STATE OF NORTH CAROLINA
v. Cumberland County
No. 02 CRS 30853
TERRENCE LORENZO ROBINSON
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.
TIMMONS-GOODSON, Judge.
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.
(Pause.)
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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