An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-881


Filed: 4 January 2005


         v.                        Wake County
                                Nos. 03 CRS 58572-73

    Appeal by defendant from judgments entered 15 December 2003 by Judge Abraham P. Jones in Wake County Superior Court. Heard in the Court of Appeals 28 December 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Richard H. Bradford, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant.

    MARTIN, Chief Judge.

    On 25 February 2002, the Cumberland County grand jury indicted defendant on charges of first degree burglary, felonious breaking and entering, felonious possession of stolen goods, and two counts of felonious larceny. On 11 September 2002, defendant pled guilty pursuant to a plea arrangement to felonious breaking and entering and to two counts of felonious larceny. After imposing two consecutive sentences of eleven to fourteen months, the trial court suspended the sentences and placed defendant on supervised probation for thirty-six months.
    On 10 July 2003, defendant's probation officer filed probation violation reports which alleged that defendant had willfullyviolated several conditions of probation for each of the judgments. At the probation revocation hearing on 15 December 2003, defendant denied part of the probation violations. When the trial court asked if defendant had waived a lawyer, defendant said he had not. The trial court then asked defendant why he did not have a lawyer, and defendant said he had “no idea.” Defendant told the trial court he had been willing to represent himself until he was informed that he was on probation for two different charges.
    The trial court informed defendant of his right to counsel, and further suggested it would be to his benefit to get a lawyer. When the trial court told defendant that he would continue the case, defendant declined the offer and stated he would “rather deal with it today.” Although the trial court cautioned defendant that he was “on the brink of maybe getting revoked, and you know, the lawyer might can help you[,]” defendant stated he would “rather get this over with.” The trial court then directed the clerk to hand defendant a waiver, which defendant signed.
    The trial court thereafter proceeded with the probation revocation hearing, and defendant admitted the violations. Upon finding defendant to be in willful violation of all of the violations listed in both violation reports, the trial court revoked defendant's probation and activated both of the suspended sentences. From the trial court's judgments, defendant appeals.
    Defendant contends the trial court erred by permitting him to proceed pro se without properly determining whether his waiver of the right to counsel was knowing, intelligent and voluntary. Heargues the trial court failed to comply with the requirements of N.C. Gen. Stat. § 15A-1242 (2004) before accepting his waiver of counsel. The State correctly concedes that the trial court failed to meet the requirements of the statute as applied in State v. Evans, 153 N.C. App. 313, 569 S.E.2d 673 (2002).
    While the trial court's inquiry prior to defendant's signing of the waiver satisfied the first prong of the statute, the trial court failed to inquire as to whether defendant understood and appreciated the consequences of his decision. See N.C. Gen. Stat. § 15A-1242(1) and (2). The trial court also failed to determine whether defendant comprehended the nature of the charges and proceedings and the range of permissible punishments which he faced. See N.C. Gen. Stat. § 15A-1242(3). By omitting the second and third inquiries required by the statute, the trial court failed to determine whether defendant's waiver of his right to counsel was knowing, intelligent and voluntary. The judgments are therefore reversed, and the trial court shall first determine on remand whether defendant is entitled to the assistance of counsel.
    Reversed and remanded.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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