STATE OF NORTH CAROLINA
v. Cumberland County
No. 06 CRS 10910
JEROME ANTHONY RICH
Attorney General Roy Cooper, by Assistant Attorney General
Kathryn J. Thomas, for the State.
Assistant Appellate Defender, Emily H. Davis, for defendant-
appellant.
LEVINSON, Judge.
Jerome Anthony Rich (defendant) appeals from the revocation of
his probation and activation of a sentence for possession with the
intent to manufacture, sell and deliver cocaine. On 8 May 2006, a
probation violation report was filed against defendant in
Cumberland County Superior Court. On 12 June 2006, defendant
appeared at the probation revocation hearing without counsel. At
the hearing, Judge Johnson made the following inquiry prior to
permitting defendant to proceed pro se:
THE COURT: . . . Mr. Rich, the purpose of
interacting with you this morning is to
advise you of certain rights you have on
a probation violation matter. First, youunderstand the allegations made against you?
PROBATIONER: Yes, sir.
THE COURT: Knowing those things, do you desire to
have an attorney represent you, whether
it be court-appointed or retained; and,
your third option is to represent
yourself. You have those three options,
hire an attorney, court-appointed
counsel, or represent yourself.
PROBATIONER: I'll represent myself.
THE COURT: All right. You sure you want to do that?
PROBATIONER: Yes, sir.
THE COURT: I mean, these are your decisions and not
mine.
PROBATIONER: Yes, sir.
THE COURT: All right. Well, located to your
immediate right is a waiver of counsel;
and, what you're executing, sir, is a
waiver of your right to both court-
appointed and retained counsel.
The dispositive issue on appeal is whether the trial court
erred in allowing defendant to represent himself without
establishing that defendant's waiver of his right to counsel was
knowing, voluntary and intelligent. Specifically, defendant
contends that the trial court's inquiry failed to comply with the
requirements of N.C. Gen. Stat. § 15A-1242 which provides as
follows:
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). 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).
The defendant asserts that the above colloquy between the
trial court and the defendant does not satisfy the second and third
requirements of the statute. Moreover, the State has conceded in
its brief that the trial court failed to satisfy the statute and
that defendant is entitled to a new probation revocation hearing.
We agree.
While the trial court does communicate to defendant his option
to have counsel appointed for him, the trial court neither
determined whether defendant understood the consequences of his
election, nor related the possible range of punishments he faced.
Consequently, we conclude that the trial court failed to satisfy
the requirements of G.S. § 15A-1242. Furthermore, the fact that
defendant signed a waiver of counsel form is insufficient in this
case to cure the trial court's noncompliance with the statute. See
State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002)
(holding that “[a] written waiver is 'something in addition to therequirements of N.C. Gen. Stat. § 15A-1242, not ... an alternative
to it.'” (quoting State v. Hyatt, 132 N.C. App. 697, 703, 513
S.E.2d 90, 94 (1999)). Accordingly, we reverse the judgment and
remand for a new hearing.
Reversed and Remanded.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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