State v. Elliott , 269 N.C. 683 ( 1967 )

153 S.E.2d 330 (1967) 269 N.C. 683

STATE
v.
Claude ELLIOTT.

No. 272-A.

Supreme Court of North Carolina.

March 22, 1967.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.

R. G. Shannonhouse, Rocky Mount, for defendant appellant.

PER CURIAM.

The record shows that defendant entered his plea of guilty and judgment was imposed upon him on 4 January 1967 during the 2 January 1967 Criminal Session of Nash. The record further shows that on 5 January 1967 the defendant wrote the trial judge a letter stating in substance that he was filing an appeal against the judgment imposed upon him in this case. Thereafter, on 18 January 1967 the court appointed R. G. Shannonhouse to perfect his appeal. On 3 February 1967 the court entered an order requiring Nash County to pay the necessary cost of obtaining a transcript of the trial proceedings and to pay the necessary cost of mimeographing the case on appeal and appellant's brief under the supervision of the Clerk of the Supreme Court of North Carolina. This is the customary procedure in this State for perfecting an appeal to the Supreme Court.

The record before us contains no assignment of error.

[1] We have held repeatedly that an appeal is itself an exception to the judgment, presenting the face of the record proper for review, even in the absence of exceptions in the record. State v. Caldwell, N.C., 153 S.E.2d 34; State v. Darnell, 266 N.C. 640, 146 S.E.2d 800, and cases there cited; supplement to 1 Strong's N.C. Index, Criminal Law, § 154.

In Johnson v. United States, 318 F.2d 855 (8 Cir.), cert. den. 375 U.S. 987, 84 S. Ct. 521, 11 L. Ed. 2d 474, the Court said:

"It is equally well settled that a defendant charged with a federal crime may waive his right to representation by counsel `if he knows what he is doing and his choice is made with eyes open.' [Citing voluminous authority.]"

We think this statement is equally true of a defendant charged with a crime in a state court.

In State v. McNeil, 263 N.C. 260, 139 S.E.2d 667, the Court said:

"The United States Constitution does not deny to a defendant the right to defend himself. Nor does the constitutional right to assistance of counsel justify forcing counsel upon a defendant in a criminal action who wants none. Moore v. [State of] Michigan, 355 U.S. 155, 78 S. Ct. 191, 2 L. Ed. 2d 167; Carter v. [State of] Illinois, 329 U.S. 173, 67 S. Ct. 216, 91 L. Ed. 172; United States v. Johnson, 6 Cir. (June 1964), 333 F.2d 1004."

Defendant's plea of guilty in open court is a confession of crime in the manner and form as charged in the indictment. However, defendant by his plea of guilty is not precluded from claiming that the facts alleged in the indictment do not constitute a crime under the laws of this State. State v. Caldwell, supra; Brisson v. Warden of Connecticut State Prison, 25 Conn. Super. Ct. 202, 200 A.2d 250.

It appears positively and affirmatively and beyond a reasonable doubt from the record before us that defendant intentionally, understandingly, and voluntarily, waived, relinquished, or abandoned his known right to have court-appointed counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357. It also appears positively and affirmatively and beyond a reasonable doubt from the record that the defendant, after having been informed in open court of the charges against him, the nature thereof, and the statutory punishment therefor, intentionally, understandingly, and voluntarily entered a plea of guilty in this case.

An examination of the record shows that the indictment accurately includes in its allegations the offense of defendant's escape from a State prison camp where he was serving a felony sentence imposed upon him for the larceny of an automobile, which is a violation of the provisions of G.S. 148-45 (a) quoted above.

The punishment imposed upon defendant's plea of guilty does not exceed the limits fixed by the provisions of G.S. § 148-45 (a) quoted above. We have held in case after case that when the punishment does not exceed the limits fixed by the statute, it cannot be considered cruel and unusual punishment in a constitutional sense. State v. Caldwell, supra; State v. Bruce, 268 N.C. 174, 150 S.E.2d 216, and five cases of ours to the same effect there cited. The record proper shows no error.

"The right of appeal is unlimited in the courts of North Carolina." State v. Darnell, supra. The appeal in the instant case is a conspicuous illustration of the abuse of the power of appeal by an indigent defendant in a criminal case to the Supreme Court as a matter of right, and to have the taxpayers put to the expense of paying for the cost of the transcript of the trial proceedings, the cost of mimeographing the record and the brief filed for defendant, and of paying a fee to the defendant's lawyer for his services on appeal, when there is no merit at all in the appeal.

The judgment of the trial court is

Affirmed.