State v Manning, (03-1631) 07/20/2004

Appeal by defendant from judgment entered 16 July 2003 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 19 July 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant-appellant.
    THORNBURG, Judge.
    On 7 August 2002, defendant pled guilty pursuant to a plea agreement to two counts of attempting to obtain a controlled substance by forgery or fraud. The convictions were consolidated for judgment and defendant was sentenced to a term of six to eight months in the custody of the North Carolina Department of Corrections. Defendant's sentence was suspended and she was placed on supervised probation for twenty-four months. On 5 June 2003, a probation violation report was filed alleging that defendant had violated her probation.
    On 26 June 2003, defendant executed a waiver of counsel form indicating she wished to waive her right to assigned counsel. The form was certified the next day. On 14 July 2003, a probationviolation hearing was held in Lenoir County Superior Court. Defendant appeared without counsel and admitted to one violation of her probation, while denying the remaining allegations. Defendant then asked the court for the assistance of counsel. Defendant stated to the court:
        DEFENDANT: I would like to get a lawyer, if I could. I went and spoke to one and they said it was $500.00[.] [T]he _- it would be up- front. So I was going to see if I could get a court-appointed attorney because my job fell through.

        [THE STATE]: She signed a waiver last time.

        THE COURT: You've already signed a waiver now. Have a seat.

The court continued with the hearing, finding that defendant willfully violated her probation. Defendant's probation was revoked and her suspended sentence activated. Defendant appeals.
    Defendant argues that the trial court erred by denying her request for appointed counsel and requiring her to proceed pro se. We agree.
    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 Court has stated that:
        A criminal defendant may “waive his [constitutional] right to be represented by counsel so long as he voluntarily and understandingly does so.” Once given, however, “a waiver of counsel is good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he desires to withdraw the waiver and have counsel assigned to him.”
State v. Sexton, 141 N.C. App. 344, 346-47, 539 S.E.2d 675, 676 (2000)(citations omitted). In Sexton, at his probation revocation hearing, defendant specifically requested that he be appointed counsel. However, the trial court denied the request based on defendant's prior waiver of counsel. This Court found that the defendant had “carried his burden of showing a change in his desire for assigned counsel, and the record reflects his request was for good cause.” Id. at 347, 539 S.E.2d at 677. Therefore, the Court determined that “the trial court's denial of the request for assistance violated defendant's constitutional right to an attorney.” Id.
    Like the defendant in Sexton, defendant withdrew any waiver by explicitly asking that counsel be appointed to represent her. Defendant stated that she had sought to hire counsel, but could not afford one. Defendant carried her burden of proving a change in her desire for the assistance of counsel, and her request was for good cause.
    Thus, we conclude the trial court erred by denying the request. Accordingly, we reverse and remand the matter to the trial court for a new probation revocation hearing.
    Reversed and remanded.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***