State v. Green

174 S.E.2d 8 (1970) 8 N.C. App. 234

STATE of North Carolina
v.
James Edward GREEN.

No. 7017SC197.

Court of Appeals of North Carolina.

May 27, 1970.

Robert Morgan, Atty. Gen., Jean A. Benoy, Deputy Atty. Gen., and Maurice W. Horne, Special Asst. Atty. Gen., for the State.

Alston, Pell, Pell & Weston, by E. L. Alston, Jr., Greensboro, for defendant-appellant.

HEDRICK, Judge.

The only question to be considered on this appeal is whether a charge of willful failure to support illegitimate children is a "serious misdemeanor" requiring the appointment of counsel or an intelligent waiver thereof under the Sixth and Fourteenth Amendments to the United States Constitution. We think not.

Under the provisions of G.S. § 49-2 the State must establish two facts in order for the defendant to be found guilty: (1) That the defendant is the parent of the illegitimate child in question and (2) that the defendant has willfully neglected or refused to support and maintain such illegitimate child. State v. Coffey, 3 N.C. App. 133, 164 S.E.2d 39 (1968). The primary purpose of prosecution under the provisions of G.S. § 49-2 is to insure that the parent does not willfully neglect or refuse to support his or her illegitimate child. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964). "The mere begetting of the child is not a crime. The question of paternity is incidental to the prosecution for the crime of nonsupport—a preliminary requisite to conviction." State v. Ellis, supra. The law in North Carolina further provides that once the question of paternity has been determined, the accused is not entitled to have the question of paternity re-litigated upon a subsequent prosecution for later willful neglect or refusal to support his illegitimate children. State v. Ellis, supra.

In order to determine whether the accused parent is entitled to the appointment of counsel, we must look to the provisions of the statute which imposes the punishment upon a parent for willful neglect or refusal to support his or her children. G.S. § 49-8, in pertinent part, is as follows:

"Upon the determination of the issues set out in the foregoing section [§ 49-7] and for the purpose of enforcing the payment of the sum fixed, the court is hereby given discretion, having regard for the circumstances of the case and the financial ability and earning capacity of the defendant and his or her willingness to cooperate, to make an order or orders upon the defendant and to modify such order or orders from time to time as the circumstances of the case may in the judgment of the court require. The order or orders made in this regard may include any or all of the following alternatives:

"(1) Commit the defendant to prison for a term not to exceed six months;

"(2) Suspend sentence and continue the case from term to term;

"(3) Release the defendant from custody on probation conditioned upon the defendant's compliance with the terms of the probation and the payment of the sum fixed for the support and maintenance of the child; * * *."

This statute establishes as the maximum punishment a prison term of not more than six months. The question then becomes whether the defendant was denied a fundamental guarantee under the Constitution when the court failed to appoint counsel to represent him at his trial on 7 November 1966 in the Reidsville Recorder's Court. The North Carolina Supreme Court has recently considered the question of when a misdemeanor becomes "serious" and requires the appointment of counsel to indigent defendants. In State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969), the Court stated:

"Although the United States Supreme Court has not stated precisely where the line falls between crimes and punishments that are `petty' and those that are `serious,' Cheff [v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629] makes it clear that a six months' sentence is short enough to be petty while Duncan [v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491] and Bloom [v. State of Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522] make it equally clear that a crime punishable by two years in prison is a serious offense. In the federal system petty offenses are defined by statute as those punishable by not more than six months in prison and a $500 fine. 18 U.S.C. § 1. Hence, any federal crime the authorized punishment for which exceeds six months in prison and a $500 fine is a serious offense which entitles the offender to trial by jury under Article III, Sec. 2, of the Federal Constitution and under the Sixth Amendment * * * A serious offense is one for which the authorized punishment exceeds six months' imprisonment and a $500 fine. The cases of State v. Hayes, supra (261 N.C. 648, 135 S.E.2d 653 (1964), and State v. Sherron, supra (268 N.C. 694, 151 S.E.2d 599 (1966)), are no longer authoritative."

The record on appeal in the present case shows that there has been an adjudication by the lower court that the defendant is the father of these illegitimate children. The record also shows that the defendant on several occasions has been ordered to pay child support for these children and that he has repeatedly neglected and refused to make the payments ordered. The maximum possible sentence under the terms of G.S. § 49-8(1) is six months' imprisonment. No fine is authorized and none is levied against the defendant. The support payments ordered by the court are to be paid for the support of the defendant's minor children and are not in the nature of a fine. Since the punishment authorized by G.S. § 49-8(1) is not in excess of six months' imprisonment, the offense involved in the present case is not a serious offense requiring the appointment of counsel.

The order of the court below denying the defendant's application for a writ of error coram nobis is affirmed.

Affirmed.

BROCK and BRITT, JJ., concur.