State v. Lee

• Decision Date: 06 March 1979
• Docket Number: No. 7815SC1033,7815SC1033
• Parties: STATE of North Carolina v. Gary Dennis LEE.
• Court: North Carolina Court of Appeals

Page 225

252 S.E.2d 225

40 N.C.App. 165

STATE of North Carolina v. Gary Dennis LEE.

No. 7815SC1033.

Court of Appeals of North Carolina.

March 6, 1979.

Edwards & Atwater by Phil S. Edwards and W. Ben Atwater, Jr., Siler City, for defendant-appellant.

PARKER, Judge.

When defendant filed his petition for writ of error Coram nobis on 18 November 1977, the filing of such a petition was the appropriate procedure by which a defendant not in prison could challenge the validity of a criminal judgment against him on grounds extraneous to the record. State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970). There having been no appeal from the challenged judgment, the prior permission of the Supreme Court was not a prerequisite to the filing of the petition. Dantzic v. State, 279 N.C. 212, 182 S.E.2d 563 (1971). Therefore, at the time defendant's petition was filed, he adopted the appropriate procedure to challenge the 2 September 1977 judgment on the ground that he had been denied his constitutional right to counsel when that judgment was entered against him, a matter which was extraneous to the record.

After the order was entered in Superior Court denying defendant's petition and while the present appeal from that order was pending, Art. 89 of G.S. Ch. 15A became effective on 1 July 1978. That Article "applies to all matters addressed by its provisions without regard to when a defendant's guilt was established or when judgment was entered against him." Sec. 39, Ch. 711, 1977 Session Laws. One of the provisions in that Article, G.S. 15A-1411(c), provides that "(t)he relief formerly available by . . . Coram nobis and all other post-trial motions is available by motion for appropriate relief." Such a motion "is a motion in the original cause and not a new proceeding." G.S. 15A-1411(b). A motion for appropriate relief on the ground that the defendant's conviction was obtained in violation of the Constitution of the United States or the Constitution of North Carolina may be made more than 10 days after entry of judgment, G.S. 15A-1415(b)(3), and "may be heard and determined in the trial division by any judge who is empowered to act in criminal matters in the judicial district and trial division in which the judgment was entered." G.S. 15A-1413(a). The court's ruling on a motion for appropriate relief pursuant to G.S. 15A-1415 is subject to review by writ of certiorari if the time for appeal from the conviction has expired and no appeal is pending when the ruling is entered. G.S. 15A-1422(c). Since G.S. 15A-1422(c) is applicable to the present case, we treat defendant's appeal from the order denying his petition as a petition for a writ of certiorari and allow the writ in order to provide defendant appellant review in this case.

Turning to the merits of defendant's position, we find that the order of the Superior Court denying defendant's petition for writ of error Coram nobis was based upon an erroneous conclusion of law. Finding No. VI, although included under the heading "Findings of Fact," is actually a conclusion of law and is erroneous. In this "Finding," the Court concluded that a violation of G.S. 49-2 "is not a serious misdemeanor so as to require appointment of counsel or intelligent waiver thereof under the 6th and 14th amendment of the United States Constitution." In reaching this conclusion, the Superior Court may have been influenced by the majority opinion of our North Carolina Supreme Court in State v. Green, supra, which held that a violation of G.S. 49-2 is a "petty offense" for which the offender may be tried without assistance of counsel. That case, however, was decided prior to the decision of the United States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) in which the court held "that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he is represented by counsel at his trial." 407 U.S. at 37, 92 S.Ct. at 2012, 32 L.Ed.2d at 538. G.S. 49-8(1) provides that a violation of G.S. 49-2 may be punished by imprisonment for a term not to exceed six months, and thus the holding in Argersinger is clearly applicable to the case of a defendant charged with such a violation. The conclusion of the Superior Court to the contrary in the present case is in error.

We note that following the decision in Argersinger, our General Assembly in 1973 enacted Ch. 151 of the 1973 Session Laws which amended G.S. 7A-451(a)(1) to provide that an indigent person is entitled to services of counsel in "(a) ny case in which imprisonment, or a fine of five hundred dollars ($500.00), or more, is likely to be adjudged." It is true that the defendant in the present case was found not to be an indigent. Nevertheless, under Argersinger he had a constitutional right to be represented by counsel at his trial unless he knowingly and intelligently waived that right. In this case there was no finding that defendant waived his right to counsel. Moreover, the record in the present case would not support such a finding. On the contrary, the record on appeal, which was settled by agreement between the attorney for defendant and the Assistant District Attorney who represented the State contains the following stipulation:

It is further stipulated by the State and defendant that at the original trial in the District Court of Chatham County held September 2, 1977, the following events transpired:

The warrant for arrest charging defendant with neglecting and refusing to support and maintain Latesha Degraffenreidt, his illegitimate child born to Annette Degraffenreidt on September 9, 1975 after due notice and demand was made upon defendant on March 1, 1977 by Annette Degraffenreidt in violation of N.C. G.S. 49-2 was issued August 9, 1977 and served on the defendant August 20, 1977. Case was called for trial at the September 2, 1977 and defendant requested that the case be continued to allow defendant time to employ counsel to represent him stating that defendant was a member of the United States Armed Forces and stationed at Fort Bragg and had been unable since the time of his arrest to employ counsel to...