Opinion
No. COA 15-507
04-05-2016
STATE OF NORTH CAROLINA v. TY DAVIS, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Kevin G. Mahoney, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender James R. Grant, for the Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Edgecombe County, No. 12 CRS 2461 Appeal by Defendant from judgment entered 28 May 2013 by Judge Milton F. Fitch, Jr., in Edgecombe County Superior Court. Heard in the Court of Appeals 30 November 2015. Attorney General Roy A. Cooper, III, by Assistant Attorney General Kevin G. Mahoney, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender James R. Grant, for the Defendant. DILLON, Judge.
Ty Davis ("Defendant") appeals from the judgment of the trial court revoking his probation and invoking his active sentence.
I. Background
In January 2011, Defendant pleaded guilty to conspiracy to commit common law robbery and was sentenced to six (6) to eight (8) months imprisonment, suspended for twenty-four (24) months with supervised probation. Thereafter, on three different occasions, the trial court modified and extended Defendant's probation in response to several violations, most recently by order entered 22 January 2013. Defendant appeared pro se at each of the three probation violation hearings and executed three separate written waivers of counsel.
Following the 22 January 2013 hearing, Defendant again violated the terms of his probation. On 28 May 2013, a hearing was held concerning these new violations. At the hearing, Defendant twice mentioned that he had an attorney. However, at this hearing, Defendant did not execute a waiver of counsel, nor did the trial court engage in the colloquy referenced in N.C. Gen. Stat. § 15-1242. At the conclusion of the hearing, the trial court entered an order revoking Defendant's probation.
II. Analysis
Defendant's sole argument on appeal is that the trial court erred by permitting Defendant to represent himself at his probation revocation hearing without first satisfying the requirements of N.C. Gen. Stat. § 15A-1242. We agree.
An accused is entitled to the assistance of counsel "at every critical stage of the criminal process as constitutionally required under the Sixth and Fourteenth Amendments to the United States Constitution." State v. Taylor, 354 N.C. 28, 35, 550 S.E.2d 141, 147 (2001). A defendant is entitled to be represented by counsel at a probation revocation hearing and, if indigent, is entitled to appointed counsel. N.C. Gen. Stat. § 15A-1345(e) (2013). A defendant also has the right to refuse the assistance of counsel and proceed pro se. State v. Gerald, 304 N.C. 511, 516, 284 S.E.2d 312, 316 (1981).
Before a defendant is allowed to proceed without the assistance of counsel at a probation revocation hearing, the trial court must comply with statutory requirements governing waiver of counsel. State v. Proby, 168 N.C. App. 724, 726, 608 S.E.2d 793, 794 (2005). The trial judge must make a thorough inquiry and be 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;N.C. Gen. Stat. § 15A-1242 (2013). "A signed written waiver is presumptive evidence that a defendant wishes to act as his or her own attorney. However, the trial court must still comply with N.C. Gen. Stat. § 15A-1242[.]" State v. Whitfield, 170 N.C. App. 618, 620, 613 S.E.2d 289, 291 (2005) (internal citation omitted). The § 15A-1242 inquiry is mandatory, and failure to conduct such an inquiry is prejudicial error. State v. Bullock, 316 N.C. 180, 186, 340 S.E.2d 106, 109 (1986).
(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.
In this case, the entirety of the 28 May 2013 proceeding is reproduced below:
THE STATE: Ty Davis.
THE COURT: Have you done what you're supposed to do, sir?
DEFENDANT: I have and I haven't.
THE COURT: You have and you haven't. All right, Madam Probation Officer, tell me what he has done and what he hasn't done.
MADAM PROBATION OFFICER: Your Honor, he was convicted of impersonating an officer in Nash County on May the 6th and he absconded supervision with Officer Belfield.
THE COURT: All right. Anything you want to tell me?
DEFENDANT: Yes, on the date that I was supposed to be in court, all the money that I had to, you know, pay off, it went towards going towards you-all. So I didn't have a way to court because everybody that I talked to they wanted money to come to court. But all the money I had was to go to you-all.
THE COURT: All right.
DEFENDANT: So I have all the money this week. I have a hundred dollars today and I will have the rest of the money paid off by May 31st, if allowed. And I'll -
THE COURT: How much money is that?
DEFENDANT: Sir.
THE COURT: How much money is that?
DEFENDANT: Seven, ten.
THE COURT: Seven hundred and ten dollars.
DEFENDANT: Plus more at the end of the week. So I say
by Friday, close to eleven hundred. And me and my lawyer make arrangement on his behalf. I just want to pay off my supervision and court fee. Me and my lawyer made arrangements on his behalf for payments.
THE COURT: All right. Anything else -
DEFENDANT: No, sir.
THE COURT: - to any of the facts? Revoke him and invoke his active sentence.
The transcript shows that the trial court failed to obtain a written waiver of counsel from Defendant, failed to make any sort of inquiry regarding Defendant's decision to proceed pro se or concerning the "lawyer" he mentions, and otherwise failed to make any of the inquiries referenced in N.C. Gen. Stat. § 15A-1242. Defendant's prior waivers of counsel at his previous probation revocation hearings did not excuse the trial court from its duty to conduct a full inquiry into Defendant's decision to proceed pro se at the May 2013 hearing. The trial court's failure to do so is a clear violation of Defendant's rights and requires reversal.
Accordingly, we vacate the trial court's order revoking Defendant's probation and activating his suspended sentence and remand this matter to the trial court.
VACATED AND REMANDED.
Chief Judge McGEE and Judge DAVIS concur.
Report per Rule 30(e).