Opinion
No. COA12–21.
2012-08-7
STATE of North Carolina v. Roger Dale DAVIS, Jr., Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Peggy S. Vincent, for the State. Wait Law, P.L.L.C., by John L. Wait for defendant-appellant.
Appeal by defendant from judgment entered 16 May 2011 by Judge V. Bradford Long in Randolph County Superior Court. Heard in the Court of Appeals 30 July 2012. Attorney General Roy Cooper, by Assistant Attorney General Peggy S. Vincent, for the State. Wait Law, P.L.L.C., by John L. Wait for defendant-appellant.
HUNTER, ROBERT C., Judge.
Defendant appeals from judgment entered after the trial court revoked his probation and activated his suspended sentence. Because the trial court failed to comply with N.C. Gen.Stat. § 15A–1242 (2011), we reverse and remand for a new probation violation hearing.
On 8 April 2009, defendant pled guilty to four counts of felony obtaining property by false pretenses. The trial court sentenced defendant to a term of 11 to 14 months, and suspended the sentence subject to defendant completing the terms of his special probation.
On 23 February 2011, a probation violation report was filed alleging defendant was in willful violation of his probation for failing to pay costs and probation supervision fees. The matter came on for hearing before Judge Mark Klass on 21 March 2011. Defendant stated that he wanted to represent himself and executed a waiver of counsel form. Thereafter, defendant admitted the violations. The trial court continued defendant on probation and set a review date of 11 April 2011 for defendant to comply with the monetary conditions. The review date was subsequently continued to 16 May 2011 and defendant appeared before Judge V. Bradford Long on that date. Judge Long noted defendant had waived his right to counsel and allowed defendant to proceed pro se. Defendant admitted the violations. The trial court revoked defendant's probation and activated his sentence.
On 23 May 2011, defendant filed notice of appeal, but the notice of appeal was not served on the State.
Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a criminal action may take appeal by ... filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of the judgment or order[.]
N.C.R.App. P. 4(a)(2) (2011). “[W]hen a defendant has not properly given notice of appeal, this Court is without jurisdiction to hear the appeal.” State v. McCoy, 171 N.C.App. 636, 638, 615 S.E.2d 319, 320,appeal dismissed,360 N.C. 73, 622 S.E.2d 626 (2005). Since defendant's notice of appeal was not properly served, defendant filed a petition for writ of certiorari seeking review of the judgment entered revoking his probation. A writ of certiorari may be issued to permit review of the judgments and orders of trial tribunals “when the right to prosecute an appeal has been lost by failure to take timely action[.]” N.C.R.App. P. 21(a)(1). Here, defendant had a right to appeal the judgment revoking his probation and activating the suspended sentence pursuant to N.C. Gen.Stat. §§ 7A–27 and 15A–1347 (2011). We allow defendant's petition for writ of certiorari for the purpose of reviewing the judgment entered.
Defendant's sole argument on appeal is that the trial court erred by permitting him to waive counsel and represent himself at a probation revocation hearing without first satisfying the requirements of N.C. Gen.Stat. § 15A–1242 (2011). We review this issue de novo. State v. Watlington, –––N.C.App. ––––, ––––, 716 S.E.2d 671, 675 (2011).
A defendant is entitled to the assistance of counsel at a probation revocation hearing. N.C. Gen.Stat. § 15A–1345(e) (2011). “Inherent to that right to assistance of counsel is the right to refuse the assistance of counsel and proceed pro se.” State v. Evans, 153 N.C.App. 313, 315, 569 S.E.2d 673, 675 (2002). “Once a defendant clearly and unequivocally states that he wants to proceed pro se, the trial court, to satisfy constitutional standards, must determine whether the defendant knowingly, intelligently, and voluntarily waives the right to in-court representation by counsel.” State v. Thomas, 331 N.C. 671, 674, 417 S.E.2d 473, 476 (1992). Our Supreme Court has held that the inquiry required by N.C. Gen.Stat. § 15A–1242 satisfies constitutional requirements. Id. Pursuant to N.C. Gen.Stat. § 15A–1242, a defendant may be permitted to proceed pro se after the trial court makes a thorough inquiry and is satisfied that 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.
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). “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.
In the case sub judice, at the 21 March 2011 hearing before Judge Klass, defendant stated he wanted to represent himself. Judge Klass then asked defendant, “Do you understand you have a right to be represented by an attorney; if you can't afford one—I'll consider appointing you one?” Defendant answered in the affirmative and signed a waiver of counsel form. Thereafter, there was no further discussion on the subject of waiver of counsel.
At the start of the 16 May 2011 hearing before Judge Long, the following colloquy occurred:
THE COURT: Okay. Thank you, ma‘am. All right. You signed a big waiver. You signed a waiver that says you give up your right to court-appointed and privately retained counsel. Is that right?
THE DEFENDANT: Yes, sir.
THE COURT: Are you ready to represent yourself?
THE DEFENDANT: Yes.
THE COURT: All right. Who's your probation officer?
There was no further discussion of the topic of waiver of counsel.
We find Debnam controlling, and the State in its brief has conceded error. 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 whether defendant is entitled to the assistance of counsel in accordance with this opinion.
Reversed and remanded. Judges ELMORE and McCULLOUGH concur.
Report per Rule 30(e).