An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1051


Filed: 18 May 2004

STATE OF NORTH CAROLINA                 
         v.                        Pender County
                                No. 99 CRS 50321

    Appeal by defendant from judgment entered 3 April 2003 by Judge Benjamin Alford in Pender County Superior Court. Heard in the Court of Appeals 10 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Laura J. Gendy, for the State.

    Mark A. Key and Penny K. Bell for defendant-appellant.

    MARTIN, Chief Judge.

    On 28 August 2000, defendant pled no contest to two counts of obtaining property by false pretenses and was sentenced to a term of six to eight months imprisonment. Defendant's sentence was suspended and he was placed on supervised probation for six months. As a condition of his probation, defendant was to pay $8,198.00 in restitution. On 5 February 2001, the term of his probation was extended to 24 February 2002. On 11 February 2002, defendant's probation was once again extended, this time until 23 February 2003. Subsequently, a probation violation report was filed alleging that defendant had violated his probation.
    On 3 April 2003, a probation violation hearing was held inPender County Superior Court. Defendant appeared without counsel. The trial court inquired whether defendant had an attorney, and defendant requested a continuance because he could not pay his attorney's fee. Defendant explained that he was injured at work, was not paid any workers' compensation, and did not have any money to pay his attorney. The trial court denied defendant's motion to continue and proceeded with the revocation hearing. Defendant admitted to violating the monetary conditions of his probation, but claimed that the reason was that he did not have any money. The court found that defendant “freely and voluntarily” admitted violating his probation, revoked his probation and activated his suspended sentence. Defendant appeals.
    Defendant first argues that the trial court failed to make a sufficient inquiry into defendant's waiver of counsel in accordance with G.S. § 15A-1242.
    After careful review of the record, briefs, and contentions of the parties, we reverse and remand. A defendant at a probation revocation hearing has a statutory right to counsel akin to the right enjoyed in a criminal trial. See N.C. Gen. Stat. § 15A-1345(e) (2003); State v. Warren, 82 N.C. App. 84, 85, 345 S.E.2d 437, 439 (1986). “This right can be knowingly, intelligently and voluntarily waived; however, waiver cannot be inferred from a silent record.” Id. (citing State v. Neeley, 307 N.C. 247, 252, 297 S.E.2d 389, 393 (1982)). N.C. Gen. Stat. § 15A- 1242 (2003) provides:
        A defendant may be permitted at his election to proceed in the trial of his case withoutthe 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.

Here, defendant wished to retain counsel, claimed that he could not afford to pay his attorney, and requested a continuance. Defendant did not state any intent to waive counsel and proceed pro se, and the trial court denied the motion without making any inquiry pursuant to G.S. 15A-1242. “The provisions of this statute are mandatory and failure to conduct this inquiry constitutes prejudicial error.” State v. Hyatt, 132 N.C. App. 697, 703, 513 S.E.2d 90, 94 (1999). Accordingly, the judgment and commitment revoking defendant's probation is reversed and remanded for a new hearing.
    Because the above issue is determinative of the appeal, we do not address defendant's remaining arguments.
    Reversed and remanded.
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

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