An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-339


Filed: 18 May 2004


         v.                        Wake County
                                No. 01 CRS 57902

    Appeal by defendant from judgment entered 30 September 2002 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 12 April 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State.

    James M. Bell for defendant-appellant.


    Benjamin L. Doyle (“defendant”) pled guilty to felony breaking or entering and felony larceny on 19 September 2001. The trial court sentenced defendant to 8-10 months imprisonment, which was suspended, and placed him on supervised probation for 36 months. On or about 3 September 2002, defendant's probation officer filed a probation violation report. This matter came on for hearing before Judge Abraham Penn Jones on 30 September 2002. At the time of hearing, defendant executed a written waiver of counsel form, form AOC-CR-227. After hearing the evidence, Judge Jones found that defendant had willfully and unlawfully violated the terms and conditions of his probation, as alleged in the September 2002violation report. The judge then activated defendant's suspended sentence, with that sentence to be served consecutively with another sentence defendant was serving. Defendant appeals.
    Defendant raises two arguments on appeal: (1) the trial court erred in sentencing him to consecutive sentences, when he had been led to believe that his sentences would run concurrently; and, (2) the trial court erred in failing to continue his sentencing since he did not knowingly and voluntarily waive his right to counsel. The dispositive issue in the case sub judice is whether defendant knowingly and voluntarily waived his right to counsel. We conclude that defendant did not knowingly and voluntarily waive his right to counsel, and therefore we reverse the judgment of the trial court and remand this matter for a new probation revocation hearing.
    North Carolina General Statutes . 15A-1242 provides as follows:
            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.

(2003). This Court in State v. Evans held that during probation revocation hearings, the trial court must engage in the fullcolloquy set out in N.C. Gen. Stat. . 15A-1242 to ensure that a defendant's waiver of counsel is knowing, intelligent, and voluntary. 153 N.C. App. 313, 569 S.E.2d 673 (2002). Specifically, the Court stated,
        The provisions of N.C. Gen. Stat. § 15A-1242 are mandatory where the defendant requests to proceed pro se. The execution of a written waiver is no substitute for compliance by the trial court with the statute. A written waiver is “something in addition to the requirements of N.C. Gen. Stat. § 15A-1242, not . . . an alternative to it.”
Evans, 153 N.C. App. at 315-16, 569 S.E.2d 673, 675 (2002)(quoting State v. Hyatt, 132 N.C. App. 697, 703, 513 S.E.2d 90, 94 (1999)).
    In the case sub judice, the following exchange occurred:
            THE COURT: Do you have a lawyer, Mr. Doyle?

            MR. DOYLE: No, sir.

            THE COURT: Would you like the Court to appoint you a lawyer?

            MR. DOYLE: No.

            THE COURT: Are you sure about that?

            MR. DOYLE: Yes, sir.

            THE COURT: You understand you have a right to an attorney. If you give up that right, you give up not only the right but also the assistance of a lawyer?

            MR. DOYLE: Yes, sir.

            THE COURT: You wish to waive; is that correct?

            MR. DOYLE: Yes, sir.

            THE COURT: Okay. Let's give him a waiver and have him sign it.Defendant then executed a written waiver of counsel, waiving both the right to assigned counsel and the right to assistance of counsel. The trial court failed to advise defendant of the consequences of his decisions to represent himself or the “nature of the charges and proceedings and the range of permissible punishments.” N.C. Gen. Stat. . 15A-1242(2), (3) (2003).
    The State concedes that the facts of this case are not distinguishable from those of Evans. However, the State argues, for purposes of preserving the issue for further review, that Evans was erroneously decided and asks that this Court affirm the judgment revoking defendant's probation. Ever mindful that one panel of this Court may not overrule another, In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), and of the precepts of stare decisis, we reject the State's argument that Evans was decided in error.
    Here, as in Evans, defendant executed a written waiver of counsel during his probation revocation hearing, but the court failed to fully comply with G.S. 15A-1242. Accordingly, the judgment of the trial court is reversed, and this matter remanded for another probation revocation hearing. 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 first assignment of error regarding the propriety of his sentence.
    Reversed and remanded.
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

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