Opinion
No. COA10-955
Filed 1 February 2011 This case not for publication
Appeal by defendant from judgment entered 7 January 2010 by Judge Theodore S. Royster in Rowan County Superior Court. Heard in the Court of Appeals 12 January 2011.
Attorney General Roy Cooper, by Assistant Attorney General Vaughn S. Monroe, for the State. J. Edward Yeager, Jr., for Defendant.
Rowan County No. 07 CRS 54187.
Defendant Timothy Carlee Fox, Jr., appeals from a judgment finding that he had willfully violated the terms and conditions of his probation without lawful excuse, revoking his probation and activating his suspended sentence. On appeal, Defendant argues that the trial court erred by allowing him to represent himself at the probation revocation hearing without conducting an adequate inquiry as required by N.C. Gen. Stat. § 15A-1242 and that the trial court abused its discretion by revoking his probation and activating his suspended sentence. After careful consideration of Defendant's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's judgment must be vacated and this matter remanded to the Rowan County Superior Court because the trial court's colloquy with Defendant concerning the waiver of counsel issue did not comply with N.C. Gen. Stat. § 15A-1242.
I. Factual Background
On 31 October 2007, Defendant entered pleas of guilty to felonious breaking and entering and larceny of a motor vehicle before Judge William C. Kluttz, Jr., in Rowan County District Court as part of a negotiated plea in which other charges that had been lodged against Defendant were dismissed. At the sentencing hearing, Judge Kluttz found that Defendant had accumulated six prior record points and should be sentenced as a Level III offender. Based upon these determinations, Judge Kluttz consolidated Defendant's convictions for judgment and sentenced him to a minimum term of ten months and a maximum term of twelve months imprisonment in the custody of the North Carolina Department of Correction. Judge Kluttz, however, suspended Defendant's sentence and placed him on supervised probation for eighteen months, six of which were to be spent on intensive supervised probation, on the condition that Defendant serve an active sentence of twelve days in the custody of the Sheriff of Rowan County; pay $720.00 in costs, community service fees, and attorneys fees and $650.00 in restitution; comply with the usual terms and conditions of probation; and comply with special terms and conditions of probation relating to warrantless searches for stolen goods, controlled substances, and contraband, the possession or use of controlled substances, the supplying of a blood, breath or urine sample for the purposes of drug testing, and the completion of 50 hours of community service.
On 5 November 2008, Defendant's probation officer filed a violation notice alleging that Defendant had violated the terms and conditions of his probation by missing required appointments, failing to obtain the required substance abuse assessment and complete the recommended treatment, and failing to make required monetary payments. On 12 June 2009, a hearing was held for the purpose of considering the issues raised by the 5 November 2008 violation notice in the Superior Court of Rowan County. At the conclusion of the hearing, Judge Richard L. Doughton entered an order modifying the judgment entered by Judge Kluttz by extending Defendant's probation for six months and nineteen days, modifying the monetary provisions of Judge Kluttz's judgment, and requiring Defendant to serve two weekends in jail.
The record on appeal does not contain documentation indicating the disposition of either violation notice in the District Court division. However, given the trial court's reference to the fact that Defendant had noted an appeal from the District Court pursuant to N.C. Gen. Stat. § 15A-1347 at the time of the revocation proceeding before the Court in this case, we believe that the record sufficiently establishes that the Superior Court had jurisdiction over this case.
On 3 November 2009, Defendant's probation officer filed a second probation violation report in which he alleged that Defendant had violated the terms and conditions of his probation by failing to make required monetary payments. The issues raised by this violation notice came on for hearing before the trial court at the 4 January 2010 criminal session of Rowan County Superior Court. On 4 January 2010, Defendant had a brief colloquy with the trial court concerning the extent to which he wished to be represented by counsel and signed a written waiver of counsel. On 7 January 2010, Defendant, while representing himself, admitted that he had willfully violated the terms and conditions of his probation as alleged in the violation notice. After hearing from the probation officer, who stated that Defendant's violations were purely monetary, that Defendant was unemployed, and that Defendant had been experiencing difficulty obtaining employment due to his criminal record, and from Defendant, the trial court found Defendant to be in wilful violation of the terms and conditions of his probation without lawful excuse, revoked his probation, and activated his suspended sentence. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
On appeal, Defendant contends that the trial court erred by allowing him to represent himself at his probation revocation hearing without conducting an adequate inquiry into the extent to which Defendant's decision to waive the assistance of counsel was knowing, intelligent and voluntary. We conclude that Defendant's argument has merit.
A criminal defendant has a right to be assisted by counsel during a probation revocation hearing, as well as the right to refuse the assistance of counsel and to represent himself. State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 674-75 (2002) (citations omitted). "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 (quoting State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994), cert. denied, 515 U.S. 1107, 132 L. Ed. 2d 263, 115 S. Ct. 2256 (1995)). A sufficiently thorough inquiry is one which fully complies with the requirements of N.C. Gen. Stat. § 15A-1242, State v. Thomas, 331 N.C. 671, 674, 417 S.E.2d 473, 476 (1992) (citing State v. Gerald, 304 N.C. 511, 519, 284 S.E.2d 312, 317 (1981)), which provides that:
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.
The subjects of discussion specified in N.C. Gen. Stat. § 15A-1242 are mandatory, and a trial court commits prejudicial error by permitting a defendant to represent himself without having complied with all three prongs of the statute. State v. Pruitt, 322 N.C. 600, 603, 369 S.E.2d 590, 592 (1988) (citing State v. Bullock, 316 N.C. 180, 186, 340 S.E.2d 106, 109 (1986)).
At the time that Defendant initially appeared before the trial court on 4 January 2010, the following colloquy occurred:
[COURT]: Okay. Mr. Fox, you're being brought in here on allegations you violated the terms and conditions of your probationary judgment. And if you are found to have willfully done so, then your active sentence could be placed into effect. What do you want to do about an attorney, sir?
[DEF.]: Represent myself.
[COURT]: Are you sure that's what you want to do?
[DEF.]: Yes, sir.
[COURT]: All right. If you'll go ahead and sign a waiver of all counsel, sir, and be sworn to it.
[CLERK]: Do you understand that by [signing] this waiver of counsel that you have given up your right to the assignment of court appointed counsel and the right to the assistance of all counsel?
[DEF.]: Yes.
A careful examination of the record indicates that only the first and third prongs of N.C. Gen. Stat. § 15A-1245 were addressed during the trial court's colloquy with Defendant. The record simply does not establish that the trial court made any inquiry concerning the extent to which Defendant understood and appreciated the consequences of his decision to represent himself at his probation revocation hearing. By failing to inquire into the extent of Defendant's understanding and appreciation of the consequences of his decision to represent himself, the trial court did not address one of the three issues specified in N.C. Gen. Stat. § 15A-1242, and thus failed to ascertain that Defendant's waiver was knowing, intelligent and voluntary before allowing him to represent himself. See State v. Jackson, 190 N.C. App. 437, 441, 660 S.E.2d 165, 167 (2008) (stating that a judgment revoking a defendant's probation must be vacated given that the "exchange [between the trial court and the defendant] presents no indication [that] defendant understood or appreciated the consequences of his decision or comprehended the nature of the proceedings and the range of permissible punishments").
Defendant executed a written waiver of counsel during the course of his colloquy with the trial court; however, the occurrence of that event does not cure the trial court's failure to conduct the inquiry required by N.C. Gen. Stat. § 15A-1242. Evans, 153 N.C. App. at 316, 569 S.E.2d at 675. Although a defendant's execution of a written waiver of counsel creates a "presumption . . . that the waiver by the defendant was knowing, intelligent and voluntary[,]" "[t]he execution of a written waiver is no substitute for compliance by the trial court with the statute" and constitutes "`something [done] in addition to the requirements of N.C. Gen. Stat. § 15A-1242.'" Id. at 315, 569 S.E.2d at 675 (citing State v. Warren, 82 N.C. App. 84, 89, 345 S.E.2d 437, 441 (1986) and State v. Wells, 78 N.C. App. 769, 773, 338 S.E.2d 573, 575 (1986) and quoting State v. Hyatt, 132 N.C. App. 697, 703, 513 S.E.2d 90, 94 (1999)). As a result, while the execution of a written waiver of counsel creates a rebuttable presumption that the Defendant's waiver was knowing, intelligent and voluntary, the creation of such a document does not "abrogate the trial court's responsibility to ensure [that] the requirements of N.C. Gen. Stat. § 15A-1242 are fulfilled." Id. at 316, 569 S.E.2d at 675. Thus, in cases, such as this one, where the record reveals that the trial court failed to conduct an adequate inquiry into the extent to which a defendant's waiver of the right to the assistance of counsel was knowing, intelligent and voluntary, the presumption which resulted from the execution of a written waiver is successfully rebutted. Warren, 82 N.C. App. at 89, 345 S.E.2d at 441 (stating that, "[w]hen a defendant executes a written waiver which is in turn certified by the trial court, the waiver of counsel will be presumed to have been knowing, intelligent, and voluntary, unless the rest of the record indicates otherwise").
The fact that Defendant may have clearly expressed the desire to represent himself does not obviate the necessity for the trial court to conduct the statutorily-required inquiry. Since the record before us clearly reveals that the trial court failed to inquire into Defendant's understanding and appreciation of the consequences of his decision to represent himself and since compliance with N.C. Gen. Stat. § 15A-1242 is a necessary prerequisite to Defendant's valid waiver of his right to counsel, the trial court's judgment revoking Defendant's probation must be vacated and this case must be remanded to the trial court for a proper inquiry into the extent to which Defendant wishes to exercise his right to the assistance of counsel or to represent himself. Jackson, 190 N.C. App. at 441, 660 S.E.2d at 167.
Given our decision to reverse the trial court's judgment predicated on its failure to adequately comply with N.C. Gen. Stat. § 15A-1242, we need not address Defendant's contention that the trial court abused its discretion by revoking his probation. Jackson, 190 N.C. App. at 443, 660 S.E.2d at 168.
III. Conclusion
As a result, for the reasons set forth above, we conclude that the trial court erred by allowing Defendant to represent himself at his probation revocation hearing without making the thorough inquiry concerning whether Defendant's decision to waive his right to the assistance of counsel was knowing, intelligent and voluntary required by N.C. Gen. Stat. § 15A-1242. Thus, we vacate the trial court's judgment and remand this case for further proceedings, including a proper inquiry into the extent to which Defendant wishes to exercise his right to counsel or to represent himself.
VACATED AND REMANDED.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).