State v Dozier, (05-15) 01/03/2006

Appeal by defendant from judgments entered 29 April 2004 by Judge Ripley E. Rand in Franklin County Superior Court. Heard in the Court of Appeals 14 September 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Amanda P. Little, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant-appellant.

    STEELMAN, Judge.

    Pursuant to a plea agreement, defendant Angela Marie Dozier pled guilty on 19 September 2001 to three charges: obtaining property by false pretenses, felony speeding to elude arrest, and assault with a deadly weapon on a government official. The trial court sentenced defendant to consecutive terms of imprisonment of ten to twelve months (for false pretenses) and twenty-one to twenty-six months (for assault with a deadly weapon and speeding to elude arrest), suspended the sentences, placed defendant on thirty- six months supervised probation, and ordered her to pay $3,875.00 in restitution. One of the conditions of defendant's probation was that she commit no criminal offense.                        On 29 March 2004, defendant pled guilty to another charge of obtaining property by false pretenses. On 6 April 2004, defendant was served with a probation violation report based upon this conviction. On 7 April 2004, defendant was appointed counsel the to represent her on the probation violation charge. On 29 April 2004, defendant appeared in front of Judge Rand for a hearing on her probation violation. At that time, defendant waived her right to counsel by written waiver. The trial court found defendant had violated a valid condition of her probation and activated the suspended sentences. Defendant appeals.
    In defendant's sole assignment of error, she contends the trial court erred in allowing her to represent herself without establishing that her waiver of counsel was knowing, voluntary, and intelligent as required by N.C. Gen. Stat. § 15A-1242. Specifically, she contends the trial court failed to satisfy subsection (2) and (3) of this statute. We disagree.
    N.C. Gen. Stat. § 15A-1242 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.Failure to conduct the required inquiry under this provision constitutes prejudicial error. State v. Hyatt, 132 N.C. App. 697, 703, 513 S.E.2d 90, 94 (1999).
    Generally, right to counsel at a probation revocation hearing can be knowingly, intelligently and voluntarily waived. State v. Warren, 82 N.C. App. 84, 85, 345 S.E.2d 437, 439 (1986). Where a defendant waives the right to counsel at or before trial, the record must reflect that the defendant was literate and competent, that they understood the consequences of the waiver, and that, in waiving the right, the defendant voluntarily exercised their own free will. State v. Thacker, 301 N.C. 348, 354, 271 S.E.2d 252, 256 (1980).
    Defendant appeared before the court on 29 April 2004, along with her appointed counsel. Defendant informed the court she did not want her appointed counsel to represent her and she wanted to represent herself.
    Prior to allowing defendant to waive counsel, the trial court carefully discussed with defendant the active sentences she faced if her probation were revoked. Defendant informed the judge: “ I feel like I would represent [myself] better because she's not going to represent me the way that I would like to be represented in this case.” Defendant then requested a consultation with her attorney, which the trial court allowed. Defendant then told the judge: “I would like to represent myself, Your Honor.”
    The trial court advised defendant of the nature of the charges and proceedings and it is clear that defendant understood both ofthese things, as required under N.C. Gen. Stat. § 15A-1242(3). In response to the trial judge's questioning with regard to the charges and corresponding jail time defendant would face if her probation were to be revoked, defendant stated that, “those sentences were to run together.” Defendant also answered affirmatively when the trial judge inquired as to whether she understood the maximum jail time she could receive if her probation were revoked. Defendant's responses to the trial judge's inquiries make clear that she understood the nature of both the charges and the proceedings in accordance with N.C. Gen. Stat. § 15A-1242(3).
    In considering whether the trial court satisfied subsection (2) of N.C. Gen. Stat. § 15A-1242, which requires that the defendant understand and appreciate the consequences of the decision to waive counsel, we note that a written waiver of the right to counsel executed by the defendant, which the trial court certifies, creates a presumption that the waiver was made voluntarily, knowingly, and intelligently. Warren, 82 N.C. App. at 89, 345 S.E.2d at 441. This presumption is rebutted only where the remainder of the record on appeal indicates the waiver of counsel was not, in fact, knowing, intelligent, and voluntary. Id.
    The entirety of the transcript of the probation revocation hearing reveals that defendant fully understood and appreciated the consequences of her decision to proceed pro se in this matter and that she was prepared to proceed with the probation revocation hearing. After the trial judge relieved defendant's attorney of any responsibility in the matter, defendant stated, “I need accessto the file.” This indicates defendant's awareness that she would need the information contained in her file to proceed pro se. Defendant was also prepared to and did conduct a cross-examination of the State's only witness, the Assistant Clerk of Superior Court for Franklin County. Further, at the close of State's evidence, defendant sought to enter various documents into evidence, to confirm that certain documents were contained in the court's case file, and even to read the contents of one letter received by defendant from the assistant clerk of court while she was in prison. The record contains no indication that defendant's waiver of counsel was anything but knowing, intelligent, and voluntary.
    The instant case is distinguishable from this Court's decision in State v. Evans, 153 N.C. App. 313, 569 S.E.2d 673 (2002), where we held the trial court erred in a probation revocation hearing by allowing the defendant to proceed pro se without satisfying N.C. Gen. Stat. § 15A-1242. In Evans, the defendant signed a written waiver of counsel. However, the trial court failed to ensure both that the defendant understood the consequences of the decision to proceed pro se and that the defendant comprehended the nature of the charges and proceedings as required under N.C. Gen. Stat. § 15A-1242(2) and (3). Id. at 316, 569 S.E.2d at 675.
    After reading the transcript of the proceedings as a whole, we conclude that the trial court satisfied the requirements under N.C. Gen. Stat. § 15A-1242. Therefore, we affirm the trial court's judgments revoking defendant's probation.
    AFFIRMED.
    Judges HUNTER and TYSON concur.
    Report per Rule 30(e).

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