STATE OF NORTH CAROLINA
v. Cumberland County
Nos. 02 CRS 58309;
02 CRS 19674
ANTONIO LYNN COHEN
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Derrick C. Mertz, for the State.
Daniel F. Read, for defendant-appellant.
JACKSON, Judge.
On 2 June 2003, Antonio Lynn Cohen (“defendant”) pled guilty
to common law robbery and assault on a female. The trial court
originally sentenced defendant to fifteen to eighteen months
imprisonment, but suspended the sentence and placed defendant on
supervised probation for thirty-six months. On 29 March 2006,
defendant's probation officer filed a violation report alleging
that defendant had violated the terms of his probation. Following
a hearing in April 2006, the trial court found that defendant had
violated his probation and modified defendant's probation byextending it for an additional six months until 1 December 2006,
and placing defendant on intensive probation for six months.
Defendant's probation officer filed another probation
violation report on 19 October 2006. The report alleged that
defendant had violated the terms of his probation by: (1) testing
positive for cocaine on three occasions; (2) violating curfew; (3)
being in arrears on his supervision fees; and (4) being convicted
of driving while impaired and designated lane violation in
September 2006. Defendant waived appointed counsel on 23 October
2006 and the matter was continued.
On 13 November 2006, defendant's case came on before Judge
Franklin F. Lanier (“Judge Lanier”). Defendant again executed a
written waiver of counsel and proceeded pro se. At the hearing,
defendant admitted to having violated his probation by using
cocaine and by having been convicted of the two offenses in
September 2006. The trial court found that defendant had violated
the terms and conditions of his probation, specifically that
defendant had used cocaine and committed a criminal offense while
on probation. The trial court then revoked defendant's probation
and activated defendant's sentence. Defendant appeals from the
revocation of his probation. Defendant first contends the trial
court erred in allowing him to represent himself without
establishing that his waiver of counsel was knowing, voluntary, and
intelligent as required by North Carolina General Statutes, section
15A-1242. On 13 November 2006, defendant's probation violationswere called for a hearing before Judge Lanier, and the following
discussion occurred with defendant:
THE STATE: Mr. Cohen, the calendar reflects
you signed a waiver of your attorney. Do you
have an attorney on this?
THE DEFENDANT: No.
THE COURT: Hold on. Mr. Cohen, do you
understand why you are here?
THE DEFENDANT: Yes.
THE COURT: Do you understand if your
probation is revoked, you are facing a minimum
term of 15 months, maximum term of 18 months?
THE DEFENDANT: I do understand that.
THE COURT: Bearing that in mind now, do you
understand you have the right to [hire] an
attorney if you wish?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand if you cannot
afford to hire an attorney, the Court will
consider appointing you one?
THE DEFENDANT: Yes, sir.
THE COURT: Do you also understand you can
proceed without one?
THE DEFENDANT: I need to proceed without one.
THE COURT: What do you choose to do, proceed
without?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Would you please sign
another waiver for me today.
Defendant then signed the written waiver, waiving his right to all
assistance of counsel, wishing to appear on his own behalf.
Before a defendant in a probation revocation is allowed torepresent himself, the trial court must comply with the
requirements of section 15A-1242. State v. Evans, 153 N.C. App.
313, 314.15, 569 S.E.2d 673, 674 (2002). Section 15A-1242
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).
“The provisions of N.C. Gen. Stat. § 15A-1242 are mandatory
where the defendant requests to proceed pro se. The execution of
a written waiver is no substitute for compliance by the trial court
with the statute.” Evans, 153 N.C. App. at 315, 569 S.E.2d at 675
(citations omitted). When a claim is made relating to the adequacy
of the foregoing statutory inquiry, “the critical issue is whether
the statutorily required information has been communicated in such
a manner that defendant's decision to represent himself is knowing
and voluntary.” State v. Carter, 338 N.C. 569, 583, 451 S.E.2d 157,
164 (1994). The inquiry detailed in section 15A-1242 has been
deemed sufficient to meet the constitutional standards in
determining “whether the defendant knowingly, intelligently, andvoluntarily waives the right to in-court representation by
counsel.” State v. Thomas, 331 N.C. 671, 674, 417 S.E.2d 473, 476
(1992).
We hold the trial court's colloquy with defendant in open
court was sufficient to satisfy the mandate of section 15A-1242.
The trial judge's inquiry clearly informed defendant that if he was
found to have violated the terms of his probation, then he faced
the possible consequence of active service of his sentence. The
trial court also clearly informed defendant that he had the right
to the assistance of an attorney. Defendant's responses indicated
that he understood his rights. Because the court's inquiry
elicited the information necessary for it to make a determination
that defendant's decision to represent himself was knowing and
voluntary, we conclude the trial court complied with the
requirements of the statute and that defendant's constitutional
rights were adequately safeguarded. Accordingly, defendant's
assignment of error is overruled.
Defendant also contends the trial court abused its discretion
by activating his entire sentence. Defendant does not challenge
the trial court's finding that he violated his probation, but
instead challenges the trial court's decision to revoke his
probation. Defendant argues that the trial court should have
assisted defendant in obtaining treatment for his drug addiction
rather than activating his sentence. We disagree.
To revoke an individual's probation
[a]ll that is required . . . is that the
evidence be such as to reasonably satisfy thejudge in the exercise of his sound discretion
that the defendant has willfully violated a
valid condition of probation or that the
defendant has violated without lawful excuse a
valid condition upon which the sentence was
suspended.
State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967).
The defendant has the burden of showing excuse or lack of
willfulness and if the defendant fails to carry this burden,
evidence of failure to comply is sufficient to support a finding
that the violation was willful or without lawful excuse. State v.
Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). A
defendant's evidence which contradicts or disputes the
prosecution's evidence merely creates credibility issues for the
trial judge to resolve. State v. Darrow, 83 N.C. App. 647, 649, 351
S.E.2d 138, 140 (1986). The trial judge, as the fact finder, is
not required to accept the defendant's testimony or evidence as
true. State v. Young, 21 N.C. App. 316, 321, 204 S.E.2d 185, 188
(1974). The trial judge's finding of a willful violation, if
supported by competent evidence, will not be disturbed on appeal
absent a showing of manifest abuse of discretion. State v. Guffey,
253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960).
Pursuant to North Carolina General Statutes, section 15A-1344,
a trial court may modify or revoke an individual's probation when
the individual has been found to have violated any one term of his
probation. N.C. Gen. Stat. § 15A-1344 (2005). “Probation is an act
of grace by the State to one convicted of a crime.” State v.
Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725, disc. rev.
denied, 301 N.C. 99, 273 S.E.2d 304 (1980). A probationer “carriesthe keys to his freedom in his willingness to comply with the
court's sentence.” State v. Robinson, 248 N.C. 282, 285, 103 S.E.2d
376, 379 (1958).
We find neither error nor abuse of discretion in the trial
court's revocation of defendant's probation or the activation of
his sentence. The trial court previously had found defendant in
violation of terms of probation and had modified the terms of
probation in April 2006. It is undisputed that after his probation
originally was modified, defendant violated the terms of his
probation again by testing positive for cocaine and being convicted
of new offenses. In fact, defendant admitted that he was in
violation of the terms of his probation based upon his positive
drug tests and his recent convictions. Judge Lanier found that
each violation, in and of itself, was a sufficient basis for
revocation. Accordingly, the trial court's judgment revoking
defendant's probation is affirmed.
Affirmed.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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