State v. Blakeney

245 N.C.App. 452

782 S.E.2d 88

STATE of North Carolina, Plaintiff,

v.Jonathan Brandon BLAKENEY, Defendant.

No. COA15–622.

Court of Appeals of North Carolina.

Feb. 16, 2016.

Attorney General, Roy Cooper, by Assistant Attorney General, Terence Friedman, for the State.

Robinson Bradshaw & Hinson, P.A., Charlotte, by Andrew A. Kasper, for defendant-appellant.

ZACHARY, Judge.

Jonathan Blakeney (defendant) appeals from judgment entered upon a jury verdict finding him guilty of possession of a firearm by a felon and of having attainted the status of an habitual felon. On appeal defendant argues that the trial court erred by requiring defendant to represent himself at trial, on the grounds that defendant neither asked to proceed pro se nor engaged in the type of serious misconduct that would result in an immediate forfeiture of defendant's right to counsel without a prior warning. After careful consideration, we agree.

I. Background

On 17 September 2011, deputies with the Union County Sheriff's Department were dispatched to 3921 Blakeney Road to investigate an assault reported at that location. During the investigation, defendant was arrested and charged with possession of a firearm by a felon. After being informed of his Miranda rights, defendant provided law enforcement officers with a statement admitting to possession of a firearm. On 7 November 2011, defendant was indicted for possession of a firearm by a felon. On 30 January 2012, defendant signed a waiver of the right to assigned counsel in three cases, including the charge of possession of a firearm by a felon that is the subject of the present appeal.

On 4 November 2013, more than two years after the incident giving rise to the charge of possession of a firearm by a felon, defendant was indicted for attaining the status of an habitual felon. On 6 November 2014, three years after the incident underlying this appeal, the trial court entered an order striking a previously entered order for arrest and continuing the trial of defendant's case until 15 December 2014. Documentation is not included in the record, but the parties agree that defendant had failed to appear for trial in early November, 2014.

The charges against defendant came on for trial on 15 December 2014. Prior to trial, defendant's counsel, Mr. Vernon Cloud, moved to withdraw as defendant's attorney. Mr. Cloud stated that defendant had spoken rudely to him and that defendant no longer wanted him to represent defendant at the pending trial. Defendant agreed that he did not want Mr. Cloud to represent him on the charges of possession of a firearm by a felon and having the status of an habitual felon, but stated that he wished to retain Mr. Cloud as his counsel on other charges then pending against defendant. Defendant did not indicate in any way that he wished to represent himself, but told the trial court that he intended to hire a different attorney, specifically saying, "I've talked to Miles Helms. He's willing to take my case." In response, the trial court told defendant that he had a right to fire his lawyer, but that "the trial is still going." The trial court and defendant then had the following discussion:

THE COURT: ... Mr. Blakeney, you need to understand something.... You're not first; you're not even second right now.... I'm going to do a motion here in a little bit with Mr. Principe that may or may not dispose of a case.... We may start picking a jury and that defendant may decide to plead guilty. Okay? And you have moved from third to first. Okay?

DEFENDANT: Okay.

THE COURT: And we might not know that until later this afternoon; maybe tomorrow morning. Okay? But at that time, when you become first on the list and I call your name, okay, you need to be either in this audience, okay, or unless you have been released and given a number where you can be here in an hour or so where we know that.

DEFENDANT: Yes, sir.

THE COURT: Typically we'll give you that, okay? Get you here in an hour and ready to go. And if you're not, I'm going to issue an order for your arrest.

DEFENDANT: If I could, Your Honor?

THE COURT: Uh huh.

DEFENDANT: Ask for a continuance. This would be my first continuance that I have asked for in my favor.

THE COURT: Right.

DEFENDANT: Of the cases that has been continued has been from the State.

THE COURT: Mr. Blakeney, this is a 2011 case.

DEFENDANT: Yes, sir.

THE COURT: It is 2014. All right. You're third on the list. May or may not get to it, but I'm not going to continue it. It's an old case that needs to be tried.

DEFENDANT: Okay. And I would have been ready to try this case had not been if we could have sat down me and my lawyer sat down with my witnesses and ... talked about this, this trial.

THE COURT: You still—you're still not number one yet. You still may not—you still may not be tried this week.... But you need to be ready to go.... [Mr. Cloud,] you are released in case number 11 CRS 55059; the charge of possession of a firearm by a felon, and that is the only case Mr. Blakeney in which you are firing Mr. Cloud. Is that right?

DEFENDANT: Yes, sir.

....

MS. CHUNN: There is a habitual felon as well, Your Honor.

THE COURT: All right. So if—and I use the word if this case is called for trial, okay, you're going to try Mr. Blakeney on the possession of a firearm by a felon in 11 CRS 55059; and if he is convicted of that ... you're going to seek habitual felon status against him as well from that same jury.

MS. CHUNN: That's correct, Your Honor.

...

THE COURT: Okay. All right. You understand that, Mr. Blakeney?

DEFENDANT: Yes, sir.

THE COURT: Okay. We won't talk about being a habitual felon until and unless you are convicted, if you are convicted of the underlying charge.

...

THE COURT: Mr. Blakeney, I'm going to give you this one courtesy, okay? ... I'm going to have you give to Deputy LaRue here your cell phone number or a number you can be reached. You're going to be on a one hour standby.

DEFENDANT: Okay.

THE COURT: All right. So when I give you a one hour standby, if we call that number, it is disconnected, nobody knows you at that number or whatever, when I call that number, the clock starts and one hour later, if you're not here, I'm going to have the bailiffs call and fail you and I'm going to issue a bond. I'm here the next six months starting in January. I'll know where you're at when we call your case for trial next time, okay, because it will be in the Union County Jail. All right?

DEFENDANT: Yes, sir. Yes, sir.

THE COURT: Okay. All right. So that gives you time to get out, go see Mr. Helms, go do whatever you need to do.... You're third on the list, and like I said, sometimes third we never reach it. Sometimes third reaches tomorrow morning.

DEFENDANT: Okay.

THE COURT: Okay? All right.

DEFENDANT: Thank you, sir.

Two days later, on 17 December 2014, defendant's case was called for trial, and defendant and the trial court had the following dialog:

THE COURT: Come on down, sir. Mr. Blakeney, when we spoke on Monday, I told you that you were third on the list and we have reached that level, all right.

DEFENDANT: Okay.

THE COURT: And the State is calling for trial the State of North Carolina versus you, Jonathan Brandon Blakeney. It's case number 11 CRS 55059. It's a charge of possession of a firearm by a felon. All right?

DEFENDANT: Okay.

THE COURT: And as I explained to you the other day, that's a Class G felony, but the State is also, if you are convicted of that felony, I would—it will never come in front of the jury, no one will ever mention to the jury the fact that the State is also seeking to have you found to be a habitual felon. Okay? We don't talk about being a habitual felon until and unless the jury returns a verdict of guilty of the felony of possession of a firearm. All right?

DEFENDANT: Okay.

THE COURT: If you're found not guilty of possession of a firearm by a felon, the habitual felon case goes away. If you are found guilty of possessing a firearm by a felon, then we have a second part of the trial with the same jury to determine whether or not you are a habitual felon, and the State would have to prove to the jury beyond a reasonable doubt that you have three prior felony convictions....

DEFENDANT: Okay.

THE COURT: Okay? So that's where we're at. You had mentioned to me Monday that you were attempting to hire Mr. Helms to represent you in this charge. I had released Mr. Cloud from this one case. You had retained him in that one case, in a bunch of cases, but had released him only in this one case. Had you hired Mr. Helms?

DEFENDANT: No, sir, he wouldn't—he wouldn't take my case. He told me that it would be a waste of time because he didn't have time to even discuss my case with me.

THE COURT: Yes, sir. All right. You prepared to go forward?

DEFENDANT: Yes, sir, I guess—I mean—

THE COURT: Yes, sir.

DEFENDANT:—my hands are tied. I mean I guess so.

THE COURT: You're going to—you're going to act as your own attorney? Let me tell you how—not—I don't know how much experience you've had in court. We'll call the jury in; I'll explain to the jury what the charges are. I'm going to introduce everybody, introduce you to the jury, tell them what the charge is, introduce Ms. Chunn as the DA for the State. You have entered a plea of not guilty to this charge. Is that correct?

Thereafter, the trial court explains to defendant the process of jury selection, until defendant interrupts:

DEFENDANT: So this is still set, for the record, for the—... that I'm being tried without a lawyer?

THE COURT: Yes, sir, that's all on the record.

DEFENDANT: Okay.

THE COURT: Okay? We did that on Monday. That's—every—Ms. Trout has been here every day, okay?

DEFENDANT: Okay.

THE COURT: Everything we do in this court is on the record, all right?

DEFENDANT: Okay.

THE COURT: And it was on the record when you released Mr. Cloud on Monday, all right?

DEFENDANT: Yes, sir.

...

THE COURT: And it was on the record that you are representing yourself in this matter; that I denied a continuance because you have waived—previously waived your right to co

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