An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1167


Filed: 5 April 2005


         v.                        Moore County
                                Nos. 00 CRS 5809, 5817
MISTY RENE YARBOROUGH                    

    Appeal by defendant from judgment entered 19 May 2004 by Judge Franklin F. Lanier in Moore County Superior Court. Heard in the Court of Appeals 4 April 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General John R. Corne, for the State.

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

    ELMORE, Judge.

    Defendant pled guilty to misdemeanor common law forgery and multiple counts of felonious forgery of an instrument. On 14 November 2001, the district court imposed a suspended 45-day prison sentence and eighteen months of supervised probation for the misdemeanor. The court consolidated defendant's felonies for judgment, suspended a prison sentence of six to eight months, and placed her on supervised probation for thirty-six months. Defendant's probation was subsequently extended based upon her repeated violations thereof.
    Defendant was charged with multiple probation violations in reports filed 17 March 2004 and 21 April 2004. On 26 April 2004,she appeared before Judge James M. Webb and executed a written “WAIVER OF COUNSEL” form, waiving her right to assigned counsel. On the form, defendant noted her intention to “hire [her] own attorney or represent [her]self.”
    Defendant's revocation hearing was held on 19 May 2004. She appeared at the hearing without counsel, admitted to willful violations of her probation as alleged in the reports, and asked the trial court not to send her to prison. Without addressing defendant's pro se status, the court revoked her probation and activated her suspended sentences.
    Defendant argues on appeal that the trial court erred in allowing her to proceed pro se at her revocation hearing without ensuring that her waiver of counsel was knowing and voluntary via the inquiry prescribed by N.C. Gen. Stat. § 15A-1242 (2003).
    Under N.C. Gen. Stat. § 15A-1345(e), a defendant has a right to counsel at a probation revocation hearing. This Court has held that a probationer's waiver of counsel at a revocation hearing is subject to the statutory safeguards applicable at criminal trials:
        [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. This mandated inquiry is satisfied only where the trial court fulfills the requirements of N.C. Gen. Stat. § 15A-1242.

State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 674-75 (2002) (citing State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994), cert. denied, 531 U.S. 843, 148 L. Ed. 2d 67 (2000)). Section 15A-1242 requires the court, before allowing defendant to waive counsel and proceed pro se, to “make[] thorough inquiry” and satisfy itself that defendant:
        (1) Has been clearly advised of h[er] right to the assistance of counsel, including h[er] right to the assignment of counsel when [s]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 (2003).
    Although the record on appeal contains defendant's written waiver of her right to appointed counsel, there is no indication that she “clearly and unequivocally” waived her right to assistance of counsel, that she was fully advised of her right to counsel and the consequences of waiving all assistance of counsel, or that she understood “the nature of the charges and proceedings and the range of permissible punishments.” Id. “The execution of a written waiver of the right to assistance of counsel does not abrogate the trial court's responsibility to ensure the requirements of N.C. Gen. Stat. § 15A-1242 are fulfilled.” Evans, 153 N.C. App. at 316, 569 S.E.2d at 675. Accordingly, we reverse the judgment and remand the cause for a new hearing. Id.
    Reversed and remanded.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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