Opinion
No. COA12–524.
2012-12-4
STATE of North Carolina v. Darron Quinton HARPER.
Attorney General Roy Cooper, by Associate Attorney General Adrian Dellinger, for the State. S. Hannah Demeritt for defendant-appellant.
Appeal by defendant from judgments entered 12 December 2011 by Judge Milton F. Fitch, Jr. in Edgecombe County Superior Court. Heard in the Court of Appeals 26 November 2012. Attorney General Roy Cooper, by Associate Attorney General Adrian Dellinger, for the State. S. Hannah Demeritt for defendant-appellant.
HUNTER, ROBERT C., Judge.
Darron Quinton Harper (“defendant”) appeals from the revocation of his probation and the activation of his suspended sentences. He argues the trial court erred by allowing him to proceed pro se without first establishing a proper waiver of counsel, and by failing to hold a proper hearing to determine whether defendant violated the terms of his probation. We reverse and remand for a new hearing.
On 8 September 2009, defendant pled guilty to felonious restraint and assault on a female. The trial court sentenced defendant to consecutive sentences of 19 to 23 months and 75 days, respectively, and suspended those sentences in favor of a probationary period of 24 months. The court ordered defendant to pay court costs, restitution, and attorney fees, to complete his G.E.D. during the first nine months of probation, and to “obtain a psychological evaluation and comply with any treatment recommended.”
On 15 March 2011, defendant's probation officer filed a report in each case alleging that defendant was in arrears, he failed to comply with psychological treatment, and he failed to obtain his G.E .D. within nine months. A hearing was scheduled for 18 April 2011, but was continued twice by the court, once to 15 August 2011 and again to 12 December 2011. At the April hearing, the trial court found that defendant was indigent and ordered that he receive court-appointed counsel. Defendant appeared pro se, however, at the 12 December 2011 hearing and signed a written waiver of counsel form. At that time, the trial court ordered that defendant's probation be revoked and his original sentences activated. Defendant appeals.
As a preliminary matter, defendant has filed a petition for writ of certiorari in the alternative to his appeal since his notice of appeal is deficient. He acknowledges that his handwritten notice of appeal, filed on 13 December 2011, failed to designate the judgments being appealed or the court to which appeal would be taken. Further, the notice was not served on the State. Pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure, a writ of certiorari may be granted to allow review of a judgment “when the right to prosecute an appeal has been lost by failure to take timely action [.]” N.C.R.App. P. 21(a)(1). Since defendant clearly desires an appeal and made an attempt to appeal, and the State does not oppose the petition, we now grant defendant a writ of certiorari to review the issues raised in his brief.
Defendant first contends the trial court erred by failing to conduct a proper inquiry into his decision to waive counsel pursuant to N.C. Gen.Stat. § 15A–1242 (2011). We agree.
A defendant at a probation revocation hearing “is entitled to be represented by counsel at the hearing and, if indigent, to have counsel appointed[.]” N.C. Gen.Stat. § 15A–1345(e) (2011). Any waiver of that right “must be ‘clearly and unequivocally’ expressed .” State v. Hyatt, 132 N.C.App. 697, 702, 513 S.E.2d 90, 94 (1999) (quoting State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994)). Moreover, before allowing a defendant to proceed pro se, the “trial court must make a thorough inquiry into whether the defendant's waiver was knowingly, intelligently and voluntarily made.” Id. A trial court meets its obligations if, after making its inquiry, it is satisfied that defendant:
(1) Has been clearly advised on 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. Contrary to the State's assertion in its brief, “[t]he 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). Recently, in State v. Sorrow, –––N.C.App. ––––, ––––, 713 S.E.2d 180, 184 (2011), this Court held that the defendant's two written waivers of counsel did not satisfy N.C. Gen.Stat. § 15A–1242 where the trial court failed to conduct a thorough inquiry to ensure that the defendant understood the consequences of proceeding pro se, the nature of the charges, and the range of possible punishments. Id. (“[W]aivers are not presumed to have been knowing, intelligent, and voluntary [when] ‘the rest of the record indicates otherwise.’ “ (quoting State v. Warren, 82 N.C.App. 84, 89, 345 S.E.2d 437, 441 (1986)). Similarly, in State v. Moore, 362 N.C. 319, 326, 661 S.E.2d 722, 727 (2008), our Supreme Court held that the trial court erred in accepting the defendant's written waiver of his right to counsel by not first making the inquiry of the defendant required by N.C. Gen.Stat. § 15A–1242 to ensure the waiver was made knowingly, intelligently, and voluntarily. Additionally, the Moore Court provided guidance to our trial courts on the inquiry required by reciting “a fourteen-question checklist ‘designed to satisfy requirements of’ N.C. Gen.Stat. § 15A–1242.” Id. at 327–28, 661 S.E.2d at 727.
Here, even though defendant signed a written waiver, there was no discussion at the hearing regarding the waiver of his right to counsel. The trial court failed to make any inquiry at all regarding defendant's desire to waive appointed counsel or his right to have any assistance of counsel, much less whether defendant understood the consequence of his decision to waive counsel or the nature of the charges and proceedings against him. Therefore, we conclude the trial court failed to conduct the appropriate inquiry pursuant to section 15A–1242, and that “the trial court failed to determine whether defendant's waiver of his right to counsel was knowing, intelligent, and voluntary.” Evans, 153 N.C.App. at 316, 569 S.E.2d at 675. Thus, the judgments of the trial court activating defendant's sentences are reversed, and the matter remanded for a new probation revocation hearing.
Because we so hold, we need not address defendant's second argument that the trial court failed to hold a proper hearing or make findings that defendant violated the conditions of his probation before revoking probation.
Reversed and remanded for a new probation revocation hearing. Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).