An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-712


Filed: 18 May 2004

STATE OF NORTH CAROLINA                 
         v.                        Cumberland County
                                No. 02 CRS 30853

    Appeal by defendant from judgment entered 10 February 2003 by Judge Gary L. Locklear in Cumberland County Superior Court. Heard in the Court of Appeals 12 April 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State.

    Hosford & Hosford, P.L.L.C., by Sofie W. Hosford, for defendant-appellant.

    Terrence Lorenzo Robinson (“defendant”) appeals the judgment of the trial court revoking his probation and activating his suspended sentence. We reverse and remand the judgment of the trial court.
    On 22 May 2001, defendant pled guilty to possession of a firearm by a felon and assault with a deadly weapon and was sentenced to a term of sixteen to twenty months imprisonment. Defendant's sentence was suspended and he was placed on supervised probation for thirty-six months. On 3 September 2002, a probation violation report was filed alleging that defendant had violated his probation. Specifically, it was alleged that defendant was inarrears on the monetary conditions of his probation and had absconded.
    On 10 February 2003, a probation violation hearing was held in Cumberland County Superior Court. Defendant appeared without counsel. The trial court then inquired whether defendant wished to be represented by counsel, and advised defendant of his right to counsel. Defendant and the trial court then engaged in the following colloquy:
        THE DEFENDANT: At this time, I would like to represent myself.

        THE COURT: Are you sure about that?

        THE DEFENDANT: Yes.

        THE COURT: All righty. Mr. Sheriff, if you would come get a waiver for him. Stand right where you are, sir. By signing this piece of paper, Mr. Robinson, you are telling the world you have been advised of your constitutional rights regarding counsel. You choose to     represent yourself.        

        THE DEFENDANT: Yes, sir.


        THE COURT: Okay. You have signed this statement saying you're representing yourself. Are you ready to go forward, Mr. Robinson?

        THE DEFENDANT: Yes, sir.

Thereafter, the trial court proceeded with the probation revocation hearing. Defendant admitted to violating the monetary conditions of his probation. The court found defendant to be in willful violation of his probation without lawful excuse, revoked his probation and activated his suspended sentence. Defendant appeals.
    Defendant's sole argument on appeal is that he did notknowingly and voluntarily waive his constitutionally guaranteed right to counsel prior to his probation hearing. Specifically, defendant contends the trial court committed error by failing to ensure that he understood the nature of his decision and the range of permissible punishments he faced. See State v. Evans, 153 N.C. App. 313, 569 S.E.2d 673 (2002).
    The North Carolina General Statutes provide that:
        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.

Section 15A-1242 (2003).
This Court has interpreted § 15A-1242 as follows:
        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.”

        . . . 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.

Evans at 315-16, 569 S.E.2d at 675 (citations omitted).    Here, the record reveals that the trial court determined that defendant did not have counsel, did not desire counsel and that defendant understood he could have counsel appointed. However, this inquiry satisfied only the first of the three inquires required by G.S. 15A-1242. As in Evans,
        [t]here 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.

Id. at 316, 569 S.E.2d at 675.
    The State contends that Evans was incorrectly decided. However, this Court is bound by Evans. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (where one panel of the Court of Appeals “has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court”). Accordingly, we reverse and remand.
    Reversed and remanded.
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

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