An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-522


Filed: 18 January 2005

STATE OF NORTH CAROLINA                 
         v.                            Surry County
                                    No. 02CRS52198
STONEY LYNN JAMES                

    Appeal by defendant from judgment entered 1 December 2003 by Judge William Z. Wood, Jr., in Surry County Superior Court. Heard in the Court of Appeals 27 December 2004.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Hope Murphy White, for the State.

    Appellate Defender Staples Hughes for defendant-appellant.

    HUNTER, Judge.

    Defendant files a motion for appropriate relief from a judgment entered 1 December 2003 revoking his probation and activating his suspended sentence. As we find defendant was improperly deprived of counsel, we grant defendant's motion to reverse the trial court's judgment and remand for rehearing.
    On 7 August 2002, defendant pled guilty to four counts of obtaining property by false pretenses. The offenses were consolidated for judgment and defendant was sentenced to a term of six to eight months imprisonment. Defendant's sentence was suspended and defendant was placed on supervised probation for thirty-six months.    On 8 July 2003, a probation violation report was filed alleging that defendant had failed to comply with the terms of his probation. Specifically, the report alleged that defendant: (1) failed to complete community service; (2) failed to report to his probation officer; and (3) was in violation of the monetary obligation of his probation. On 22 September 2003, defendant executed a waiver of assigned counsel. The case was continued until 10 November 2003 to allow defendant time to retain the services of an attorney. However, defendant failed to appear for his probation revocation hearing.
    On 15 November 2003, defendant was arrested for resisting a public officer. On 17 November 2003, the trial court appointed counsel, Karen Adams, to represent defendant on both the resisting a public officer charge (03CR54423), as well as his probation revocation (02CRS52198).
    On 1 December 2003, defendant was brought into superior court on the probation revocation. Before he arrived in the courtroom, the prosecutor stated to the court that defendant “may have some misconception that Ms. Adams represents him. She does not. She was appointed on a new charge in District Court.” The prosecutor then stated that defendant had waived counsel in his probation revocation, based on the waiver executed on 22 September 2003. Defendant asserted that he had been assigned counsel and a hearing was scheduled for 26 January 2004. The court then proceeded with the probation revocation hearing in the absence of defendant'sassigned counsel. Defendant's probation was revoked and his suspended sentence activated. Defendant appeals.
    Defendant contends on appeal that the trial court violated defendant's right to counsel in conducting the probation revocation hearing in the absence of defendant's counsel. Defendant also filed a motion for appropriate relief on 18 June 2004, contending defendant's rights to be represented by counsel at the probation violation hearing and to have adequate notice of the hearing were violated,   (See footnote 1)  and supporting the motion with additional arguments and documents, including an affidavit of indigency and order appointing counsel that were not included in the record on appeal.
    N.C. Gen. Stat. § 15A-1418(a) (2003) permits a party to move for appropriate relief when a case is before the appellate courts for review. Here, defendant moved for appropriate relief on the grounds that “[t]he conviction was obtained in violation of the Constitution of the United States[,]” by depriving him of his right to appointed counsel. N.C. Gen. Stat. § 15A-1415(b)(3) (2003). See State v. Watkins, 89 N.C. App. 599, 607-08, 366 S.E.2d 876, 881 (1988). In deciding a motion for appropriate relief, the appellate court must decide:
        whether the motion may be determined on the basis of the materials before it, or whether it is necessary to remand the case to thetrial division for taking evidence or conducting other proceedings. If the appellate court does not remand the case for proceedings on the motion, it may determine the motion in conjunction with the appeal and enter its ruling on the motion with its determination of the case.

N.C. Gen. Stat. § 15A-1418(b). Upon review of the motion and supporting affidavits, briefs, and other documents filed by the parties, we find the materials before us are sufficient to make a determination on whether defendant was improperly denied counsel. We reverse the judgment and commitment and remand for a new hearing for the reasons stated herein.
     A defendant at a probation revocation hearing has a statutory right to counsel akin to the right enjoyed in a criminal trial. See N.C. Gen. Stat. § 15A-1345(e); State v. Warren, 82 N.C. App. 84, 85, 345 S.E.2d 437, 439 (1986). This Court has stated that:
            A criminal defendant may “waive his [constitutional] right to be represented by counsel so long as he voluntarily and understandingly does so.” Once given, however, “a waiver of counsel is good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he desires to withdraw the waiver and have counsel assigned to him.”

State v. Sexton, 141 N.C. App. 344, 346-47, 539 S.E.2d 675, 676 (2000) (citations omitted).
    Here, defendant initially waived his right to assigned counsel only, but did not indicate a desire to appear on his own behalf. Instead, he stated at the inquiry of counsel proceeding on 21 September 2003 that he wished to hire his own counsel, and askedfor a continuance for time to do so, which was granted by the trial court until 10 November 2003.
    “[A] waiver of counsel is good and sufficient until . . . the defendant makes known to the court that he desires to withdraw the waiver and have counsel assigned to him.” State v. Hyatt, 132 N.C. App. 697, 700, 513 S.E.2d 90, 93 (1999). On 17 November 2003, defendant revoked his waiver by completing an affidavit of indigency requesting a court appointed attorney to represent him for both the probation violation and a separate charge of resisting an officer. The request was granted and defendant was assigned counsel by the trial court on 17 November to represent him on both charges.
    At the probation revocation hearing on 1 December 2003, the State asserted that defendant had waived his right to counsel for the probation revocation, and incorrectly stated that the court appointed attorney had in fact been assigned to represent defendant on other charges. However, as defendant clearly stated to the trial court, assigned counsel had been appointed to represent him at the revocation hearing. Further, defendant did not state any intent to waive counsel and proceed pro se. As defendant had been granted appointed counsel, the trial court erred in proceeding in the absence of defendant's counsel. See Warren, 82 N.C. App. at 85, 345 S.E.2d at 439. Accordingly, defendant's motion for appropriate relief is granted. The judgment and commitment revoking defendant's probation is reversed and remanded for a new hearing.    Reversed and remanded.
    Judges ELMORE and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1
     The State concedes that defendant was not given the required twenty-four hour notice pursuant to N.C. Gen. Stat. § 15A-1345 (2003) for a probation revocation hearing. However, defendant failed to assign error to this issue. See State v. Williams, 350 N.C. 1, 9-10, 510 S.E.2d 626, 633 (1999). As the error is not properly before this Court, we therefore decline to address this issue, as it is unlikely to recur upon rehearing.

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