Opinion
No. COA10-556
Filed 1 March 2011 This case not for publication
Appeal by Defendant from judgments entered 3 December 2009 by Judge Forrest Don Bridges in Watauga County Superior Court. Heard in the Court of Appeals 16 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Curtis Edwin Leyshon, pro se.
Watauga County No. 08 CRS, 51720.
Curtis Leyshon (Defendant) appeals from judgments entered on his convictions of disorderly conduct in a public building, littering, and resisting a public officer. For the reasons stated below, we conclude there is no error.
On 14 July 2008, Defendant appeared in Watauga County Superior Court for a hearing in case number 07 CRS 316, in which Defendant was charged with driving while license revoked. The trial court began to inform Defendant of his right to counsel and advised him of his options to represent himself, hire a lawyer, or have counsel appointed for him if he qualified therefor. The court then asked Defendant whether he was going to hire an attorney and, if not, whether he would like a court-appointed attorney or if he was waiving that right. In a loud voice, Defendant responded that he "want[ed] to retain [his] right to assistance of counsel," and the trial court again asked him to give a response as to which of the three options regarding an attorney he would choose. Defendant answered only that he was "not waiving [his] right to assistance of counsel" and failed to give the trial court a direct answer as to how he would like to proceed. After the trial court asked several times and then insisted on a response from Defendant, who consistently refused to answer her question, the trial court instructed that counsel be appointed for him. Defendant stated that he refused court-appointed counsel and became irate with the trial court before leaving the courtroom without taking the notice informing Defendant of his assigned attorney. The bailiff, who had been instructed to give Defendant the notice, followed him into the lobby area and attempted to place the document in Defendant's open shirt after Defendant repeatedly yelled that he would not accept it. Defendant then wadded the document up and threw the paper onto the floor, became loud and unruly, and caused a disruptive scene in the courthouse. The bailiff placed Defendant under arrest for littering and disorderly conduct, but Defendant resisted by "jerking away" and swinging his arm in the bailiff's direction. With the assistance of three other law enforcement officers, however, the bailiff managed to forcibly restrain Defendant, place him in handcuffs, and remove Defendant from the lobby area. Defendant was charged with disorderly conduct in a public building, littering, and resisting arrest.
On 12 November 2008, the Watauga County District Court found Defendant guilty of all three offenses and entered judgment thereon, imposing a suspended sentence of forty-five days with six months of supervised probation. Defendant appealed to the Watauga County Superior Court, and his case came on for trial at the 30 November 2009 Session of Criminal Superior Court in Watauga County. On 3 December 2009, the jury found Defendant guilty as charged, the trial court entered three separate judgments thereon, and the court imposed suspended consecutive sentences of fifteen days for the littering conviction, thirty days for disorderly conduct in a public building, and forty-five days for resisting a public officer, with twelve months of unsupervised probation. Defendant gave oral notice of appeal.
I.
Defendant argues that the trial court erred by attempting to appoint counsel for him after Defendant refused the assistance of counsel. Defendant argues that the trial court "attempt[ed] to force an attorney upon [him] against his will" for his driving while license revoked charge. Defendant's argument, however, concerns an alleged error that occurred in a previous case.
Where Defendant was charged with driving with a revoked license in Watauga County file number 07 CRS 316, the trial court attempted to appoint him counsel in that case because Defendant would not clearly answer whether he understood the charges against him or how he wanted to proceed with counsel. When Defendant declared several times that he would like to retain his right to appointed counsel but also wanted to proceed pro se, the trial court determined, on its own motion, that an attorney would be appointed for Defendant. It was when Defendant refused to accept the paper notice identifying his appointed counsel, threw the document on the floor, and caused a scene in the courthouse lobby that the charges in file number 08 CRS 51720 arose. Thus, the driving while license revoked charge constitutes a separate action from the disorderly conduct in a public building, littering, and resisting arrest charges, and any error alleged in the former is not properly before us because it is outside the scope of the judgments being appealed in this case.
Our Rules of Appellate Procedure provide:
Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a criminal action may take appeal by . . . giving oral notice of appeal at trial, or . . . filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within [the time allowed].
N.C.R. App. P. 4(a). The appeal before us is not from any adjudication of Defendant's driving while license revoked charge. Rather, this appeal was taken from the judgments entered on Defendant's three convictions in 08 CRS 51720 and arises by virtue of Defendant's oral notice of appeal at trial in that case. Thus, the scope of the instant appeal is limited to the trial court's determination of 08 CRS 51720 — resulting in convictions for disorderly conduct, littering, and resisting arrest — to which the appointed counsel issue is inapplicable. Accordingly, Defendant's contention that the trial court erred by appointing counsel for him on 14 July 2008, in connection with his driving offense in 07 CRS 316, is outside the scope of the appealable issues in the case sub judice. See State v. Mauck, ___ N.C. App. ___, ___, 694 S.E.2d 481, 484 (2010) (affirming the revocation of the defendant's modified probation orders but noting that the question as to whether the trial court had subject matter jurisdiction to modify his probation in the first place was "outside the scope of review of this Court, as defendant ha[d] not appealed from that [prior] order" entered nearly two years earlier); see also Carter v. Hill, 186 N.C. App. 464, 467, 650 S.E.2d 843, 845 (2007) ("These errors are not properly before us because they are outside the scope of the order being appealed in this case."). If he was ultimately convicted of the driving while license revoked charge, Defendant should have appealed from that judgment in order for the Court to hear this claim, or any other argument associated with an adjudication of the driving offense. However, where this issue is not appealable in the present appeal, Defendant's argument is dismissed.
II.
Defendant argues that "[a]t the arraignment hearing . . . and at every hearing and trial after that," the trial court erred each time by failing to advise him of the range of permissible punishments he may face if convicted, as he was not apprised of the permissible punishments for disorderly conduct in a public building, littering, and resisting arrest. We disagree.
A defendant may proceed pro se only if the trial court makes a thorough inquiry and is satisfied that the defendant:
(1) [h]as 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) [u]nderstands and appreciates the consequences of this decision; and (3) [c]omprehends the nature of the charges and proceedings and the range of permissible punishments.
N.C. Gen. Stat. § 15A-1242 (2009). "Compliance with the requirements of N.C. Gen. Stat. § 15A-1242 has been held to fully satisfy the constitutional guarantee that waivers of counsel are knowing and voluntary." State v. Quick, 179 N.C. App. 647, 649, 634 S.E.2d 915, 917 (2006) (citing State v. Thacker, 301 N.C. 348, 355, 271 S.E.2d 252, 256 (1980)).
Here, the trial court advised Defendant three times as to the extent of the permissible punishment. The first time, the trial court correctly told Defendant that he had
been charged with littering . . . which is a Class III misdemeanor punishable by a maximum punishment of 20 days in jail. Disorderly Conduct in a public building, Class II misdemeanor, which is punishable by a maximum punishment of 60 days in jail. And resisting, delay or obstructing a public officer in the performance of duties, a Class II misdemeanor punishable by as much as 60 days in jail. The nature of the proceedings is that these are criminal proceedings. If you are found guilty, you could go to jail.
Defendant then argued that the trial court had not advised him of the range of punishments, to which the trial court responded: "I have explained to you what you are charged with. You are charged with two Class II misdemeanors that each carry a maximum punishment of 60 days in jail, and one Class III misdemeanor that carries a maximum punishment of 20 days in jail." After continued arguing by Defendant and his refusal to answer whether he wanted to represent himself, hire an attorney, or have the court appoint an attorney for him, the trial court advised him a third time on the range of permissible punishments. Defendant finally indicated to the trial court that he did not want an attorney, and Defendant was made aware of the charges against him and the permissible punishments for each charge. The trial court thus made thorough inquiry and was warranted in its satisfied action that Defendant comprehended the nature of the charges and proceedings and the range of permissible punishments. We conclude that the trial court made Defendant aware of the charges and permissible punishments for the charges, and Defendant's election to proceed pro se complied with § 15A-1242 such that his waiver of counsel was done knowingly and voluntarily. This issue presented is overruled as without merit.
III.
Defendant argues that the trial court erred when it instructed the jury on the charge of disorderly conduct in a public building without providing definitions of the terms "disorderly conduct" and "rude or riotous noise." Defendant contends that the jury should have been instructed on Defendant's constitutionally protected rights to freedom of speech. We disagree.
During the charge conference, the trial court informed the parties of its proposed instructions. Defendant did not object thereto, nor did he offer any proposed jury instructions of his own or request any special instructions, such as on the definition of "rude or riotous noise" or "disorderly conduct." The trial court properly instructed the jury on the charge of disorderly conduct in a public building, with language closely tracking the description of the crime as set out in N.C. Gen. Stat. § 14-132, by stating:
[I]f you find from the evidence in this case and beyond a reasonable doubt that on or about the alleged date of July 14, 2008 that this Defendant did make a rude or riotous noise or engage in disorderly conduct within the Watauga County Courthouse. If you find each of those things beyond a reasonable doubt, then it would be your duty to return a verdict finding the Defendant guilty of Disorderly Conduct.
Following the trial court's instructions to the jury on the charge of disorderly conduct in a public building, Defendant failed to object to the instructions or request any further instruction.
To preserve an issue for appellate review "a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C.R. App. P. 10(a)(1). As stated above, Defendant failed to object to the jury instructions so as to preserve the issue for appeal. Notwithstanding Defendant's failure to object, if a party fails to preserve an issue on appeal by timely objecting at trial, the alleged error "nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(a)(4). Here, however, Defendant neglected to argue plain error in his appeal to this Court regarding the trial court's jury instruction of the charge of disorderly conduct in a public building. Therefore, Defendant "has waived appellate review of his argument[]." State v. Bedford, ____ N.C. App. ____, ____, 702 S.E.2d 522, 529 (2010).
IV.
Defendant argues that the trial court erred by allowing the State to proceed with the case and neglecting to instruct the jury of the definitions of assault and battery to counteract the charges against Defendant. Defendant asserts that the trial court should not have allowed the case to proceed because it would be an injustice to Defendant, as the bailiff purportedly assaulted Defendant. Defendant also contends that the trial court should have instructed the jury as to the definitions of assault and battery as an affirmative defense to his charges. We disagree.
As stated above, for a party to preserve an issue for appellate review, he or she "must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C.R. App. P. 10(a)(1); see also State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600 (2003) ("This Court will not consider arguments based upon matters not presented to or adjudicated by the trial court.") Further, "a party's failure to properly preserve an issue for appellate review ordinarily justifies the appellate court's refusal to consider the issue on appeal." Dogwood Dev. Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 195-96, 657 S.E.2d 361, 364 (2008). As mentioned above, Defendant never raised an issue regarding the trial court's instructions to the jury on any of the charges, and Defendant failed to present any proposed jury instructions to the trial court. Further, Defendant now attempts to raise new issues on appeal challenging the trial court's decision to proceed with trial as an injustice.
Because the trial court never had the opportunity to rule on these issues, Defendant did not preserve them for appellate review. Nor did he allege plain error in his brief on appeal. This argument is therefore dismissed.
V.
Defendant argues that he had a right to be informed of the nature of the proceedings and that his election to proceed pro se in the case should be permitted only after the trial court makes thorough inquiry and is satisfied that he so comprehends. Where Defendant was clearly informed of the nature of the charges and proceedings several times and the trial court duly determined that he understood, this argument is meritless.
As described above, a trial court must determine that a defendant "`clearly and unequivocally'" expressed his desire to forego the right to assistance of counsel and that the decision was made knowingly, intelligently, and voluntarily in order for a defendant's waiver of in-court representation to comport with constitutional and statutory safeguards. State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002) (quoting State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994)). Sufficient inquiry regarding whether a defendant knowingly, intelligently, and voluntarily waived his right to counsel is achieved when a court meets the dictates of N.C. Gen. Stat. § 15A-1242, see id., which are set forth above. After informing Defendant that "[t]his is a criminal proceeding," the trial court specified the criminal offenses with which he was charged, along with the range of permissible punishments including incarceration time, and then reiterated that "[t]he nature of the proceedings is that these are criminal proceedings." Not only does this exchange clearly demonstrate that the trial court made thorough inquiry, to its satisfaction, that Defendant comprehended the nature of the charges and range of possible punishments, but Defendant also appears to acknowledge the same. For, he did not contest his understanding of the nature of the charges but only made arguments about things such as the trial court's jurisdiction, "[c]onstitution[al] guarantees [of] a republican form of government," and whether the trial court was exercising "[c]ommon law, amity law, [or] maritime law." Similarly, on appeal Defendant emphasizes the trial judge's refusal "to state on the record if the source of his authority was from [the] State of North Carolina, one of the several states of the Constitution of the United States guaranteed a republican form of government, or some other entity with the same name." Not only did the trial court indeed inform Defendant that its authority, as the Superior Court of Watauga County, derived from its status as a "trial court of general jurisdiction for the State of North Carolina," but Defendant's argument is also without merit and we dismiss it as such.
VI.
In his final argument on appeal, Defendant contends that the trial court "err[ed] by allowing testimony impeaching the official record of the court reporter." We are unable to discern what Defendant means because, notwithstanding his recitation of various portions of the transcript and the bailiff's testimony, he makes no legal argument thereafter. Again, we dismiss this argument for Defendant's failure to comply with the North Carolina Rules of Appellate Procedure. See N.C.R. App. P. 28(b)(6) (requiring the appellant to make an argument, which must "contain the contentions of the appellant with respect to each issue presented," where "[i]ssues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned" and noting that "[t]he body of the argument . . . shall contain citations of the authorities upon which the appellant relies"). Defendant's failure to present any argument precludes our review of this purported issue.
In light of the foregoing, we hold that the trial court committed no error.
No Error.
Judge STROUD concurs.
Judge BRYANT concurs in the result only.
Report per Rule 30(e).