Constitutional Law; Probation and Parole_-right to counsel--revocation of probation--
waiver
The trial court did not err by revoking defendant's probation and by activating her prison
sentence for convictions of felony possession of cocaine and possession of cocaine with intent to
sell and deliver even though defendant contends she should not have been permitted to proceed
pro se without the trial court determining whether her waiver of the right to counsel was
knowing, intelligent, and voluntary, because: (1) the trial court made the appropriate inquiry
when it followed all three requirements set forth under N.C.G.S. § 15A-1242; (2) cognizant of
these facts, defendant verbally gave a knowing, intelligent, and voluntary waiver of her right to
counsel; (3) defendant later signed a document indicating that she waived her right to counsel
and wanted to appear on her own behalf; (4) after defendant waived her right to counsel, she was
competent enough to make a motion to continue the case; and (5) defendant made the comment
about why she could not hire an attorney after the prosecutor asked her to admit or deny the
charges, and defendant's explanation was not responsive to the inquiry but instead seemed to be
a deliberate attempt to avoid answering the question.
Judge ELMORE dissenting.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas H. Moore, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender, Matthew D. Wunsche, for defendant appellant.
McCULLOUGH, Judge.
Defendant Kristie W. Whitfield appeals from the trial court's
order revoking her probation and activating her prison sentence.
This case arose after defendant pled guilty to two separate drug
convictions. On 5 June 2002, defendant pled guilty to felony possession of
cocaine. At that time, the trial judge sentenced defendant to
between four and five months in prison. The judge suspended the
sentence and placed defendant on probation for twenty-four months.
On 22 May 2003, defendant pled guilty to possession of cocaine
with intent to sell and deliver. The judge sentenced defendant to
between eight and ten months in prison. The judge suspended the
sentence and placed defendant on probation for eighteen months.
The terms of defendant's probation for the two convictions
required her to perform community service, follow a nighttime
curfew, pay community service costs, and regularly visit her
probation officer.
On or about 28 October 2003, defendant's probation officer
filed notices of probation violations against defendant in Wake
County. The notices alleged that defendant failed to complete her
community service hours, broke her curfew on several dates, missed
office appointments with her probation officer, and did not pay
community service fees, court fees, and probation fees.
A hearing occurred on 12 January 2004 in Wake County Superior
Court. The trial court revoked defendant's probation and activated
her sentences. Defendant appeals.
On appeal, defendant argues that the trial court erred by
permitting her to proceed pro se without properly determining
whether her waiver of the right to counsel was knowing,
intelligent, and voluntary. We disagree and affirm the decision of
the trial court. Pursuant to N.C. Gen. Stat. § 15A-1344 (2003), a trial court
may modify or revoke probation when a person violates one of the
terms of probation. Subsection (d) of the statute provides in
pertinent part:
If a convicted defendant violates a condition
of probation at any time prior to the
expiration or termination of the period of
probation, the court, in accordance with the
provisions of G.S. 15A-1345, may continue him
on probation, with or without modifying the
conditions, may place the defendant on special
probation as provided in subsection (e), or,
if continuation, modification, or special
probation is not appropriate, may revoke the
probation and activate the suspended sentence
imposed at the time of initial sentencing, if
any, or may order that charges as to which
prosecution has been deferred be brought to
trial; provided that probation may not be
revoked solely for conviction of a Class 3
misdemeanor.
N.C. Gen. Stat. § 15A-1344(d).
A defendant has a right to assistance of legal counsel during
a probation revocation hearing. N.C. Gen. Stat. § 15A-1345(e)
(2003). Defendant also has the right to refuse the assistance of
counsel and proceed pro se. State v. Gerald, 304 N.C. 511, 516,
284 S.E.2d 312, 316 (1981). A defendant must clearly and
unequivocally waive the right to counsel, and the trial court must
make a thorough inquiry as to whether defendant's waiver was
knowing, intelligent, and voluntary. State v. Carter, 338 N.C.
569, 581, 451 S.E.2d 157, 163 (1994), cert. denied, 531 U.S. 843,
148 L. Ed. 2d 67, reh'g denied, 531 U.S. 1002, 148 L. Ed. 2d 475
(2000). A signed written waiver is presumptive evidence that a
defendant wishes to act as his or her own attorney. State v.Warren, 82 N.C. App. 84, 89, 345 S.E.2d 437, 441 (1986). However,
the trial court must still comply with N.C. Gen. Stat. § 15A-1242
(2003). This statute allows a defendant to proceed without counsel
if the trial judge makes a thorough inquiry and is satisfied that
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.
Id.
Defendant's contention is that the trial judge failed to
comply with this statutory mandate. During the hearing, the
following exchange took place between the trial judge and
defendant:
THE COURT: All right. Ms. Whitfield, do you
understand that you have possibly 11 to 15
months hanging over your head?
DEFENDANT: Yes, ma'am.
THE COURT: You understand that?
DEFENDANT: Yes, ma'am.
THE COURT: If your probation is revoked, you
may very well have your sentence activated,
have to serve that time. You're entitled to
have an attorney to represent you. Are you
going to hire an attorney to represent you,
represent yourself, or ask for a court
appointed attorney[?] [O]f those three
choices, which choice do you make?
DEFENDANT: Represent myself.
THE COURT: Put your left hand on the Bible
and raise your right hand.
(The Defendant was sworn by the Court)
THE COURT: That is what you want to do, so
help you God?
DEFENDANT: Yes, ma'am.
This exchange reveals that the trial judge did make the
appropriate inquiry as to whether defendant's waiver was knowing,
intelligent, and voluntary. The trial judge followed all three
requirements set forth in N.C. Gen. Stat. § 15A-1242. She informed
defendant of the right of assistance of counsel, including the
right to a court-appointed attorney if defendant was entitled to
one. The trial judge also made sure that defendant understood that
her probation could be revoked, that her sentences could be
activated, and that she could serve eleven to fifteen months in
prison. Cognizant of these facts, defendant verbally gave a
knowing, intelligent, and voluntary waiver of her right to counsel.
Later, defendant signed a document indicating that she waived her
right to counsel and wanted to appear on her own behalf.
Therefore, we have no doubt that defendant intended to and did in
fact waive her right to counsel.
In her brief, defendant seizes upon a partial statement to
suggest that she was confused about her right to counsel. When the
prosecutor asked defendant to admit or deny the charges, defendant
responded: “Excuse me. I cannot hire my own lawyer because I[.]”The timing and context of the statement suggest that defendant was
not confused about waiving her right to counsel.
First, defendant's statement came after she waived her right
to counsel verbally. As we have indicated, defendant was aware of
the consequences of representing herself and made her decision
without hesitation. Furthermore, the fact that defendant signed a
written waiver is strong evidence tending to show that she made a
knowing, intelligent, and voluntary waiver.
Second, after defendant waived her right to counsel, she was
competent enough to make a motion to continue the case. The trial
judge denied that motion and heard the matter immediately. This
action is significant because it reveals defendant's effort to
proceed on her own and zealously represent herself; it also
contradicts the suggestion that defendant was confused about her
right to counsel.
Finally, defendant made the comment about why she could not
hire an attorney after the prosecutor asked her to admit or deny
the charges. Since defendant's explanation as to why she could not
hire her own lawyer was not responsive to that inquiry, it may have
been a deliberate attempt to avoid answering the question.
After careful consideration, we conclude that the trial judge
conducted the proper inquiry and determined that defendant's waiver
of counsel was knowing, intelligent, and voluntary. We hold that
the trial judge acted properly in revoking defendant's probation
and activating her prison sentence. Therefore, the decision of the
trial court is Affirmed.
Chief Judge MARTIN concurs.
Judge ELMORE dissents.
ELMORE, Judge dissenting.
I do not agree with the majority's holding that defendant
fully understood her waiver of counsel. As discussed above, N.C.
Gen. Stat. § 15A-1242 (2003) mandates that the trial judge must
conduct a “thorough inquiry and [be] satisfied that the defendant
. . . [h]as been clearly advised[,] . . . [u]nderstands and
appreciates[,] . . . and [c]omprehends” three distinct aspects of
their waiver. A trial court's failure to thoroughly inquire into
1) the right to counsel; 2) the consequences of the decision to
proceed pro se; and 3) the nature of the proceedings and possible
punishments, fails to meet the statutory requirements for a clear
an unequivocal wavier. See N.C. Gen. Stat. § 15A-1242 (2003);
State v. Cox, 164 N.C. App. 399, 401-02, 595 S.E.2d 726, 728
(2004); State v. Evans, 153 N.C. App. 313, 315-16, 569 S.E.2d 673,
675 (2002). There is no indication that Judge Hill's inquiry of
defendant rose to this comprehensive level.
Most recently, in State v. Hill, this Court held that an open
court discussion probing each of the three concerns stated in 15A-
1242 was sufficient to support a waiver. 168 N.C. App. 391, 396-
97, 607 S.E.2d 670, 673-74 (2005). There the court took severalopportunities to make sure that defendant understood the detailed
allegations against him, the possible penalties, and the full
ramifications of waving not only appointed counsel but proceeding
pro se. Id. Yet, in Cox, we reversed the probation revocation of
defendant and remanded for a new hearing because the trial court
failed to adequately comply with the dictates of section 15A-1242.
164 N.C. App. at 399-402, 595 S.E.2d at 727-28. There the trial
court only inquired or informed defendant of his right to counsel
or proceed pro se. The court did not inquire on whether defendant
understood the ramifications of proceeding pro se. Id.
The inquiry conducted by Judge Hill aligns more closely with
Cox and Evans than it does with the trial court's thorough inquiry
in Hill. Here, the trial court failed to conduct any detailed
inquiry into whether defendant understood and appreciated the
consequences of the waiver or comprehended the nature of the
charges and permissible punishments. See N.C. Gen. Stat. § 15A-
1242 (2003). There was no explanation of the full charges by the
probation officer and district attorney, nor was there any
understanding evidenced that defendant appreciated the consequences
of waiving counsel, solely a question of “do you understand?”
Any question of whether defendant understood, comprehended, or
appreciated the wavier of counsel should have been answered in the
negative when she tried to explain why she did not have an
attorney.
DISTRICT ATT: Ma'am, do you admit or deny that
you have, as of the date of this report, whichwas October 22, 2003, that you failed to
complete 50 hours of community service?
DEFENDANT: Excuse me. I cannot hire my own
lawyer because I --
COURT: Ma'am, listen to me very carefully.
DEFENDANT: I'm sorry
COURT: First of all, your going to have to
talk so the court reporter can hear what
you're saying. She asked you do you admit or
deny certain violations. You answer I admit
it or I deny it.
DEFENDANT: I admit it.
COURT: We're not here to hear a long sob story
yet. I certainly will hear your reasons once
we get through this portion of the procedure,
okay? Okay. So as to the _- just start all
over.
The majority refers to defendant seizing upon “a partial statement”
to bolster her claim that she did not understand the wavier. But
her statement was only partial due to the fact that Judge Hill
directed her to answer the question. It is unsubstantiated
speculation on behalf of the majority to suggest that defendant was
avoiding the question asked by the district attorney. Further,
while marginally relevant, it is not “significant” to a
determination of understanding a waiver that defendant asked for a
continuance.
Defendant asked the district attorney for a continuance so
that she could make payment on money owed under one of the
judgments. The district attorney brought the request to the
court's attention. After a brief discussion between the trialcourt, defendant, and probation officer, Judge Hill denied the
continuance. The very next words were the district attorney's,
listed above, and an attempted explanation by defendant as to why
she could not afford an attorney. The district attorney then went
through a series of “do you admit” questions regarding defendant's
alleged probation violations, and defendant answered only “yes,
ma'am” to each question. This exchange hardly shows zealous
advocacy from someone who thoroughly understood the implications of
waiving counsel and proceeding pro se.
Even though the mere utterance of “lawyer,” “counsel,” or
“attorney” will not thwart an otherwise thorough inquiry, I am not
convinced that section 15A-1242's “thorough” multiple approach
inquiry has been achieved here. See, e.g., Hill, 168 N.C. App. at
396, 607 S.E.2d at 673 (“Even after defendant discharged his
appointed counsel and signed the written waiver of his right to
assistance of counsel, the court offered defendant the opportunity
to request a continuance for the purpose of hiring a private
attorney.”).
Accordingly, I would reverse the court's judgment revoking
defendant's probation and remand for a new hearing.
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