Opinion
No. COA12–293.
2012-08-7
STATE of North Carolina v. Timothy Francis HOLMES.
Attorney General Roy Cooper, by Assistant Attorney General Andrew O. Furuseth, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
Appeal by defendant from judgments entered 6 June 2011 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 30 July 2012. Attorney General Roy Cooper, by Assistant Attorney General Andrew O. Furuseth, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
HUNTER, ROBERT C., Judge.
Defendant pled guilty on 18 April 2011 to eight counts of selling marijuana. The court consolidated the convictions into three judgments imposing three prison terms of eight to 10 months each. The court suspended the judgments and placed defendant on supervised probation for 24 months.
On 1 June 2011 probation violation reports were filed, and on 6 June 2011, a hearing was conducted regarding the reports. Defendant appeared at the hearing and represented himself. After hearing evidence and arguments, the court concluded that defendant violated the terms and conditions of his probation. The trial court revoked probation and activated defendant's sentences.
On 8 June 2011 defendant, pro se, filed notice of appeal using a preprinted form applicable to appeals from district court to superior court. Counsel was subsequently appointed to represent defendant on appeal.
Counsel filed a record on appeal in this Court and also filed a petition for writ of certiorari seeking review of the judgments in the event this Court determined defendant failed to give proper notice of appeal.
We conclude that the notice of appeal is defective and the appeal is subject to dismissal because the notice of appeal failed to identify the judgments from which appeal is taken and to designate the proper court to which appeal is taken. SeeN.C.R.App. P. 4(b). In the exercise of our discretion, we allow the petition for writ of certiorari and consider the issue brought forward by defendant.
Defendant contends the trial court erred by permitting defendant to waive counsel and represent himself at the probation revocation hearing without first complying with the requirements of N.C. Gen.Stat. § 15A–1242(2), (3) (2011). The record shows the following:
THE COURT: Sir, do you understand that you have the right to remain silent, anything you say to anyone other than an attorney in these matters can and will be used against you in a court of law?
MR. HOLMES: Yes.
THE COURT: Do you wish to be represented by court-appointed counsel, hire an attorney of your choice, or represent yourself in these matters?
MR. HOLMES: I was hoping I could just speak today. It's my first time.
THE COURT: Okay, do you suffer from any physical or mental disabilities that keep you from understanding the nature of these proceedings today?
MR. HOLMES: No, ma‘am.
THE COURT: And sir, do you understand that you have an absolute right to be represented by an attorney and if you cannot afford one this Court may appoint you a lawyer if you qualify?
MR. HOLMES: Yes.
THE COURT: And do you understand that if you sign a waiver this Court cannot and shall not give you any legal advise [sic]?
MR. HOLMES: Yes.
THE COURT: Okay, if you'd come sign a waiver.
Defendant signed a waiver of counsel form. The trial court then proceeded to conduct the hearing.
A defendant's waiver of the right to counsel and election to proceed pro se must be expressed clearly and unequivocally. State v. McGuire, 297 N.C. 69, 81, 254 S.E.2d 165, 173,cert. denied,444 U.S. 943, 62 L.Ed.2d 310 (1979). To comply with constitutional safeguards for waiver of counsel, a court is required by N.C. Gen.Stat. § 15A–1242 to make thorough inquiry and be satisfied that the defendant (1) has clearly been advised of his right to counsel, including his right to appointment of counsel, (2) understands and appreciates the consequences of a decision to waive counsel, and (3) comprehends the nature of the charges and proceedings and the range of possible punishments. State v. Thomas, 331 N.C. 671, 674, 417 S.E.2d 473, 476 (1992). The record must affirmatively show that all three prongs have been satisfied through inquiry by the trial court or else the waiver of counsel will be found ineffective and will be invalidated on appeal. State v. Sorrow, –––N.C.App. ––––, ––––, 713 S.E.2d 180, 184 (2011). The record at bar fails to show that the trial court satisfied prongs (2) and (3) of the statutory inquiry, to which, the State concedes, the judgments revoking probation must therefore be vacated and the matter remanded for a new hearing. Id.
Vacated and remanded. Judges ELMORE and McCULLOUGH concur.
Report per Rule 30(e).