An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-834


Filed: 6 December 2005


    v.                        Washington County
                            No. 03 CRS 50470

    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.

    TYSON, Judge.

    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.

I. Background
    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 appeals.
II. Issue
    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 agree.
    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 (2003) provides:
        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 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.

“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 (citations omitted).
    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 yourself?

        THE DEFENDANT: Yes, sir.

        THE COURT: You do not want me to appoint you a lawyer?

        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.
IV. Conclusion
    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).

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