IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-32
Filed: 20 August 2019
Transylvania County, No. 18 CRS 72
STATE OF NORTH CAROLINA
v.
JAMES ALLEN RUTLEDGE
Appeal by defendant from judgment entered 14 August 2018 by Judge R.
Gregory Horne in Transylvania County Superior Court. Heard in the Court of
Appeals 8 August 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General John Tillery, for the State.
Jeffrey William Gillette for defendant-appellant.
TYSON, Judge.
James Allen Rutledge (“Defendant”) appeals from judgment entered after the
trial court found him guilty of one count of possession of methamphetamine, a
Schedule II controlled substance. We affirm.
I. Background
In late 2017, the Brevard Police Department received complaints about
suspected drug trafficking occurring at a Transylvania County home. On 29
November 2017, officers executed a search warrant for the home at 54 Camp Harley STATE V. RUTLEDGE
Opinion of the Court
Farm Drive in Transylvania County. Officers observed Defendant and another male
standing outside the home. As part of the process of executing the search warrant,
the officers secured the men. The officers conducted a pat-down search of Defendant
and found a small purple case containing a crystal-like substance. Testing revealed
the substance to be one-tenth of a gram of methamphetamine. Defendant was
indicted on 12 February 2018 for one count of possession of methamphetamine, a
Schedule II controlled substance.
Defendant’s case was called for trial on 14 August 2018. At the start of trial,
Defendant requested to waive his right to a trial by jury and have the judge hear the
evidence and adjudicate the charge. Defendant’s attorney stated: “Good Afternoon.
May it please the Court, at this point in time we do have and do request a waiver of
jury trial in this matter.” Defendant’s attorney also confirmed engaging in prior
discussions with the prosecutor about the waiver, and asserted the State had no
objections.
The following colloquy then occurred:
THE COURT: All right. . . . Mr. Rutledge, if you would just stand up where you are, sir. Mr. Rutledge, good afternoon, sir. Sir, you are charged with possession of methamphetamine. Mr. Barton represents you in this matter. Is that correct?
DEFENDANT: Yes, sir.
THE COURT: Possession of methamphetamine is a felony. It’s a Class I felony. The maximum possible punishment for
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any Class I felony under North Carolina law is up to 24 months. That would be the maximum. If your prior record level if it is not a VI, the maximum you would face would be correspondingly lower. Have you had an opportunity to talk with Mr. Barton and review the maximum that you actually would face given your prior record, sir?
THE COURT: All right. And I will ask you a couple of questions about that. I’m advised that, by Mr. Barton, that it is your desire to waive a jury trial in this matter and have a bench trial; is that correct?
THE COURT: And you do understand, sir, that you have the right to have 12 jurors, jurors of your peers, selected, that you have the right to participate in their selection pursuant to the rules set forth in our law and that any verdict by the jury would have to be a unanimous verdict, unanimous of the 12? Do you understand that?
THE COURT: You have the right to waive that and instead have a bench trial, which would mean that the judge alone would decide guilt or innocence and the judge alone would determine any aggravating factors that may be present were you to waive your right to a jury trial. Do you understand that?
THE COURT: Have you talked with Mr. Barton about your rights in this regard and the ramifications of waiving a jury trial?
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THE COURT: Do you have any questions about the jury trial or your rights therein?
DEFENDANT: No, sir.
THE COURT: All right. And, sir, is it your decision then that you wish, and your request, that the jury trial be waived and that you be afforded a bench trial?
THE COURT: All right. Thank you, sir.
The court granted Defendant’s motion to waive his right to a jury trial. The
court and Defendant signed form AOC-CR-405 (“Waiver of Jury Trial form”). The
document was not signed by the State. After the waiver was entered, Defendant’s
attorney requested that Defendant be arraigned. After arraignment, Defendant’s
trial began.
The State offered testimony from the two police officers who found the drugs
on Defendant’s person on 29 November 2017. Defendant stipulated that the
substance found in the purple case was methamphetamine without further testimony
from employees of the State Crime Lab. Defendant testified and asserted he had
never before seen the small purple case. Following trial, the court entered a verdict
of guilty, and imposed a split sentence of four months’ imprisonment followed by
thirty months’ supervised probation. Defendant timely filed written notice of appeal.
II. Jurisdiction
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Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-
1444(a) (2017).
III. Issue
The sole issue on appeal is whether the trial court erred in granting
Defendant’s request to waive a jury trial and to proceed to a bench trial in violation
of N.C. Gen. Stat. § 15A-1201 (2017).
IV. Standard of Review
The Court conducts a de novo review of a question of law to determine whether
a trial court has violated a statutory mandate. State v. Mumma, ___ N.C. App. ___,
___, 811 S.E.2d 215, 220 (2018).
V. Analysis
The North Carolina Constitution affirmatively confirms a defendant’s right to
request a bench trial, subject to the trial court’s approval. N.C. Const. art. I, § 24. In
2014, the North Carolina General Assembly amended N.C. Gen. Stat. § 15A-1201 to
allow criminal defendants in non-capital cases to waive their right to a trial by jury.
In 2015, the statute was again amended to include provisions regarding advance
notice, revocation period, and judicial consent. Id.
A. Statutory Violation
Defendant argues the trial court committed reversible error in violation of N.C.
Gen. Stat. § 15A-1201 in three ways: (1) by failing to require the statutory notice
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provision set out in N.C. Gen. Stat. § 15A-1201(c); (2) by failing to comply with N.C.
Gen Stat. § 15A-1201(d)(1), which requires the trial court to “determine whether the
defendant fully understands and appreciates the consequences of the defendant’s
decision to waive the right to trial by jury”; and, (3) by failing to provide Defendant
the statutory 10-day revocation period before starting the trial as required by N.C.
Gen. Stat. § 15A-1201(e).
1. Advance Notice
Defendant argues the trial court erred when it failed to require Defendant’s
compliance with the notice provision outlined by N.C. Gen. Stat. § 15A-1201(c). The
statute allows a defendant charged with a non-capital offense to give notice of his
intent to waive his right to a trial by jury in any of the three following ways:
(1) Stipulation, which may be conditioned on each party’s consent to the trial judge, [and] signed by both the State and the defendant . . .
(2) Filing a written notice of intent to waive a jury trial with the court . . . within the earliest of (i) 10 working days after arraignment, (ii) 10 working days after service of a calendar setting under G.S. 7A-49.4(b), or (iii) 10 working days after the setting of a definite trial date under G.S. 7A- 49.4(c).
(3) Giving notice of intent to waive a jury trial on the record in open court by the earlier of (i) the time of arraignment or (ii) the calling of the calendar under G.S. 7A-49.4(b) or G.S. 7A-49.4(c).
N.C. Gen. Stat. § 15A-1201(c).
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The critical times under the statute for filing a waiver of a jury trial are the
date of arraignment, the date of service of a calendar setting, and the date of calendar
call. Nothing in the record before us indicates when either the calendar setting under
N.C. Gen. Stat. § 7A-49.4(b) (2017) or the setting of the definite trial date under N.C.
Gen. Stat. § 7A-49.4(c) (2017) occurred in this case.
Defendant was not formally arraigned until the day of trial. Apparently, a
formal arraignment was not requested by Defendant at any time prior to the
scheduled trial date. Formal arraignment may be waived. Pursuant to N.C. Gen.
Stat. § 15A-941(d) (2017), “[a] defendant will be arraigned in accordance with this
section only if the defendant files a written request with the clerk of superior court
for an arraignment not later than 21 days after service of the bill of indictment.”
This Court addressed similar issues to those at bar in both State v. Swink, 252
N.C. App. 218, 797 S.E.2d 330 (2017) and State v. Jones, 248 N.C. App. 418, 789
S.E.2d 651 (2016). In Jones, the defendant never requested a formal arraignment
pursuant to N.C. Gen. Stat. § 15A-941. Id. at 423, 789 S.E.2d at 655. This Court held
the defendant never requested a formal arraignment, and his right to be formally
arraigned was deemed waived twenty-one days after he was indicted. Id.
In Swink, the defendant never entered a “not guilty” plea to trigger informal
arraignment. Defendant’s request for a bench trial functioned as an implicit plea of
not guilty. Swink, 252 N.C. App. at 222, 797 S.E.2d at 333. This Court held in Swink
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no violation of the statutory notice provision of N.C. Gen. Stat § 15A-1201(c) occurred
when no stipulation was provided and the defendant was arraigned on the day of his
trial. Id. The defendant’s actions barred the court from enforcing technical
compliance with the provision. This Court found no error in Swink. Id. We find none
here.
The filing of a written notice of intent to waive a jury trial on the date of the
arraignment and subsequent trial is proper where: (1) the defendant gives notice of
his intent to waive his right to a jury trial at the date of trial; (2) consent is given to
waive jury trial by both the trial court and the State; and (3) the defendant invites
noncompliance with the timeline requirements of N.C. Gen. Stat § 15A-1201(c) by his
own failure to request a separate arraignment prior to the date of trial. See N.C. Gen.
Stat § 15A-1201. It is not necessary to postpone the subsequent trial by ten working
days, due to a defendant’s decision to not request prior arraignment until the trial
date itself. See Swink, 252 N.C. App. at 222, 797 S.E.2d at 333.
2. Judicial Consent
Defendant argues the trial court ignored procedural safeguards when it failed
to “solicit much of the information normally required in order to determine if a waiver
is [made] knowing[ly] and voluntar[ily].” The trial court did not specifically ask
Defendant whether he was literate, whether he was satisfied with his lawyer’s work,
or whether anyone had made promises or threats to induce him to waive a jury trial.
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Neither N.C. Gen. Stat. § 15A-1201(d)(1) nor applicable case law has established a
script for the colloquy that should occur between a superior court judge and a
defendant seeking to exercise his right to waive a jury trial.
In Swink, where the defendant sought to waive his right to trial by jury, the
trial court never specifically asked the defendant whether or not he was satisfied with
his lawyer’s work or whether anyone had made promises or threats to induce him to
waive a jury trial. Swink, 252 N.C. App. at 219-20, 797 S.E.2d at 331-32.
N.C. Gen. Stat. § 15A-1201(d)(1) requires the trial court to: “[a]ddress the
defendant personally and determine whether the defendant fully understands and
appreciates the consequences of the defendant’s decision to waive the right to trial by
jury.” N.C. Gen. Stat. § 15A-1201(d)(1). No other specific inquiries are required in
the statute to make the determination of Defendant’s understanding and
appreciation of the consequences “to waive his trial by jury.” Id. This Court will not
read such further specifications into law.
Here, Defendant appeared in court with his attorney on the day of trial, who
initiated and informed the trial judge of Defendant’s specific desire to waive a jury
trial and proceed with a bench trial. The trial court clearly explained to Defendant
that waiving his right to a trial by jury meant “the judge alone would decide guilt or
innocence and the judge alone would determine any aggravating factors that may be
present.” The judge also inquired whether Defendant had the opportunity to discuss
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his rights and the ramifications of the waiver with his attorney. As noted above, in
response to each question, Defendant answered “yes.”
The trial court also confirmed that Defendant knew the offense was non-capital
and knew the maximum sentence that could be imposed. Defendant responded he
had no other questions about the waiver, trial, or his rights. Defendant swore that
by signing the form, he was freely, voluntarily, and knowingly waiving his right to a
jury trial.
The trial court’s colloquy mirrored the acknowledgements made on the Waiver
of Jury Trial form. The colloquy between the trial court and Defendant established
that Defendant “fully underst[ood] and appreciate[d] the consequences of the
defendant’s decision to waive the right to trial by jury.” Id.
3. Revocation Period
N.C. Gen. Stat § 15A-1201(e) provides that: “[o]nce waiver of a jury trial has
been made and consented to by the trial judge pursuant to subsection (d) of this
section, the defendant may revoke the waiver one time as of right within 10 business
days of the defendant’s initial notice[.]” Defendant argues N.C. Gen. Stat. § 15A-
1201(e) mandates a ten-day “cooling-off” period, wherein defendants are permitted
ten working days to reflect upon their choice to waive. This revocation period is
granted following the required notice outlined in N.C. Gen. Stat § 15A-1201(c).
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A plain reading of the statute does not compel a mandatory ten-day cooling-off
period for a waiver made on the eve of trial. Rather, the statute provides a period
when the waiver was provided in advance of trial during which a defendant has an
absolute right to revoke a waiver. If a defendant moves to revoke such a waiver after
the ten-day period has lapsed, N.C. Gen. Stat. § 15A-1201(e) provides that “the
defendant may only revoke the waiver of a trial by jury upon the trial judge finding
the revocation would not cause unreasonable hardship or delay to the State.” To
interpret and enforce this power to revoke within ten days as a “mandatory cooling-
off period” is inconsistent with the text of the statute and the prior actions of
Defendant.
Allowing a ten-day revocation period when defendant has declared intent to
waive a jury trial at an informal arraignment, contemporaneous with the start of
trial, would allow a defendant to force a mandatory ten-day continuance. The General
Assembly, in drafting N.C. Gen. Stat. § 15A-1201(e), anticipated a defendant may
improperly attempt to waive his right to a trial by jury on the scheduled day of trial.
Nothing shows the General Assembly intended for the revocation period provision to
create or to allow such a loophole and cause unnecessarily delays.
Were defendants unilaterally permitted to force such a continuance, the
provisions of N.C. Gen. Stat. § 15A-1201 would lead to absurd results. Under the
absurdity doctrine, “where a literal interpretation of the language of a statute will
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lead to absurd results, or contravene the manifest purpose of the Legislature, as
otherwise expressed, the reason and purpose of the law shall control.” State v. Beck,
359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005) (quoting Mazda Motors of Am., Inc. v.
Sw. Motors, Inc., 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979)).
In 2015, a proposed amendment to N.C. Gen. Stat § 15A-1201(e) was
introduced in the North Carolina Senate to expressly allow a defendant to “revoke
[his waiver of jury trial] until such time as the first witness is sworn.” That proposed
amendment failed. See An Act to Establish Procedure for Waiver of The Right to a
Jury Trial in Criminal Cases in Superior Court: Hearing on H.B. 215 Before the
Subcomm. on the Judiciary B of the H. Comm. On the Judiciary, 2015 Leg.
The intent of our General Assembly was to prevent a defendant from forcing
undue delays by invoking the revocation period provision as late as the day of his
trial. If Defendant wanted to take advantage of the ten-day revocation rule, he should
have given advance notice and requested arraignment prior to trial. See N.C. Gen.
Stat § 15A-1201(e).
B. Prejudice
Even were we to presume Defendant could show the trial court erred by
granting his requested waiver of a jury trial, Defendant must also show the actions
of the trial court prejudiced him to receive a new trial. See Swink, 252 N.C. App. at
221, 797 S.E.2d at 332; see also State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659
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(1985) (“when a trial court acts contrary to a statutory mandate and a defendant is
prejudiced thereby, the right to appeal the court’s action is preserved,
notwithstanding [the] defendant’s failure to object at trial.”). In State v. Love, this
Court stated: “However, a new trial does not necessarily follow a violation of statutory
mandate. Defendants must show not only that a statutory violation occurred, but
also that they were prejudiced by this violation.” 177 N.C. App. 614, 623, 630 S.E.2d
234, 240-41 (2006) (citations omitted).
N.C. Gen. Stat. § 15A-1443 places the burden on Defendant to show a
“reasonable possibility that, had the error in question not been committed, a different
result would have been reached at trial.” N.C. Gen. Stat. § 15A-1443(a) (2017). “A
defendant is not prejudiced by the granting of relief which he has sought or by error
resulting from his own conduct.” N.C. Gen. Stat. § 15A-1443(c) (2017). See also State
v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001) (“a defendant who invites
error has waived his right to all appellate review concerning the invited error,
including plain error review”).
If Defendant wanted to waive his jury trial in accordance with N.C. Gen. Stat.
§ 15A-1201, he needed to request a formal arraignment prior to trial and deliver
notice of intent to waive at either that arraignment time, or the time of the calling of
the calendar. Defendant failed to do either.
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Defendant waited until the day of trial to announce his intention to waive his
right to trial by jury. Presuming, without finding, the trial court’s grant of
Defendant’s requested waiver was error under N.C. Gen. Stat. § 1201, Defendant has
failed to and cannot show prejudice under N.C. Gen. Stat. § 15A-1443.
The record is devoid of any indication tending to show a jury would have been
privy to exculpatory evidence that this trial court did not consider. Defendant
initiated and requested the waiver of a jury trial on the day of trial. Defendant made
the strategic choice to request a bench trial and was informed of the potential
consequences of his request and proceeded to trial. The trial court’s grant of such
request, even if it was shown to be in technical violation of N.C. Gen. Stat. § 15A-
1201, was not prejudicial. Defendant’s arguments are overruled.
VI. Conclusion
Defendant clearly initiated his choice for a bench trial and proceeded to trial
and testified after being fully advised and counseled on the potential consequences.
He has not shown that his own strategic choice to waive his right to a jury trial on
the day of trial prejudiced him in any way.
We hold the trial court did not commit any error to warrant a new trial by
allowing Defendant to waive his right to a jury trial and proceed to trial on the
scheduled trial date. Defendant’s conviction and the judgment entered thereon are
affirmed. It is so ordered.
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AFFIRMED.
Judges INMAN and HAMPSON concur.
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