State v Kallie, (04-888) 07/05/2005

Appeal by defendant from judgments dated 27 May 2003 by Judge Gary L. Locklear in Cumberland County Superior Court. Heard in the Court of Appeals 6 June 2005.

Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State.

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

BRYANT, Judge.

    Anthony Dewayne Kallie, Jr. (defendant) appeals his judgments dated 27 May 2003, revoking his probation and activating his suspended sentence.
    On 16 December 2002, defendant pled guilty to a charge of breaking or entering and received a sentence of eight to ten months imprisonment. The trial court suspended the sentence and placed defendant on supervised probation for thirty-six months. Defendant also pled guilty to charges of breaking or entering and maintaining a dwelling place for controlled substances. After imposing a consecutive sentence of eight to ten months imprisonment, the trial court suspended the sentence and placed defendant on supervisedprobation for thirty-six months.
    On 1 May 2003, defendant's probation officer filed a probation violation report which alleged defendant had willfully violated three conditions of probation. Defendant signed a waiver of counsel on 12 May 2003.
    This matter came for probation revocation hearing at the 27 May 2003 criminal session of Cumberland County Superior Court with the Honorable Gary L. Locklear presiding. At the hearing, defendant admitted signing the waiver two weeks earlier. Defendant indicated that he intended to hire counsel, but he had only “talked to them. I haven't had a chance to pay them.” When the trial judge asked if he was the judge on the day when defendant signed the waiver, defendant stated he was not sure.
    The trial judge told defendant, “Madam Clerk reminds me that I did probation that day. I generally tell folks that, 'Look, go out, get that lawyer hired and paid. And if you don't, you very well may end up representing yourself that day.'” When the trial judge asked whether defendant had “ever heard those words before or not[,]” defendant said, “No, sir.” After further discussion with defendant and counsel for the State, the trial court made the following findings:
        [Defendant] signed a waiver on May 12th indicating a desire to hire private counsel. Today is May 27th, 15 days later. [Defendant] is in court and says that he has not hired an attorney. The Court is not inclined to continue this matter further. As a result, [defendant], that puts you in the dubious position, I guess, of representing yourself.

    When the trial court asked defendant whether he admitted ordenied being in willful violation of the terms and conditions of probation, defendant said, “Yes, I affirm that.” A probation officer then presented a summary of defendant's violations, and the trial court found defendant's violations to have been willful. After revoking defendant's probation, the trial court activated defendant's two consecutive suspended sentences.
    Defendant appeals.

    Defendant's sole argument on appeal is whether the trial court erred by requiring him to proceed pro se without properly determining whether his waiver of the right to counsel was knowing, intelligent and voluntary. He argues the trial court failed to comply with the requirements of N.C. Gen. Stat. § 15A-1242, before requiring him to proceed pro se. We agree.
    “[T]he right to assistance of counsel may only be waived where the defendant's election to proceed pro se is 'clearly and unequivocally' expressed and the trial court makes a thorough inquiry as to whether the defendant's waiver was knowing, intelligent and voluntary.” State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002). “This mandated inquiry is satisfied only where the trial court fulfills the requirements of N.C. Gen. Stat. § 15A-1242.” Id. Before permitting a defendant to proceed in the trial of his case without the assistance of counsel, a trial court must make a thorough inquiry and be satisfied that the defendant:
        (1)    Has been clearly advised of his right to the assistance of counsel, including hisright 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.G.S. § 15A-1242 (2003).
    Assuming arguendo that the trial court did inquire properly prior to defendant's signing of the waiver of assigned counsel on 12 May 2003, the trial court nevertheless failed to inquire as to whether defendant understood and appreciated the consequences of proceeding pro se at the probation revocation hearing on 27 May 2003. See N.C.G.S. § 15A-1242 (2) (2003). From the record before this Court, it appears the trial court did not specifically recall either addressing defendant on 12 May 2003 or warning him that failure to hire and pay an attorney could result in defendant “representing himself on that day.” Defendant denied having heard such a warning.
    At no time during the probation revocation hearing did the trial court determine whether defendant comprehended the nature of the charges and proceedings and the range of permissible punishments which he faced before directing defendant to proceed pro se. See N.C.G.S. § 15A-1242 (3) (2003). 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 remandwhether defendant is entitled to the assistance of counsel.
    Reversed and remanded.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

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