STATE OF NORTH CAROLINA
v
.
Lenoir County
Nos. 03 CRS 2300-07
GAIL TYNDALL GAUTIER
Appeal by defendant from judgments noted with a correction
date of 2 December 2003 by Judge Paul L. Jones in Lenoir County
Superior Court. Heard in the Court of Appeals 14 October 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Matthew D. Wunsche, for defendant-appellant.
BRYANT, Judge.
Gail Tyndall Gautier (defendant) appeals judgments of the
trial court revoking her probation and activating her suspended
sentence.
On 20 February 2002, defendant pled guilty to sixteen counts
of forgery. The forgery counts were consolidated into eight
judgments. Defendant received eight consecutive prison sentences
of four to five months each. The sentences were suspended and
defendant was placed on thirty-six months of supervised probation.
The conditions of probation included that defendant would submit to
drug testing as required by her probation officer.
On 20 August 2003, defendant's probation officer filed aprobation violation report alleging that defendant violated the
terms of her probation by submitting urine samples for drug testing
that were either diluted or pure water and testing positive for
cocaine on 3 March 2003.
This matter came for hearing at the 3 September 2003 criminal
session of Lenoir County Superior County with the Honorable Paul L.
Jones presiding. At her probation revocation hearing, defendant
appeared pro se. Before the State presented its evidence, the
trial court and defendant engaged in the following colloquy:
THE COURT: . . . Do you know why you have been
brought back to court ma'am?
DEFENDANT: Yes, sir.
THE COURT: Are you asking the court to appoint
a lawyer, are you going to hire a lawyer or
are you going to represent yourself?
DEFENDANT: Represent myself.
THE COURT: Okay. Sign a waiver.
Thereafter, the trial court proceeded with the probation revocation
hearing. During the remainder of the hearing, the trial court did
not ask defendant any other questions concerning her right to
counsel or to represent herself, or about the charges she faced and
the possible results of the hearing. Defendant signed the waiver
of the right to counsel form.
Defendant's probation officer testified that defendant
submitted several urine samples that, according to lab analysis,
were actually water. Defendant had subsequently submitted
additional urine samples, but the probation officer had not
received the results of those tests by the time of the hearing. The trial court questioned defendant regarding why two of her
samples were pure water. Defendant admitted that two of the
samples were, in fact, water; however, she explained that she had
been taking water pills and drinking gallons of water prior to
submitting the other samples. Defendant did not offer any other
evidence on her own behalf, but apologized and asked the trial
court for another chance.
The trial court found defendant to be in willful violation of
her probation without lawful excuse, revoked her probation and
activated her suspended sentence. Defendant appeals.
(1) Has been clearly advised of [her] right to
the assistance of counsel, including [her]
right to the assignment of counsel when [she]
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.
N.C.G.S. § 15A-1242 (2003).
This Court has interpreted Section 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.
State v. Evans, 153 N.C. App. 313, 315-16, 569 S.E.2d 673, 675
(2002) (citations omitted); see also State v. Carter, 338 N.C. 569,
581, 451 S.E.2d 157, 163 (1994).
In the instant case, the record reveals that the trial court
determined that defendant did not desire counsel but rather desired
to represent herself. This inquiry, however, fails to satisfy even
the first of the three inquires required by N.C. Gen. Stat. § 15A-
1242. Moreover, as in Evans,
there 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 [her]
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 [she]
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 [her] right to
counsel was knowing, intelligent and
voluntary.
Evans, 153 N.C. App. at 316, 569 S.E.2d at 675. The State concedes that the facts of this case are not
distinguishable from those of Evans. However, the State argues
that Evans was erroneously decided and asks that this Court affirm
the judgment revoking defendant's probation. We reject the State's
argument that Evans was decided in error. In addition, one panel
of this Court may not overrule another. In re 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”).
Reversed and remanded.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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