State v. Schumann, 020618 NCCA, COA17-707

Docket Nº:COA17-707
Opinion Judge:ROBERT N. HUNTER, JR., JUDGE.
Party Name:STATE OF NORTH CAROLINA v. FREDERICK JOHN SCHUMANN, Defendant.
Attorney:Attorney General Joshua H. Stein, by Special Deputy Attorney General Kathryn J. Thomas, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Zimmer, for defendant-appellant.
Judge Panel:Judges INMAN and BERGER concur.
Case Date:February 06, 2018
Court:Court of Appeals of North Carolina
 
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STATE OF NORTH CAROLINA

v.

FREDERICK JOHN SCHUMANN, Defendant.

No. COA17-707

Court of Appeals of North Carolina

February 6, 2018

          Heard in the Court of Appeals 14 December 2017.

         Appeal by Defendant from judgment entered 1 September 2016 by Judge Douglas B. Sasser in Columbus County Superior Court Nos. 13 CRS 51541, 51543-44, 51547-51.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Kathryn J. Thomas, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Zimmer, for defendant-appellant.

          ROBERT N. HUNTER, JR., JUDGE.

         Fredrick John Schumann ("Defendant") appeals from judgments entered upon jury verdicts finding him guilty of four counts of trafficking "14 grams or more, but less than 28 grams of opium or heroin" and four counts of trafficking "28 grams or more of opium or heroin." On appeal, Defendant argues the trial court erred by requiring Defendant to represent himself at trial, on the grounds Defendant neither asked to proceed pro se nor engaged in the type of misconduct which would result in a forfeiture of Defendant's right to counsel. We disagree.

         I. Factual and Procedural Background

         On 7 August 2013, a grand jury indicted Defendant for the following offenses: (1) four counts of trafficking more than 28 grams of opium, namely Hydrocodone on 25 February 2013; (2) four counts of trafficking more than 28 grams of opium, namely Hydrocodone, on 22 March 2013; and (3) one count of selling marijuana on 6 March 2013. On 6 April 2016, Defendant was re-indicted on the eight trafficking hydrocodone cases as follows: (1) four counts of trafficking "14 grams or more, but less than 28 grams of an opium derivative, namely Hydrocodone" on 25 February 2013, and (2) four counts of trafficking "28 grams or more of an opium derivative, namely Hydrocodone."

         On 12 September 2013, Defendant appeared before Judge Douglas B. Sasser ("Judge Sasser") in Columbus County Superior Court, and signed a waiver of counsel form declaring:

I have been fully informed of the charges against me, the nature of and the statutory punishment for each such charge, and the nature of the proceedings against me; that I have been advised of my right to have counsel assigned to assist me and my right to have the assistance of counsel in defending against these charges or in handling these proceedings, and that I fully understand and appreciate the consequences of my decision to waive the right to assigned counsel and the right to assistance of counsel.

         Defendant "freely, voluntarily and knowingly" waived this right.

         On 12 December 2013, Defendant appeared before Judge D. Jack Hooks, Jr., ("Judge Hooks") and signed a second Waiver of Counsel Form. Here, Defendant repeated the declarations he made in his initial September waiver. On that same day, attorney Walter D. Palmer ("Palmer") filed a Notice of Limited Appearance of Counsel limiting Palmer's representation of Defendant to pre-trial case management.

         On 16 September 2015, Defendant again appeared before Judge Sasser. Palmer told the trial court, "I previously filed a limited appearance basically through this point. I believe the State's got their labs back and would be ready to set a trial date." Judge Sasser and Defendant then conducted the following exchange:

THE COURT: You understand that if you want a court-appointed attorney, now is the time to ask for it, otherwise you'll be responsible if this matter does not resolve itself for case management. It's your responsibility to hire an attorney or represent yourself at trial. Now, that should have been the conversation that took place with you back several months ago, if not more than a year ago. Mr. Palmer indicates that matters have not been resolved and it's now ready to go on to trial.

Mr. Schumann, I would certainly recommend you get yourself ready for trial. You have to understand that the Court can't help you. You have to know about how to pick a jury, and how many peremptory challenges, what's required to exercise one, what motions you can make and when to make those motions, who gets opening statement, what is an opening statement, what can I say during a closing argument. A lot of things go into a trial. It's not simple and there's rules that have to be followed, and the rules apply to you the same as they apply to an attorney. Are you going to hire an attorney for trial?

THE DEFENDANT: Yes, sir.

         The Assistant District Attorney ("ADA") then advised the trial court the case could come up for trial in the middle of the following year. Judge Sasser then advised Defendant:

I'll give you two months to get your attorney hired . . . . Mr. Schumann, at 9:00 a.m., November 5 be back in this courtroom . . . and hopefully you got your lawyer with you and then we'll talk to your lawyer about a trial date for your case, give him enough time to get prepared. You need to go ahead and get a lawyer. Don't come back in November saying, I don't have a lawyer yet. You need a lawyer in place. All right? . . . It's to confirm who trial counsel will be for Mr. Schumann.

         On 5 November 2015, Defendant again appeared before Judge Sasser. The following exchange occurred:

THE COURT: [A]ll the way back in September 2013, you indicated you were going to hire an attorney. So we're now over two years later. The State now has lab results and is ready to set this matter for trial, and the attorneys indicated you first made a limited appearance back in December 2013.

You're still not fully retained in this matter, and I want to make sure you understand we're getting ready to set a trial date, and it's your responsibility to either have an attorney -- you said you could afford to hire one - - you've had two years, and in that two years, you've never come back in and said, You know, I lost my job, I just can't do it, I can't afford one, I need court-appointed counsel. Waited two years, and now it's ready for trial.

It's your responsibility to have an attorney, or you understand that you'll be trying the matter yourself? And I would strongly recommend that you not represent yourself in a superior court trial with all that's involved, in jury selection, motions, presenting the evidence, knowing what evidence may be admissible and not admissible. There's a reason we have folks go to law school for years and take exams to be licensed to do this.

So I strongly encourage you now is the time to get a lawyer retained, because if not, then I'll see you back in court - - and you understand for trafficking, I would anticipate with all these charges if convicted by a jury, probably most likely spend the rest of your life in prison.

Do you understand that?

THE DEFENDANT: Yes, sir.

         On 10 December 2015, Defendant again appeared before Judge Sasser. Defendant stated, "I had hired Mr. Cartrette and now I'm back to the same boat again. Mr. Palmer didn't want to take the case." Therefore, Defendant told the court, "I need a little bit of time." The trial court responded, "Come back on January 7th. Report back to me and tell me who your lawyer is then, but you need to go ahead - -because that trial's coming up soon[.]" Defendant assured the trial court he understood, and then thanked Judge Sasser.

         On 7 January 2016, Defendant was before Judge Sasser again. An attorney named Mr. Byrd was in court that day, and he explained:

I'm not in a position to make an appearance for Mr. Schumann at this time. He indicated to me that he had spoken with Mr. Cartrette and thought Mr. Cartrette was going to be able to represent...

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