STATE OF NORTH CAROLINA
v. Caldwell Cou
nty
No. 01CRS8660
KENYA LASHAUN DULA
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Susan R. Lundberg, for the State.
Allen W. Boyer for defendant-appellant.
HUNTER, Judge.
Kenya Lashaun Dula (defendant) appeals from a judgment of
the trial court revoking her probation and activating her suspended
sentence. We reverse and remand the judgment of the trial court.
On 6 January 2003, defendant pled guilty to maintaining a
dwelling as a place to store controlled substances. The trial
court sentenced defendant to forty-five days in the custody of the
Sheriff of Caldwell County, suspended the sentence, and placed
defendant on twenty-four months supervised probation. On 29
November 2004, defendant's probation officer filed a violation
report alleging defendant had violated her supervised probation.
The trial court held a probation revocation hearing, at whichdefendant represented herself. At the conclusion of the hearing,
the trial court found that defendant willfully and without lawful
excuse violated the terms and conditions of her probation and
activated defendant's original sentence. Defendant appeals.
In her sole argument on appeal, defendant contends the trial
court erred by allowing her to proceed pro se without conducting an
inquiry pursuant to N.C. Gen. Stat. § 15A-1242. The State
concedes, and we agree, that the trial court failed to conduct the
inquiry required by N.C. Gen. Stat. § 15A-1242.
Before a defendant in a probation revocation is allowed to
represent herself, 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, 674-75 (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.
Id. 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 courtwith the statute. Evans, 153 N.C. App. at 315, 569 S.E.2d at 675
(citation omitted).
The following transpired prior to the commencement of
defendant's probation revocation hearing:
THE COURT:
Ms. Dula, do you have an attorney?
[THE DEFENDANT]:
Steve Potter was my attorney at the time.
I don't know if he still represents me or not.
THE COURT:
Where does she appear on the calendar?
[PROSECUTOR]:
Margin number five on the motions add-on
calendar, Your Honor.
THE CLERK:
Mr. Potter was the attorney on the
original charge, but not on the violation.
THE COURT:
You do not have an attorney on the
probation violation. He was the attorney on
the original charges. Do you want the Court
to consider appointing you an attorney?
[THE DEFENDANT]:
No.
THE COURT:
You wish to represent yourself?
[THE DEFENDANT]:
Yes.
THE COURT:
The clerk has a waiver if that's what you
wish to do. Are you ready to proceed at this
time, Ms. Dula?
[THE DEFENDANT]:
Yes, sir.
THE COURT:
Okay.
Thereafter, defendant signed a waiver of counsel form.
Here, defendant clearly stated she would represent herself.
The trial court then instructed defendant to execute a waiver, but
failed to proceed with the inquiry required under N.C. Gen. Stat.
§ 15A-1242. We conclude that in the absence of . . . the inquiry
required by G.S. § 15A-1242, it was error to permit defendant to go
to trial without the assistance of counsel. State v. White, 78
N.C. App. 741, 746, 338 S.E.2d 614, 617 (1986). Accordingly, we
reverse and remand.
Reversed and remanded.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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