Appeal by Defendant from order entered 9 February 2004 by
Judge Orlando F. Hudson in Superior Court, Wake County. Heard in
the Court of Appeals 10 May 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Diane Martin Pomper, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes, for the defendant-appellant.
WYNN, Judge.
A defendant facing revocation or modification of probation has
a right to counsel, and that right may be waived only after the
trial judge makes a thorough inquiry and is satisfied that the
defendant: (1) has been clearly advised of his right to the
assistance of counsel; (2) understands and appreciates the
consequences of his decision; and (3) comprehends the nature of the
charges and proceedings and the range of permissible punishments.
N.C. Gen. Stat. § 15A-1242 (2004). In the case sub judice,
Defendant Chauncey Alphonso Zigler
(See footnote 1)
contends, inter alia, that thetrial court's failure to conduct the requisite inquiries regarding
his waiver of counsel was erroneous and unconstitutional.
Because
the trial court failed to conduct the required thorough inquiries
into whether Defendant understood and appreciated the consequences
of his decision and comprehended the nature of the charges and
proceedings and the range of permissible punishments
, Defendant's
probation revocation must be vacated.
On 21 January 2003, Defendant pled guilty to attempted common
law robbery and assault with a deadly weapon. He was sentenced to
ten to twelve months imprisonment. The trial court, however,
suspended the sentence for thirty months of supervised probation.
As part of his probation, Defendant had to, inter alia, pay certain
costs and fees, obtain drug evaluations and follow recommended
treatments, and refrain from using, possessing, or controlling any
illegal drug or controlled substance unless it had been prescribed
by a licensed physician.
On 22 September 2003, a probation officer issued a report
alleging that Defendant had violated numerous conditions of his
probation, including failing to pay costs and fees, testing
positive for cocaine, and failing to perform mandated community
service. An order for Defendant's arrest for the probation
violations was issued but not served on Defendant. On 9 February
2004, Defendant was brought before the trial court. During the
hearing, Defendant waived his right to counsel and admitted having
violated the terms of his probation. From the ensuing judgment andcommitment upon revocation of probation, Defendant appeals.
On appeal, Defendant contends,
inter alia, that the trial
court's failure to conduct the requisite inquiries regarding his
waiver of counsel was erroneous and unconstitutional.
As this Court succinctly stated in
State v. Evans, 153 N.C.
App. 313, 315, 569 S.E.2d 673, 674-75 (2002):
A defendant has a right to assistance of
counsel during probation revocation hearings.
N.C. Gen. Stat. § 15A-1345(e) (2001).
Inherent to that right to assistance of
counsel is the right to refuse the assistance
of counsel and proceed
pro se.
State v.
Gerald, 304 N.C. 511, 516, 284 S.E.2d 312, 316
(1981);
State v. Brooks, 138 N.C. App. 185,
193, 530 S.E.2d 849, 854 (2000). However, the
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. Carter, 338 N.C. 569, 581, 451 S.E.2d 157,
163 (1994),
cert. denied, 531 U.S. 843, 121 S.
Ct. 109, 148 L. Ed. 2d 67,
and rehearing
denied, 531 U.S. 1002, 121 S. Ct. 506, 148 L.
Ed. 2d 475 (2000). This mandated inquiry is
satisfied only where the trial court fulfills
the requirements of N.C. Gen. Stat. §
15A-1242.
Section 15A-1242 of our General Statutes allows a defendant to
proceed without the assistance of counsel
only after the trial judge makes thorough
inquiry and is 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
(2004).
“The provisions of N.C. Gen.
Stat. § 15A-1242 are mandatory where the defendant requests to
proceed pro se.”
Evans, 153 N.C. App. at 315, 569 S.E.2d at 675
(citing
State v. Lyons, 77 N.C. App. 565, 568, 335 S.E.2d 532, 534
(1985)). The existence of a written waiver of counsel is “no
substitute for compliance by the trial court with the statute.”
Id. (citing
State v. Wells, 78 N.C. App. 769, 773, 338 S.E.2d 573,
575 (1986)). Such a waiver is “'something in addition to the
requirements of N.C. Gen. Stat. § 15A-1242, not . . . an
alternative to it.'”
Id. (quoting
State v. Hyatt, 132 N.C. App.
697, 703, 513 S.E.2d 90, 94 (1999)).
In the case
sub judice, the trial court's inquiry satisfied
only the first of the three thorough inquiries mandated by North
Carolina General Statutes section 15A-1242,
i.e., that Defendant
was clearly advised of his right to the assistance of counsel. The
trial court informed Defendant:
You have two choices that you have to make out
of . . . Three choices you have to make.
One . . . Which one of you want to make?
You can handle the case yourself, or have a
lawyer. Everybody has a right to represent
themselves. That's one choice.
Another choice, you could hire a lawyer,
any lawyer you're able to make arrangements
with.
Your third choice, you can see if you're
qualified for court-appointed counsel. If you
do, the Court will give you a court-appointedlawyer.
The record reveals, however, that the trial court failed to conduct
the requisite thorough inquiries into whether Defendant understood
and appreciated the consequences of his decision to proceed
pro se
and whether Defendant comprehended the nature of the charges and
proceedings and the range of permissible punishments. Indeed, the
record indicates that Defendant did not comprehend the nature of
the alleged probation violations: He stated “I never been, even
been, wondering why I have been violated and what not[,]” and “I
didn't even know basis here in order to . . ..” The record also
indicates that Defendant believed that he was going to be released
from prison. Defendant stated near the end of the hearing: “I can
reach my potential as long as I'm out.”
In sum, the trial court failed to conduct the requisite
thorough inquiries into whether Defendant understood and
appreciated the consequences of his decision and comprehended the
nature of the charges and proceedings and the range of permissible
punishments
.
The trial court's judgment revoking Defendant's
probation is therefore vacated. We also note that while neither
Defendant nor the State moved for dismissal
of this appeal based on
mootness
, Defendant appears to have completed his sentence. This
issue may thus be moot
.
Vacated.
Judges BRYANT and JACKSON concur
.
Report per Rule 30(e).
Footnote: 1