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Pro se Litigants: An Update and a Survival Guide Allen Baddour 2010 New Judges School First, the update.

This is an update to Judge Cashwells 2006 document, which is attached. The case summaries are brought to you mostly by Bob Farb, with a few additions by me. United States Constitution Does Not Prohibit States from Requiring Counsel to Represent Defendants Competent to Stand Trial But Who Suffer from Severe Mental Illness to Extent That They Are Not Competent to Represent Themselves at Trial Indiana v. Edwards, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (19 June 2008). The defendant in state court was found competent to stand trial. Based on the defendants mental health condition, the trial judge concluded that, although the defendant was competent to stand trial, he was not competent to represent himself at trial. The judge rejected the defendants request to represent himself and appointed counsel to represent him. Distinguishing Faretta v. California, 422 U.S. 806 (1975), and other cases, the Court ruled that the United States Constitution does not prohibit states from requiring counsel to represent defendants competent to stand trial but who suffer from severe mental illness to extent that they are not competent to represent themselves at trial. The Court declined, however, to overrule the Faretta ruling. State v. Lane, 362 N.C. 667, 669 S.E.2d 321 (12 December 2008). The defendant was convicted of first-degree murder and sentenced to death. The court remanded the case to the trial court for consideration under Indiana v. Edwards, 128 S. Ct. 2379 (2008) (United States Constitution does not prohibit states from requiring counsel to represent defendants competent to stand trial but who suffer from severe mental illness to extent that they are not competent to represent themselves at trial) whether the trial judge should have exercised discretion to deny the defendants request to represent himself. The court outlined two issues that the trial court must decide on remand of this case: first, at the time the defendant sought to represent himself, did he come within the category of borderline-competent defendants defined by the US Supreme Court as a person competent enough to stand trial but who still suffer from severe mental illness to the point where he or she is not competent to proceed pro se; and (only if the first question is answered in the affirmative) second, would the court in its discretion in this specific case have precluded self-representation and appointed counsel pursuant to Indiana v. Edwards, and if so, whether in this case defendant was prejudiced by his period of self-representation.

Substitution of Counsel State v. Williams, ___ N.C. ___, ___ S.E.2d ___, 2009 N.C. LEXIS 1292 (corrected 17 December 2009). Defendant convicted of murder. Prior to trial, Defendant filed a pro se motion requesting removal of the first chair attorney. Court removed both attorneys (second chair essentially at the request of that second chair attorney). IDS appointed a new first chair, and re-appointed the same second chair attorney. Defendant wrote court seeking information on attorneys and other issues, but never specifically requested substitution of second chair attorney. On appeal, defendant argues that "when faced with a request for substitute counsel, a trial court has an obligation to conduct a sufficient inquiry to determine if the defendant is entitled to the appointment of substitute counsel." Defendant relies on State v. Thacker, 301 N.C. 348, 271 S.E.2d 252 (1980), for this proposition. In Thacker this Court stated: "[W]hen faced with a claim of conflict and a request for appointment of substitute counsel, the trial court must satisfy itself only that present counsel is able to render competent assistance and that the nature or degree of the conflict is not such as to render that assistance ineffective." Id. at 353, 271 S.E.2d at 256 (emphasis added). Supreme Court held that the defendant never specifically sought removal of second chair, either in his original motion, or his later letter. Adoption (or not) of pro se motions State v. Williams, ___ N.C. ___, ___ S.E.2d ___, 2009 N.C. LEXIS 1292 (corrected 17 December 2009). Defendant filed several pro se motions while represented by counsel. Before trial, counsel alerted the Court to the motions by stating that the defendant filed some pro se motions. We need rulings on those." Trial court informed the defendant he could not file motions on his own while represented and declined to rule on the motions. Defendant argues that this is an adoption of the pro se motions. Supreme Court held that the statement by defense counsel hardly represented an adoption of the motions. "A defendant has only two choices--'to appear in propria persona or, in the alternative, by counsel. There is no right to appear both in propria persona and by counsel.'" State v. Thomas, 331 N.C. 671, 677, 417 S.E.2d 473, 477 (1992) (citations omitted) (quoting State v. Parton, 303 N.C. 55, 61, 277 S.E.2d 410, 415 (1981), disavowed on other grounds by State v. Freeman, 314 N.C. 432, 437-38, 333 S.E.2d 743, 746-47 (1985)). "Having elected for representation by appointed defense counsel, defendant cannot also file motions on his own behalf or attempt to represent himself. Defendant has no right to appear both by himself and by counsel." State v. Grooms, 353 N.C. 50, 61, 540 S.E.2d 713, 721 (2000) (citations omitted), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54 (2001).

Following are several examples of letters to inmates, or jail mail.

Mr. Juan Lamar Shaw PO Box 217 Yanceyville, NC 27379 Re: State v. Shaw, 98 CRS 6781 Dear Mr. Shaw:

July 18, 2006

I am writing to let you know that I have received your Request for an Extension of Time to Appeal the Order Denying Defendants Motion for Appropriate Relief. Pursuant to N.C.G.S. 15A-1422(c), if the Defendants time for appeal has expired and no appeal is currently pending, the Superior Courts ruling on a motion for appropriate relief pursuant to N.C.G.S. 15A-1415 is subject to review only by a petition for a writ of certiorari. Such petition for a writ of certiorari must be addressed to the appropriate Appellate Court, which would be the: Court of Appeals of North Carolina P.O. Box 2779 Raleigh, NC 27602 Therefore, as your time for appeal has long since expired, this Court is unable to grant you an extension of time to appeal. Only the appropriate Appellate Court may grant a writ of certiorari to hear your appeal of the order denying your motion for appropriate relief. Regards, Allen Baddour Resident Superior Court Judge

November 10, 2009 Ms. Gwendolyn Marie Owens Snipes #0381573 Fountain Correctional Center for Women Box 1435 Rocky Mount, North Carolina 27802 Dear Ms. Snipes: The Court has received your letter addressed filed October 30, 2009. I have reviewed your request to have your sentences run concurrent. Your sentences in the following files were consolidated at the time of judgment for entry of a single mitigated sentence of 80 months minimum to 105 months maximum: 06 CRS 1288 06 CRS 53572 06 CRS 53573 06 CRS 53574 06 CRS 53575 06 CRS 53576 06 CRS 53577 06 CRS 53578 06 CRS 53579 I do not know what new laws you are referring to in your letter, but I am unaware of any law that would affect your present sentence. You will have to speak with DOC Combined Records for further information regarding your projected release date, as I do not have that information.

Regards,

Allen Baddour Resident Superior Court Judge District 15-B

December 17, 2009 Ms. Rebecca Pinnix #0625025 Southern Correctional Institution 272 Glen Road Troy, North Carolina 27371 Dear Ms. Pinnix: The Court has received your letter addressed to Judge Pittman. Judge Pittman was a visiting Judge from Wake County who is now holding court elsewhere, so I am responding to your letter. I have reviewed your request to have your sentence modified and do not believe it is appropriate to do so at this time. I appreciate your desire to obtain substance abuse treatment, and I hope you are able to find a way to receive it. It is not something I have the authority to make the Department of Corrections do. I wish you the best.

Regards,

Allen Baddour Resident Superior Court Judge District 15-B

Following are several examples of MARs or MAR-type issues.

STATE OF NORTH CAROLINA COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

STATE OF NORTH CAROLINA v. GEORGE W. BALDWIN,

) ) ) ) ) )
) )

File Nos. 69CRS5660, 70CRS178-9, 70CRS4901, 71CRS1444,71CRS 6404, 74CRS2572,75CRS12228,76CRS5303, 77CRS10291, 76CRS6747,80CRS6498, 80CRS6495,81CRS6036-7,81CRS6039, 91CRS2890,91CRS2861,91CRS2873

Defendant.

) ORDER

This matter comes before this Court on Defendants letter filed February 9, 2009 to Judge Barber, which the Court will treat as a Motion for Appropriate Relief. The Court has reviewed and considered the record proper, including Defendants filings and the court files. Based on its consideration of the matters noted above, the Court finds and concludes as a matter of law that it has the requisite jurisdiction to address the matters contained in Defendants filings. Based on its consideration of the matters noted above, the Court concludes that Defendant is not entitled to the relief that he seeks and that his assertions are without merit. Furthermore, Defendant has filed previous Motions for Appropriate Relief. As such, Defendants Motion for Appropriate Relief filed here is also procedurally barred pursuant to N.C.G.S. 15A-1419. Accordingly, IT IS ORDERED in an exercise of the Courts discretion that Defendants Motion for Appropriate Relief is DENIED. The Court further places Defendant on notice that additional filings that are without merit may subject the Defendant to sanctions, including those available and appropriate pursuant to Rule 11. IT IS FURTHER ORDERED that a copy of this ORDER shall be mailed to Defendant in care of the North Carolina Department of Corrections. This the ___ day of February, 2009. ___________________________________ Allen Baddour Superior Court Judge

STATE OF NORTH CAROLINA COUNTY OF CHATHAM

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

STATE OF NORTH CAROLINA, v. STEWART WENDELL BALDWIN, Defendant.

) ) ) ) ) ) ) ORDER

08 CRS 746-47 08 CRS 50100-02

This matter comes before this Court on Defendants purported Notice of Appeal filed August 26, 2008. The Court has reviewed and considered Defendants filing in this matter, as well as the court files in these cases. The Court finds and concludes based on the matters noted above that it has the requisite jurisdiction to address the issues contained in Defendants purported Notice. A review of the court files in this case reveals the following uncontradicted facts: Defendant entered pleas of guilty on July 29, 2008, before Judge James E. Hardin, Jr. to the following: 1. Class G Trafficking in Cocaine 2. Possession with Intent to Sell or Deliver Marijuana 3. Possession with Intent to Sell or Deliver Cocaine 4. Felony Possession of Marijuana 5. Felony Maintaining a Dwelling 6. Possession of Drug Paraphernalia 7. Possession of a Firearm by a Felon 8. 2 counts of First Degree Kidnapping 9. Common Law Robbery 10. Misdemeanor Escape from a Jail or Confinement Facility Judge Hardin accepted Defendant's pleas of guilty, and consolidated the matters into two sentences pursuant to the plea arrangement in the Transcript of Plea. The matters in 08 CRS 746-47 were consolidated under a First Degree Kidnapping judgment for a sentence of 116-149 months. The matters in 08 CRS 50100-02 were consolidated under the Trafficking judgment for one sentence of 35-42 months, to run at the expiration of the first judgment. Defendant gave notice of appeal on August 26, 2008.

Based on the Courts consideration of the matters noted above, the Court concludes as a matter of law that Defendant cannot make any factual or legal showing that he is entitled to give notice of appeal as of right pursuant to N.C. Gen. Stat. 15A-1444(a1) or (a2). IT IS THEREFORE ORDERED that Defendants purported Notice of Appeal is DISMISSED WITHOUT PREJUDICE to the extent that Defendant may seek further review of his case in the North Carolina Court of Appeals through writ of certiorari if he so chooses. IT IS FURTHER ORDERED that a copy of this ORDER shall be mailed to Defendant in care of the North Carolina Department of Corrections, and be given to trial counsel, Steve Monks and the District Attorney. This, the 23rd day of September, 2008.

___________________________________ Allen Baddour Superior Court Judge

STATE OF NORTH CAROLINA COUNTY OF CHATHAM STATE OF NORTH CAROLINA, v. KENNETH PAUL FITZPATRICK, Defendant.

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION ) ) ) ) ) ) ORDER

07 CRS 50726 07 CRS 50731

This matter comes before this Court upon receipt of multiple letters from Defendant in December 2007 and January 2008. The undersigned on January 3, 2008 ordered a transcript to be prepared. The Court will consider the Defendants writings to be Defendants Motion for Appropriate Relief. The Court has reviewed and considered the record proper, including Defendants filings, the court files, and the transcript of the sentencing hearing on August 20, 2007 by Judge Michael Morgan. Based on its consideration of the matters noted above, the Court finds and concludes as a matter of law that it has the requisite jurisdiction to address the matters contained in Defendants filings. The Court makes the following additional findings of fact: 1. The Defendant was sentenced pursuant as a Class E, Level II offender to a term of a minimum of 25 and a maximum of 39 months in the N.C. Department of Corrections. The sentence was suspended on a number of conditions, the relevant condition for purposes of Defendants Motion being a split sentence of ten (10) months. 2. Judge Morgan then stated: 17 18 19 20 21 22 THE COURT I understand that he has served 110 days which is close to four months. The maximum that he can serve in terms of what I am finding in the sentence is approximately ten months. The split sentence will be for ten months. He has already served about four of those, and he has six more to go.

3. In an effort to clear up some confusion regarding the way in which maximum possible split sentence was calculated, Judge Morgan went on to say: 5 THE COURT: And he has served close to four months 6 actively. So he has got an active six months to go on the 7 split sentence. The Court therefore concludes as a matter of law that the sentencing Judge intended the

Defendants jail credit as of the time of sentencing to be applied towards the split sentence, and not towards the underlying sentence if it were ever revoked. IT IS THEREFORE ORDERED ADJUDGED AND DECREED that: 1. Defendants Motion For Appropriate Relief is ALLOWED, and the Defendant is to receive credit for 110 days spent in custody awaiting sentencing towards his split sentence. The Defendants split sentence should have been for a maximum of 9 months and 15 days. Defendant is to receive credit for that split sentence, and all additional days for which Defendant may have credit shall be credited to his underlying, suspended sentence.

2.

IT IS FURTHER ORDERED that a copy of this ORDER shall be mailed to Defendant in care of New Hanover Correctional Center to Kenneth Paul Fitzpatrick, 1034035, PO Box 240, Wilmington, North Carolina 28402, and a copy shall be delivered to the Office of the District Attorney. IT IS FURTHER ORDERED that a copy of this ORDER be faxed immediately to the N.C. Department of Corrections to ensure Defendants immediate processing for release upon completion of service of his split sentence. This, the 20th day of March, 2008. ___________________________________ R. Allen Baddour, Jr. Superior Court Judge

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STATE OF NORTH CAROLINA COUNTY OF CHATHAM

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

STATE OF NORTH CAROLINA, v. STEWART WENDELL BALDWIN, Defendant.

) ) ) ) ) ) ) ORDER

08 CRS 746-47 08 CRS 50100-02

This matter comes before this Court on Defendants Motion for Preparation of a Stenographic Transcript signed June 19, 2009, but not yet filed. The Court has reviewed and considered the record in this case. The Court finds and concludes based on the matters noted above that it has the requisite jurisdiction to address the issues contained in Defendants Motion. Based on the Courts full consideration of the matters noted above, the Court concludes that Defendant has not made any factual or legal showing that he is entitled to any relief with respect to his Motion for Preparation of a Stenographic Transcript. IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that Defendants Motion for Preparation of a Stenographic Transcript is DENIED. IT IS FURTHER ORDERED that a copy of this ORDER shall be mailed to Defendant in care of Central Prison, 1300 Western Blvd., Raleigh, North Carolina 27606. This, the 17th day of July, 2009.

Allen Baddour Superior Court Judge

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Following is an example of a Gatekeeper Order.

NORTH CAROLINA CHATHAM

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

) ) ) v. ) ) STATE OF NORTH CAROLINA, ) G.K. HARRIS, and JEANETTE ) EMERICK, Magistrates, JAMES ) MICHAEL WATSON, KELLY WATSON, ) SERGEANT DANIEL TILLEY, ) CHATHAM COUNTY SHERIFFS ) OFFICE, CHATHAM COUNTY ) SHERIFF RICHARD WEBSTER, and ) PROSECUTOR KAYLEY TABER, ) ) Defendants. )

GERRY THOMAS PEEK, Plaintiff,

09 CVS 14

THIS MATTER came before the Court on March 27, 2009 at a mixed session of Superior Court in Chatham County upon defendants Motions and Amended Motions for Sanctions. The plaintiff appeared pro se, and appearing on behalf of defendants State of North Carolina, G.K. Harris and Jeanette Emerick, Magistrates, and Prosecutor Kayley Taber was David J. Adinolfi, II, Special Deputy Attorney General; appearing on behalf of defendants Chatham County Sheriffs Office, Sheriff Richard Webster, and Sgt. Daniel Tilley was James D. Secor, III; and appearing on behalf of defendants James M. Watson and Kelly Watson was Robert Gunn. The Court has considered the full record in this case, including a review of the pleadings and other documents filed in this case and the arguments and submissions of all parties. Both sides were given an opportunity to be heard on the issues of sanctions, specifically defendants request for a pre-filing injunction and for attorneys

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fees. Based on its consideration of the matters noted above, the Court concludes that it has the requisite jurisdiction to address the matters presented in the Motions. Prior to the entry of this Order, the Court considered and rejected alternative, lesser sanctions. The Court relies on the North Carolina Rules of Civil Procedure and the inherent authority and power of the Court reasonably necessary to assure the proper administration of justice. Based on consideration of the record proper, the Court makes the following FINDINGS OF FACT: 1. On December 8, 2008, the plaintiff filed a document titled Specific Affidavit of Negative Averment, Opportunity to Cure and Counterclaim in an unrelated Chatham County Estates case (07 E 466). 2. On January 7, 2009, the Chatham County Clerk of Superior Court established a Civil Superior Court file for plaintiffs filing, which began the above captioned matter. 3. Also on January 7, 2009, at least some defendants filed a motion to dismiss and answer in response to plaintiffs filing. 4. On January 23, 2009, plaintiff filed a document titled, Demand for Payment. 5. On February 3, 2009, plaintiff filed a document titled, Second Demand for Payment. 6. None of the plaintiffs filings complied with the North Carolina Rules of Civil Procedure, in that none of the filings contained a claim upon which relief could be granted, and none were properly served upon the defendants. 7. On February 26, 2009, all named defendants put forth motions to dismiss and motions for sanctions. 8. The undersigned granted the motions to dismiss, but declined to sanction plaintiff for his filings to that point. In open court, with plaintiff present, the undersigned did indicate to plaintiff that any further documents filed that were not legally or factually sufficient, or that were filed for an improper purpose, may subject plaintiff to sanctions, including a pre-filing injunction and attorneys fees.

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9. In early March, 2009, plaintiff attempted to serve upon the defendants another document, this one titled Final Demand for Payment. 10. All four of plaintiffs documents described above were signed by plaintiff. 11. The claims contained in the plaintiffs documents were frivolous, not wellgrounded in fact, and were not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. 12. Plaintiffs documents and filings were served or filed for the improper purposes of harassing defendants and unnecessarily increased the cost of litigation. 13. James D. Secor III, has been a licensed practicing attorney in the State of North Carolina for more that eighteen years. His billable hourly rate is $120.00, which the court finds is reasonable and in accordance with customary practice of other North Carolina attorneys with similar experience. Mr. Secor spent 2.5 hours preparing for and arguing this motion, which the Court finds to be a reasonable amount of time. 14. Robert Gunn has been a licensed practicing attorney in the State of North Carolina for over thirty years. Paul Messick has been a licensed practicing attorney in the State of North Carolina for at least twenty years. They are partners in a law firm, and the billable hourly rate is $200.00, which the court finds is reasonable and in accordance with customary practice of other North Carolina attorneys with similar experience. Mr. Gunn and Mr. Messick spent 5 hours preparing for and arguing this motion, which the Court finds to be a reasonable amount of time. 15. David J. Adinolfini II, on behalf of his clients, did not seek recovery of attorneys fees as part of their motion for sanctions.

Based on the above findings of fact, the Court makes the following CONCLUSIONS OF LAW: 1. The claims contained in the plaintiffs documents are frivolous, are not wellgrounded in fact, and are not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.

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2. Plaintiffs documents and filings were served or filed for the improper purposes of harassing defendants and unnecessarily increased the cost of litigation. 3. Plaintiffs filings or service upon defendants of signed documents violate the provisions of Rule 11 of the North Carolina Rules of Civil Procedure. 4. The attorneys hourly billable rate, and time spent on this case, were reasonable, and in accordance with customary practice of other North Carolina attorneys with similar experience.

NOW, IT IS, THEREFORE ORDERED, ADJUDGED AND DECREED that these Motions for Sanctions be ALLOWED. The Court FURTHER ORDERS THAT: 1. As it relates to the above named defendants, plaintiff is hereby enjoined from filing, or causing to be filed, any document with any Clerk of Superior Court in the State of North Carolina, without first obtaining leave of a Resident Superior Court Judge in the County where the plaintiff wishes to file the document. 2. As it relates to the above named defendants, plaintiff is hereby enjoined from serving, attempting to serve, or causing to be served on any defendant named above any unfiled document in any county or jurisdiction within the State of North Carolina, without first obtaining leave of a Resident Superior Court Judge in the County where the plaintiff wishes to serve one of the above named defendants. 3. Plaintiff shall seek leave of a Resident Superior Court Judge by mailing or delivering the document, with this ORDER attached, to the Superior Court Judges Office. 4. Upon receipt of any document sent by or on behalf of plaintiff to the office of a Resident Superior Court Judge, the Judge shall determine if the plaintiff establishes that the proposed filing: a. Is in compliance with Rule 11 of the N.C. Rules of Civil Procedure; b. Can survive a challenge under Rule 12 of the N.C. Rules of Civil Procedure; c. Is not barred by principles of issue or claim preclusion; or d. Is not repetitive or violative of this or any other Court ORDER. 15

5. If the Court determines the plaintiff has failed to establish that the filing meets the requirements in Paragraph 4, the Court shall discard the filing without further notification to plaintiff or any other party. 6. The CLERK OF SUPERIOR COURT OF CHATHAM COUNTY is hereby ORDERED not to accept any document for filing or any other purpose from plaintiff as it relates to the named defendants unless it complies with this ORDER. 7. As it relates to the above named defendants, the Clerk of Superior Court of every other County in the State of North Carolina is hereby ORDERED not to accept any document for filing or any other purpose from plaintiff, unless it complies with this ORDER. 8. In the event that plaintiff succeeds in filing papers in violation of this Order, upon such notice, the Clerk of Court shall, under authority of this Order, immediately and summarily strike the pleadings or filings. 9. The Court in its discretion further sanctions plaintiff for violations of Rule 11 by awarding attorneys fees in this matter in the amount of $1300.00, which shall be divided as follows: a. $300.00 to defendants Chatham County Sheriffs Office, Sheriff Webster, and Sgt. Daniel Tilley b. $1000.00 to defendants James M. Watson and Kelly Watson 10. Plaintiff shall have 90 days from the date of this Order to comply with the monetary sanction. 11. Plaintiff shall not be in violation of this Order (and need not seek prior approval from the Court) if he mails a check or money order directly to the attorneys for the defendants listed in paragraph 7 above.

Entered in open court on the 27th day of March, 2009, and signed this the ___ day of April, 2009.

Allen Baddour Superior Court Judge Presiding 16

Next, the survival guide. Excerpted in part from the Bench book, including the list of questions referenced in Judge Cashwells paper. Pro Se Criminal Defendants: Survival Guide QUESTIONS for first appearances (G.S. 15A-601, et seq.) 1. You have the right to remain silent. Anything you say may be used against you. 2. Inform defendant of charges, possible sentence (or consequence if found to be in violation of probation), and determine whether defendant has received a copy 3. Determine if defendant has an attorney, appointed or retained. 4. Advise defendant that he has important legal rights that may be waived unless asserted in a timely and proper manner, and an attorney may assist him with advice and by acting on the defendants behalf 5. Advise defendant he has the right to an attorney and one can be appointed if defendant is unable to afford his own 6. Advise defendant he could be required to repay the State for attorneys fees if found guilty 7. If defendant seeks court appointed counsel, have defendant prepare affidavit of indigency, review, and if appropriate, appoint public defender/court appointed counsel. If not indigent, advise defendant to hire an attorney promptly. 8. If defendant wants to waive right to attorney and proceed pro se, address questions below not already answered, and obtain written waiver of counsel.

QUESTIONS designed to satisfy requirements of G.S. 7A-457(a) and 15A-1242 (judge's inquiry regarding self-representation): 1. Are you able to hear and understand me? 2. Are you now under the influence of alcohol, drugs, narcotics, or other pills? 3. How old are you? 4. Have you completed high school? college? If not, what is the last grade you completed? 5. Do you know how to read? write? 6. Do you suffer from any mental or physical disability? 7. Do you understand that you have the right to be represented by a lawyer? 8. Do you understand that you may request that a lawyer be appointed for you if you are unable to hire a lawyer; and one will be appointed if you cannot afford to pay for one?

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9. Do you understand that, if you decide to represent yourself, you must follow the same rules of evidence and procedure that a lawyer appearing in this court must follow? 10. Do you understand that, if you decide to represent yourself, the court will not give you legal advice concerning defenses, jury instructions or other legal issues that may be raised in the trial? 11. Do you understand that I must act as an impartial judge in this case, that I will not be able to offer you legal advice, and that I must treat you just as I would treat a lawyer? 12. Do you understand that you are charged with ________________, and that if you are convicted of this (these) charge(s), you could be imprisoned for a maximum of _______________ and that the minimum sentence is _____________________)? (Add fine or restitution if necessary.) 13. With all these things in mind, do you now wish to ask me any questions about what I have just said to you? 14. Do you now waive your right to assistance of a lawyer, and voluntarily and intelligently decide to represent yourself in this case? Judge's on the record, personal inquiry of defendant must be thorough enough to satisfy judge that defendant (G.S. 15A-1242): 1. Has been clearly advised of right to the assistance of counsel 2. Understands and appreciates the consequences of this decision 3. Comprehends the nature of the charges and proceedings and range of permissible punishments Judge shall consider the defendant's age, education, familiarity with the English language, mental condition, and complexity of crime charged. G.S. 7A-457(a). Findings of fact and conclusions of law are appropriate concerning defendant's competence to decide to represent self and the voluntariness and intelligence of that decision. A waiver is not presumed from a silent record. Waiver of court appointed counsel does not equate to waiver of all counsel or statement of desire to proceed pro se.

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