STATE OF NORTH CAROLINA
v. Wake County
Nos. 03 CRS 58572-73
JASON FREDERICK SIMPSON
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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