State v. Rutledge

267 N.C.App. 91

832 S.E.2d 745

STATE of North Carolina

v.James Allen RUTLEDGE

No. COA19-32

Court of Appeals of North Carolina.

Filed: August 20, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General John Tillery, for the State.

Jeffrey William Gillette for defendant-appellant.

TYSON, Judge.

James Allen Rutledge ("Defendant") appeals from judgment entered after the trial court found him guilty of one count of possession of methamphetamine, a Schedule II controlled substance. We affirm.

I. Background

In late 2017, the Brevard Police Department received complaints about suspected drug trafficking occurring at a Transylvania County home. On 29 November 2017, officers executed a search warrant for the home at 54 Camp Harley Farm Drive in Transylvania County. Officers observed Defendant and another male standing outside the home. As part of the process of executing the search warrant, the officers secured the men. The officers conducted a pat-down search of Defendant and found a small purple case containing a crystal-like substance. Testing revealed the substance to be one-tenth of a gram of methamphetamine. Defendant was indicted on 12 February 2018 for one count of possession of methamphetamine, a Schedule II controlled substance.

Defendant's case was called for trial on 14 August 2018. At the start of trial, Defendant requested to waive his right to a trial by jury and have the judge hear the evidence and adjudicate the charge. Defendant's attorney stated: "Good Afternoon. May it please the Court, at this point in time we do have and do request a waiver of jury trial in this matter." Defendant's attorney also confirmed engaging in prior discussions with the prosecutor about the waiver, and asserted the State had no objections.

The following colloquy then occurred:

THE COURT: All right. ... Mr. Rutledge, if you would just stand up where you are, sir. Mr. Rutledge, good afternoon, sir. Sir, you are charged with possession of methamphetamine. Mr. Barton represents you in this matter. Is that correct?

DEFENDANT: Yes, sir.

THE COURT: Possession of methamphetamine is a felony. It's a Class I felony. The maximum possible punishment for any Class I felony under North Carolina law is up to 24 months. That would be the maximum. If your prior record level if it is not a VI, the maximum you would face would be correspondingly lower. Have you had an opportunity to talk with Mr. Barton and review the maximum that you actually would face given your prior record, sir?

DEFENDANT: Yes, sir.

THE COURT: All right. And I will ask you a couple of questions about that. I'm advised that, by Mr. Barton, that it is your desire to waive a jury trial in this matter and have a bench trial; is that correct?

DEFENDANT: Yes, sir.

THE COURT: And you do understand, sir, that you have the right to have 12 jurors, jurors of your peers, selected, that you have the right to participate in their selection pursuant to the rules set forth in our law and that any verdict by the jury would have to be a unanimous verdict, unanimous of the 12? Do you understand that?

DEFENDANT: Yes, sir.

THE COURT: You have the right to waive that and instead have a bench trial, which would mean that the judge alone would decide guilt or innocence and the judge alone would determine any aggravating factors that may be present were you to waive your right to a jury trial. Do you understand that?

DEFENDANT: Yes, sir.

THE COURT: Have you talked with Mr. Barton about your rights in this regard and the ramifications of waiving a jury trial?

DEFENDANT: Yes, sir.

THE COURT: Do you have any questions about the jury trial or your rights therein?

DEFENDANT: No, sir.

THE COURT: All right. And, sir, is it your decision then that you wish, and your request, that the jury trial be waived and that you be afforded a bench trial?

DEFENDANT: Yes, sir.

THE COURT: All right. Thank you, sir.

The court granted Defendant's motion to waive his right to a jury trial. The court and Defendant signed form AOC-CR-405 ("Waiver of Jury Trial form"). The document was not signed by the State. After the waiver was entered, Defendant's attorney requested that Defendant be arraigned. After arraignment, Defendant's trial began.

The State offered testimony from the two police officers who found the drugs on Defendant's person on 29 November 2017. Defendant stipulated that the substance found in the purple case was methamphetamine without further testimony from employees of the State Crime Lab. Defendant testified and asserted he had never before seen the small purple case. Following trial, the court entered a verdict of guilty, and imposed a split sentence of four months’ imprisonment followed by thirty months’ supervised probation. Defendant timely filed written notice of appeal.

II. Jurisdiction

Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) (2017).

III. Issue

The sole issue on appeal is whether the trial court erred in granting Defendant's request to waive a jury trial and to proceed to a bench trial in violation of N.C. Gen. Stat. § 15A-1201 (2017).

IV. Standard of Review

The Court conducts a de novo review of a question of law to determine whether a trial court has violated a statutory mandate. State v. Mumma , ––– N.C. App. ––––, ––––, 811 S.E.2d 215, 220 (2018).

V. Analysis

The North Carolina Constitution affirmatively confirms a defendant's right to request a bench trial, subject to the trial court's approval. N.C. Const. art. I, § 24. In 2014, the North Carolina General Assembly amended N.C. Gen. Stat. § 15A-1201 to allow criminal defendants in non-capital cases to waive their right to a trial by jury. In 2015, the statute was again amended to include provisions regarding advance notice, revocation period, and judicial consent. Id.

A. Statutory Violation

Defendant argues the trial court committed reversible error in violation of N.C. Gen. Stat. § 15A-1201 in three ways: (1) by failing to require the statutory notice provision set out in N.C. Gen. Stat. § 15A-1201(c) ; (2) by failing to comply with N.C. Gen Stat. § 15A-1201(d)(1), which requires the trial court to "determine whether the defendant fully understands and appreciates the consequences of the defendant's decision to waive the right to trial by jury"; and, (3) by failing to provide Defendant the statutory 10-day revocation period before starting the trial as required by N.C. Gen. Stat. § 15A-1201(e).

1. Advance Notice

Defendant argues the trial court erred when it failed to require Defendant's compliance with the notice provision outlined by N.C. Gen. Stat. § 15A-1201(c). The statute allows a defendant charged with a non-capital offense to give notice of his intent to waive his right to a trial by jury in any of the three following ways:

(1) Stipulation, which may be conditioned on each party's consent to the trial judge, [and] signed by both the State and the defendant ...

(2) Filing a written notice of intent to waive a jury trial with the court ... within the earliest of (i) 10 working days after arraignment, (ii) 10 working days after service of a calendar setting under G.S. 7A-49.4(b), or (iii) 10 working days after the setting of a definite trial date under G.S. 7A-49.4(c).

(3) Giving notice of intent to waive a jury trial on the record in open court by the earlier of (i) the time of arraignment or (ii) the calling of the calendar under G.S. 7A-49.4(b) or G.S. 7A-49.4(c).

N.C. Gen. Stat. § 15A-1201(c).

The critical times under the statute for filing a waiver of a jury trial are the date of arraignment, the date of service of a calendar setting, and the date of calendar call. Nothing in the record before us indicates when either the calendar setting under N.C. Gen. Stat. § 7A-49.4(b) (2017) or the setting of the definite trial date under N.C. Gen. Stat. § 7A-49.4(c) (2017) occurred in this case.

Defendant was not formally arraigned until the day of trial. Apparently, a formal arraignment was not requested by Defendant at any time prior to the scheduled trial date. Formal arraignment may be waived. Pursuant to N.C. Gen. Stat. § 15A-941(d) (2017), "[a] defendant will be arraigned in accordance with this section only if the defendant files a written request with the clerk of superior court for an arraignment not later than 21 days after service of the bill of indictment."

This Court addressed similar issues to those at bar in both State v. Swink , 252 N.C. App. 218, 797 S.E.2d 330 (2017) and State v. Jones , 248 N.C. App. 418, 789 S.E.2d 651 (2016). In Jones , the defendant never requested a formal arraignment pursuant to N.C. Gen. Stat. § 15A-941. Id . at 423, 789 S.E.2d at 655. This Court held the defendant never requested a formal arraignment, and his right to be formally arraigned was deemed waived twenty-one days after he was indicted. Id .

In Swink , the defendant never entered a "not guilty" plea to trigger informal arraignment. Defendant's request for a bench trial functioned as an implicit plea of not guilty. Swink , 252 N.C. App. at 222, 797 S.E.2d at 333. This Court held in Swink no violation of the statutory notice provision of N.C. Gen. Stat § 15A-1201(c) occurred when no stipulation was provided and the defendant was arraigned on the day of his trial. Id. The defendant's actions barred the court from enforcing technical compliance with the provision. This Court found no error in Swink . Id. We find none here.

The filing of a written notice of intent to waive a jury trial on the date of the arraignment and subsequent trial is proper where: (1) the defendant gives notice of his intent to waive his right to a jury trial at the date of trial; (2) consent is given to waive jury trial by both the trial court and the State; and (3) the defendant invites noncompliance with the timeline requirements of N.C. Gen. Stat § 15A-1201(c) by his own failure to request a separate arraignment prior to the date of trial. See N.C. Gen. Stat § 15A-1201. It is not necessary to postpone the subsequent trial by ten working...