An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-513


Filed: 17 January 2006


         v.                            Durham County
                                    Nos. 04 CRS 15863-64
WILLIAM ELIJAH RICHARDSON                    04 CRS 50391-92

    Appeal by defendant from judgment entered 15 November 2004 by Judge J.B. Allen in Durham County Superior Court. Heard in the Court of Appeals 9 January 2006.

    Attorney General Roy Cooper, by Assistant Attorney General LaShawn L. Strange, for the State.

    James N. Freeman, Jr., for defendant appellant.

    McCULLOUGH, Judge.

    On 19 July 2004, defendant William Elijah Richardson pled guilty to breaking and entering and larceny after breaking and entering. The trial court sentenced defendant to two consecutive terms of eleven to fourteen months' imprisonment, suspended the sentence and placed defendant on thirty-six months' supervised probation. On 21 October 2004, defendant's probation officer filed two violation reports alleging that defendant had violated his supervised probation. The trial court held a probation revocation hearing, at which defendant represented himself. At the conclusion of the hearing, the trial court found that defendant willfully and without lawful excuse violated the terms and conditions of his probation and activated defendant's original sentence. Defendantappeals.
    Defendant first 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, 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 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 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.

N.C. Gen. Stat. § 15A-1242 (2003). “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.” State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002) (citation omitted).     The following transpired after the trial court called defendant's probation violation case for hearing:
        THE COURT: Now you do have a right to have a lawyer. If you want a lawyer, you can hire your lawyer. And if you want a lawyer and can't afford it, I'll appoint one for you. Do I understand you told me you want to go without a lawyer and represent yourself?

        [THE DEFENDANT]: Yes, sir.

        THE COURT: Stand up, sir. Put your left hand on the Bible, raise your right hand. Are you swearing under oath you do not want the Court to appoint a lawyer for you, do not want to hire a lawyer, and you're waiving the right to a lawyer in all respects?

        [THE DEFENDANT]: Yes, sir.

        THE COURT: Let him sign a waiver.

Thereafter, defendant signed a waiver of counsel form.
    Here, the trial court informed defendant that he had the right to the assistance of an attorney and defendant clearly stated he would represent himself. The trial court's inquiry, however, satisfied only the first of the three inquiries required by N.C. Gen. Stat. § 15A-1242. Because the trial court failed to conduct the requisite inquiries into whether defendant understood and appreciated the consequences of his decision to proceed pro se and whether defendant comprehended the nature of the charges and proceedings and the range of permissible punishments, we reverse and remand.
    Reversed and remanded.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

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