Summary
In Debnam, the defendant executed a waiver of assigned counsel at a pre-trial hearing and sought to hire his own attorney.
Summary of this case from State v. McClureOpinion
No. COA04-502
Filed 1 March 2005
Criminal Law — waiver of right to counsel — statutory procedure
A probation revocation was reversed and remanded where defendant waived his right to assigned counsel in writing and informed the court that he wanted to represent himself, but the trial court did not advise defendant of the consequences of his decision or the "nature of the charges and proceedings and the range of permissible punishments." N.C. Gen. Stat. § 15A-1242(3) (2003).
Judge STEELMAN dissenting.
Appeal by defendant from judgments entered 15 December 2003 by Judge Abraham P. Jones in Wake County Superior Court. Heard in the Court of Appeals 3 January 2005.
Attorney General Roy Cooper, by Assistant Attorney General Caroline Farmer, for the State. Sue Genrich Berry for defendant-appellant.
Defendant Andrew Debnam (defendant) pled guilty to eleven counts of obtaining property by false pretenses. The trial court sentenced defendant to four consecutive sentences of eleven to fourteen months imprisonment, each of which were suspended, and placed him on supervised probation for thirty-six months. On 14 November 2003, defendant's probation officer filed probation violation reports. Three days later, defendant executed a written waiver of counsel form, waving his right to assigned counsel, but not his right to assistance of counsel, at a preliminary hearing held in district court. On 15 December 2003, the trial court held a hearing on defendant's probation violation. After hearing testimony from defendant and defendant's probation officer, the trial court concluded that defendant had willfully and unlawfully violated the terms and conditions of his probation and activated defendant's suspended sentences. Defendant appeals.
Defendant first contends the trial court erred by allowing him to proceed pro se without conducting an inquiry as required by N.C. Gen. Stat. § 15A-1242, which 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 (2003).
"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." State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002) (citations omitted). In Evans, this Court held that during probation revocation hearings, the trial court must conduct a full inquiry pursuant to section 15A-1242 to ensure that a defendant's waiver of counsel is knowing, intelligent, and voluntary. Id.
The following exchange occurred when defendant's probation revocation hearing was called on 15 December 2003:
[PROSECUTOR]: Mr. Debnam, have you signed a waiver already?
THE DEFENDANT: Yes, ma'am.
[PROSECUTOR]: You're going to represent yourself?
THE DEFENDANT: Yes, ma'am.
[PROSECUTOR]: Judge, he says he's signed a waiver.
THE COURT: All right. I believe him. Let's go forward.
Although the record shows that defendant executed a written waiver of counsel form waving 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." N.C. Gen. Stat. § 15A-1242(3) (2003). Accordingly, the judgment of the trial court is reversed, and this matter is remanded for another probation revocation hearing. As the other assignments of error are not likely to reoccur, we do not deem it necessary to discuss them.
Reversed and remanded.
Judge HUNTER concurs.
Judge STEELMAN dissents by separate opinion.