Appeal by defendant from judgment entered 30 March 2004 by
Judge Judson D. DeRamus in Guilford County Superior Court. Heard
in the Court of Appeals 21 August 2006.
Roy Cooper, Attorney General, by Assistant Attorney General
Stormie D. Forte, for the State.
Hunter, Higgins, Miles, Elam, and Benjamin, PLLC, by Lisa
Johnson-Tonkins, for defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals the revocation of his probation and the
activation of his suspended sentence during the 29 March 2004
Criminal Session of Superior Court, Guilford County. The record
indicates that on 7 December 1998, defendant entered a guilty plea
to the charge of embezzlement. The trial court sentenced defendant
to a minimum term of six months and a maximum term of eight months.
The sentence was suspended and defendant was placed on sixty months
supervised probation. On 10 December 2001, defendant was appointedcounsel out of the public defender's office to represent him on
allegations of a probation violation. Shortly thereafter,
defendant was found in violation of his probation. The trial court
continued defendant on probation with modified conditions. On 11
June 2003, defendant's probation officer prepared a violation
report. The report alleged a failure to complete community
service, a failure to appear and report to the probation officer
for four months and a failure to pay costs and restitution. On 2
September 2003, defendant appeared in court and signed a waiver of
his right to assigned counsel. The matter was initially set for 6
October 2003. The record is silent as to subsequent hearing dates
until 1 March 2004. Defendant failed to appear on this date and an
order for arrest was issued. On 29 March 2004, the order for
arrest was recalled and the matter was held open until 30 March
2004. On 30 March 2004, defendant appeared pro se for a hearing on
his probation violation. The trial court found defendant in
violation of a valid condition of his probation and activated the
suspended sentence. By and through counsel, the defendant filed a
Motion for Reconsideration of the order entered and a Motion for
Appropriate Relief. Both motions were denied.
After filing timely notice of appeal, defendant requested a
copy of the transcript from the 30 March 2004 hearing. The court
reporter was unable to locate her notes from the hearing. Although
the notes were later found, the record on appeal was settled and
filed without a verbatim transcript of the revocation hearing.
I.
[1] Defendant contends that his waiver was not knowingly and
voluntarily made and that he was effectively denied the assistance
of counsel. In North Carolina, a defendant has the right to
counsel at a probation revocation
hearing. N.C. Gen. Stat. § 15A-
1345(e) (2003)(indicating that “[t]he probationer is entitled to be
represented by counsel at the hearing and, if indigent, to have
counsel appointed.”). A waiver of the right to counsel must be
expressed “clearly and unequivocally.”
State v. Carter, 338 N.C.
569, 581, 451 S.E.2d 157, 163 (1994)
. Further, a trial court must
inquire as to whether defendant's waiver of the right to counsel is
made knowingly, intelligently and voluntarily.
State v. Hyatt, 132
N.C. App. 697, 702, 513 S.E.2d 90, 94 (1999). N.C.G.S § 15A-1242
provides guidelines to the trial judge as to the necessary inquiry
before a defendant may waive his right to counsel:
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.
N.C. Gen. Stat. § 15A-1242 (2003).
Compliance with the requirements of N.C.G.S. § 15A-1242 has
been held to fully satisfy the constitutional guarantee thatwaivers of counsel are knowing and voluntary.
State v. Thacker,
301 N.C. 348, 355, 271 S.E.2d 252, 256 (1980). When a written
waiver has been signed by the defendant and certified by the court,
this Court must presume the waiver of counsel was knowing,
intelligent and voluntary unless the record indicates otherwise.
State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002);
State v. Warren, 82 N.C. App. 84, 89, 345 S.E.2d 437, 441 (1986).
Once given, “a waiver of counsel is good and sufficient until the
proceedings are terminated or until the defendant makes known to
the court that he desires to withdraw the waiver and have counsel
assigned to him.”
State v. Sexton, 141 N.C. App. 344, 346-47, 539
S.E.2d 675, 676 (2000)(quoting
State v. Hyatt, 132 N.C. App. 697,
700, 513 S.E.2d 90, 93 (1999)). A written waiver, however, is not
a substitute for actual compliance with N.C.G.S. § 15A-1242.
Hyatt, 132 N.C. App. at 703, 513 S.E.2d at 94 (1999).
If an indigent defendant proceeds with private counsel, he
loses the right to appointed counsel.
State v. Montgomery, 138
N.C. App. 521, 524, 530 S.E.2d 66, 69 (2000). As to the retention
of private counsel, “[a] defendant must be granted a reasonable
time in which to obtain counsel of his own choosing, and must be
granted a continuance to obtain counsel of his choosing where,
through no fault of his own, he is without counsel.”
Id., 530
S.E.2d at 68. A defendant may lose his constitutional right to be
represented by the counsel of his choice when the right to counsel
is perverted for the purpose of obstructing and delaying a trial.
Id., 530 S.E.2d at 69 (citing
State v. McFadden, 292 N.C. 609, 616,234 S.E.2d 742, 747 (1977)). Any willful actions on the part of
the defendant that result in the absence of defense counsel
constitutes a forfeiture of the right to counsel.
Montgomery, 138
N.C. App. at 524, 530 S.E.2d at 69.
On 2 September 2003, defendant signed a waiver, forgoing his
right to court appointed counsel. At that time, defendant
indicated to the court that he was going to hire his own attorney.
THE COURT: All right. Did you say your
pleasure was to hire your own attorney?
THE DEFENDANT: Yes, sir.
THE COURT: You're not going to ask for a
court-appointed attorney?
THE DEFENDANT: No, sir.
THE COURT: Raise your right hand. Do you
affirm you wish to waive your right to a
court-appointed attorney, and that's your
solemn affirmation?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Let him sign a waiver.
With the written waiver arises the presumption defendant
knowingly and voluntarily waived his right to court-appointed
counsel. See State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d
673, 675 (2002). Nothing within the record rebuts this
presumption. In addition, the record does not indicate that
defendant attempted to withdraw his waiver of appointed counsel.
Thereafter, defendant had nearly eight months within which to
retain private counsel. During the proceeding on 29 March 2004,
the trial court inquired into the status of defendant's counsel.
Defendant indicated he was unsure as to his attorney's schedule. At the hearing on the Motion for Reconsideration of the order
entered and the Motion for Appropriate Relief, defense counsel
indicated he was not contacted until the defendant made
unsuccessful attempts a day before the 30 March 2004 hearing. The
defendant was given a reasonable time to retain counsel. We hold
that defendant's failure to retain counsel over roughly eight
months amounts to an obstruction and delay of the proceedings.
Defendant both knowingly and voluntarily waived his right to
appointed counsel and, through his own acts, forfeited his right to
proceed with the counsel of his choice.
II.
[2] Defendant also argues he was prejudiced by the court
reporter misplacing the notes and transcript of the 30 March 2004
revocation hearing. The unavailability of a verbatim transcript
does not automatically constitute error.
See Hunt v. Hunt, 112
N.C. App. 722, 726, 436 S.E.2d 856, 859 (1993). To prevail on such
grounds, a party must demonstrate that the missing recorded
evidence resulted in prejudice.
In re Clark, 159 N.C. App. at 80,
582 S.E.2d at 660. General allegations of prejudice are
insufficient to show reversible error.
Id.;
In re Peirce, 53 N.C.
App. 373, 382, 281 S.E.2d 198, 204 (1981) (finding an insufficient
showing of prejudice where appellee did not indicate the content of
the lost testimony in the record). As to unavailable verbatim
transcripts, a party has the means to compile a narration of the
evidence through a reconstruction of the testimony given.
In re
Clark, 159 N.C. App. at 80, 582 S.E.2d at 660 (citing
Miller v.Miller, 92 N.C. App. 351, 354, 374 S.E.2d 467, 469 (1988)); N.C.R.
App. P. 9(c)(1). Any dispute regarding the accuracy of a submitted
narration of the evidence can be resolved by the trial court
setting the record on appeal.
Miller, 92 N.C. App. at 354, 374
S.E.2d at 469; N.C.R. App. P. 11(c). Overall, a record must have
the evidence “necessary for an understanding of all errors
assigned.” N.C.R. App. P. 9(a)(1)(e);
Napowsa v. Langston, 95
N.C. App. 14, 19, 381 S.E.2d 882, 885 (1989).
In the case at issue, defendant generally asserted that the
missing verbatim transcript was prejudicial but did not support the
argument with any specifics within the record. Further, defendant
did not submit in the record a narration of the testimony during
the hearing on 30 March 2004. As a result, the record lacks any
indication of the content of the 30 March 2004 proceeding as it
pertained to defendant's waiver of counsel. The defendant failed
to show specific prejudice arising from the missing verbatim
transcript. Accordingly, we conclude that this assignment of error
is without merit.
Affirmed.
Judges HUNTER and McCULLOUGH concur.
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