STATE OF NORTH CAROLINA
v. Cumberland County
No. 03 CRS 50914
PARRIS JEFFREY ARMOUR
Attorney General Roy Cooper, by Assistant Attorney General
LaShawn L. Strange, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Kelly D. Miller, for defendant-appellant.
CALABRIA, Judge.
Defendant appeals from revocation of probation and activation
of two 10-12 month sentences for felonious breaking or entering and
felonious larceny.
The sole issue is whether the court erred by allowing
defendant to proceed without counsel at the probation violation
hearing. The record shows that defendant made his first appearance
on 15 September 2003 to answer the charge of violating his
probation. Judge James F. Ammons, Jr. noted that defendant was on
probation and was facing two 10-12 month sentences. Judge Ammons
asked defendant whether he needed appointed counsel. Defendant
responded that he wanted to hire his own attorney. Judge Ammonsasked defendant to sign a waiver of counsel, and directed the
defendant to return on 29 September 2003 for the hearing.
Two weeks later defendant appeared before Judge Robert F.
Floyd, Jr. Defendant stated that he had been unable to retain
counsel because of a work conflict preventing him from meeting with
counsel. The State consented to a continuance for another two
weeks on condition that defendant either be represented by counsel
or be ready to proceed representing himself. Judge Floyd then
inquired of defendant as to whether he understood he faced a
substantial amount of time in prison, “10-12 months.” Defendant
replied affirmatively. Judge Floyd then asked defendant whether he
could have an attorney hired by 13 October 2003 and said that if he
could not have an attorney hired, then he needed to ask for
appointed counsel that very day. Defendant assured Judge Floyd
that he would hire an attorney by 13 October 2003. Judge Floyd
then inquired of defendant, “You understand, sir, if you don't have
your lawyer hired by then, I'm going to uh _ you'll have to proceed
without a lawyer.” Defendant responded, “Yes, sir.” Judge Floyd
then stated, “I'm going to note that you're waiving all rights to
counsel if that's what you wish to do here today. That includes
the right to hire a lawyer and the right to court-appointed
counsel, and you'll be representing yourself on that day. . . . If
you get a lawyer hired, he'll represent you. If you don't, you'll
represent yourself. Do you understand that?” Defendant replied,
“Yes, sir.” Judge Floyd then had defendant sign a second waiver of
counsel. Before defendant left the courtroom, Judge Floyd gavedefendant some friendly advice to “get close” to his probation
officer and “do everything that you haven't done.”
At the call of the case for hearing on 13 October 2003,
defendant informed Judge Floyd that he had not hired an attorney.
Defendant concurred that he had signed a waiver of counsel the last
time and that he had contacted an attorney, who advised him to “get
[his] situation straightened out with [his] probation officer”
instead of hiring him. Defendant also confirmed that he had been
advised by Judge Floyd that he would appear either represented by
retained counsel or representing himself. Defendant thereafter
admitted that he committed the violations and offered reasons for
his failure to comply with the conditions of probation.
A defendant facing revocation or modification of probation has
a right to counsel granted by statute. N.C. Gen. Stat. § 15A-
1345(e) (2003). Waiver of the right to counsel must be expressed
"clearly and unequivocally." State v. Carter, 338 N.C. 569, 581,
451 S.E.2d 157, 163 (1994). In addition, before accepting a waiver
of counsel, "the trial court must make a thorough inquiry into
whether the defendant's waiver was knowingly, intelligently and
voluntarily made." State v. Hyatt, 132 N.C. App. 697, 702, 513
S.E.2d 90, 94 (1999).
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 soentitled;
(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 execution of a written waiver is no substitute for compliance
by the trial court with [N.C. Gen. Stat. § 15A-1242]." State v.
Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002).
Defendant contends he never unequivocally expressed a desire
to represent himself. He also contends that his waiver of counsel
is invalid because the court failed to conduct the full inquiry
mandated by N.C. Gen. Stat. § 15A-1242. Specifically, he argues
the court failed to ensure that he understood and appreciated the
consequences of representing himself and the range of permissible
punishments.
The facts of Evans are instructive. In that case the trial
court inquired of the defendant whether he understood he had the
right to a lawyer to represent him and whether he desired to have
the assistance of an attorney. The court stated it would be “happy
to appoint” an attorney to represent him. Mr. Evans declined the
services of an attorney and signed a waiver of counsel. This Court
concluded that the trial court's inquiry only established that the
defendant did not desire counsel and that the defendant did not
desire to have an attorney appointed for him. The Court noted that
the court did not inquire or ascertain that the defendant
understood and appreciated the consequences of the decision andthat he comprehended the nature of the proceedings and the range of
permissible punishments. Because the trial court failed to make
the second and third inquiries mandated by N.C. Gen. Stat. § 15A-
1242, this Court held the trial court failed to determine that the
defendant's waiver of his right to counsel was knowing, intelligent
and voluntary.
In the case sub judice, the court's inquiry merely established
that defendant desired the service of retained counsel and that
defendant knew he would be representing himself if he could not
retain counsel. The court's inquiry did not establish that
defendant understood and appreciated the consequences of
representing himself. The State responds in its brief that it is
unable to distinguish State v. Evans factually but argues Evans was
wrongly decided. As one panel of this Court may not overrule
another on the same issue of law, we are bound by the Evans
decision. See In the Matter of Appeal from Civil Penalty, 324 N.C.
373, 384, 379 S.E.2d 30, 36 (1989). We accordingly reverse the
judgment and remand the matter.
Reversed and remanded.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).
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