STATE OF NORTH CAROLINA
v. Pender County
No. 99 CRS 50321
GRAYLON GUION,
Defendant
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).
*** Converted from WordPerfect ***