STATE OF NORTH CAROLINA
v
.
LINWOOD ARRTAGUS EVANS
Attorney General Roy Cooper, by Assistant Attorney General
Brenda Eaddy, for the State.
Angela H. Brown for defendant-appellant.
WALKER, Judge.
On 21 August 1998, defendant pled guilty to six breaking and
entering charges. He was subsequently sentenced to six consecutive
eight to ten-month terms of imprisonment. These sentences were
suspended and defendant was placed on supervised, intensive
probation for a total of 60 months. Defendant's probation was
modified and he was ordered, among other things, to pay restitution
in the amount of $10,842.00 and not violate any State laws which
penalty exceeds 45 days in jail.
On 5 September 2000, the trial court ordered that all of
defendant's past due and future supervision fees be remitted. On
18 January 2001, defendant's probation officer filed a violation
report alleging that defendant had violated the terms of his
probation. Specifically, the report alleged that defendant was inarrearage on the restitution requirement and that he also violated
his probation by committing the offense of driving while license
revoked.
At defendant's probation revocation hearing on 12 February
2001, defendant executed a written waiver of his right to counsel
and proceeded pro se. At the beginning of the hearing, the trial
court inquired as follows:
THE COURT: Mr. Evans, do you have a lawyer, sir?
MR. EVANS: No, sir.
THE COURT: Do you understand that you have the right to
have a lawyer represent you, sir?
MR. EVANS: Yes, sir.
THE COURT: Do you want a lawyer, Mr. Evans?
MR. EVANS: No, sir.
THE COURT: I will be happy to appoint you one.
MR. EVANS: No, sir.
THE COURT: You do not want one at all.
MR. EVANS: No, sir.
THE COURT: All right. Sign a waiver please to that,
please sir.
Thereafter, the trial court proceeded with the probation
revocation hearing and subsequently found defendant to be in
willful violation of his probation without lawful excuse, revoked
his probation and activated his suspended sentences. Defendant contends that the trial court erred in allowing him
to proceed pro se without conducting an inquiry as required by N.C.
Gen. Stat. § 15A-1242, which provides:
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:
(1) Has been clearly advised of his
right to the assistance of counsel,
including his right to the
assignment of counsel when he is so
entitled;
(2) Understands and appreciates the
consequences of this decision; and
(3) Comprehends the nature of the
charges and proceedings and the
range of permissible punishments.
N.C. Gen. Stat. § 15A-1242 (2001).
A defendant has a right to assistance of counsel during
probation revocation hearings. N.C. Gen. Stat. § 15A-1345(e)
(2001). Inherent to that right to assistance of counsel is the
right to refuse the assistance of counsel and proceed pro se.
State v. Gerald, 304 N.C. 511, 516, 284 S.E.2d 312, 316 (1981);
State v. Brooks, 138 N.C. App. 185, 193, 530 S.E.2d 849, 854
(2000). However, the right to assistance of counsel may only be
waived where the defendant's election to proceed pro se is “clearly
and unequivocally” expressed and the trial court makes a thorough
inquiry as to whether the defendant's waiver was knowing,
intelligent and voluntary. State v. Carter, 338 N.C. 569, 581, 451
S.E.2d 157, 163 (1994), cert. denied, 531 U.S. 843, 121 S. Ct. 109,
148 L. Ed. 2d 67, and rehearing denied, 531 U.S. 1002, 121 S. Ct.
506, 148 L. Ed. 2d 475 (2000). This mandated inquiry is satisfiedonly where the trial court fulfills the requirements of N.C. Gen.
Stat. § 15A-1242.
The provisions of N.C. Gen. Stat. § 15A-1242 are mandatory
where the defendant requests to proceed pro se. State v. Lyons, 77
N.C. App. 565, 568, 335 S.E.2d 532, 534 (1985). The execution of
a written waiver is no substitute for compliance by the trial court
with the statute. State v. Wells, 78 N.C. App. 769, 773, 338
S.E.2d 573, 575 (1986). A written waiver is “something in addition
to the requirements of N.C. Gen. Stat. § 15A-1242, not . . . an
alternative to it.” State v. Hyatt, 132 N.C. App. 697, 703, 513
S.E.2d 90, 94 (1999).
The State correctly points out that, where the defendant has
executed a written waiver of counsel which is certified by the
trial court, a presumption arises that the waiver by the defendant
was knowing, intelligent and voluntary. State v. Warren, 82 N.C.
App. 84, 89, 345 S.E.2d 437, 441 (1986). Nevertheless, where the
record indicates otherwise, that presumption is rebutted. Hyatt,
132 N.C. App. at 703, 513 S.E.2d at 94; State v. Love, 131 N.C.
App. 350, 507 S.E.2d 577 (1998), affirmed, 350 N.C. 586, 516 S.E.2d
382 (1999); Warren, 82 N.C. App. at 89, 345 S.E.2d at 441. The
execution of a written waiver of the right to assistance of counsel
does not abrogate the trial court's responsibility to ensure the
requirements of N.C. Gen. Stat. § 15A-1242 are fulfilled.
In the present case, the record reveals the trial court
ascertained that defendant did not have counsel, did not desire
counsel and that defendant understood that he could have hadcounsel appointed. However, this inquiry satisfied only the first
of the three inquires required by N.C. Gen. Stat. § 15A-1242.
There is no indication in the record that the trial court, at any
time, made an inquiry as to whether defendant understood and
appreciated the consequences of his decision. Further, the trial
court failed to ascertain whether defendant comprehended the nature
of the charges and proceedings and the range of permissible
punishments that he faced. In omitting the second and third
inquiries required by N.C. Gen. Stat. § 15A-1242, the trial court
failed to determine whether defendant's waiver of his right to
counsel was knowing, intelligent and voluntary.
The trial court's judgments revoking defendant's probation are
reversed. On remand, the trial court shall first determine if
defendant is entitled to the assistance of counsel in accordance
with this opinion. Because defendant is entitled to a new hearing,
we need not reach defendant's second assignment of error, that the
trial court failed to make adequate findings to support its
decision to revoke defendant's probation.
Reversed and remanded.
Chief Judge EAGLES and Judge BIGGS concur.
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