An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-689


Filed: 21 March 2006


         v.                        Rowan County
                                Nos.    04 CRS 9854-55

    Appeal by defendant from judgments dated 10 March 2005 by Judge Mark E. Klass in Rowan County Superior Court. Heard in the Court of Appeals 27 February 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Letitia C. Echols, for the State.

    Gary C. Rhodes for defendant.

    BRYANT, Judge.

    Gregory Gray (defendant) appeals from judgments dated 10 March 2005 and entered by Judge Mark E. Klass, which revoked his probation and activated his suspended sentences. Although it appears defendant has served his sentences in full, we reverse the judgments and remand for further proceedings, if necessary.

Facts and Procedural History

    On 23 September 2003, defendant pled guilty to possession of cocaine and possession of drug paraphernalia. The trial court sentenced him to suspended prison terms of six to eight months for possession of cocaine and 120 days for possession of drug paraphernalia, and placed him on supervised probation for sixtymonths.
    In reports filed 14 September 2004, defendant was charged with violating the conditions of his probation as follows: (1) failing to report to his probation officer upon his release from the Department of Correction; (2) failing to satisfy the monetary conditions of probation or pay his monthly probation supervision fee; (3) leaving his residence on 7 September 2004 without notifying his probation officer; (4) failing to perform court- ordered community service; and (5) failing to complete the Criminal Justice Partnership Program in Cabarrus County. Orders were issued for defendant's arrest after he failed to appear at a proceeding scheduled in this cause for 29 November 2004. The record reflects defendant's arrest on 7 January 2005.
    Defendant appeared before the trial court on 28 February 2005 and signed a waiver of his right to assigned counsel. He did not waive his right to assistance of counsel. Ten days later, on 10 March 2005, defendant attended his revocation hearing without counsel. The trial court addressed his lack of counsel with the parties as follows:
        THE COURT: [Defendant], do you have a lawyer, sir?

        DEFENDANT: Could I have a little bit more time to find me a lawyer, sir? I just got from out [sic] of jail, trying to get some money together.

        [PROSECUTOR]: The State would ask to proceed. The violations were filed September 14, '04. This defendant was served and then he failed to appear in Superior Court in November of last year and apparently was picked up subsequent to that and has now made bondagain, and they do have some age on them. . . . [H]e signed a waiver [of assigned counsel] last week, madam clerk.

        THE COURT: We will proceed with this today.
    A probation officer testified for the State, detailing defendant's non-compliance with the terms of his probation. Defendant told the court he had moved from Rowan to Cabarrus County, and each county's probation office had referred him to the other county. He insisted he “was not trying to hide from the probation[,]” but claimed, “I never got to see a probation officer. I tried to contact him. I went to Cabarrus County and Rowan County and . . ., I got locked up.”
    Finding defendant in willful violation of probation as charged in the reports, the trial court revoked his probation and activated his suspended sentences. The trial court ordered the sentences to be served concurrently and awarded defendant thirty-eight days credit for prior confinement. Defendant entered notice of appeal in open court.

    We note that the trial court denied defendant's request for release on appeal in this cause. Having received concurrent sentences and thirty-eight days of credit for his prior confinement, defendant would appear to have served the entirety of his six- to eight-month sentence during the pendency of his appeal. Absent definitive evidence that the appeal is moot, however, we will consider its merits.
    In one of his three assignments of error, defendant claims thetrial court erred by denying his request for additional time to retain counsel, which “required Defendant to proceed without counsel” despite his expressed “desire[] to be represented by counsel.” Defendant insists he did not waive his right to assistance of counsel and, therefore, faults the trial court for denying a continuance without determining if he wished to withdraw his waiver of assigned counsel.
    A defendant at a probation revocation hearing in North Carolina has a statutory right to counsel akin to the right enjoyed in a criminal trial. See N.C. Gen. Stat. § 15A-1345(e) (2005); State v. Warren, 82 N.C. App. 84, 345 S.E.2d 437 (1986). A waiver of that right to counsel must be expressed “clearly and unequivocally[.]” State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994), cert. denied, 515 U.S. 1107, 132 L. Ed. 2d 263 (1995). Moreover, before allowing a defendant to proceed pro se, the “court must make a thorough inquiry into whether the defendant's waiver was knowingly, intelligently and voluntarily made.” State v. Hyatt, 132 N.C. App. 697, 702, 513 S.E.2d 90, 94 (1999). A trial court meets its obligation if it makes the inquiry required under N.C. Gen. Stat. § 15A-1242. Id. (citing Carter, 338 N.C. at 581, 451 S.E.2d at 163). Under N.C. Gen. Stat. § 15A-1242:
        A defendant may be permitted at his election to proceed . . . without the assistance of counsel only after the trial judge makes a 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 soentitled;

            (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.G.S. § 15A-1242 (2005). “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) (citing State v. Wells, 78 N.C. App. 769, 773, 338 S.E.2d 573, 575 (1986)).
    In the instant case, defendant executed a written waiver only of his right to assigned counsel. Moreover, “there is no evidence that defendant ever intended to proceed . . . without the assistance of some counsel.” State v. McCrowre, 312 N.C. 478, 480, 322 S.E.2d 775, 776-77 (1984). Defendant informed the court that he wished to retain counsel, claimed he had not yet accumulated enough money to do so since his release from jail, and asked for “a little bit more time to find me a lawyer[.]” The trial court proceeded with the hearing without inquiring further into the reasons for defendant's failure to retain private counsel and without notifying him of the consequences of proceeding pro se as required by N.C. Gen. Stat. § 15A-1242. See State v. Graham, 76 N.C. App. 470, 474, 333 S.E.2d 547, 549 (1985) (citing McCrowre, 312 N.C. at 481, 322 S.E.2d at 777).
    Although trial courts enjoy broad discretion in granting or denying continuances, the record does not reflect that defendant was apprised of the consequences of proceeding pro se or that hesought multiple continuances, discharged a previously-retained attorney, or otherwise engaged in behavior supporting the trial court's action. See, e.g., State v. Samuels, 25 N.C. App. 77, 79, 212 S.E.2d 393, 394 (1975). Because defendant was required to proceed pro se without waiving his right to counsel and without the requisite colloquy under N.C. Gen. Stat. § 15A-1242, we vacate the judgments and remand for further proceedings, to the extent they are necessary in this cause. See State v. Stanback, 137 N.C. App. 583, 586, 529 S.E.2d 229, 230-31 (2000) (citing State v. Hyatt, 132 N.C. App. 697, 704, 513 S.E.2d 90, 94-95 (1999)).
    In light of our ruling on this assignment of error, we need not address defendant's remaining arguments.
    Reversed and remanded.
    Chief Judge MARTIN and Judge GEER concur.
    Report per Rule 30(e).

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