State v. Rollinson
Date Filed2022-12-16
Docket119PA21
Cited0 times
StatusPublished
Syllabus
Whether the Court of Appeals erred by concluding that the trial court complied with the procedure mandated by the legislature under N.C.G.S. 15A-1201(d)(1) for the trial court's consent to defendant's waiver of his right to a jury trial.
Full Opinion (html_with_citations)
IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-139
No. 119PA21
Filed 16 December 2022
STATE OF NORTH CAROLINA
v.
MADERKIS DEYAWN ROLLINSON
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, 2021-NCCOA-58, 2021 WL 796545,
finding no prejudicial error at trial but finding error in sentencing and vacating in
part a judgment entered on 14 May 2019 by Judge Mark Klass in Superior Court,
Iredell County and remanding for a new sentencing hearing. Heard in the Supreme
Court on 3 October 2022 in session in the Old Chowan County Courthouse in the
Town of Edenton pursuant to N.C.G.S. § 7A-10(a).
Joshua H. Stein, Attorney General, by John W. Congleton, Assistant Attorney
General, for the State-appellee.
Glenn Gerding, Appellate Defender, by Brandon Mayes, Assistant Appellate
Defender, for defendant-appellant.
Christopher A. Brook for Professor Joseph E. Kennedy, amicus curiae.
BARRINGER, Justice.
¶1 In this matter, we consider whether the Court of Appeals erred by concluding
that the trial court complied with the procedure implemented in N.C.G.S. § 15A-
STATE V. ROLLINSON
2022-NCSC-139
Opinion of the Court
1201(d)(1) by the legislature for the trial court to consent to defendant’s waiver of his
right to a jury trial for the status offense of habitual felon. See State v. Rollinson,
2021-NCCOA-58, ¶¶ 21–24, 2021 WL 796545. After careful review, we conclude that
the Court of Appeals did not err. Therefore, we affirm the Court of Appeals’ decision.
¶2 The legislature enacted subsection (d) of N.C.G.S. § 15A-1201 after the people
of North Carolina voted in the 4 November 2014 general election to amend the North
Carolina Constitution to allow persons accused of certain criminal offenses to waive
their right to a trial by jury. See An Act to Establish Procedure for Waiver of the Right
to a Jury Trial in Criminal Cases in Superior Court, S.L. 2015-289, § 1, 2015 N.C.
Sess. Laws 1454, 1455; An Act to Amend the Constitution to Provide that a Person
Accused of Any Criminal Offense in Superior Court for Which the State Is Not
Seeking a Sentence of Death May Waive the Right to Trial by Jury and Instead Be
Tried by a Judge, S.L. 2013-300, §§ 1–3, 2013 N.C. Sess. Laws 821, 821–22 (approved
at Nov. 4, 2014 general election, eff. Dec. 1, 2014).
¶3 Prior to 1 December 2014, the North Carolina Constitution directed that “[n]o
person shall be convicted of any crime but by the unanimous verdict of a jury in open
court.” N.C. Const. art. I, § 24 (amended 2014). As amended, the first sentence of
Article I, Section 24 of the North Carolina Constitution now reads:
No person shall be convicted of any crime but by the
unanimous verdict of a jury in open court, except that a
person accused of any criminal offense for which the State
is not seeking a sentence of death in superior court may, in
STATE V. ROLLINSON
2022-NCSC-139
Opinion of the Court
writing or on the record in the court and with the consent
of the trial judge, waive jury trial, subject to procedures
prescribed by the General Assembly.
N.C. Const. art. I, § 24 (emphasis added).
¶4 Subsection (d) of N.C.G.S. § 15A-1201 addresses “Judicial Consent to Jury
Waiver” and provides as follows:
Upon notice of waiver by the defense pursuant to
subsection (c) of this section, the State shall schedule the
matter to be heard in open court to determine whether the
judge agrees to hear the case without a jury. The decision
to grant or deny the defendant’s request for a bench trial
shall be made by the judge who will actually preside over
the trial. Before consenting to a defendant’s waiver of the
right to a trial by jury, the trial judge shall do all of the
following:
(1) Address 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.
(2) Determine whether the State objects to the waiver
and, if so, why. Consider the arguments presented
by both the State and the defendant regarding the
defendant’s waiver of a jury trial.
N.C.G.S. § 15A-1201(d) (2021).1
1 The legislature in 2015 used different language for subsection (d) of N.C.G.S. § 15A-
1201 than for N.C.G.S. § 15A-1242 regarding a criminal defendant’s election to represent
himself at trial. Compare An Act to Establish Procedure for Waiver of the Right to a Jury
Trial in Criminal Cases in Superior Court, S.L. 2015-289, § 1, 2015 N.C. Sess. Laws 1454,
1455 with N.C.G.S. § 15A-1242 (2021) (“A defendant may be permitted at his election to
proceed in the trial of his case without the assistance of counsel only after the trial judge
makes thorough inquiry and is satisfied that the defendant . . . .”). Thus, we see no reason to
consider or import holdings from this Court regarding N.C.G.S. § 15A-1242 into the
construction of subsection (d) of N.C.G.S. § 15A-1201. See State v. Pruitt, 322 N.C. 600, 602
(1988) (addressing an alleged violation of N.C.G.S. § 15A-1201 and in its analysis of the
STATE V. ROLLINSON
2022-NCSC-139
Opinion of the Court
¶5 The issue in the matter before us is whether the trial court complied with
N.C.G.S. § 15A-1201(d)(1) in allowing defendant’s waiver of his right to a jury trial
for the status offense of habitual felon. Defendant contends that to “address the
defendant personally” and to “address whether defendant understood and
appreciates the consequences of his decision to waive the right to trial by jury,”
N.C.G.S. § 15A-1201(d)(1), defendant himself must respond to the trial court’s
address. In other words, the trial court cannot satisfy N.C.G.S. § 15A-1201(d)(1) if
counsel for a defendant responds on the defendant’s behalf. The State disagrees,
arguing that the statutory language does not prohibit a defendant from responding
through counsel.
¶6 Given the plain language of N.C.G.S. § 15A-1201(d)(1), we cannot agree with
defendant’s reading. The interpretation of a statute, which is a question of law, is
reviewed de novo. E.g., In re Summons Issued to Ernst & Young, LLP, 363 N.C. 612,
616 (2009).
¶7 Subsection (d) of N.C.G.S. § 15A-1201 dictates the trial court’s conduct: “Before
consenting to a defendant’s waiver of the right to a trial by jury, the trial judge
shall . . . [a]ddress the defendant personally and determine whether the defendant
statute adding emphasis to “only after the trial judge makes thorough inquiry and is satisfied
that the defendant” in its quotation of N.C.G.S. § 15A-1242 (1983)). In addition to involving a
different statute, Pruitt is factually distinguishable from this case, rendering further
discussion of it of little value.
STATE V. ROLLINSON
2022-NCSC-139
Opinion of the Court
fully understands and appreciates the consequences of the defendant’s decision to
waive the right to trial by jury.” N.C.G.S. § 15A-1201(d)(1) (emphases added).
¶8 The statute mandates who to address—namely, “the defendant personally”—
but it does not mandate how to address the defendant. Additionally, the statute does
not mandate how to “determine whether the defendant fully understands and
appreciates the consequences of the defendant’s decision to waive the right to trial by
jury.” Id. The legislature also did not require the trial judge to hear personally a
response from the defendant to the trial court’s address; the statute only requires the
trial court to “[a]ddress the defendant personally.” Id. The legislature left how to
address and how to determine the answer to its inquiry to the discretion of the trial
court.
¶9 Nonetheless, that conclusion does not fully resolve the dispute before us. It is
well established that where matters are left to the discretion of the trial court, the
exercise of that discretion is subject to appellate review. White v. White, 312 N.C. 770,
777 (1985). That review, however, “is limited to a determination of whether there was
a clear abuse of discretion.” Id. A trial court abuses its discretion “where the court’s
ruling is manifestly unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285 (1988).
¶ 10 Here, the record supports that the trial court made a reasoned decision and did
not abuse its discretion. On the first day of trial, after the assistant district attorney
STATE V. ROLLINSON
2022-NCSC-139
Opinion of the Court
informed the trial court that “the defendant now wishes to elect to have a bench trial
instead of a jury trial” and then listed the charges, including habitual felon, the trial
court addressed defendant. The trial court began by asking defendant to stand, which
he did. Then, the trial court asked defendant: “Do you understand you’re charged
with the charges [the assistant district attorney] just read to you?”; “Do you
understand you have a right to be tried by a jury of your peers?”; and “At this time
you wish to waive your right to a jury and have this heard as a bench trial by me?”
Defendant answered, “Yes, sir” to each of these questions.2
¶ 11 After this colloquy on the record, in which defendant gave notice in open court
of his waiver of a jury trial, defendant signed and acknowledged under oath the
Waiver of Jury Trial form created for such waivers by the Administrative Office of
the Courts.
¶ 12 Given defendant’s waiver of his right to a jury trial and his consent thereto,
the trial court proceeded with a bench trial, which lasted approximately one day.
After the presentation of evidence and arguments by counsel, the trial court found
defendant guilty of assault with a deadly weapon on a government official, possession
of marijuana up to one-half ounce, possession of marijuana paraphernalia, possession
with intent to sell and deliver cocaine, maintaining a vehicle for keeping and selling
2 In defendant’s petition for discretionary review, he did not seek review of the trial
court’s compliance with N.C.G.S. § 15A-1201(d)(1) for this colloquy.
STATE V. ROLLINSON
2022-NCSC-139
Opinion of the Court
controlled substances, and felony possession of cocaine.
¶ 13 Then, before the trial court proceeded with the phase of the trial addressing
the habitual felon status offense, the following transpired:
[ASSISTANT DISTRICT ATTORNEY]: Your Honor,
at this time the State has also indicted the defendant as an
habitual felon. We need to have that—I would contend that
he’s waived his, the jury trial for both of them. But if you
feel like you need to have another colloquy with him about
that, we need to have that so we can proceed.
[COURT]: I’ll do that. At this point in the trial it’s a
separate trial. The jurors are coming back to hear the
habitual felon matter, or you can waive your right to a jury
trial and we can proceed.
[DEFENSE COUNSEL]: Just one second, please,
your Honor.
[Brief pause]
[DEFENSE COUNSEL]: Judge, may it please the
Court, after speaking with my client on an habitual felon
hearing, trial, he is not requesting a jury trial on that
matter and is comfortable with a bench trial.
[ASSISTANT DISTRICT ATTORNEY]: Your Honor,
I’m ready to proceed.
[COURT]: Go ahead.
¶ 14 Defendant also signed and acknowledged under oath another Waiver of Jury
Trial form. The signed form in the record depicts the following:
STATE V. ROLLINSON
2022-NCSC-139
Opinion of the Court
¶ 15 Below this section of the form is defendant’s counsel’s certification. The form
shows as follows:
¶ 16 On the next page of the form, the trial court indicated its consent to the waiver
and signed the form. The text reflects as follows:
STATE V. ROLLINSON
2022-NCSC-139
Opinion of the Court
¶ 17 Given the foregoing record, we cannot conclude that the trial court abused its
discretion in how it personally addressed defendant or in how it determined that
defendant fully understood and appreciated the consequences of his decision to waive
the right to trial by jury. As clearly reflected in the transcript, the trial court expressly
addressed defendant by saying “you can waive your right to a jury trial.” (Emphases
added.) We conclude that this method of personally addressing defendant is
reasonable.
STATE V. ROLLINSON
2022-NCSC-139
Opinion of the Court
¶ 18 Furthermore, the trial court’s implicit determination that defendant fully
understood and appreciated the consequences of his decision to waive the right to
trial by jury was not “manifestly unsupported by reason or . . . so arbitrary that it
could not have been the result of a reasoned decision.” Hennis, 323 N.C. at 285.
Defendant’s counsel responded to the trial court’s address to defendant only after
asking for some time and speaking with defendant. Moreover, the day before, the trial
court had conducted a longer colloquy to confirm defendant’s waiver of his right to a
jury trial on the substantive charges against him. Defendant himself, not his counsel,
responded and answered each of the trial court’s questions that day. Additionally,
after each of these colloquies, defendant signed under oath the jury trial waiver form
acknowledging his waiver of the right to a jury trial.
¶ 19 In conclusion, we affirm the Court of Appeals’ holding that the trial court
complied with the procedure dictated by the legislature in N.C.G.S. § 15A-1201(d)(1)
for the trial court’s consent to defendant’s waiver of his right to a jury trial for the
habitual felon offense. The trial court personally addressed defendant concerning the
waiver of his right to a jury trial. The trial court also did not abuse its discretion in
how it addressed defendant or in its determination that defendant fully understood
and appreciated the consequences of his waiver. Accordingly, we reject defendant’s
STATE V. ROLLINSON
2022-NCSC-139
Opinion of the Court
arguments to the contrary and affirm the Court of Appeals’ decision.3 We remand this
case to the Court of Appeals for further remand to the trial court for further
proceedings as ordered by the Court of Appeals.
AFFIRMED.
3 Defendant has not argued that the trial court failed to consent to defendant’s waiver
of a jury trial as required by the North Carolina Constitution. Thus, we do not opine on
constitutional issues not before us. While the State presented evidence of three certified
judgments to support habitual felon status and defendant declined to present evidence, we
do not address the application of N.C.G.S. § 15A-1443(a) regarding prejudice because we
affirm the Court of Appeals’ holding that the trial court did not err and complied with
N.C.G.S. § 15A-1201(d)(1).
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
Justice ERVIN dissenting.
¶ 20 I am unable to join my colleagues’ decision to uphold the trial court’s habitual
felon determination in this case given my inability to accept their conclusion that the
trial court adequately complied with the applicable statutory provisions before
allowing him to waive his constitutional right to trial by jury with respect to the
habitual felon allegation. I simply do not believe that the procedures employed in
this instance can be squared with the relevant statutory language and am concerned
that the Court’s decision to uphold the validity of defendant’s purported waiver of the
fundamental right to trial by jury through the use of such informal procedures creates
an unacceptable risk that persons charged with the commission of crimes will be
found to have waived that fundamental right without fully understanding the
consequences of that decision. As a result, I would hold that defendant is entitled to
a new trial with respect to the habitual felon allegation and dissent from my
colleagues’ decision to the contrary.
¶ 21 In 2014, the people of the state of North Carolina voted to amend the North
Carolina Constitution to authorize criminal defendants charged with the commission
of noncapital offenses to waive their right to a trial by jury “in writing or on the record
in the court and with the consent of the trial judge . . . subject to procedures prescribed
by the General Assembly.” N.C. Const. art. I, § 24. See An Act to Establish Procedure
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
for Waiver of the Right to a Jury Trial in Criminal Cases in Superior Court, S.L. 2015-
289, § 1, 2015 N.C. Sess. Laws 1454, 1455; An Act to Amend the Constitution to Provide that a Person Accused of Any Criminal Offense in Superior Court for Which the State Is Not Seeking a Sentence of Death May Waive the Right to Trial by Jury and Instead Be Tried by a Judge, S.L. 2013-300, §§ 1–3,2013 N.C. Sess. Laws 821
,
821–22 (approved at Nov. 4, 2014 general election, eff. Dec. 1, 2014). In the aftermath
of the voters’ decision to adopt this proposed constitutional amendment, the General
Assembly enacted implementing legislation providing that “[a] defendant accused of
any criminal offense for which the State is not seeking a sentence of death in superior
court may, knowingly and voluntarily, in writing or on the record in the court and
with the consent of the trial judge, waive the right to trial by jury,” N.C.G.S. § 15A-
1201(b) (2019), subject to the condition that,
[b]efore consenting to a defendant’s waiver of the
right to a trial by jury, the trial judge shall do all of
the following:
(1) Address 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.
(2) Determine whether the State objects to the waiver
and, if so, why. Consider the arguments presented
by both the State and the defendant regarding the
defendant’s waiver of a jury trial.
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
N.C.G.S. § 15A-1201(d) (2019). As a result, as the literal statutory language clearly
provides, a trial court cannot accept a criminal defendant’s waiver of the right to a
jury trial in the absence of compliance with the statutory procedures specified in
N.C.G.S. § 15A-1201(d)(1).
¶ 22 According to N.C.G.S. § 15A-1201(d)(1), a trial court considering whether to
accept a criminal defendant’s waiver of the right to trial by jury must do two things.
First, the trial court must “[a]ddress the defendant personally,” a requirement that
my colleagues appear to recognize calls upon the trial court to directly communicate
with the defendant. Secondly, the trial court must “determine whether the defendant
fully understands and appreciates the consequences of the defendant’s decision to
waive the right to trial by jury,” a requirement that appears, at least to me, to mean
that the trial court must personally ascertain whether the defendant “understands
and appreciates the consequences” of the waiver decision that the trial court is being
asked to accept. Although I am inclined to agree with my colleagues that the trial
court complied with the first of these two requirements at the beginning of the
habitual felon proceeding in the sense that the trial court appears to have initially
made a direct statement to defendant, I do not believe that the same thing can be
said about the second.
¶ 23 I have difficulty understanding how a trial court can meaningfully determine
“whether the defendant fully understands and appreciates the consequences of the
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
defendant’s decision to waive the right to trial by jury,” N.C.G.S. § 15A-1201(d)(1),
without having the sort of personal, direct communication with the defendant that
the Court deems to be unnecessary. Simply put, it appears to me that N.C.G.S. §
15A-1201(d)(1) cannot be understood in any way other than as a requirement that
the trial court have a conversation with the defendant in which the trial court informs
the defendant of the consequences of waiving his right to a jury trial and makes sure
that the defendant understands the import of what he or she is about to do. In the
absence of such direct communication between the trial court and the defendant, the
trial court cannot know what the defendant does and does not understand and
appreciate despite the fact that the relevant statutory language clearly contemplates
that the trial court will obtain personal knowledge of the degree to which the
defendant understands and appreciates the consequences of a decision to waive his
or her right to a jury trial. As a result, N.C.G.S. § 15A-1201(d)(1) must necessarily
be construed as requiring that the trial judge, himself or herself, make the
determination required by the relevant statutory language and personally obtain the
information necessary to do that.
¶ 24 The insufficiency of the process that the trial court utilized in this case is
readily apparent when one realizes that, by utilizing a process pursuant to which
defendant’s trial counsel was allowed to speak with defendant and then inform the
trial court that defendant “is not requesting a jury trial,” the trial court had no
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
knowledge concerning either what defendant’s trial counsel told defendant or what
defendant told his trial counsel. As a result, the trial court essentially delegated
responsibility for ascertaining whether defendant “fully understands and appreciates
the consequences of [his] decision” to defendant’s trial counsel. Although I do not
wish to be understood as casting aspersions upon defendant’s trial counsel, a decision
by a defendant’s trial counsel that he or she believes that his or her client “fully
understands and appreciates the consequences of [his or her] decision to waive the
right to trial by jury” cannot be equated to a determination by the trial court to the
same effect in the absence of additional actions by the trial court that serve to validate
the assertion made by defendant’s trial counsel and provide the trial court with the
necessary personal knowledge. The trial court in this case had no basis other than
acceptance of a representation by defendant’s trial counsel that the procedures
required by N.C.G.S. § 15A-1201(d)(1) had been effectuated, with that approach being
insufficient to ensure that the trial court is personally able to make the
determinations required by the relevant statutory language.
¶ 25 In concluding that communication with defendant through his trial counsel
was sufficient, the Court emphasizes the absence of any specific statement in the
relevant statutory language detailing the manner in which the trial court is required
to address the defendant and the manner in which the trial court must determine
whether the defendant understands and appreciates the consequences of a decision
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
to waive his or her right to a jury trial and the absence of any statutory language
requiring the trial court to “hear personally a response from the defendant to the trial
court’s address.” I am not convinced, however, that the absence of this sort of “belt
and suspenders” language allows trial courts to adopt procedures for making the
determination required by N.C.G.S. § 15A-1201(d)(1) that fail to ensure that the trial
court has personal knowledge that the defendant understands and appreciates the
consequences of a decision to waive his or her right to trial by jury. At least to my
way of thinking, the fact that the statutory language contained in N.C.G.S. § 15A-
1201(d)(1) does not directly state that the trial court must obtain the necessary
information by means of a colloquy between the trial judge and the defendant does
not excuse the trial court from the necessity for conducting such a colloquy when
there is no other way in which the trial judge can realistically obtain the information
that is required to permit him or her to consent to the defendant’s request to waive
his or her right to a jury trial.
¶ 26 After concluding that the trial court had the discretion to utilize a procedure
for making the determination required by N.C.G.S. § 15A-1201(d)(1), the Court points
to a number of factors in an attempt to show that the trial court did not abuse its
discretion in making the required determination in this case. In support of this
assertion, my colleagues point, among other things, to the fact that defendant waived
his right to a jury trial prior to the guilt-innocence phase of the trial, the fact that
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
defendant signed a written waiver of his right to a jury trial, and the fact that
defendant’s trial counsel communicated with defendant about this subject. As an
initial matter, it seems to me that, rather than a discretionary determination subject
to review on appeal for abuse of discretion, the issue of whether the trial court
adequately complied with the provisions of N.C.G.S. § 15A-1201(d)(1) is a question of
law subject to de novo review. In re Adoption of S.D.W., 367 N.C. 386, 391(2014) (stating that, “[w]hen constitutional rights are implicated, the appropriate standard of review is de novo”); Piedmont Triad Reg’l Water Auth. v. Sumner Hills, Inc.,353 N.C. 343, 348
(2001) (stating that “[w]e review constitutional questions de novo”). In addition, the fact that defendant understood and appreciated the consequences of waiving his right to a trial by jury at the guilt-innocence phase of a trial is no substitute for compliance with the requirement of N.C.G.S. § 15A-1201(d)(1) at the beginning of a proceeding held to determine whether defendant had attained habitual felon status given that a habitual felon proceeding is an ancillary proceeding conducted separately from the guilt-innocence portion of a criminal action for the purpose of determining whether the punishment inflicted upon defendant should be enhanced based upon his prior record, State v. Cheek,339 N.C. 725, 727
(1995)
(stating that “the habitual felon indictment is “necessarily ancillary to the indictment
for the substantive felony”), that involves different issues and the making of different
legal, factual, and evidentiary judgments as compared to those that have to be made
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
in a proceeding conducted for the purpose of determining a defendant’s guilt or
innocence. Similarly, the fact that defendant executed a written waiver of his right
to a jury trial is simply not a substitute for actual compliance with the relevant
statutory requirements. State v. Sinclair, 301 N.C. 193, 199 (1980) (stating that
“[n]either does the [t]ranscript of [p]lea itself provide a factual basis for the plea”);
State v. Evans, 153 N.C. App. 313, 315 (2002) (stating that “[t]he execution of a
written waiver is no substitute for compliance by the trial court with the statute”)
(cleaned up); State v. Wells, 78 N.C. App. 769, 773 (1986) (stating that “[a] written
waiver of counsel is no substitute for actual compliance by the trial court with
[N.C.]G.S. [§] 15A-1242). Finally, as I have already noted, the fact that defendant’s
trial counsel spoke with defendant and informed the trial court that defendant did
not wish to have a jury trial at the habitual felon phase of the proceeding cannot be
equated with compliance with the actual requirement set out in N.C.G.S. § 15A-
1201(d)(1), which requires that the trial court, rather than the defendant’s counsel,
be personally satisfied that the defendant fully understands and appreciates the
consequences of a decision to waive his or her right to a trial by jury.
¶ 27 The approach to compliance with N.C.G.S. § 15A-1201(d)(1) that the Court
upholds in this case cannot be squared with the manner in which the similar
language relating to a waiver of the right to counsel set out in N.C.G.S. § 15A-1242
has consistently been construed by this Court. As we stated more than three decades
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
ago in the waiver of counsel context, “[i]t is the trial court’s duty to conduct the inquiry
of defendant to ensure that defendant understands the consequences of his decision,”
State v. Pruitt, 322 N.C. 600, 604(1988), with a trial court not being allowed to assume that a criminal defendant fully understands and appreciates the nature and extent of his or her right to the assistance of counsel, State v. Bullock,316 N.C. 180, 186
(1986) (stating that nothing in the statute governing the waiver of a defendant’s right to counsel “makes it inapplicable to defendants who are magistrates, or even attorneys or judges”). For that reason, in the event that a criminal defendant wishes to waive his right to counsel, the trial court is required by N.C.G.S. § 15A-1242 to “conduct an inquiry to ascertain that the defendant’s waiver is given with full understanding of his rights,” Bullock,316 N.C. at 185
, with “a bench conference with counsel [being] insufficient to satisfy the mandate of the statute,” Pruitt,322 N.C. at 604
;1 see also State v. Moore.362 N.C. 319, 322
(2008) (noting that “it appears that
[the trial court] deferred to defendant’s assigned counsel to provide defendant with
1 Although the trial court in his case did, at least initially, make inquiry of defendant
before allowing defendant’s trial counsel to converse with defendant and then indicate
defendant’s “comfort” with a bench trial at his habitual felon proceeding, while all of the
interactions at issue in Pruitt occurred between the trial court and the defendant’s trial
counsel, there is no material difference between the two cases given that, in both instances,
all of the substantive communications relating to the extent to which defendant understood
and appreciated the consequences of a decision to waive the right to either a jury trial or to
the assistance of counsel occurred between the defendant and his trial counsel rather than
between defendant and the trial court and given that the expression of the defendant’s
decision to forgo the assistance of counsel or a jury trial came in the form of a statement by
the defendant’s trial counsel.
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
adequate constitutional safeguards” in granting the defendant a new trial based upon
the trial court’s failure to adequately comply with N.C.G.S. § 15A-1242 prior to
allowing the defendant to represent himself). As a result of my inability to see why
more relaxed procedures should be allowed in the waiver of a jury trial context than
in the waiver of counsel context, I am concerned that the Court’s decision to allow the
use of the procedures employed here in the waiver of jury trial context will bleed over
into the waiver of counsel and other contexts where similar procedures have, to this
point, been deemed entirely insufficient.2
2 The fact that the language of N.C.G.S. § 15A-1201 differs from the language of
N.C.G.S. § 1242 cuts in favor of, rather than against, the argument made in the text in
reliance upon N.C.G.S. § 15A-1242. Although N.C.G.S. 15A-1201(d) requires “the trial judge”
to comply with N.C.G.S. § 15A-1201(d)(1) (instructing 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.G.S. § 15A-1242 requires that “the trial judge make[ ] thorough inquiry” and be “satisfied
that the defendant” has been advised of and understands his or her right to the assistance of
counsel, comprehends the effect of a decision to represent himself or herself, and is cognizant
of the nature of the charges that have been lodged against him or her and “the range of
permissible punishments.” In other words, while the language of N.C.G.S. § 15A-1242
requires the trial court to conduct a “thorough inquiry,” the language of N.C.G.S. § 15A-
1201(d)(1) requires the trial court to “[a]ddress the defendant personally” and make sure that
the defendant understands what he or she is proposing to do. Thus, since N.C.G.S. § 15A-
1201(d)(1) explicitly requires personal interaction between the trial court and the defendant
while N.C.G.S. § 15A-1242, in so many words, does not, it seems to me that the personal
contact between the trial court and the defendant that is lacking in this case is more clearly
required by N.C.G.S. § 15A-1201(d)(1) than by N.C.G.S. § 15A-1242. As a result, to the extent
that the relatively slight difference between the language in which N.C.G.S. § 15A-1201(d)(1)
and N.C.G.S. § 15A-1242 are couched suggests that the level of involvement required of the
trial court in these two situations can appropriately be different (and I do not, personally,
believe that such a difference is contemplated by the relevant statutory language), it seems
to me that more direct trial court involvement is required by the literal language of N.C.G.S.
§ 15A-1201(d)(1) than is required by the literal language of N.C.G.S. §15A-1242.
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
¶ 28 The trial court’s failure to comply with N.C.G.S. § 15A-1201(d)(1) before
allowing defendant to waive his right to a jury trial with respect to the habitual felon
phase of the proceeding resulted in a deprivation of defendant’s constitutional right
to trial by jury.3 This Court has consistently held that “the deprivation of a properly
functioning jury may be a constitutional violation,” State v. Hamer, 377 N.C. 502,
507, 2021-NCSC-67 ¶ 16; see State v. Lawrence, 365 N.C. 506, 514 (2012); State v.
Poindexter, 353 N.C. 440, 444(2001); State v. Bunning,346 N.C. 253, 257
(1997);
State v. Hudson, 280 N.C. 74, 80 (1971), which constitutes “error per se,” an error
which, “[l]ike structural error,” “is automatically deemed prejudicial and thus
reversible without a showing of prejudice.” Lawrence, 365 N.C. at 514. Although this
Court concluded that “the failure of the trial court to conduct an inquiry pursuant to
the procedures set forth in N.C.G.S. § 15A-1201(d) is [solely] a statutory violation,”
3 The ultimate issue before us in this case is not whether the trial court failed to
consent to defendant’s waiver of his right to a trial by jury. Instead, the issue that is before
us in this case is whether the trial court properly “determine[d] whether the defendant fully
understands and appreciates the consequences of the defendant’s decision to waive the right
to trial by jury.” N.C.G.S. § 15A-1201(d)(1). As a result of the fact that a defendant’s waiver
of the right to trial by jury must, as a constitutional matter, be obtained “subject to
procedures prescribed by the General Assembly,” N.C. Const. art. I, § 24, a failure to the part
of the trial court to adequately comply with the procedures enunciated in N.C.G.S. § 15A-
1201(d)(1) does, in fact, work a constitutional violation. And defendant did, by arguing in his
brief that “[t]he Court of Appeals erred by concluding that [defendant] knowingly and
voluntarily waived his constitutional right to a jury trial on habitual felon status because the
Court of Appeals’ conclusion disregards the plain language of N.C.G.S. § 15A-1201(d)(1) and
is premised on a fundamentally flawed legal analysis that directly conflicts with this Court’s
precedent,” clearly assert that a constitutionally-prohibited deprivation of his right to a trial
by jury had occurred in this case.
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
Hamer, ¶ 16, I persist in my inability to understand how the violation of a statutory
requirement with which the trial court must, according to the relevant constitutional
language, comply as a prerequisite for finding the existence of a constitutionally valid
waiver of the right to trial by jury can be anything other than a constitutional
violation as well.4 Nonetheless, even if one were to conclude, in accordance with
Hamer, that a showing of prejudice is required in instances in which a trial court fails
to comply with the requirements set out in N.C.G.S. § 15A-1201(d)(1), I am inclined
to believe that, on the basis of the facts revealed in the present record, there is “a
reasonable possibility that, had the error in question not been committed, a different
result would have been reached at the trial out of which the appeal arises,” N.C.G.S.
§ 15A-1443(a) (2019), given the fundamental uncertainty arising from the trial court’s
failure to ascertain from defendant whether he knowingly and voluntarily waived his
right to a trial by jury with respect to the habitual felon phase of the proceeding, the
absence of any indication of what defendant’s trial counsel advised defendant to do or
not to do, the absence of any information concerning the nature and extent of any
defenses that defendant might have been able to assert against the habitual felon
4 On the basis of similar logic, this Court has held that a failure to comply with
N.C.G.S. § 15A-1242 results in the violation of a defendant’s constitutional right to the
assistance of counsel even though the language of N.C.G.S. § 15A-1242 has not been
incorporated into the constitutional provisions guaranteeing a defendant’s right to the
assistance of counsel. Moore, 362 N.C. at 322 (stating that “[a] trial court’s inquiry will satisfy
this constitutional requirement if conducted pursuant to N.C.G.S. § 15A-1242”).
STATE V. ROLLINSON
2022-NCSC-139
Ervin, J., dissenting
allegation, and the trial court’s repeated assertions that defendant had pleaded guilty
to, rather than having been convicted of, having attained habitual felon status.5
¶ 29 Thus, for all of these reasons, I would hold that the trial court failed to comply
with the requirements of N.C.G.S. § 15A-1201(d)(1) at the time that it allowed
defendant to waive his right to trial by jury in connection with the habitual felon
stage of this case and that the trial court’s error prejudiced defendant. As a result, I
respectfully dissent from the Court’s decision in this case and would, instead, reverse
the Court of Appeals’ decision with respect to the waiver issue and remand this case
to the Court of Appeals for further remand to the trial court with instructions that
defendant be resentenced following a new trial with respect to the habitual felon
allegation.
Justices HUDSON and EARLS join in this dissenting opinion.
5 The fact that the State introduced three certified judgments showing that the
defendant had been convicted of committing qualifying felony offenses and that the defendant
had failed to present evidence cannot be sufficient, standing alone, to preclude a finding of
prejudice given that such logic impermissibly conflates the prejudice inquiry with the
sufficiency of the evidence inquiry and overlooks the fact that, even in habitual felon
proceedings, a jury is still required to make credibility judgments.