An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 December 2005
STATE OF NORTH CAROLINA
v. Washington County
No. 03 CRS 50470
TIMOTHY WAYNE HARRIS
Appeal by defendant from judgment entered 9 March 2005 by
Judge William C. Griffin, Jr., in Washington County Superior Court.
Heard in the Court of Appeals 2 December 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Scarlette Gardner, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
Timothy Wayne Harris (defendant) appeals from judgment
entered revoking his probation and activating a suspended sentence
of sixteen to twenty months for possessing a weapon of mass
destruction. We reverse and remand.
On 19 May 2004, defendant pled guilty to possession of a
weapon of mass destruction, a shotgun with a barrel less than
eighteen inches and an overall length of less then twenty-six
inches. The trial court sentenced defendant to sixteen to twenty
months imprisonment, suspended the sentence, and placed him on
twelve months supervised probation.
On 15 February 2005, defendant's probation officer filed aviolation report alleging that defendant had violated the terms and
conditions of his supervised probation by testing positive for
cocaine. The trial court held a probation revocation hearing at
which defendant represented himself pro se. At the conclusion of
the hearing, the trial court found defendant had willfully and
without lawful excuse violated the terms and conditions of his
probation and activated defendant's original sentence. Defendant
The sole issue on appeal is whether the trial court erred by
failing to make the inquiry required under N.C. Gen. Stat. § 15A-
1242 prior to allowing defendant to appear pro se.
III. Appearance as a Pro Se Defendant
Defendant contends the trial court erred by allowing him to
proceed pro se without conducting an inquiry pursuant to N.C. Gen.
Stat. § 15A-1242. The State concedes the trial court failed to
conduct the inquiry required by N.C. Gen. Stat. § 15A-1242. We
Before a defendant in a probation revocation is allowed to
represent himself, the court must comply with the requirements of
N.C. Gen. Stat. § 15A-1242. State v. Evans, 153 N.C. App. 313,
314-15, 569 S.E.2d 673, 674 (2002). N.C. Gen. Stat. § 15A-1242
A defendant may be permitted at his election
to proceed in the trial of his case 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
(2) Understands and appreciates the
consequences of this decision; and
(3) Comprehends the nature of the charges and
proceedings and the range of permissible
The provisions of N.C. Gen. Stat. § 15A-1242 are mandatory where
the defendant requests to proceed pro se. The execution of a
written waiver is no substitute for compliance by the trial court
with the statute. Evans, 153 N.C. App. at 315, 569 S.E.2d at 675
The following transpired prior to the commencement of
defendant's probation revocation hearing:
THE COURT: Mr. Harris, do you have a lawyer?
THE DEFENDANT: No, sir.
THE COURT: Do you want one?
THE DEFENDANT: No, sir.
THE COURT: Are you going to represent
THE DEFENDANT: Yes, sir.
THE COURT: You do not want me to appoint you a
THE DEFENDANT: No.
THE COURT: You don't want to hire a lawyer?
THE DEFENDANT: No.
THE COURT: Let me ask you to sign a waiver
form where you give up the right to a lawyer
if you want to proceed without one.
The transcript and the record reflects defendant signed an AOC-CR-
227 form entitled, Waiver of Counsel.
Defendant clearly stated he did not want appointed counsel and
would represent himself. The trial court properly instructed
defendant to execute a waiver but failed to proceed with the
inquiry required under N.C. Gen. Stat. § 15A-1242.
Notwithstanding that defendant orally and expressly waived
counsel, we are bound by this Court's prior precedents in Evans
153 N.C. App. 313, 569 S.E.2d 673, and State v. White
, 78 N.C. App.
741, 338 S.E.2d 614 (1986),
that failure to conduct the inquiry
required by N.C. Gen. Stat. § 15A-1242 mandates reversal. We
conclude that in the absence of . . . the inquiry required by [N.C.
Gen. Stat.] § 15A-1242, it was error to permit defendant to go to
trial without the assistance of counsel. White
, 78 N.C. App. at
746, 338 S.E.2d at 617. The trial court's judgment revoking
defendant's probation and activating his suspended sentence is
reversed and this case is remanded.
Reversed and Remanded.
Judges MCCULLOUGH and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***