State v Little, (04-447) 06/07/2005

Appeal by defendant from judgments entered 13 November 2003 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 21 April 2005.

Attorney General Roy Cooper, by Associate Attorney General Stormie D. Forte, for the State.

Charns & Charns, by D. Tucker Charns, for defendant-appellant.

    MARTIN, Chief Judge.

Defendant appeals from judgments revoking probation and activating sentences of 15-18 months and 19-23 months imposed on convictions of accessory after the fact to assault with a deadly weapon with intent to kill and accessory after the fact to robbery with a dangerous weapon. We affirm the judgments of the trial court.
On 10 September 2003, defendant's probation officer submitted a violation report alleging the following probation violations by defendant: (1) failure to report to his probation officer on three occasions; (2) violation of curfew on five occasions; and (3) failure to make his whereabouts known to his probation officer. Atthe probation violation hearing, the trial court addressed defendant as follows:
    THE COURT:    Okay, Mr. Little, you're charged with violating the terms and conditions of your probation. It's one 15 to 18 month sentence, another 19 to 23 month sentence. Hold on. And a third 8 to 10 month sentence; is that right?

    [DEFENDANT]:    Yes, Your Honor.

THE COURT: Okay. You're entitled to a hearing on the charge that you violated the terms and conditions of your probation and to a lawyer to represent you at that hearing. You can hire your own lawyer. If you cannot afford a lawyer, I'll appoint a lawyer for you or you can represent yourself. What do you want to do about a lawyer?

[DEFENDANT]: I'll represent myself.

THE COURT: You don't want a lawyer to represent you?

[DEFENDANT]: No, ma'am.

THE COURT: You understand you're facing [sic] right fair amount of time here on all these charges?

[DEFENDANT]: Yes.

THE COURT: Okay. If you'll sign that form then giving up your right to counsel stating that you want to represent yourself and that's your choice.

Defendant signed and was sworn to a waiver of counsel form. Defendant then indicated he intended to waive the hearing and desired to activate his sentence. Defendant told the court, “I just think it would be in my best interest if I just get all this behind me. Just go ahead and get my time over with.” The court subsequently revoked the probationary judgment and activated thetwo consecutive suspended sentences. After sentencing, defendant asked, “Consecutive, does that mean after I finish my 19 to 23 I have to start on the 15 to 18?” The trial court answered, “Exactly so. That's what Judge McHugh ordered back when you pled guilty.” Defendant appeals.
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By his sole assignment of error, defendant contends the trial court failed to conduct sufficient inquiry pursuant to section 15A- 1242 of the North Carolina General Statutes before permitting defendant to represent himself at the probation revocation hearing. We disagree and affirm the judgments of the trial court.
For a waiver of counsel to be valid, section 15A-1242 requires the trial court to make thorough inquiry to be 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 inquiry must be made in a probation revocation proceeding. State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 674-75 (2002). Although a defendant may waive the right to counsel in writing, a written waiver of counsel is “'something in addition to the requirements of N.C. Gen. Stat. § 15A-1242, not . . . an alternative to it.'” Evans, 153 N.C. App.at 315, 569 S.E.2d at 675 (quoting State v. Hyatt, 132 N.C. App. 697, 703, 513 S.E.2d 90, 94 (1999)). “ 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.” Id. at 316, 569 S.E.2d at 675. Rather, “'the critical issue is whether the statutorily required information has been communicated in such a manner that defendant's decision to represent himself is knowing and voluntary.'” State v. Proby, ___ N.C. App. ___, 608 S.E.2d 793, 794 (2005) (quoting State v. Carter, 338 N.C. 569, 583, 451 S.E.2d 157, 164 (1994)).
In Proby, this Court held the trial court fulfilled its statutory obligations before allowing the defendant to proceed pro se where the trial court conducted the following inquiry:
    THE COURT: Ms. Proby, you do have the right to remain silent; anything you say can be used against you. Do you understand that?

    THE PROBATIONER: Yes, sir.

    THE COURT: If you're found to have willfully violated probation, you could be ordered to serve a sentence of not less than six nor more than eight months, followed by a consecutive sentence of not less than eight nor more than ten months, and another sentence of not less than six nor more than eight that would run at the same time as those other two. Do you understand that?

    THE PROBATIONER: Yes.

    THE COURT: You have a right to have a lawyer help you with your cases. If you can [sic] afford one, we'll appoint one. Do you understand?

    THE PROBATIONER: Yes.
    THE COURT: Do you wish to proceed with a lawyer or without?

    THE PROBATIONER: Without.

    THE COURT: Please step over here and sign a waiver of your right to all assistance of counsel and be sworn to it.

Id. at ___, 608 S.E.2d at 794. Defendant then signed a waiver of counsel form and admitted to the violations of probation. The Proby Court concluded the trial court's inquiry satisfied the statutory requirements of section 15A-1242. Id.
Similarly, in State v. Hill, ___ N.C. App. ___, 607 S.E.2d 670, disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (2005), waiver of counsel was proper where the trial court addressed the defendant as follows:
    [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 that is 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.

Id. at ___, 607 S.E.2d at 672. Defendant signed a written waiver of counsel form certified by the trial court.
Like the trial courts in Proby and Hill, the instant record reveals the trial court satisfied its statutory obligations before allowing defendant to proceed pro se. The trial court first advised defendant of the charges and potential sentence he faced, and that he was entitled to a hearing on the charges. The trial court then informed defendant of his right to counsel, and his right to appointed counsel. The trial court determined that defendant neither had nor desired counsel. Finally, the trial court reiterated to defendant the consequences of his action by reminding him again that he faced a “fair amount of time” on the charges. In so doing, the trial court properly determined that defendant's waiver of his right to counsel was knowing, intelligent and voluntary. Having so concluded, the judgments of the trial court are herebyAffirmed.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).

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