HUNTER, ROBERT C., Judge.
Charles Benjamin Paterson ("defendant") appeals from his convictions of speeding and driving while impaired. Defendant argues that his waiver of counsel was invalid because his waiver of counsel form was incomplete and the trial court erred in failing to conduct an adequate inquiry pursuant to N.C. Gen. Stat. § 15A-1242 (2009). After careful review, we find no error.
Defendant was charged in February 2008 with speeding at 59 miles per hour in a 35 mile per hour zone and driving while impaired. In December 2008, defendant was found guilty of both charges at a bench trial in Forsyth County District Court. Defendant appealed to superior court for a trial de novo.
The case was initially called for trial in the Forsyth County Superior Court criminal session on 19 January 2010, with the Honorable Judge Richard L. Doughton presiding. At that time, defendant informed the trial court that he had fired his attorney, Billy Craig ("Craig"), on the day prior, that he had fired his previous attorney, James Quander ("Quander"), and that he wanted to represent himself at trial. Because neither attorney had submitted a motion to withdraw, Judge Doughton decided to wait until both attorneys were present before making any further determinations. Once both attorneys were present, Judge Doughton allowed Quander to withdraw and Craig, who had never entered an appearance on behalf of defendant, was released from any further obligations in the case.
Judge Doughton then discussed with defendant his right to counsel as follows:
Defendant then signed a "Waiver of Counsel" form, which states:
The form then prompts the defendant to select one of the following two options:
Defendant did not make a selection; however, he signed the waiver form. It is undisputed that during the calendar call Judge Doughton did not discuss with defendant the charges he faced and the permissible punishments if convicted.
After defendant signed the form, Judge Doughton asked him if he would be ready to proceed to trial that week and defendant responded, "I can be if that's what you need to do. I'd like to have a little bit more time than that, but—[.]" Judge Doughton noted that it had been two years since defendant was initially charged and defendant agreed to proceed to trial within an hour's notice. Defendant's trial took place the next day, 20 January 2010. Prior to the start of trial, the following discussion took place:
At trial, Corporal Scott Lichtenhan ("Corporal Lichtenhan") of the Winston-Salem Police Department testified that he was sitting in his patrol car on Country Club Road on 3 February 2008, and, at approximately 11:00 p.m., he saw a Chevrolet pickup truck traveling at an estimated speed of 60 miles per hour. Corporal Lichtenhan turned on his radar device, which showed that the vehicle was moving at a speed of 59 miles per hour. Corporal Lichtenhan activated his blue lights and the truck pulled over in a shopping center parking lot. Defendant was alone in the driver's seat of the vehicle. When Corporal Lichtenhan asked defendant for his driver's license, he smelled a strong odor of alcohol so he called for backup. Corporal Lichtenhan then asked defendant to get out of the vehicle and perform a field sobriety test. Defendant failed the finger-to-nose test by missing the tip of his nose with either hand and touching his upper lip. Defendant next failed to properly perform the one-legged stand test and stated, "`[y]ou got me on that one.'" During the heel-to-toe walk test, defendant could not touch his heels to his toes and walked with his feet separated. According to Corporal Lichtenhan, another officer gave defendant an "Alkasensor" test, which required defendant to blow into a handheld device. The test was positive for alcohol consumption. Defendant was arrested and taken to the Forsyth County jail where he refused to take an "Intoxilyzer test."
Defendant testified that on the night of 3 February 2008 he drank four beers at a bar and that after taking a sip from a fifth beer he left to take another person home who had been drinking heavily. Defendant claimed that he was running out of gas and put his car in neutral as he drove down the hill past Corporal Lichtenhan. Defendant stated that he tapped his brakes after noticing that he was traveling at 45 miles per hour. Defendant testified that his ability to perform the tests on 3 February 2008 was impaired because he had previously broken an ankle and a wrist and had arthritis. On cross-examination defendant was able to touch his nose for the jury but claimed that it was more difficult to do this on the side of the road.
Defendant was convicted by a jury of both charges. Judge Doughton sentenced defendant to 60 days imprisonment for the speeding conviction and an additional 60 days imprisonment for the driving while impaired conviction, but suspended both sentences and placed defendant on 12 months of supervised probation. Defendant gave notice of appeal in open court.
Defendant argues on appeal that: (1) his waiver of counsel form was invalid; (2) the trial court failed to perform the proper inquiry pursuant to N.C. Gen.Stat. § 15A-1242; and (3) the trial subjected defendant to inconsistent treatment at trial.
"In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation ... and to
Id. at 673-74, 417 S.E.2d at 475-76 (internal citations and quotation marks omitted). Our Supreme Court has determined that N.C. Gen.Stat. § 15A-1242 "fully satisfies the constitutional requirement that waiver of counsel must be knowing and voluntary". State v. Gerald, 304 N.C. 511, 519, 284 S.E.2d 312, 317 (1981). N.C. Gen.Stat. § 15A-1242 states:
North Carolina has not set out any specific requirements for how the statutory inquiry must be carried out. State v. Carter, 338 N.C. 569, 583, 451 S.E.2d 157, 164 (1994). What is required is that "the statutorily required information [be] communicated in such a manner that defendant's decision to represent himself is knowing and voluntary." Id.
First, defendant contends that his waiver of counsel was ineffective because the appropriate box was not checked on the waiver of counsel form and because the form was executed prior to his being advised of the nature of the charges against him and the range of permissible punishments.
While a defendant may complete a waiver of counsel form, doing so is not mandatory. State v. Heatwole, 344 N.C. 1, 18, 473 S.E.2d 310, 317 (1996). In Heatwole, the defendant argued that the trial court erred in denying his motion to set aside his guilty plea because the court had not required the defendant to sign a written waiver of counsel form. Id. at 17, 473 S.E.2d at 318. Our Supreme Court held that even though there was not a signed waiver the trial court conducted an adequate inquiry under N.C. Gen. Stat. § 15A-1242 and that defendant knowingly and intelligently waived the assistance of counsel. Id. at 18-19, 473 S.E.2d at 318. Although Heatwole did not explicitly address written waivers which are not completely filled out, such as the waiver in the present case, our Supreme Court held in State v. Fulp, 355 N.C. 171, 177, 558 S.E.2d 156, 160 (2002), that "any deficiency in a written waiver can be overcome by other evidence showing that defendant `knowingly, intelligently, and voluntarily' waived counsel." In holding that the defendant waived his right to counsel, the Court in Fulp stated:
Id. at 180, 558 S.E.2d at 161. Heatwole and Fulp stand for the proposition that a waiver of counsel form is not required, and, if a form is filled out but is deficient, the deficiency will not render the waiver invalid so long as the defendant's waiver was given knowingly, intelligently, and voluntarily. Consequently, we hold that even though defendant's waiver form was incomplete, his waiver of counsel is not rendered invalid on this ground.
We further hold that defendant's waiver of counsel was not rendered invalid because the trial court did not, prior to defendant signing the waiver form, go over the charges against him and the potential punishments associated with those charges. The trial court did discuss the charges and potential punishments with defendant the following day and defendant confirmed his desire to represent himself in open court. Although the waiver form requires the trial judge to certify that he has apprised the defendant of the charges against him and the potential punishments, given the fact that this form is not mandatory, we see no prejudice so long as the trial court does, in fact, provide that information in accordance with the statute and the defendant subsequently asserts his right to represent himself. Defendant in this case provided an oral waiver of counsel prior to trial, after the trial court fully informed him of the charges and potential punishments. Defendant focuses on inadequacies in the written waiver, but the real issue to be decided is whether the trial court adequately performed the statutory inquiry and defendant knowingly and intelligently waived counsel. See State v. Hyatt, 132 N.C. App. 697, 703, 513 S.E.2d 90, 94 (1999) (acknowledging that "our Supreme Court has considered a written waiver as something in addition to the requirements of [N.C. Gen.Stat. § ] 15A-1242, not as an alternative to it"); State v. Warren, 82 N.C. App. 84, 88, 345 S.E.2d 437, 440 (1986) (holding that written waiver and verbal statements by defendant were sufficient evidence that statutory inquiry was completed).
In addition to his argument that the written waiver form was invalid, defendant argues that the trial court did not conduct an adequate inquiry pursuant to N.C. Gen.Stat. § 15A-1242. We disagree.
As stated supra, neither our statutes nor our courts have set out a mandatory formula for complying with N.C. Gen.Stat. § 15A-1242. Defendant relies on State v. Moore, 362 N.C. 319, 327-28, 661 S.E.2d 722, 727 (2008), where our Supreme Court provided a list of 14 questions that may suffice as a thorough inquiry. Defendant argues that the trial court did not ask any of those questions, and, therefore, the inquiry was not sufficient. Defendant's reliance on Moore is misplaced. The Moore Court clearly stated that while "these specific questions are in no way required to satisfy the statute, they do illustrate the sort of `thorough inquiry' envisioned by the General Assembly when this statute was enacted and could provide useful guidance for trial courts...." Id. at 328, 661 S.E.2d at 727.
Although Judge Doughton did not ask any of the questions listed in Moore, we hold that the colloquies that occurred at the calendar call and prior to trial were sufficient to satisfy N.C. Gen.Stat. § 15A-1242. Judge Doughton explicitly informed defendant of his right to counsel and the process one must undertake in order to secure a court-appointed attorney. Defendant acknowledged that he understood his rights after Judge Doughton asked him repeatedly whether he understood his rights and whether he was sure that he wanted to forego his right to counsel. Judge Doughton informed defendant of the charges against him and the potential punishments. Furthermore, Judge Doughton explained
Defendant alleges that the trial court subjected him to inconsistent treatment during trial. Defendant references times during the trial when the trial court admitted documents into evidence but did not ask defendant if he wanted to make a motion. In violation of N.C. R.App. P. 28(b)(6), defendant does not cite any authority to support his claim that his behavior at trial is evidence that he did not understand the consequences of representing himself. Defendant's failure to understand trial procedure or the rules of evidence are not determinative as to whether defendant appreciated the consequences of his decision prior to signing the waiver. N.C. Gen.Stat. § 15A-1242 requires the trial court to determine whether a defendant appreciates the consequences of representing himself prior to permitting him to represent himself, not whether defendant has the ability to represent himself as well as an attorney would be able to represent him. Defendant's argument is without merit.
Based on the foregoing, we hold that the trial court conducted the proper inquiry pursuant to N.C. Gen.Stat. § 15A-1242, and, therefore, we find no error.
No Error.
Judges CALABRIA and GEER concur.
