State v. Fenner

• Court: Supreme Court of North Carolina
• Decided: March 21, 2025
• Docket: 289PA23
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 289PA23

Filed 21 March 2025

STATE OF NORTH CAROLINA

v. KAYLORE FENNER

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,

unpublished decision of the Court of Appeals, No. COA23-6 (N.C. Ct. App. Sept. 19,

2023), finding no error after appeal from judgments entered on 11 March 2022 by

Judge Paul C. Ridgeway in Superior Court, Wake County. Heard in the Supreme

Court on 30 October 2024.

Jeff Jackson, Attorney General, by Sherri Horner Lawrence, Special Deputy Attorney General, for the State-appellee.

Glenn Gerding, Appellate Defender, by Wyatt Orsbon, for defendant-appellant.

DIETZ, Justice.

Shortly before trial on numerous felony charges, defendant Kaylore Fenner

told the trial court that he wanted to waive his right to counsel and represent himself.

When a criminal defendant asks to do so, a state statute requires the trial court to

discuss the right to counsel and the consequences of waiving it. N.C.G.S. § 15A-1242

(2023). Among the conditions listed in § 15A-1242 is a requirement that the trial court

ensure the defendant comprehends the “range of permissible punishments” that could STATE V. FENNER

Opinion of the Court

be imposed for the charged offenses. Id.

When the trial court engaged in this statutory colloquy with Fenner, the court

informed him that he faced 75 to 175 years in prison. That was a miscalculation. After

the jury found Fenner guilty, he was sentenced to 121 to 178 years in prison. A

theoretical defendant with an even worse criminal history could have received five

consecutive life sentences plus several more years in prison if convicted on those same

charges.

Fenner appealed and sought a new trial, arguing that the trial court erred by

miscalculating the range of possible punishments he faced. The Court of Appeals

affirmed Fenner’s criminal judgments, holding that Fenner “was aware he was facing

a life sentence.” State v. Fenner, No. COA23-6, slip op. at 12 (N.C. Ct. App. Sept. 19,

2023) (unpublished).

We agree with this portion of the Court of Appeals’ reasoning. As a practical

matter, the upper limit to the range of any criminal defendant’s period of

incarceration is the remainder of the defendant’s natural life. If the trial court

miscalculates the range of permissible incarceration during the statutory colloquy

but both the miscalculation and the actual range are tantamount to the remainder of

the defendant’s life, the trial court complies with the statute. That is what occurred

here because the court informed Fenner, who was nearly thirty years old at the time

of the offenses, that he faced 75 to 175 years in prison, which is tantamount to the

remainder of his life. Accordingly, as modified below, we affirm the decision of the

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Court of Appeals.

Facts and Procedural History

In 2021, defendant Kaylore Fenner kidnapped, assaulted, and raped his own

mother. The State charged Fenner with many serious criminal offenses including

forcible rape, kidnapping, robbery, and breaking or entering to terrorize and injure.

Many of the charged offenses were Class B1 felonies, which carry some of the highest

punishments under our structured sentencing statutes. See N.C.G.S. § 15A-1340.17

(2023).

At a pre-trial hearing, Fenner asked to represent himself for the remainder of

the case. Before addressing Fenner directly, the trial court asked the State for its

view of the “exposure that the defendant has if convicted.” The State explained that

Fenner was charged with multiple B1 felonies and “all told, total[,] he is facing a life

sentence.” The trial court then calculated the maximum possible sentence for the

Class B1 felony charges and informed Fenner that he faced the possibility of 300 to

420 months in prison for each charge:

THE COURT: Okay. I’m going to deal with the B1s, I do believe that’s pertinent. So, therefore, his exposure if he were convicted by a jury of his peers on the high end of the aggravated range would be 300 months minimum, I believe, to 420 months maximum and that’s for each charge of the B1 felonies.

The trial court then put Fenner under oath and engaged in the statutory

colloquy required by N.C.G.S. § 15A-1242, including exchanges with Fenner

concerning his capacity to represent himself, whether he was under the influence of

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any substances, whether he had any mental or physical impairments, whether he

understood that he was entitled to a court-appointed attorney, whether he understood

that he would have to follow the same rules of evidence and procedure as a licensed

attorney, and whether he understood the range of permissible punishments he faced

for the charged offenses.

When addressing the range of permissible punishments, the trial court again

explained that Fenner faced 300 to 420 months in prison for each Class B1 felony

charge and that, in total, Fenner faced a possible punishment of 75 to 175 years in

prison:

THE COURT: And do you understand that if you were convicted — and I believe it’s appropriate to focus on the B1 felonies. If you were convicted of the B1 felonies and if the State gives notice of aggravating factors and if a jury — I’m not saying they’re going to, but if a jury of your peers were to convict you of the substantive offenses and also agree that there are aggravating factors, that a court could impose a sentence of 300 months minimum to 420 months maximum on each of the B1 felonies.

THE DEFENDANT: Yes.

....

[THE COURT:] Apparently — so there are five, and the court did read the charges. So there are five B1 felonies. At a minimum, that’s 900 months at a minimum. So, therefore, that is 75 years that you could receive at a minimum if convicted of the B1 felonies if it’s an aggravated offense and if a court were to run those consecutively. Do you understand that?

THE DEFENDANT: Right. Yep. Yes.

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THE COURT: And I’m going to honor what the Supreme Court has said. I’ve given you the minimum. I’m going to also give you the maximum. And the maximum is 175 years.

So now, with all of these things in mind, do you now wish to ask me any questions about what I’ve just said to you?

THE DEFENDANT: No.

Later in the colloquy, the trial court again informed Fenner that he faced the

possibility of 75 to 175 years in prison for the charged offenses:

[THE COURT:] [A]re you sure you want me to release [court-appointed counsel] given your exposure of 75 years at a minimum to 175 years maximum? Which a court of competent jurisdiction can give you all of that. So is that what you want to do? Do you want to keep your lawyer?

THE DEFENDANT: No, I’ll be waiving my right to — to full representation almost exclusively for the reasons that you just named, aside from the exposure. Yeah, I’m competent—or I’m sure of my decision.

After completing this colloquy, the trial court permitted Fenner to represent

himself and Fenner reviewed and signed a written waiver of counsel.

Several months later, the case went to trial and Fenner represented himself.

The jury found Fenner guilty of all charges. After properly calculating the applicable

sentencing ranges for all the convictions, the trial court sentenced him to a total of

121 to 178 years in prison.

Fenner appealed, arguing that the trial court failed to ensure that he

understood the “range of permissible punishments” as required by N.C.G.S. § 15A-

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1242. Fenner contended that the trial court only advised him “of the range of

punishments for the five B1 felonies and not for all nine charges for which he was

indicted” and that, as a result, the court mistakenly told him he faced 75 to 175 years

in prison when in fact the court sentenced him to 121 to 178 years in prison and a

theoretical defendant with the highest possible sentencing range for the charged

offenses could have received multiple life sentences. State v. Fenner, No. COA23-6,

slip op. at 6 (N.C. Ct. App. Sept. 19, 2023) (unpublished).

The Court of Appeals unanimously found no error. Id. Relying on earlier Court

of Appeals precedent, the court held that the trial court’s colloquy with Fenner

complied with N.C.G.S. § 15A-1242 because Fenner “was aware he was facing a life

sentence.” Id. at 10, 12.

Fenner petitioned for discretionary review, arguing that the line of Court of

Appeals precedent on which the court relied conflicted with this Court’s precedent

interpreting N.C.G.S. § 15A-1242. Specifically, the issue presented in the petition was

whether the Court of Appeals “erred in concluding the trial judge didn’t commit

prejudicial error by failing to conduct the ‘thorough inquiry’ mandated by N.C.G.S.

§ 15A-1242 before allowing Mr. Fenner to waive his right to assistance of counsel and

represent himself at trial.”

We allowed discretionary review of that issue.

Analysis

Criminal defendants have a constitutional right to represent themselves. See

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Faretta v. California, 422 U.S. 806, 832–34 (1975); State v. LeGrande, 346 N.C. 718,

725 (1997). This constitutional right means that a criminal defendant must be

allowed “to handle his own case without interference by, or the assistance of, counsel

forced upon him against his wishes.” State v. Mems, 281 N.C. 658, 670–71 (1972).

Of course, invoking this right to self-representation necessarily involves

waiving another constitutional right—the right to counsel. Faretta, 422 U.S. at 835.

Thus, before permitting a defendant to proceed without counsel, the trial court must

ensure that the defendant is “aware of the dangers and disadvantages of self-

representation, so that the record will establish that he knows what he is doing and

his choice is made with eyes open.” Id. (cleaned up).

To safeguard this constitutional right, the General Assembly enacted a statute

titled “Defendant’s election to represent himself at trial.” N.C.G.S. § 15A-1242. The

statute permits a defendant to “proceed in the trial of his case without the assistance

of counsel” only after the trial judge has engaged in a “thorough inquiry” with the

defendant and is satisfied that the defendant understands an enumerated list of

rights and consequences of the decision. Id. Among these statutory criteria is the

requirement that the defendant comprehends “the range of permissible punishments”

that could be imposed at sentencing. Id.

This Court has never squarely addressed how a mistake or miscalculation in

the range of possible punishments impacts the trial court’s compliance with N.C.G.S.

§ 15A-1242. But there is a long line of Court of Appeals precedent addressing this

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question, beginning with State v. Gentry, 227 N.C. App. 583 (2013).

In Gentry, the trial court miscalculated the defendant’s maximum possible

sentence by 14 years during the statutory colloquy. Id. at 600. The Court of Appeals

acknowledged the mistake but nevertheless found no violation of N.C.G.S. § 15A-1242

because both the miscalculated sentence and the actual sentence were “tantamount

to a life sentence.” Id. The court observed that the “practical effect of either sentence”

was “identical in any realistic sense.” Id.

We agree with this portion of Gentry’s statutory analysis. As a practical matter,

there is an upper limit to the range of any criminal defendant’s period of

incarceration. That upper limit is the life of the defendant. Because any remaining

period of incarceration becomes meaningless after a defendant dies, the “range of

permissible punishments” described in N.C.G.S. § 15A-1242 contains a ceiling

equivalent to the defendant’s natural life. If the trial court miscalculates the range of

permissible punishments during the statutory colloquy but both the miscalculation

and the actual range are tantamount to the remainder of the defendant’s life, the trial

court complies with the statute.

That is what occurred here. The trial court repeatedly informed Fenner that

he faced a possible sentence of 75 to 175 years in prison. The actual sentence Fenner

received was 121 to 178 years. The theoretical maximum sentence Fenner could have

received (assuming a maximum prior record level and aggravating factors) was five

consecutive sentences of life in prison plus an additional 53 to 71 years in prison.

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N.C.G.S. § 15A-1340.17. Because Fenner was nearly thirty years old at the time, all

of these sentencing ranges were tantamount to the remainder of Fenner’s life.

Thus, although the range of punishments that the trial court discussed with

Fenner was numerically inaccurate, the court complied with N.C.G.S. § 15A-1242.

The court informed Fenner that, if convicted, he could spend the rest of his life in

prison. That accurately conveyed the sentencing range that Fenner faced in this case

and therefore confirmed that Fenner comprehended the range of permissible

punishments. We therefore affirm the decision of the Court of Appeals, which found

no error in the trial court’s statutory colloquy under N.C.G.S. § 15A-1242.1

Fenner also makes several additional arguments to this Court that we briefly

address. First, Fenner argues that the Court of Appeals decision wrongly held that

N.C.G.S. § 15A-1242 does not require a “thorough inquiry” with the defendant

concerning the range of permissible punishments so long as the defendant was

“ ‘aware’ of the information at the time he waived counsel.”

That is not our reading of the Court of Appeals decision. In its decision, the

court first engaged in an analysis of the trial court’s own colloquy with Fenner and

1 Another portion of Gentry suggests that a miscalculation in describing the range of

permissible punishments under N.C.G.S. § 15A-1242, even if that miscalculation rose to the level of error under the statute, would not be a reversible error unless “there was a reasonable likelihood that the defendant might have made a different decision with respect to the issue of self-representation had he or she been more accurately informed.” 227 N.C. App. at 600. Because we hold that there was no error in this case, we do not address whether this discussion in Gentry created a prejudice test for calculation errors in the range of punishments or whether that prejudice test is permissible under this Court’s precedent.

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determined that it complied with the statute. Fenner, slip op. at 10–11. The court

then separately discussed an earlier exchange between the court and the prosecutor

concerning Fenner’s possible sentence. Id. at 11–12. In that exchange, the prosecutor

stated, in Fenner’s presence, that “all told, total[,] he is facing a life sentence.”

The Court of Appeals held that this exchange was “an acceptable part of the

inquiry required by N.C. Gen. Stat. § 15A-1242.” Id. at 12. To be clear, the “thorough

inquiry” described in the statute must be between the trial court and the defendant.

But it is entirely appropriate for the trial court, in the course of the inquiry required

under N.C.G.S. § 15A-1242, to ask the State what it believes is the properly calculated

range of permissible punishments for the charged offenses. Indeed, given the

complexity of our State’s structured sentencing scheme, asking the State for its own

calculation of the range of punishments is prudent. We emphasize that the trial court

ultimately is responsible for engaging in the “thorough inquiry” required by the

statute and cannot delegate that duty to the prosecutor. To the extent the Court of

Appeals held otherwise, we modify the court’s decision.

Next, Fenner argues that the Court of Appeals erred by holding that the trial

court was not required to inform him of “all the charges he faced” and instead could

address only those charges “the judge deemed pertinent.” Again, this is not our

reading of the Court of Appeals decision. Fenner’s argument stems from the trial

court’s decision during the statutory colloquy to “focus on the B1 felonies,” which were

the most serious charges, without also considering the impact of the remaining

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As explained above, the trial court’s colloquy in this case complied with the

statute because, even without addressing the remaining charges, the range of

possible punishments was tantamount to the remainder of Fenner’s life. But we agree

with Fenner that trial courts should not focus solely on the charges that the court

deems most serious. Given the complexity of the structured sentencing scheme, other

lesser charges in some circumstances can impact the maximum range of a sentence.

When calculating the permissible range of punishments, the best practice is for trial

courts to use the checklist of inquiries we articulated in State v. Moore, 362 N.C. 319,

327–28 (2008). This includes informing the defendant of all charges in the case and

the minimum and maximum possible sentence the defendant faces if convicted of all

those charges. Id. We do not interpret the Court of Appeals decision to suggest

otherwise but, to the extent it does, we modify the court’s decision.

Finally, we address Fenner’s constitutional argument, which is not properly

before this Court. In his petition for discretionary review, Fenner only sought review

of whether the Court of Appeals “erred in concluding the trial judge didn’t commit

prejudicial error by failing to conduct the ‘thorough inquiry’ mandated by N.C.G.S.

§ 15A-1242 before allowing Mr. Fenner to waive his right to assistance of counsel and

The petition included only a single, introductory paragraph citing any

constitutional doctrine and that paragraph did not assert that the trial court violated

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Fenner’s constitutional rights. The remainder of the 27-page petition focused on

Fenner’s argument that if the “Court of Appeals’ decision stands, there’s not much

left of this Court’s case law enforcing § 15A-1242.”

In his new brief to this Court, Fenner asserted both a statutory argument

under N.C.G.S. § 15A-1242 and, separately, a constitutional claim under the Sixth

Amendment to the United State Constitution. The latter issue was not addressed in

the Court of Appeals decision and not listed as an issue in the petition for

discretionary review.

We therefore conclude that the constitutional issue is not properly before this

Court. On discretionary review, this Court limits its review solely to the issue or

issues presented in the petition. State v. Alonzo, 373 N.C. 437, 443–44 (2020); see also

N.C. R. App. P. 16(a).

A little less than two weeks before oral argument in this case, Fenner filed a

petition for a writ of certiorari, asking this Court to examine his constitutional

argument. By separate order, we deny the petition for a writ of certiorari. At that late

stage of the proceeding, it is not appropriate to add an additional issue that was not

addressed by the Court of Appeals decision and not presented as a proposed issue in

the initial petition for discretionary review.

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Conclusion

For the reasons discussed above, we modify and affirm the decision of the Court

of Appeals.

MODIFIED AND AFFIRMED.

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