An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA05-433


Filed: 17 January 2006


         v.                                Caldwell Cou nty
                                        No. 01CRS8660 KENYA LASHAUN DULA

    Appeal by defendant from judgment entered 9 December 2004 by Judge Charles C. Lamm, Jr., in Caldwell County Superior Court. Heard in the Court of Appeals 9 January 2006.

    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?


            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]:


        THE COURT:

            You wish to represent yourself?

        [THE DEFENDANT]:


        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:

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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