An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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


NO. COA04-1051

NORTH CAROLINA COURT OF APPEALS

Filed: 21 June 2005

STATE OF NORTH CAROLINA

v .                         Wake County
                            No. 02 CRS 89392
CHAUNCEY ALPHONSO ZIGLER                    
    
    

    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.

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    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
    While his appellate papers refer to him as Chauncey Ziglar, Defendant is referred to as Chauncey Alphonso Zigler   in thejudgment of the trial court below.

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