State v. Braswell

• Decision Date: 17 December 1985
• Docket Number: No. 8529SC366,8529SC366
• Citation: 78 N.C.App. 498,337 S.E.2d 637
• Parties: STATE of North Carolina v. Mason BRASWELL.
• Court: North Carolina Court of Appeals

Page 637

337 S.E.2d 637

78 N.C.App. 498

STATE of North Carolina v. Mason BRASWELL.

No. 8529SC366.

Court of Appeals of North Carolina.

Dec. 17, 1985.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Kathryn L. Jones, for the State.

Appellate Defender Adam Stein by First Asst. Appellate Defender Malcolm Ray Hunter, Jr., for defendant-appellant.

JOHNSON, Judge.

Defendant brings forward two assignments of error: (1) that the trial court erred in the denial of his motion to dismiss his court appointed counsel and to allow him to proceed pro se; (2) that the trial court erred in failing to find a statutory mitigating factor that defendant contends was supported by a preponderance of the evidence.

The Sixth Amendment of the United States Constitution prohibits the State from forcing counsel on an unwilling criminal defendant who asserts his right to proceed pro se in a criminal trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. McNeil, 263 N.C. 260, 139 S.E.2d 667 (1965). This right also extends to sentencing proceedings. See McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). However, this right must be timely asserted. See United States v. Dunlap, 577 F.2d 867 (4th Cir.), cert. denied, 439 U.S. 858, 99 S.Ct. 174, 58 L.Ed.2d 166 (1978).

In the instant case defendant's motion to dismiss counsel and to be allowed to proceed pro se was not timely made. The resentencing hearing was scheduled for 20 July 1984. It is not clear from the record or transcript exactly when counsel was appointed to represent defendant except that counsel was assigned sometime between the date the case was remanded from this court and the scheduled 20 July 1984 sentencing hearing. At the 20 July hearing all parties were present and ready to proceed. The State sought to prove defendant's prior convictions as a factor in aggravation by offering into evidence record of defendant's alleged prior convictions. The documents were not certified and did not show whether defendant was represented or waived counsel at the time of the convictions. Defendant objected to the introduction of these documents on the grounds that he did not waive counsel, was not represented by counsel, and was indigent with respect to any prior convictions. The court treated defendant's objection as a motion to suppress under G.S. 15A-980. Thereupon, the State's motion for a continuance pursuant to G.S. 15A-1340.4(e) was granted. The resentencing hearing was continued to 24 September 1984.

On 26 September 1984 the case was again brought before the court for resentencing. All parties appeared. At this hearing defendant requested (1) that his attorney be discharged and (2) that the hearing be continued so that defendant could go through the transcript and prepare himself to proceed pro se. As grounds to discharge counsel, defendant stated that his attorney had not communicated with him since 20 July 1984. The court denied both motions and proceeded with the hearing.

The transcript clearly shows that defendant had ample time and opportunity prior to 26 September 1984 to request discharge of counsel and to be allowed to proceed pro se. There is no evidence that there was any disagreement between defendant and counsel, that counsel was not prepared to proceed with the hearing, or that there was any great need for additional communication between defendant and counsel between 20 July and 26 September 1984. Defendant and his counsel were well aware since 20 July 1984 that the State would be seeking to prove prior convictions as a factor in aggravation. Also, on 20 July and 26 September 1984 the State had a witness present to testify at the sentencing hearing. In light of defendant's statement that he would need time to prepare to proceed pro se, it would appear that if the court allowed defendant to proceed pro se, another continuance of the rehearing would have been necessary. Considering the timing of defendant's motion to discharge counsel, together with defendant's request for a continuance to allow defendant time to prepare to proceed pro se, we find that defendant did not timely assert his right to proceed pro se. This assignment of error is without merit.

Defendant's final argument is that the trial court erred by failing to find as a statutory mitigating factor that he acted under strong provocation. We disagree.

Defendant's burden to establish this mitigating factor is analogous to that of a party with the burden of persuasion seeking a directed verdict. See State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1...