Constitutional Law_right to counsel_waiver_knowing and voluntary
The trial court fully complied with statutory requirements in determining that defendant
voluntarily, knowingly, and intelligently waived his right to counsel at a probation revocation
hearing. In addition to the written waiver, the court's discussion with defendant in open court
was sufficient to satisfy the statutory mandate.
N.C.G.S. § 15A-1242.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Ann Stone, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Kelly D. Miller, for defendant-appellant.
HUNTER, Judge.
On 31 August 1999, Walter Herman Hill (“defendant”) was
convicted of assault with a deadly weapon inflicting serious
injury. The trial court imposed a suspended sentence of twenty-
nine to forty-four months imprisonment and placed defendant on
supervised probation for sixty months. As a condition of his
probation, defendant was ordered to pay restitution totaling
$19,573.95.
A violation report filed 20 December 2002 charged that
defendant had failed to pay $19,018.95 of the court-ordered
restitution and had “absconded and move[d] to the State of . . .
Alabama without informing his probation officer[.]” The trialcourt appointed counsel to represent defendant in the probation
violation proceeding. At the hearing on the charged violations,
defendant appeared with his appointed counsel but discharged her,
executed a written waiver of his right to assistance of counsel,
and elected to represent himself. After hearing testimony from
defendant and his probation officer, the court found defendant in
willful violation of his probation as alleged in the violation
report. It revoked defendant's probation and activated his
suspended sentence.
On appeal, defendant argues that the trial court erred in
allowing him to proceed pro se at the probation hearing without
first engaging him in the colloquy mandated by N.C. Gen. Stat. §
15A-1242 (2003), to ensure that his waiver of counsel was knowing
and voluntary.
Under N.C. Gen. Stat. § 15A-1345(e) (2003), a defendant has a
right to the assistance of counsel at a probation revocation
hearing. It is equally true, however, that a defendant enjoys
“'“a right to handle his own case without interference by, or the
assistance of, counsel forced upon him against his wishes.”'”
State v. Fulp, 355 N.C. 171, 174, 558 S.E.2d 156, 158 (2002)
(citations omitted). This Court has held that a waiver of the
right to counsel at a revocation hearing is subject to the same
procedural safeguards as apply in criminal trials, to wit:
[T]he right to assistance of counsel may only
be waived where the defendant's election to
proceed pro se is “clearly and unequivocally”
expressed and the trial court makes a thorough
inquiry as to whether the defendant's waiver
was knowing, intelligent and voluntary. This
mandated inquiry is satisfied only where the
trial court fulfills the requirements of N.C.Gen. Stat. § 15A-1242.
State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002)
(citation omitted). By statute, the trial court must undertake a
“thorough inquiry” to determine 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.
As noted above, defendant appeared at his probation violation
hearing with court-appointed counsel but announced, “I would like
to dismiss [counsel] for representing me on this case based on some
inadequate preparation . . . , and I'm prepared to represent myself
in this matter.” Defendant expressed his belief that his attorney
at trial had failed to provide competent representation at
sentencing, and that the district attorney had not properly
“verified” the restitution amount. As grounds for dismissing his
appointed counsel, defendant claimed she initially advised him of
“a discrepancy in the sentencing” during a consultation prior to 15
March 2004. When defendant asked counsel about his sentence on 5
April 2004, however, she told him that “she believed it to be
right.” Defendant also objected to counsel's advice that many of
his concerns about his original sentencing proceeding were not
germane to the probation violation hearing.
Following defendant's proffer, the transcript reflects thefollowing discussion in open court:
[PROSECUTOR]: . . . [D]efendant was
found guilty of assault with a deadly weapon
inflicting serious injury, E felony, Level II,
received a 29-month minimum, 44-month maximum
sentence suspended for 60 months, restitution
was ordered at $19,389.95. . . .
He was placed on probation. The
violation he's here before today is the
$19,000 he's supposed to pay, $19,573. . . .
He paid about $500 since 1999. And other
allegation he's absconded from supervision,
that he moved to the [city] of Mobile, Alabama
without getting prior approval from the
probation officer, and revocation would be our
ultimate recommendation to the Court.
[DEFENDANT]: Excuse me, Your Honor.
COURT: Hold on. I'll get back to you.
Upon inquiry to defendant's appointed counsel, the trial court
found no grounds for her dismissal or for the appointment of
substitute counsel to represent defendant.
Having concluded that it would not appoint new counsel for
defendant, the court engaged him in the following colloquy:
[COURT:] Now, you have a Constitutional
right to represent yourself, handle this case
yourself. No one can make you have a lawyer
if you don't wish to have a lawyer, and
because I don't see any reason . . . to excuse
her as a lawyer, she's going to represent you
until I excuse her. I will excuse her if you
want to handle this case yourself, and you
won't have a lawyer, but I'm not going to give
you another Court-appointed attorney.
[DEFENDANT]: That will be fine.
COURT: What would be fine?
[DEFENDANT]: If I represent myself.
COURT: All right. You understand that
as a consequence of representing yourself, you
could go to prison apparently for a minimum of
29 months, a maximum of 44 months, that thatis the penalty that you're looking --
[DEFENDANT]: Yes, sir.
COURT: I tell you that so that you will
understand the consequences of proceeding
without a lawyer. Do you understand that?
[DEFENDANT]: Yes, Your Honor.
COURT: All right. . . .
Sir, what this means when you sign this
waiver is you no longer wish to have the Court
have [appointed counsel] to represent you or
any other lawyer.
[DEFENDANT]: If I choose to hire a
lawyer for an appeal or something like that, I
would be able to do that, right?
COURT: Yes, sir. If you're able to hire
a lawyer for an appeal or if you ask for
Appellate Defender to represent you, that's an
issue that I would have to consider at the
time.
Defendant signed a written Waiver of Counsel certified by the trial
court. The waiver first states an Acknowledgment of Rights and
Waiver as follows:
As the undersigned party in this action, I
freely and voluntarily declare that I have
been fully informed of the charges against me,
the nature of and the statutory punishment for
each such charge, and the nature of the
proceedings against me; that I have been
advised of my right to have counsel assigned
to assist me and my right to have the
assistance of counsel in defending against
these charges or in handling these
proceedings, and that I fully understand and
appreciate the consequences of my decision to
waive the right to assigned counsel and the
right to assistance of counsel.
I freely, voluntarily and knowingly declare
that:
(Check only one)
* 1. I waive my right to assigned counsel andthat I, hereby, expressly waive that right.
.
2. I waive my right to all assistance of
counsel which includes my right to assigned
counsel and my right to the assistance of
counsel. In all respects, I desire to appear
in my own behalf, which I understand I have
the right to do.
After selecting only the second box, defendant signed the waiver of
counsel form. The trial judge then certified the waiver as
follows:
I certify that the above named defendant has
been fully informed in open court of the
charges against him/her, the nature of and the
statutory punishment for each charge, and the
nature of the proceeding against the defendant
and his/her right to have counsel assigned by
the court and his/her right to have the
assistance of counsel to represent him/her in
this action; that the defendant comprehends
the nature of the charges and proceedings and
the range of punishments; that he/she
understands and appreciates the consequences
of his/her decision and that the defendant has
voluntarily, knowingly and intelligently
elected in open court to be tried in this
action:
(Check only one)
* 1. without the assignment of counsel.
.
2. without the assistance of counsel, which
includes the right to assigned counsel and the
right to assistance of counsel.
Here, where both the defendant and trial judge properly completed
the form, the signed and certified written waiver creates a
presumption that the waiver was knowing, intelligent and voluntary.
See State v. Kinlock, 152 N.C. App. 84, 89-90, 566 S.E.2d 738, 741
(2002).
Upon completion of the waiver, the trial court excused his
appointed counsel, discharging her from further representation. Even after signing the written waiver, defendant was given a final
opportunity to delay the proceeding for the purpose or retaining
private counsel, which he declined as follows:
[PROSECUTOR]: If [defendant]'s not
making a motion to continue to hire an
attorney, we're ready to go ahead and proceed
with the probation violation hearing.
COURT: All right. [Defendant], what is
your position at this particular time? The
State's ready to go forward unless you are
requesting time to hire a lawyer. . . .
[DEFENDANT]: I would like to go forward.
COURT: All right. . . .
In addition to the written waiver, we believe the court's
discussion with defendant in open court was sufficient to satisfy
the mandate of N.C. Gen. Stat. § 15A-1242.
If defendant clearly indicates a desire to
have counsel removed and proceed pro se, then
the trial judge should make further inquiry;
he should advise defendant of his right to
represent himself, and determine whether
defendant understands the consequences of his
decision and voluntarily and intelligently
wishes to waive his rights.
State v. Gerald, 304 N.C. 511, 519, 284 S.E.2d 312, 317 (1981).
Defendant was unquestionably apprised of his right to counsel,
having appeared at the hearing with his appointed counsel and
acknowledging that he had consulted with her on at least one prior
occasion. The trial court directly advised defendant that, while
he had a constitutional right to self-representation, his appointed
counsel would continue to represent him unless defendant
affirmatively chose to excuse her and to proceed pro se. Even
after defendant discharged his appointed counsel and signed the
written waiver of his right to assistance of counsel, the courtoffered defendant the opportunity to request a continuance for the
purpose of hiring a private attorney. Instead, defendant told the
court, “I would like to go forward.”
Regarding the consequences of his decision, the court advised
defendant that he would not be appointed a new counsel and that “as
a consequence of representing yourself, you could go to prison
. . . for a minimum of 29 months, a maximum of 44 months[.]”
Defendant stated that he understood these consequences but asked if
he would retain the right to counsel on appeal. The court
clarified for defendant that his waiver would not affect his right
to either hire or request appointment of appellate counsel.
Finally, although the trial judge did not directly ask
defendant if he was aware of the nature of the charges and
proceedings, the prosecutor announced the charges in open court, as
follows: “[Defendant] was placed on probation. The violation he's
here before today is the $19,000 he's supposed to pay,
$19,573. . . . He paid about $500 since 1999. And other
allegation he's absconded from supervision, that he moved to the
[city] of Mobile, Alabama without getting prior approval from the
probation officer[.]” Cf. State v. Phillips, 152 N.C. App. 679,
685-86, 568 S.E.2d 300, 304 (2002) (overruling challenge to waiver
of counsel where “[t]he charges were read to defendant by the
assistant district attorney, and he acknowledged being served with
the Misdemeanor Statement of Charges”). Moreover, defendant
confirmed to the court his awareness that he was facing an active
prison sentence of twenty-nine to forty-four months. When informed
that the prosecution was prepared to “proceed with the probationviolation hearing[,]” defendant likewise affirmed to the court his
desire “to go forward.” Here, “there is no indication in the
record before us that defendant misunderstood the nature of the
proceedings, was misunderstood by the court, or was given no chance
to explain.” State v. Warren, 82 N.C. App. 84, 88, 345 S.E.2d 437,
440 (1986).
Having carefully reviewed the hearing transcript, we conclude
that the trial court fully complied with the requirements of N.C.
Gen. Stat. § 15A-1242 in determining that defendant “voluntarily,
knowingly and intelligently” waived his right to counsel.
The record on appeal contains additional assignments of error
not addressed by defendant in his brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
Affirmed.
Judges ELMORE and STEELMAN concur.
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