STATE OF NORTH CAROLINA
v. Moore County
Nos. 00 CRS 5809, 5817
MISTY RENE YARBOROUGH
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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