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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