State v. PenaÂ, 257 N.C. App. 195

Background

Defendant Bernardo Roberto Pena was indicted on charges including second-degree sexual offense, second-degree kidnapping, sexual battery, attempted second-degree sexual offense, and attempted second-degree rape; trial occurred April 2015 after prior proceedings beginning in 2012.
Public defender Timothy Emry had represented defendant through most of the superior-court proceedings; Emry moved to withdraw on January 26, 2015, citing an impasse.
At the January 26 hearing the trial court presented options: keep Emry, appoint new counsel, or allow defendant to proceed without counsel; defendant, through a translator, stated he preferred to be “by [him]self,” then signed a written waiver and the court appointed Emry as standby counsel.
At the April 20, 2015 trial start, the trial judge confirmed defendant had waived court-appointed counsel and conducted a colloquy about standby counsel; parts of the trial transcript/recording are indecipherable or missing.
Jury convicted defendant on all counts on April 23, 2015; defendant appealed primarily arguing the court deprived him of his Sixth Amendment right by failing to ensure a clear, knowing, and voluntary waiver of counsel under N.C. Gen. Stat. § 15A-1242.
The Court of Appeals held the record does not show a clear and unequivocal request to proceed pro se and that the trial court failed to perform the thorough statutory inquiry required by § 15A-1242; the court reversed and remanded for a new trial.

Issues

Issue	State's Argument	Pena's Argument	Held
Whether defendant clearly and unequivocally invoked the right to self-representation	Defendant elected to waive appointed counsel and thus effectively chose to proceed pro se	Pena argues his statements were equivocal and made only when faced with lack of other options; not a clear, unequivocal waiver	Court: Not clear/however equivocal; trial court erred in treating it as a clear and unequivocal invocation
Whether the trial court conducted the mandatory § 15A-1242 inquiry and secured a knowing, intelligent, voluntary waiver	Any colloquies and the written waiver suffice; defendant understood via prior counsel’s advisals	The court failed to advise on rights, consequences, and range of punishments on the record; written waiver alone insufficient	Court: Statutory inquiry was not performed adequately; the waiver was not shown to be knowing/voluntary; reversal/remand required
Whether defendant forfeited right to counsel by misconduct warranting denial of counsel	Court could conclude forfeiture given alleged delays/impasse	Pena denies extreme misconduct; no flagrant delay, abuse, or repeated firings to justify forfeiture	Court: No sufficient misconduct to justify forfeiture; right to counsel not forfeited
Whether defects in the transcript/record affect appellate review	State acknowledged gaps but urged affirmance	Pena emphasized missing/indecipherable portions relating to waiver inquiry	Court: Transcript deficiencies prevented finding statutory inquiry satisfied; contributed to reversal

Key Cases Cited

State v. Bullock, 316 N.C. 180 (N.C. 1986) (a defendant who consents to trial without counsel only because he has no other choice has not clearly and unequivocally elected to proceed pro se)
State v. Thomas, 331 N.C. 671 (N.C. 1992) (requests to lead or control counsel do not substitute for a clear invocation of the right to proceed pro se)
State v. Blakeney, 782 S.E.2d 88 (N.C. Ct. App. 2016) (summarizes circumstances constituting forfeiture and reiterates requirement for clear waiver and statutory inquiry)
State v. Seymore, 214 N.C. App. 547 (N.C. Ct. App. 2011) (written waiver does not replace the trial court’s mandatory § 15A-1242 inquiry)
State v. Stanback, 137 N.C. App. 583 (N.C. Ct. App. 2000) (role or presence of standby counsel cannot substitute for the right to counsel in absence of a knowing and voluntary waiver)
State v. Garrison, 788 S.E.2d 678 (N.C. Ct. App. 2016) (trial court’s decision to permit self-representation is reviewed de novo and failure to satisfy statutory inquiry is reversible error)