State v. Miller

157 S.E.2d 211 (1967) 271 N.C. 611

STATE of North Carolina
v.
J. B. MILLER.

No. 330.

Supreme Court of North Carolina.

October 18, 1967.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. George Goodwyn for the State.

Paul L. Beck, Lenoir, for defendant appellant.

PER CURIAM.

Defendant was arrested May 9, 1967, on six warrants issued by the District Court of Caldwell County. These warrants charged the felonies subsequently charged in the said indictments. After preliminary hearing on May 12, 1967, the district court found probable cause and ordered defendant to appear at said May 1967 Criminal Session of Caldwell Superior Court. Mr. Beck was appointed counsel on May 15, 1967. The pleas of guilty were tendered and accepted on May 16, 1967.

Although no exceptions were noted during the proceedings in the superior court, assignments of error entered on behalf of defendant by his court-appointed counsel in connection with the appeal are as follows: (1) The failure of the District Court of Caldwell County to appoint counsel for defendant at his preliminary hearing when defendant stood charged with six felony offenses; (2) the acceptance of defendant's pleas of guilty the day following the court's appointment of counsel to represent him; and (3) the acceptance of defendant's pleas of guilty without hearing evidence from any of the persons listed as witnesses against defendant.

Nothing in the record shows defendant was in any way prejudiced by the fact that he was not represented by counsel at his preliminary hearing. In the present factual situation, the preliminary hearing "was not such a ``critical stage' of the proceeding as to require the presence of counsel," and the failure to supply counsel for such preliminary hearing was not "a deprivation of any constitutional right of appellant." See Gasque v. State, 271 N.C. 323, 156 S.E.2d 740.

Nothing in the record indicates defendant or his counsel requested or desired a continuance of the case. On the contrary, the record shows affirmatively that the pleas of guilty were entered freely, understandingly and voluntarily.

It does not appear affirmatively whether, after tender and acceptance of defendant's pleas of guilty, the court heard testimony of persons listed as State's witnesses. Proof of the charges in the second counts of the six bills of indictment was rendered unnecessary by defendant's pleas of guilty thereto. State v. Caldwell, 269 N.C. 521, 524, 153 S.E.2d 34, 36; State v. Dye, 268 N.C. 362, 150 S.E.2d 507; 21 Am. Jur.2d, Criminal Law § 495; 22 C.J.S. Criminal Law § 424(4).

It is noteworthy that the active (concurrent) sentences imposed were within the permissible punishment provided in G.S. § 14-120 based on defendant's plea of guilty in respect of any one of the six indictments.

No error having been shown, the judgments of the court below are affirmed.

Affirmed.