State v. Chappell

PARKER, Judge.

G. S. 7A-457 (a) is as follows:

“An indigent person who has been informed of his right to be represented by counsel at any in-court proceeding, may, in writing, waive the right to in-court representation by counsel, if the court finds of record that at the time of waiver the indigent person acted with full awareness of his rights and of the consequences of the waiver. In making such a finding, the court shall consider, among other things, such matters as the person’s age, education, familiarity with the English language, mental condition, and the complexity of the crime charged.”

In the present case defendant had been duly adjudged to be indigent prior to his preliminary hearing, and on the day of his trial the trial judge again found and adjudged that he was indigent. He did not waive in writing his right to be represented by counsel at his trial, and, indeed, nothing in the record indicates that he orally waived his right to counsel.

It is, of course, true than an indigent defendant is not entitled to have the court appoint counsel of his own choosing, State v. Frazier, 280 N.C. 181, 185 S.E. 2d 652 (1972), and an unfounded dissatisfaction with his court-appointed counsel does not entitle him to the services of another court-appointed attorney. State v. Moore, 6 N.C. App. 596, 170 S.E. 2d 568 (1969). It is also true that the court may not force counsel upon an indigent defendant who may elect to represent himself. State v. Alston, 272 N.C. 278, 158 S.E. 2d 52 (1967). Here, however, the record makes clear that defendant did not wish to represent himself and did not willingly go to trial without counsel. On the contrary, it would appear that he moved for a continuance until he could obtain an attorney.

At the hearing held on the day following his trial, defendant testified that after Judge McLelland told him he would have to pay his own lawyer he consulted an attorney whom he thought would represent him but that he was unable to raise the money to pay the attorney’s fee. In the order entered following that hearing, the trial judge made no finding that defendant knowingly elected to represent himself, finding only that “defendant has not retained counsel to represent him, having previously discharged with the consent of the Court his court appointed counsel.” On the day preceding the entry of this order, the trial judge had found defendant to be indigent.

We are not here confronted with the situation of an indigent defendant refusing without justification to be represented by competent court-appointed counsel and at the same time refusing to sign a written waiver of counsel. Here, the record does not indicate that defendant was ever requested to sign a written waiver of counsel or that if he had been so requested that he would have refused to do so. Nor was defendant in this case ever given the option knowingly to elect between being represented at trial by the counsel who was originally appointed for him or being tried without any counsel at all.

Under the circumstances of this case it was error to proceed with the trial when defendant was not represented by counsel. Defendant is entitled to a

New trial.

Judges Campbell and Vaughn concur.