State v. Hardy , 78 N.C. App. 175 ( 1985 )

336 S.E.2d 661 (1985)

STATE of North Carolina
v.
Lonnie R. HARDY.

No. 8519SC643.

Court of Appeals of North Carolina.

December 3, 1985.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Angeline M. Maletto, Raleigh, for the State.

Steven A. Grossman, Kannapolis, for defendant-appellant.

ARNOLD, Judge.

The issue dispositive of this action is whether the court erred by allowing the defendant to represent himself without determining whether he had voluntarily and freely waived his right to counsel. Believing the court erred we vacate the 6 December 1984 judgment.

The Sixth Amendment to the United States Constitution guarantees persons accused of serious crimes the right to counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). If those persons cannot afford counsel, the court must appoint one to represent them. Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). This right has been made applicable to the states by the Fourteenth Amendment. Id. A person may refuse counsel and conduct his or her own defense. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). However, waiver of counsel must be voluntarily and knowingly made, and the record must show that the defendant was literate and competent, and that he voluntarily and of his own free will waived this right. Id. See also State v. Thacker, 301 N.C. 348, 271 S.E.2d 252 (1980).

G.S. 15A-1242 provides the following test for determining whether a person will be allowed to represent himself:

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:

(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.

Although the court signed a certification indicating that this procedure had been followed, the transcripts, taken at the time the waiver was signed and at the time when defendant entered his guilty plea, show that the proper procedure was not followed. Thus, the judgment entered must be vacated and the case remanded for a determination of whether the defendant is entitled to have counsel appointed to represent him in this action.

Vacated and remanded.

MARTIN and COZORT, JJ., concur.