Criminal Law_waiver of right to counsel_statutory procedure
A probation revocation was reversed and remanded where defendant waived his right to
assigned counsel in writing and informed the court that he wanted to represent himself, but the
trial court did not advise defendant of the consequences of his decision or the “nature of the
charges and proceedings and the range of permissible punishments.” N.C. Gen. Stat. §
15A-1242(3) (2003).
Judge STEELMAN dissenting.
Attorney General Roy Cooper, by Assistant Attorney General
Caroline Farmer, for the State.
Sue Genrich Berry for defendant-appellant.
ELMORE, Judge.
Defendant Andrew Debnam (defendant) pled guilty to eleven
counts of obtaining property by false pretenses. The trial court
sentenced defendant to four consecutive sentences of eleven to
fourteen months imprisonment, each of which were suspended, and
placed him on supervised probation for thirty-six months. On 14
November 2003, defendant's probation officer filed probation
violation reports. Three days later, defendant executed a written
waiver of counsel form, waving his right to assigned counsel, but
not his right to assistance of counsel, at a preliminary hearing
held in district court. On 15 December 2003, the trial court helda hearing on defendant's probation violation. After hearing
testimony from defendant and defendant's probation officer, the
trial court concluded that defendant had willfully and unlawfully
violated the terms and conditions of his probation and activated
defendant's suspended sentences. Defendant appeals.
Defendant first contends the trial court erred by allowing him
to proceed pro se without conducting an inquiry as required by N.C.
Gen. Stat. § 15A-1242, which provides:
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.
N.C. Gen. Stat. § 15A-1242 (2003).
“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.” State v. Evans, 153 N.C. App. 313, 315, 569
S.E.2d 673, 675 (2002) (citations omitted). In Evans, this Court
held that during probation revocation hearings, the trial court
must conduct a full inquiry pursuant to section 15A-1242 to ensure
that a defendant's waiver of counsel is knowing, intelligent, andvoluntary. Id.
The following exchange occurred when defendant's probation
revocation hearing was called on 15 December 2003:
[PROSECUTOR]: Mr. Debnam, have you signed a
waiver already?
THE DEFENDANT: Yes, ma'am.
[PROSECUTOR]: You're going to represent
yourself?
THE DEFENDANT: Yes, ma'am.
[PROSECUTOR]: Judge, he says he's signed a
waiver.
THE COURT: All right. I believe him. Let's
go forward.
Although the record shows that defendant executed a written
waiver of counsel form waving his right to assigned counsel and
informed the trial court that he wanted to represent himself, the
trial court failed to advise defendant of the consequences of his
decision to represent himself or the “nature of the charges and
proceedings and the range of permissible punishments.” N.C. Gen.
Stat. § 15A-1242(3) (2003). Accordingly, the judgment of the trial
court is reversed, and this matter is remanded for another
probation revocation hearing. As the other assignments of error are
not likely to reoccur, we do not deem it necessary to discuss them.
Reversed and remanded.
Judge HUNTER concurs.
Judge STEELMAN dissents by separate opinion.
STEELMAN, Judge dissenting.
I must respectfully dissent from the majority opinion based
upon the holdings in State v. Watson, 21 N.C. App. 374, 204 S.E.2d
537 (1974) and State v. Kinlock, 152 N.C. App. 84, 566 S.E.2d 738
(2002), aff'd, 357 N.C. 48, 577 S.E.2d 620 (2003).
I agree with the majority that the 15 December 2003 inquiry by
the trial court was alone insufficient under N.C. Gen. Stat. §
15A-1242. However, following his arrest for violations of his
probation, defendant was brought before the District Court of Wake
County, where he executed a waiver of counsel. This made it
unnecessary for the trial court to conduct another inquiry. State
v. Watson, 21 N.C. App. 374, 204 S.E.2d 537 (1974). The majority
improperly relies on State v. Evans. In Evans, there was no
previous waiver of counsel, therefore the trial court needed to
inform defendant of his rights and explain fully the consequences
of waiver as required by N.C. Gen. Stat. § 15A-1242. “A thorough
inquiry into the three substantive elements of the statute,
conducted at a preliminary stage of a proceeding, meets the
requirements of N.C.G.S. § 15A-1242 even if it is conducted by a
judge other than the judge who presides at the subsequent trial.”
State v. Kinlock, 152 N.C. App. 84, 89, 566 S.E.2d 738, 741 (2002),
aff'd, 357 N.C. 48, 577 S.E.2d 620 (2003). Since no assignment of
error was made to this earlier hearing in District Court, we must
presume the written waiver of counsel form was administered
properly by that court.
In order to “satisfy constitutional standards, [the trial
court] must determine whether the defendant knowingly,intelligently, and voluntarily waives the right to in-court
representation by counsel.” State v. Thomas, 331 N.C. 671, 674,
417 S.E.2d 473, 476 (1992). The inquiry detailed in N.C. Gen. Stat.
§ 15A-1242 has been deemed sufficient to meet these constitutional
standards. See id. “In our opinion the statute does not require
successive waivers in writing at every court level of the
proceeding.” State v. Watson, 21 N.C. App. 374, 379, 204 S.E.2d
537, 540 (1974). “The waiver in writing once given was good and
sufficient until the proceeding finally terminated, unless the
defendant himself makes known to the court that he desires to
withdraw the waiver and have counsel assigned to him. The burden of
showing the change in the desire of the defendant for counsel rests
upon the defendant.” Id. at 379, 204 S.E.2d at 540-541. In
Superior Court, defendant Debnam made no statement that he wanted
counsel assigned and answered in the affirmative when asked if he
was going to represent himself. Defendant's rights were properly
protected by the earlier written waiver of counsel. For these
reasons, I would find no error with the trial court allowing
defendant to proceed pro se.
Having decided the trial court's action regarding the first
assignment of error should be affirmed, I address defendant's other
assignments of error.
In defendant's second assignment of error, he asserts that the
trial court erred in receiving unsworn testimony from defendant's
probation officer. I would disagree. The probation violation reports alleged that defendant had
violated his probation by (1) failing to report for appointments
with his probation officer; (2) failing to attain a substance abuse
assessment; (3) failing to make monetary payments; and (4)
absconding supervision. Defendant admitted the violations. The
trial judge then questioned the probation officer briefly
concerning the violations. Defendant then offered explanations for
his violations. No one was placed under oath at the revocation
hearing.
Rule 603 of the North Carolina Rules of Evidence requires that
every witness shall be required to declare that they will testify
truthfully, by oath or affirmation. However, Rule 1101(b)(3) of
the North Carolina Rules of Evidence specifically states that the
Rules of Evidence do not apply in proceedings granting or revoking
probation. Defendant in his brief acknowledges that: “It is
well-settled that the trial court is not bound by strict rules of
evidence in a probation hearing. State v. Pratt, 21 N.C. App. 538,
204 S.E.2d 906 (1974).” This assignment of error is without merit.
In his third assignment of error, defendant contends that the
trial court did not follow the provisions of N.C. Gen. Stat. §
15A-1364 in determining that the defendant had not complied with
the monetary terms of his probation. “[U]nless the defendant shows
inability to comply and that his nonpayment was not attributable to
a failure on his part to make a good faith effort to obtain the
necessary funds for payment, the court may order the suspended
sentence, if any, activated...” N.C.G.S. § 15A-1364(b) (2004). The defendant admitted to the violations in this case. While the
defendant did tell the trial judge that he had been ill, the trial
court was not required to accept defendant's explanation. Assuming
arguendo that the trial court erred as to the monetary violation,
there was plenary evidence of the other violations. “Any violation
of a valid condition of probation is sufficient to revoke
defendant's probation. All that is required to revoke probation is
evidence satisfying the trial court in its discretion that the
defendant violated a valid condition of probation without lawful
excuse.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250,
253 (1987) (internal citations omitted). This assignment of error
is without merit.
In his fourth assignment of error, defendant contends that
there was insufficient evidence to support the revocation of
defendant's probation and the trial court abused its discretion in
revoking defendant's probation. I would disagree. Again,
defendant admitted the violations of his probation. This admission
established the facts as set forth in the violation reports. This
assignment of error is without merit.
In his fifth and final assignment of error, defendant asserts
that the trial court failed to make the required findings of fact
to support revocation. I disagree.
Each of the revocation judgments in this case incorporated the
violation reports by reference. They further found that the
defendant had committed four different violations of the terms and
conditions of his probation; that the terms and conditions violatedwere valid, that defendant violated each condition willfully and
without valid excuse; and each violation occurred prior to the
expiration or termination of defendant's probation. These ultimate
findings of fact are quite sufficient to support the trial court's
judgments of revocation. The trial court was not required to make
evidentiary findings of fact on all of the contentions raised by
the defendant in his explanations to the court. See State v.
Williamson, 61 N.C. App. 531, 301 S.E.2d 423 (1983). I would find
this assignment of error to be without merit.
Finally, in assignments of error two, four, and five,
defendant makes a blanket assertion that the error complained of
was a violation of the constitutions of the United States of
America and the State of North Carolina. This assertion is not
argued in defendant's brief, and is deemed abandoned. See N.C.R.
App. P. 28(b)(6).
I would affirm the trial court's revocation of defendant's
probation in all cases.
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