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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA07-412


Filed: 6 November 2007


         v.                        Cleveland County
                                Nos. 05 CRS 7035-38

    Appeal by defendant from judgments entered 23 January 2006 by Judge Beverly T. Beal in Cleveland County Superior Court. Heard in the Court of Appeals 17 September 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant.

    ELMORE, Judge.

    Christopher Harlie Porter (defendant) appeals from the revocation of his probation and activation of his sentences. For the following reasons, we vacate and remand.
    Defendant pled guilty in Gaston County Superior Court to several drug offenses and one count of breaking and entering. The trial court suspended defendant's sentences and placed defendant on supervised probation for thirty-six months. Defendant's probation was transferred to Cleveland County.
    On 16 November 2005, a probation violation report was filed against defendant in Cleveland County Superior Court. On 23January 2006, defendant appeared at the probation revocation hearing without counsel. Defendant signed a waiver of counsel form and represented himself at the hearing. Defendant admitted the violations. The trial court revoked defendant's probation and activated all of defendant's suspended sentences, to run consecutively.
    On 30 January 2006, defendant, through counsel, filed a motion for appropriate relief alleging that his constitutional rights were violated when the trial court failed to engage in the appropriate waiver of counsel inquiry pursuant to N.C. Gen. Stat. § 15A-1242. The trial court concluded that it did not have jurisdiction over the matter and dismissed defendant's motion for appropriate relief. Defendant appeals.
    Defendant contends that the trial court erred by allowing him to represent himself without establishing that defendant's waiver of his right to counsel was knowing, voluntary, and intelligent. Specifically, defendant asserts 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).
    At the start of the proceedings the following exchange took

        THE COURT: Mr. Porter, do you have a lawyer?

        Defendant: No, Sir.

        THE COURT: Do you want the Court to consider appointing you a lawyer?

        Defendant: No, sir.

        THE COURT: Do you understand a lawyer might be helpful to you.

        Defendant: Yes, Sir.

        THE COURT: Do you understand that if you cannot afford one, the Court would appoint an attorney?

        Defendant: Yes, Sir.

        THE COURT: But you want to proceed without an attorney's assistance; is that right?

        Defendant: Yes, Sir.

        THE COURT: All right. Listen to the clerk and sign a waiver if that's what you wish to do.

(Whereupon, the Defendant was duly sworn).
    The trial court did communicate to defendant his option to have counsel appointed for him, but did not determine whether defendant understood the consequences of his election, nor did itrelate the possible range of punishments defendant faced. Consequently, we conclude that the trial court failed to satisfy the requirements of N.C. Gen. Stat. § 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 the requirements 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, the trial court's judgments revoking defendant's probation are reversed. On remand, the trial court shall first determine if defendant is entitled to the assistance of counsel in accordance with this opinion.
    Reversed and remanded.    
    Judges WYNN and BRYANT concur.
    Report per Rule 30(e).

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