STATE OF NORTH CAROLINA
v. Randolph County
No. 03 CRS 54434
PAUL THOMAS SHOE
Attorney General Roy Cooper, by Assistant Attorney General
John Mann, for the State.
Robert W. Ewing for Defendant-Appellant.
McGEE, Judge.
Defendant appeals from the revocation of his probation and
activation of a sentence for manufacturing of marijuana. Defendant
contends the trial court erred by allowing Defendant to represent
himself without establishing that Defendant's waiver of his right
to counsel was knowing, voluntary, and intelligent.
Defendant appeared before Judge Henry E. Frye, Jr. on 9
January 2006. The trial court inquired as to Defendant's desire to
be represented by counsel as follows:
THE COURT: All right. Mr. Shoe, did you
get served a copy of the
violation report, sir?
[DEFENDANT]: Yes, sir. THE COURT: And do you know how much time
you could possibly get?
[DEFENDANT]: Yes, sir.
THE COURT: All right. Do you want a court
appointed lawyer or are you going to
hire your own lawyer or represent
yourself?
[DEFENDANT]: Represent myself, sir.
THE COURT: Represent yourself?
[DEFENDANT]: Yes, sir.
THE COURT: All right. I need you to sign
a waiver. The waiver at this
time will say you don't want
any counsel.
[DEFENDANT]: Yes, sir.
(Bailiff Hill took a paperwriting to [Defendant]
and [Defendant] signed said paperwriting)
THE CLERK: You do swear you do not wish to have
counsel assigned to you, and this is
your signature on the waiver?
[DEFENDANT]: Yes, ma'am.
The hearing on the probation violation was continued until 13
February 2006 at which time the following additional exchange
occurred between Defendant and Judge Albright:
[STATE]: Do you have a lawyer, Mr. Shoe?
[DEFENDANT]: I'm going to represent myself.
THE COURT: Where are we on this?
[STATE]: This is Page 2, Your Honor, Paul
Tommy Shoe. He has previously
executed a Superior Court waiver. I
think that was at a previous session
of Superior Court.
THE COURT: All right. Mr. Shoe, are you ready
to proceed?
[DEFENDANT]: Yes, sir, I reckon.
THE COURT: Are you going to get your own
attorney?
[DEFENDANT]: No, sir.
THE COURT: Do you want an attorney?
[DEFENDANT]: I don't think I need one, sir.
THE COURT: Well, you've already waived. If
you've already waived you need to
have your own attorney. Are you
ready to proceed today?
[DEFENDANT]: Yeah, get it over with. Yes, sir.
THE COURT: All right. Mr. D.A., you ready to
proceed.
[STATE]: Yes, sir.
THE COURT: Okay. When did he waive?
[STATE]: I do not know, Your Honor. I would
imagine it was the last session of
Superior Court, jury session.
THE CLERK: January the 9th.
THE COURT: Okay. And Mr. Shoe, you didn't -- I
assume you're not going to hire your
own attorney, is that correct?
[DEFENDANT]: No.
THE COURT: All right. Before we proceed, why
don't you sign a waiver of all
counsel. Sheriff, if you'll have
him sign a waiver of all counsel.
BAILIFF HILL: Yes, sir, Your Honor.
(Above request complied with.)
THE COURT: Mr. D.A., is this for one charge I'm
looking at?
[STATE]: Yes, sir.
THE CLERK: Do you swear that you do not wish tohave counsel assigned to you and you
hereby waive this right, and this is
your signature?
[DEFENDANT]: Yes, ma'am.
THE COURT: Wait a minute. I believe we've
already signed one. Actually you've
already signed a waiver of all
counsel back on January 9' [sic]
2006. So that's already been taken
care of. Okay. We're ready to
proceed.
Defendant contends that the trial court's inquiry failed to
comply with the requirements of N.C. Gen. Stat. § 15A-1242, which
governs a defendant's election to proceed without counsel. The
trial court must comply with the requirements of this statute
before a defendant in a probation revocation is allowed to
represent himself. State v. Proby, 168 N.C. App. 724, 726, 608
S.E.2d 793, 794 (2005). This statute 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 (2005).
Defendant concedes that the trial court adequately informed
him of his right to counsel as required by N.C.G.S. § 15A-1242(1),but contends the trial court did not properly determine whether he
understood the consequences of waiving his right to counsel, as
required in N.C.G.S. § 15A-1242(2). Defendant also contends the
trial court failed to ensure that he understood the nature of the
charges and proceedings and the possible punishments, as required
by N.C.G.S. § 15A-1242(2) and (3).
At both hearings, the trial court clearly determined that
Defendant wished to proceed without counsel. However, as to
whether Defendant understood the charges, consequences and the
nature of the proceedings, the trial court inquired only whether
Defendant had received the probation violation report and whether
Defendant knew "how much time [he] could possibly get[.]" Although
Defendant responded in the affirmative, the trial court failed to
specifically confirm Defendant's understanding that a finding of
any of the alleged probation violations could result in his being
incarcerated for a period ranging from six to eight months.
Consequently, we conclude that the trial court's inquiry was
insufficient to satisfy the requirements of N.C.G.S. § 15A-1242.
While we recognize that Defendant signed a written waiver at both
hearings, "[t]he execution of a written waiver of the right to
assistance of counsel does not abrogate the trial court's
responsibility to ensure the requirements of N.C. Gen. Stat. §
15A-1242 are fulfilled." State v. Evans, 153 N.C. App. 313, 316,
569 S.E.2d 673, 675 (2002). Accordingly, we reverse the judgment
and remand for a new revocation hearing.
Reversed and remanded.
Chief Judge MARTIN and Judge HUNTER and concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***