Opinion
No. COA12–200.
2012-07-17
STATE of North Carolina v. Sevonta Akeem WADDELL.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Peter Wood for defendant appellant.
Appeal by defendant from judgment entered 25 July 2011 by Judge W. Allen Cobb, Jr., in Pender County Superior Court. Heard in the Court of Appeals 2 July 2012. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Peter Wood for defendant appellant.
McCULLOUGH, Judge.
Sevonta Akeem Waddell (“defendant”) appeals from the trial court's judgment revoking his probation and activating his suspended sentence. Because the trial court failed to comply with N.C. Gen.Stat. § 15A–1242 (2011), we vacate and remand for a new probation revocation hearing.
On 28 October 2010, defendant pled guilty to second-degree kidnapping and assault with a deadly weapon with intent to kill. The trial court sentenced defendant to twenty to thirty-three months' imprisonment, suspended the sentence, and imposed supervised probation for a term of thirty-six months. Defendant's probation officer filed a violation report on 21 April 2011 alleging that defendant had violated his probation by failing to report, failing to abide by curfew, and failing to pay his monetary obligation.
On 25 April 2011, the trial court held a preliminary hearing at which defendant executed a written waiver of counsel form, waiving his right to assigned counsel, but not his right to assistance of counsel. Defendant's probation officer filed an addendum on 26 May 2011 alleging that defendant had violated his probation by failing to report again and by failing to complete the TASC program.
The trial court held a probation revocation hearing on 25 July 2011. Defendant did not appear with counsel and, after a brief colloquy, the trial court allowed defendant to proceed pro se. Defendant then admitted the three violations alleged in the April 2011 violation report. Before addressing the addendum allegations, defendant executed a written waiver of counsel form, waiving his right to all assistance of counsel. Defendant then admitted the two violations alleged in the May 2011 addendum. The trial court found that defendant willfully violated conditions of his probation, revoked his probation, and activated his suspended sentence. Defendant appeals.
Defendant contends the trial court erred by allowing him to proceed pro se without conducting an inquiry pursuant to N.C. Gen.Stat. § 15A–1242. We agree.
A criminal defendant has a right to counsel during a probation revocation hearing, including the right to refuse counsel and proceed pro se. State v. Evans, 153 N.C.App. 313, 315, 569 S.E .2d 673, 674–75 (2002). “However, the 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.” Id. at 315, 569 S.E.2d at 675 (internal quotation marks and citation omitted). The trial court's inquiry is satisfied when the court complies with the requirements of N.C. Gen.Stat. § 15A–1242:
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.
Id. See State v. Proby, 168 N.C.App. 724, 726, 608 S.E.2d 793, 794 (2005). Where a defendant requests to proceed pro se, the provisions of § 15A–1242 are mandatory. State v. Debnam, 168 N.C.App. 707, 708, 608 S.E.2d 795, 796 (2005); Evans, 153 N.C.App. at 315, 569 S.E.2d at 675. “The execution of a written waiver is no substitute for compliance by the trial court with the statute.” Id.
In Debnam, the defendant executed a waiver of assigned counsel at a preliminary hearing. Debnam, 168 N.C.App. at 708, 608 S.E.2d at 795. At the revocation hearing held one month later, the defendant appeared without counsel and subsequently proceeded pro se. Id. at 708–09, 608 S.E.2d at 795–96. The trial court, however, did not fully comply with the statutory inquiry at the revocation hearing, and this Court held that the trial court's colloquy was insufficient, explaining:
Although the record shows that defendant executed a written waiver of counsel form wa[i]ving his right to assigned counsel and informed the trial court that he wanted to represent himself, the trial court failed to advise defendant of the consequences of his decision to represent himself or the nature of the charges and proceedings and the range of permissible punishments.
Id. at 709, 608 S.E.2d at 796 (internal quotation marks and citation omitted).
In the present case, the following inquiry occurred at the pretrial hearing:
THE COURT: Mr. Waddell, you appear in file 2009 52613 charged with willful violation of your supervised adult probation. If found in willful violation, that probation could be revoked and the underlying suspended sentence activated; that underlying sentence is 20 months minimum, 33 months maximum.
You have the right to counsel. If you cannot afford to hire your own, we would appoint one to represent you, if you so desire. Do you wish to be represented by an attorney?
MR. WADDELL: No.
THE COURT: Can you afford to hire your own lawyer?
MR. WADDELL: No.
THE COURT: All right. You need to sign a waiver as to your right of court-appointed counsel.
All right. Then you need to be back with your attorney ready to proceed on May 31.
At the start of the probation revocation hearing, the following colloquy occurred:
MS. TURNER: Judge, it has my name, but I do not represent him. I came to court last month and advised the Court that he was in the process of talking with me, but do not put me down as far as appearance. But he's representing himself, so I don't know
THE COURT: Has he signed a waiver?
MS. TURNER: I think he signed one last month.
....
THE COURT: Sir, you waived your right to a court-appointed lawyer and said you're going to go forward representing yourself?
THE DEFENDANT: Yes, sir.
THE COURT: You ready to proceed today?
THE DEFENDANT: Yes, sir.
THE COURT: Have a seat right there please, sir.
[THE PROSECUTOR]: Mr. Waddell, have you been served a copy of your probation violation report?
THE DEFENDANT: I believe I have.
THE COURT: Sir, do you know what you're charged with? Do you know what your violations are?
THE DEFENDANT: No. I just know one of them.
After defendant admitted the three violations alleged in the April 2011 violation report, the trial court then informed defendant:
THE COURT: You need to sign a waiver, sir, right there, saying that you're going to represent yourself, because there's been an addendum added to the probation violation report since you waived your right to a lawyer.
We conclude the circumstances here are identical to those presented in Debnam, and therefore, Debnam is controlling. Here, like Debnam, defendant executed a waiver of assigned counsel at a preliminary hearing. Although defendant clearly stated he would represent himself at the probation revocation hearing, the court failed to proceed with the inquiry required under N.C. Gen.Stat. § 15A–1242. Further, even if we consider the inquiry at the pretrial hearing, as the State suggests, the statutory requirements are still not met. At the pretrial hearing, “the trial court failed to advise defendant of the consequences of his decision to represent himself[,]” id. at 709, 608 S.E.2d at 796, and did not determine whether defendant “underst [ood] and appreciate[d] the consequences of this decision[.]” N.C. Gen.Stat. § 15A–1242(2). Accordingly, we reverse the trial court's judgment revoking defendant's probation and remand for a new hearing on the probation violations. 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 HUNTER (ROBERT C.) and ELMORE concur.
Report per Rule 30(e).