State v. Moses

Court of Appeals of North Carolina

State v. Moses

191 S.E.2d 368, 16 N.C. App. 174, 1972 N.C. App. LEXIS 1667

CourtCourt of Appeals of North Carolina

DecidedSeptember 20, 1972

DocketNo. 7220SC670

StatusPublished

Cited by1 cases

This text of 191 S.E.2d 368 (State v. Moses) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Moses, 191 S.E.2d 368, 16 N.C. App. 174, 1972 N.C. App. LEXIS 1667 (N.C. Ct. App. 1972).

Pincite

Opinion

GRAHAM, Judge.

Defendant assigns as error the court’s failure to determine his indigency and appoint counsel for him until after he had entered his plea and the jury had been selected, sworn and empaneled. The assignment of error must be sustained.

Defendant was tried and convicted of a misdemeanor punishable by a fine, imprisonment for a maximum of two years, or both. G.S. 14-33 (c) (2). If an indigent person, defendant was entitled to have counsel provided by the State to represent him during any critical stage of the action or 'proceeding. G.S. 7A-450 et seq. Where a defendant is charged with a felony or a serious misdemeanor, it is the duty of the trial judge to “(1) settle the question of indigency, and (2) if defendant is indigent, appoint counsel to represent him unless counsel is knowingly and understandingly waived.” State v. Morris, 275 N.C. 50, 60, 165 S.E. 2d 245, 251-252.

It does not appear from the record that defendant ever waived his right to counsel. Waiver of counsel may not be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 8 L.Ed. 2d 70, 82 S.Ct. 884 (1962). Neither does it appear that the question of defendant’s indigency was settled at any time before or during the trial. It does appear that defendant did not have the assistance of counsel during critical stages of the prosecution. The State argues that since defendant’s plea was “not guilty,” no prejudice could have resulted from his not being afforded counsel before the plea was entered. Assuming, without deciding, that this is true, the fact remains that defendant did not have the assistance of counsel in selecting the jury. It cannot be presumed that no prejudice resulted from his not having counsel provided him during this important stage of the proceeding.

New trial.

Judges Parker and Vaughn concur.

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GRAHAM, Judge.

Defendant assigns as error the court’s failure to determine his indigency and appoint counsel for him until after he had entered his plea and the jury had been selected, sworn and empaneled. The assignment of error must be sustained.

Defendant was tried and convicted of a misdemeanor punishable by a fine, imprisonment for a maximum of two years, or both. G.S. 14-33 (c) (2). If an indigent person, defendant was entitled to have counsel provided by the State to represent him during any critical stage of the action or 'proceeding. G.S. 7A-450 et seq. Where a defendant is charged with a felony or a serious misdemeanor, it is the duty of the trial judge to “(1) settle the question of indigency, and (2) if defendant is indigent, appoint counsel to represent him unless counsel is knowingly and understandingly waived.” State v. Morris, 275 N.C. 50, 60, 165 S.E. 2d 245, 251-252.

It does not appear from the record that defendant ever waived his right to counsel. Waiver of counsel may not be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 8 L.Ed. 2d 70, 82 S.Ct. 884 (1962). Neither does it appear that the question of defendant’s indigency was settled at any time before or during the trial. It does appear that defendant did not have the assistance of counsel during critical stages of the prosecution. The State argues that since defendant’s plea was “not guilty,” no prejudice could have resulted from his not being afforded counsel before the plea was entered. Assuming, without deciding, that this is true, the fact remains that defendant did not have the assistance of counsel in selecting the jury. It cannot be presumed that no prejudice resulted from his not having counsel provided him during this important stage of the proceeding.

New trial.

Judges Parker and Vaughn concur.

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Bluebook (online)

191 S.E.2d 368, 16 N.C. App. 174, 1972 N.C. App. LEXIS 1667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moses-ncctapp-1972.

Opinion

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