State v. Waddell

Brock, J.

The Record on Appeal discloses that defendant appeared in Superior Court and entered his pleas of guilty without counsel. However, the record is silent as to whether he was able to employ counsel, whether he was indigent, whether he requested appointment of counsel, or whether he waived his right to counsel. “Waiver of counsel may not be presumed from a silent record. ‘The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.’ ” State v. Morris, 275 N.C. 50, 165 S.E. 2d 245. As clearly stated by Huskins, J., speaking for our Supreme Court in State v. Morris, supra, “. . . defendant here, who is charged with a serious offense, has a constitutional right to the assistance of counsel during his trial in the superior court and that G.S. 15-4.1, insofar as it purports to leave to the discretion of the trial judge the appointment of counsel for indigent defendants charged with serious offenses, is unconstitutional. A serious offense is one for which the authorized punishment exceeds six months’ imprisonment and a $500 fine.”

This case cannot be distinguished in principle from the situation which was dealt with by our Supreme Court in Moms, and again we quote a portion of that opinion which is directly applicable to the present case. “For failure of the trial judge to determine in-digency and appoint counsel to represent defendant if indigent, the judgment must be vacated and a new trial ordered. At the next trial if defendant is not represented by privately employed counsel, the presiding judge shall (1) settle the question of indigency, and (2) if defendant is indigent, appoint counsel to represent him unless counsel is knowingly and understandingly waived. These findings and determinations should appear of record.” State v. Morris, supra.

We think it appropriate to point out that the proceedings before Judge Bryson occurred approximately two months before the opinion in Morris was filed. Apparently Judge Bryson was exercising the discretion purportedly granted by G.S. 15-4.1.

Upon authority of State v. Morris, supra, a new trial must be ordered.

New trial.

Campbell and Moekis, JJ., concur.