STATE OF NORTH CAROLINA
v. Wilkes County
Nos. 02CRS51936,
BRANDON RYAN ELLER 04CRS53069-74
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Iain Stauffer, for the State.
Haakon Thorsen for defendant-appellant.
HUNTER, Judge.
On 23 September 2002, defendant pled guilty to obtaining
property by false pretenses and larceny after breaking and
entering. After consolidating the offenses for judgment
(02CRS51936) and imposing a sentence of ten to twelve months, the
trial court suspended the sentence and placed defendant on
supervised probation for thirty-six months. On 18 August 2004,
defendant entered pleas of no contest to first degree trespass, two
counts of larceny with a firearm, assault on a female, four counts
of breaking and entering, four counts of breaking and entering
after larceny, and safecracking. Pursuant to the terms of the plea
arrangement, the trial court consolidated the offenses into sixClass H felony judgments (04CRS53069-74). After imposing six
consecutive sentences of nine to eleven months imprisonment, the
trial court suspended the sentences and placed defendant on
supervised probation for sixty months.
On 7 July 2005, a probation officer filed and served a
violation report on defendant in case number 02CRS51936. The
violation report informed defendant that a hearing on the charges
was scheduled for 12 September 2005. Defendant failed to appear
and was arrested on 19 September 2005. On that same date, a
probation officer also filed and served six violation reports on
defendant in case numbers 04CRS53069-74. The six violation reports
informed defendant that a hearing on those charges was scheduled
for 7 November 2005.
In an appearance before Judge Richard L. Doughton on 7
November 2005, defendant informed the trial court that he wanted to
hire an attorney. After signing a waiver of appointed counsel,
defendant was instructed to return on 14 November 2005. Defendant
subsequently returned on that date without counsel. When the trial
court asked if defendant had counsel, the following exchange
occurred:
DEFENDANT ELLER: He is not coming.
THE COURT: He's not your lawyer then.
DEFENDANT ELLER: He is my lawyer, but he
advised me it's not going to do no good.
THE COURT: Is he your lawyer in this case?
DEFENDANT ELLER: No.
THE COURT: All right. And, you've waived
your right to an attorney?
DEFENDANT ELLER: Yes, sir.
THE COURT: Let's proceed.
Defendant then admitted willfully violating the conditions of his
probation as alleged in the violation reports. After hearing
testimony from the probation officer and defendant, the trial court
revoked defendant's probation and activated his seven suspended
sentences. From the trial court's judgments, defendant appeals.
Defendant first argues the trial court lacked jurisdiction to
revoke his probation in case number 02CRS51936 because the
probationary period had expired prior to the date of the revocation
hearing. We agree.
Defendant's probationary term in case number 02CRS51936 ended
approximately three weeks prior to the revocation hearing on 14
November 2005. “Except as provided in N.C. Gen. Stat. § 15A-
1344(f), a trial court lacks jurisdiction to revoke a defendant's
probation after the expiration of the probationary term.” State v.
Burns, 171 N.C. App. 759, 760, 615 S.E.2d 347, 348 (2005).
However, if a trial court “finds that the State has made reasonable
effort to notify the probationer and to conduct the hearing
earlier[,]” it may then revoke a defendant's probation after the
expiration of the probationary term. N.C. Gen. Stat. § 15A-
1344(f)(2) (2005); see also Burns, 171 N.C. App. at 760, 615 S.E.2d
at 348. Because the record on appeal does not show that the trial
court made the statutorily required findings, the trial court
lacked jurisdiction to revoke defendant's probation in case number02CRS51936. The judgment in case number 02CRS51936 is therefore
vacated.
Further, as our Supreme Court noted recently in State v.
Bryant, normally in a case where the trial court failed to make a
necessary finding of fact, the case must be remanded so that such
a finding can be made. Bryant, ___ N.C. ___, ___, ___ S.E.2d ___,
___ (No. 117A06 filed 15 December 2006) (slip op. 6-7) (quoting
N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 674-
75, 599 S.E.2d 888, 904 (2004)). However, “when the record lacks
sufficient evidence to support such a finding, the case should not
be remanded in order to conserve judicial resources.” Id. (slip
op. 7).
In the case at hand, the record contains insufficient grounds
to support the trial court's making the necessary finding of fact.
The only evidence proffered by the State consists of the probation
violation report and an arrest of defendant within the probation
period, which together do not constitute sufficient grounds for a
finding that the State made a reasonable effort to notify defendant
of the impending hearing. Thus, as the Court noted in Bryant,
“although ordinarily this case would be remanded for a proper
finding, remand is not a proper remedy . . . because the record
lacks sufficient evidence to support such a finding.” Id. (slip
op. 7-8).
Defendant next contends the trial court erred by permitting
him to proceed pro se without properly determining whether his
waiver of the right to counsel was knowing, intelligent, andvoluntary. He argues the trial court failed to comply with the
requirements of N.C. Gen. Stat. § 15A-1242 (2005) before accepting
his waiver of counsel. As the State correctly concedes in its
response, the trial court failed to meet the requirements of the
statute as applied in State v. Evans, 153 N.C. App. 313, 314-15,
569 S.E.2d 673, 674 (2002).
“[T]he right to assistance of counsel may only be waived where
the defendant's election to proceed pro se is 'clearly and
unequivocally' expressed and the trial court makes a thorough
inquiry as to whether the defendant's waiver was knowing,
intelligent and voluntary.” Evans, 153 N.C. App. at 315, 569
S.E.2d at 675. “This mandated inquiry is satisfied only where the
trial court fulfills the requirements of N.C. Gen. Stat. § 15A-
1242.” Id. While the record shows that the trial court did
properly advise defendant of his right to the assistance of
counsel, see N.C. Gen. Stat. § 15A-1242(1), prior to defendant's
signing of the waiver of assigned counsel on 7 November 2005, the
trial court nevertheless failed to inquire as to whether defendant
understood and appreciated the consequences of proceeding pro se at
the probation revocation hearing on 14 November 2005. See N.C.
Gen. Stat. § 15A-1242(2). At no time during the probation
revocation hearing did the trial court determine whether defendant
comprehended the nature of the charges and proceedings and the
range of permissible punishments which he faced before it permitted
him to proceed pro se. See N.C. Gen. Stat. § 15A-1242(3). By
omitting the second and third inquiries required by the statute,the trial court failed to determine whether defendant's waiver of
his right to counsel was knowing, intelligent, and voluntary. The
judgments in case numbers 04CRS53069-74 are therefore reversed, and
the trial court shall first determine on remand whether defendant
is entitled to the assistance of counsel.
In his final argument, defendant contends the trial court
erred by imposing sentences for durations not authorized by N.C.
Gen. Stat. § 15A-1340.17 (2005). He argues the trial court
improperly imposed sentences in the aggravated range without
finding any aggravating factors. We agree.
The minimum term imposed for each of the sentences activated
in case numbers 04CRS53069-74 was nine months. For a Class H
felony at prior record level II, the presumptive range of the
minimum term of imprisonment is six to eight months. See N.C. Gen.
Stat. § 15A-1340.17(c). Because the minimum term for each of
those sentences is in the aggravated range and is not supported by
findings of any aggravating factors, those judgments are remanded
for resentencing.
Vacated in part; reversed and remanded in part.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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