.\nPrior to trial, the substance contained in the white brick found at the scene was tested by Nicole Manley, a forensic scientist specializing in drug chemistry with the North Carolina State Crime Lab. Ms. Manley conducted preliminary and confirmatory tests on the substance and determined that it was cocaine hydrochloride. The brick was also marked with a \u201cZ.\u201d Corporal Carter testified that in his experience, the marking indicated that the brick came from the Mexican drug cartel, Zeta. Corporal Carter also testified that a brick of cocaine that size had an estimated street value of \u201ca minimum of $40,000.\u201d\nOn 12 January 2011, Defendant was indicted on the following seven charges in three indictments: the first indictment, 10 CRS 52051, included one count of trafficking in cocaine, one count of possession with the intent to manufacture, sell and deliver a schedule II controlled substance, and one count of maintaining a vehicle to keep controlled substances; the second indictment, 10 CRS 52053, included one count of possession with the intent to sell and deliver a schedule VI controlled substance, one count of possession of a stolen firearm, and one count of possession of drug paraphernalia; and the third indictment, 10 CRS 52054, was for one count of possession of a firearm by a convicted felon. Defendant was also indicted on the charge of having attained the status of an habitual felon.\nDefendant signed two waivers of appointed counsel. On 21 June 2011, Defendant filed a pro se motion to suppress the evidence arising out of the driver\u2019s license checkpoint stop. This motion was heard, along with a number of additional pro se motions, at a 25 July 2011 hearing, where Defendant argued his motions without the representation of counsel. Defendant\u2019s motion to suppress was denied.\nThe trial was held during the 6 September 2011 session of the Sampson County Superior Court, the Honorable Paul L. Jones presiding. Defendant proceeded at trial pro se. Wallace was a witness for the State, after having entered into a plea agreement pursuant to which the charges against him \u2014 possession of cocaine and no operator\u2019s license \u2014 were reduced; Wallace pled to misdemeanor possession of drug paraphernalia and no operator\u2019s license. At trial, Wallace testified that he did carpentry work for Defendant, that he frequently drove Defendant in the GMC pickup truck because Defendant did not have a driver\u2019s license, and finally, that earlier that evening, he dropped Defendant and Smith off at a local motel, went to Wal-Mart and smoked drugs in the vehicle while he waited for them. Defendant re-called Wallace after the State rested. During the defense\u2019s case, Wallace testified that he had not seen Defendant use drugs and had never known Defendant to sell drugs.\nOn 7 September 2011, after the presentation of the State\u2019s evidence, the court dismissed one count from the indictment, 10 CRS 52053 \u2014 possession of a schedule VI controlled substance. After closing arguments, the court dismissed the remaining two counts of 10 CRS 52053, possession of a stolen firearm and possession of drug paraphernalia. Later that same day, the jury found Defendant guilty on all remaining counts.\nThe trial court entered judgments convicting Defendant of trafficking cocaine, keeping or maintaining a vehicle for the purpose of keeping a controlled substance, and possession of a firearm by a felon. After concluding Defendant was a record level IV offender, the trial court sentenced Defendant to 175 to 219 months incarceration and a fine of $250,000.00 on the trafficking conviction; on the maintaining a vehicle for controlled substances conviction, the trial court sentenced Defendant to a term of 8 to 10 months incarceration to be served concurrently with the trafficking sentence; the court sentenced Defendant to a consecutive term of 15 to 18 months incarceration on the possession of a firearm by a felon conviction. The court arrested judgment on the second count of 10 CRS 52051: possession with intent to sell and deliver a schedule II controlled substance. Defendant gave notice of appeal in open court on 7 September 2011.\nI: Critical Stage \u2014 N.C. Gen. Stat. \u00a7 15A-1242'(2011)\nDefendant contends the trial court failed to adequately advise him of the range of permissible punishments as required by N.C. Gen. Stat. \u00a7 15A-1242(3) before allowing him to waive his right to appointed counsel and proceed pro se during a critical stage of the criminal process \u2014 the hearing on Defendant\u2019s motion to suppress. We believe the hearing on Defendant\u2019s motion to suppress was a \u201ccritical stage[,]\u201d prior to which the trial court allowed Defendant to waive his right to appointed counsel without making a proper inquiry as mandated by N.C. Gen. Stat. \u00a7 15A-1242.\n\u201cIt is well settled that an accused is entitled to the assistance of counsel at every critical stage of the criminal process as constitutionally required under the Sixth and Fourteenth Amendments to the United States Constitution.\u201d State v. Taylor, 354 N.C. 28, 35, 550 S.E.2d 141, 147 (2001), cert. denied, 535 U.S. 934, 122 S. Ct. 1312, 152 L. Ed. 2d 221 (2002). \u201c[A] defendant\u2019s right to counsel under the Sixth and Fourteenth Amendments attaches only at such time as adversary judicial proceedings have been instituted whether by way of formal charge, preliminary hearing, indictment, information or arraignment.\u201d Id. (citation and quotation omitted); see State v. Detter, 298 N.C. 604, 619, 260 S.E.2d 567, 579 (1979) (stating, \u201cthe right to counsel attaches and applies not only at trial but also at and after any pretrial proceeding that is determined to constitute a critical stage in the proceedings against the defendant\u201d). \u201cWhether a critical stage has been reached depends upon an analysis of whether potential substantial prejudice to defendant\u2019s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.\u201d Detter, 298 N.C. at 620, 260 S.E.2d at 579 (citation omitted). A hearing on a motion to suppress has been deemed a critical stage. See State v. Gordon, 79 N.C. App. 623, 626, 339 S.E.2d 836, 838 (1986) (stating \u201c [t]he suppression hearing was the critical stage for developing any weaknesses in the State\u2019s evidence\u201d).\nDefendant made his first appearance in this case on 30 August 2010, at which time Defendant was informed that he was to remain in custody pending the posting of an appearance bond in the amount of $207,000.00. A preliminary hearing was set for 3 September 2010. The record shows that on 10 December 2010, Defendant signed a waiver of counsel, and on 15 December 2010, the trial court granted appointed counsel\u2019s motion to withdraw. Defendant was indicted on the charges in this case on 12 January 2011. The record also shows Defendant signed a second waiver of counsel on 24 January 2011.\nOn 21 June 2011, Defendant filed a pro se motion to suppress the evidence arising out of the driver\u2019s license checkpoint stop, which was titled, \u201cMOTION TO SUPPRESS CALENDAR & DOCKET FOR HEARING[.]\u201d The words, \u201cevidence as fruits of unconstitutional seizure,\u201d were scribbled next to \u201cMOTION TO SUPPRESS.\u201d This motion was heard, along with a number of additional pro se motions, at a 25 July 2011 hearing \u2014 almost seven months after Defendant was indicted. At the hearing, Defendant\u2019s motion to suppress was summarily denied:\nTHE COURT: Okay. Motion to suppress calendar document for hearing is denied.\nTHE DEFENDANT: I want to appeal that.\nTHE COURT: Okay. You\u2019re getting your day in court and you ain\u2019t doing very well.\nDefendant asserts on appeal that the \u201cpre-trial judicial review of the Motion to Suppress was the single most critical stage of [Defendant\u2019s] case.\u201d We agree that the hearing on the motion to suppress was a critical stage in the criminal proceedings against Defendant, and that Defendant\u2019s Sixth Amendment right to counsel had attached no later than the time of the hearing. See State v. Gibbs, 335 N.C. 1, 44, 436 S.E.2d 321, 345 (1993), cert. denied, 512 U.S. 1246, 114 S. Ct. 2767, 129 L. Ed. 2d 881 (1994) (stating, \u201c[the] defendant\u2019s Sixth Amendment right to counsel attached during his first appearance on 4 June, when the State\u2019s position against him solidified as to the murder charges and counsel was appointed\u201d); see also Gordon, 79 N.C. App. at 626, 339 S.E.2d at 838 (1986) (stating \u201c[t]he suppression hearing was the critical stage for developing any weaknesses in the State\u2019s evidence, and without the assistance of counsel defendant was ill-equipped to perform that task[,]\u201d holding that \u201cthe court erred in requiring defendant to proceed pro se at the suppression hearing without a clear indication that he desired to do so and without making the inquiries required by N.C. Gen. Stat. 15A-1242[,]\u201d and granting the defendant a new trial).\nWe must now determine whether the trial court made a proper N.C. Gen. Stat. \u00a7 15A-1242 inquiry prior to the 25 July 2011 hearing on Defendant\u2019s motion to suppress.\nWe review the question of whether the trial court complied with N.C. Gen. Stat. \u00a7 15A-1242 de novo. See State v. Watlington,_N.C. App._,_, 716 S.E.2d 671, 675 (2011). \u201cThis Court has long recognized the state constitutional right of a criminal defendant to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes.\u201d State v. Moore, 362 N.C. 319, 321, 661 S.E.2d 722, 724 (2008) (citations and quotation omitted). \u201cHowever, before allowing a defendant to waive in-court representation by counsel.. . the trial court must insure that constitutional and statutory standards are satisfied.\u201d Id. at 322, 661 S.E.2d at 724 (citation and quotation omitted). \u201cIn order to determine whether the waiver meets this constitutional standard, the trial court must conduct a thorough inquiry[,] [and] [t]his Court has held that N.C.G.S. \u00a7 15A-1242 satisfies any constitutional requirements by adequately setting forth the parameters of such inquiries.\u201d State v. Fulp, 355 N.C. 171, 175, 558 S.E.2d 156, 159 (2002) (citations and quotation omitted).\nN.C. Gen. Stat. \u00a7 15A-1242(3), provides the following:\nA 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 . . . [comprehends the nature of the charges and proceedings and the range of permissible punishments.\nId. \u201cThe 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.\u201d State v. Callahan, 83 N.C. App. 323, 324, 350 S.E.2d 128, 129 (1986). In cases where \u201cthe record is silent as to what questions were asked of defendant and what his responses were,\u201d this Court has held, \u201c[we] cannot presume that [the] defendant knowingly and intelligently waived his right to counsel[.]\u201d Id. at 324-25, 350 S.E.2d at 129. A trial court\u2019s failure to conduct the inquiry entitles defendant to a new trial. See State v. Seymore,_N.C. App._, _, 714 S.E.2d 499, 502 (2011).\nIn this case, Defendant contends that the trial court did not advise him of his possible maximum punishment, as required by N.C. Gen. Stat. \u00a7 15A-1242(3), prior to the hearing on Defendant\u2019s pro se motion to suppress. The transcripts filed with this Court show only two such discussions between Defendant and the trial court with regard to Defendant\u2019s range of permissible punishments prior to, or on the date of, the hearing. First, at a hearing on 24 January 2011, the trial court informed Defendant of the range of permissible punishments in the following way:\nNow I\u2019m satisfied that you have graduated from high school, that you are \u2014 or you think you are very familiar with the elements of the crimes charged, and you understand it\u2019s a Class C felony, and that you can go to prison for a long, long time. And you just need to be aware of all of that.\nSecond, at the hearing on Defendant\u2019s motion to suppress on 25 July 2011, the trial court informed Defendant of the range of permissible punishments by stating the following: \u201cNow do you understand if you\u2019re convicted of these offenses, the law requires you get a mandatory active prison sentence? Do you understand that?\u201d Later at the 25 July 2011 hearing, the trial court stated the following, generally, about the sentencing of \u201ca lot of people[,]\u201d without particular reference to any sentence Defendant may have actually faced, were he convicted of the crimes for which he was charged:\nOkay. Well, sir, I\u2019m required to tell you these things because a lot of people, after the fact, say well the judge shouldn\u2019t have let me represent myself and that\u2019s how I ended up getting life in prison, or the death penalty, or 20 or 30 years.\nThe question presented, therefore, is whether the trial court adequately advised Defendant of the range of permissible punishments as required by N.C. Gen. Stat. \u00a7 15A-1242(3), by telling Defendant either (1) \u201cyou can go to prison for a long, long time[,]\u201d or (2) \u201cif you\u2019re convicted of these offenses, the law requires you get a mandatory active prison sentence[.]\u201d We believe the foregoing is inadequate to constitute the \u201cthorough inquiry\u201d envisioned by N.C. Gen. Stat. \u00a7 15A-1242(3), meant to \u201csatisf[y]\u201d the trial court \u201cthat the defendant . . . [c]omprehends . . . the range of permissible punishments.\u201d Quite simply, both \u201ca long, long time\u201d in prison and \u201c[an] active prison sentence\u201d lack the appropriate specificity we believe is required by N.C. Gen. Stat. \u00a7 15A-1242(3). See Watlington,_N.C. App. at_, 716 S.E.2d at 675 (stating, \u201cthe trial court must make a thorough inquiry into whether the defendant\u2019s waiver was knowingly, intelligently and voluntarily made\u201d) (citation omitted) (emphasis added); see also State v. Taylor, 187 N.C. App. 291, 294, 652 S.E.2d 741, 743 (2007) (holding, \u201cthe trial court failed to properly inform defendant regarding \u2018the range of permissible punishments\u2019 that he faced[,]\u201d because \u201c[w]hile the trial court correctly informed defendant of the maximum 60-day imprisonment penalty for a Class 2 misdemeanor, ... it failed to inform defendant that he also faced a maximum $1,000.00 fine for each of the charges\u201d) (citing N.C. Gen. Stat. \u00a7 15A-1242(3)); compare State v. Whitfield, 170 N.C. App. 618, 621, 613 S.E.2d 289, 291 (holding the trial court made an appropriate inquiry pursuant to N.C. Gen. Stat. \u00a7 15A-1242(3) as to the defendant\u2019s comprehension of the possible sentence she faced by \u201cma[king] sure that [the] defendant understood that her probation could be revoked, that her sentences could be activated, and that she could serve eleven to fifteen months in prison\u201d).\nWe reiterate, in part, the advice our Supreme Court gave to judges in Moore, 362 N.C. at 327-28, 661 S.E.2d at 727:\nAlthough not determinative in our decision, we take this opportunity to provide additional guidance to the trial courts of this State in their efforts to comply with the \u201cthorough inquiry\u201d mandated by N.C.G.S. \u00a7 15A-1242. . . .\n12. Do you understand that you are charged with_, and that if you are convicted of this (these) charge(s), you could be imprisoned for a maximum of __and that the minimum sentence is_? (Add fine or restitution if necessary.) . . .\nSee 1 Super. Court Subcomm., Bench Book Comm. & N.C. Conf. of Super. Court Judges, North Carolina Trial Judge\u2019s Bench Book \u00a7 II, ch. 6, at 12-13 (Inst. of Gov\u2019t, Chapel Hill, N.C., 3d ed. 1999) (italics omitted). While these specific questions are in no way required to satisfy the statute, they do illustrate the sort of \u201cthorough inquiry\u201d envisioned by the General Assembly when this statute was enacted and could provide useful guidance for trial courts when discharging their responsibilities under N.C.G.S. \u00a7 15A-1242.\nId.\nIt is prejudicial error to allow a criminal defendant to proceed pro se at any critical stage of criminal proceedings without making the inquiry required by N.C. Gen. Stat. \u00a7 15A-1242, See Seymore,_ N.C. App. at_, 714 S.E.2d at 502, and because neither \u201ca long, long time\u201d in prison nor \u201ca mandatory active prison sentence\u201d satisfy the requirements of N.C. Gen. Stat. \u00a7 15A-1242(3), we grant Defendant a new trial.\nNEW TRIAL.\nJudges CALABRIA and STEPHENS concur.\n. The record also contains two waivers of counsel signed by Defendant on 10 December 2010 and 24 January 2011. However, \u201c[t]he execution of a written waiver is no substitute for compliance by the trial court with the statute];] [a] 'written waiver is something in addition to the requirements of N.C. Gen. Stat. \u00a7 15A-1242, not ... an alternative to it.\u201d State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002). (citations and quotation omitted). Moreover, it is possible that other hearings were held before the trial court, in which the trial court conducted an adequate N.C. Gen. Stat. \u00a7 15A-1242 inquiry; however, those proceedings were either not transcribed or the parties failed to file the transcripts with this Court as part of Defendant\u2019s appeal. See Callahan, 83 N.C. App. at 324-25, 350 S.E.2d at 129 (stating that in cases where \u201cthe record is silent as to what questions were asked of defendant and what his responses were,\u201d this Court has held, \u201c[we] cannot presume that [the] defendant knowingly and intelligently waived his right to counsel\u201d).\n. The trial court\u2019s third statement, regarding the sentences of \u201ca lot of people[,]\u201d has no bearing on the question in this case, as the sentences referenced did not reflect the \u201crange of permissible punishments\u201d Defendant faced.\n. \u201c[S]ome constitutional rights, like the right to counsel, are so basic to a fair trial that their infraction can never be treated as harmless error.\u201d State v. Colson, 186 N.C. App. 281, 650 S.E.2d 656 (citation and quotation omitted), disc. review denied, 362 N.C. 89, 656 S.E.2d 280 (2007).\n. Because Defendant will receive a new trial due to the trial court\u2019s failure to comply with N.C. Gen. Stat. \u00a7 15A-1242, we do not reach Defendant\u2019s remaining arguments on appeal.", "type": "majority", "author": "THIGPEN, Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Joseph E. Elder, Assistant Attorney General, for the State.", "Marilyn G. Ozerfor the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TORREY JERMAINE FREDERICK\nNo. COA12-76\n(Filed 21 August 2012)\n1. Constitutional Law \u2014 right to counsel \u2014 critical stage of proceeding \u2014 pretrial suppression hearing\nIn a prosecution for drug-related charges that arose from a traffic stop, defendant\u2019s pretrial hearing on a motion to suppress evidence was a critical stage in the proceedings against defendant and his Sixth Amendment right to counsel attached no later than the time of the hearing.\n2. Constitutional Law \u2014 right to counsel \u2014 pro se representation \u2014 possible maximum punishment\nThe trial court erred by allowing defendant to proceed pro se at a critical stage (a pretrial suppression hearing) after telling him only that he could go to prison for a long, long time and that the law required an active prison sentence if defendant was convicted. This was not the specificity required by N.C.G.S. \u00a7 15A-1242(3).\nAppeal by defendant from judgments entered 7 September 2011 by Judge Paul L. Jones in Sampson County Superior Court. Heard in the Court of Appeals 23 May 2012.\nRoy Cooper, Attorney General, by Joseph E. Elder, Assistant Attorney General, for the State.\nMarilyn G. Ozerfor the defendant." }, "file_name": "0576-01", "first_page_order": 586, "last_page_order": 595 }