Opinion
No. COA09-881.
Filed March 2, 2010.
Cabarrus County No. 08 CRS 6812.
Appeal by defendant from judgment entered 6 April 2009 by Judge W. David Lee in Cabarrus County Superior Court. Heard in the Court of Appeals 8 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State.
Guy J. Loranger for defendant-appellant.
Defendant Eddie Ray Smith, Sr. appeals from the revocation of his probation and activation of his suspended sentence. He contends that the trial court erred in denying his motion for a continuance and requiring him to proceed pro se in violation of N.C. Gen. Stat. § 15A-1242 (2009) and his constitutional right to counsel. The State concedes that this case is indistinguishable from State v. Scott, 187 N.C. App. 775, 653 S.E.2d 908 (2007). We agree and remand for a new hearing.
Facts
On 15 December 2008, defendant pled guilty to possession of cocaine. Pursuant to a plea agreement, the trial court entered judgment suspending the six to eight months sentence, placing defendant on supervised probation for 18 months, and ordering defendant to pay $826.50 plus the probation supervision fee. Subsequently, on 2 March 2009, defendant's probation officer filed a probation violation report alleging multiple violations: (1) testing positive for illegal drugs on three separate occasions; (2) failing to pay any of the amount ordered by the court; and (3) failing to pay the monthly probation supervision fee.
The probation violation matter came on for hearing on 16 March 2009. The trial court informed defendant that he was charged with violating his probation and could face a six to eight month sentence as a result. The court then asked defendant if he wanted to be represented by an attorney, to which defendant replied, "Yes, sir." The trial court also asked defendant if he was going to hire a lawyer, to which defendant replied, "Yes, sir." Defendant then signed a written waiver of assigned counsel. The trial court continued the case to 6 April 2009.
On 6 April 2009, the following colloquy occurred:
[STATE]: [A]re you asking for a continuance?
THE DEFENDANT: Yes, ma'am.
[STATE]: State's ready to proceed. This is the second setting. It was on previously where he waived his right to an attorney.
. . . .
THE COURT: What would be your reason for asking for a continuance today?
THE DEFENDANT: I'll be honest, I was incarcerated. I ain't had the chance to come up with my money to get an attorney, and I'd like a little more time to try to come up with it.
THE COURT: When was the violation?
THE DEFENDANT: I'd really like to try to get one appointed to me.
THE COURT: When was the violation report issued?
PROBATION OFFICER: He was served on February the 26th.
THE COURT: All right. The motion to continue is denied.
The hearing proceeded with defendant acting pro se, and defendant admitted to the violations. The trial court, after determining the violations to be willful, revoked defendant's probation and activated the original sentence of six to eight months. Defendant timely appealed to this Court.
Discussion
Defendant argues that the trial court erred by denying his motion to continue and requiring him to proceed pro se without ensuring that he in fact wished to forego his right to counsel altogether or ascertaining whether defendant understood the ramifications of proceeding pro se as required by N.C. Gen. Stat. § 15A-1242. While a motion to continue is normally a matter for the discretion of the trial court, when a motion to continue implicates a constitutional right, the motion presents a question of law that is fully reviewable on appeal. State v. Smith, 310 N.C. 108, 112, 310 S.E.2d 320, 323 (1984).
As a preliminary matter, we note that the record reflects defendant was projected to be released from confinement as of 21 October 2009. Defendant has thereby satisfied his full sentence in the instant case. The fulfillment of the sentence does not render defendant's appeal moot, however. As this Court noted in State v. Black, ___ N.C. App. ___, ___, 677 S.E.2d 199, 201 (2009), a probation violation may be used as an aggravating factor in future cases pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(12a) (2009). Thus, "`collateral legal consequences of an adverse nature can reasonably be expected to result therefrom . . . and the appeal has continued legal significance'" for defendant. Black, ___ N.C. App. at ___, 677 S.E.2d at 201 (quoting In re Hatley, 291 N.C. 693, 694, 231 S.E.2d 633, 634 (1977)). We now turn to the merits of the appeal.
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) (2009). 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), cert. denied, 515 U.S. 1107, 132 L. Ed. 2d 263, 115 S. Ct. 2256 (1995)). Moreover, before allowing a defendant to proceed pro se, the "court must make a thorough inquiry into whether the defendant's waiver was knowingly, intelligently and voluntarily made." Id. A trial court meets its obligation if, after making its inquiry, it 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.
N.C. Gen. Stat. § 15A-1242. "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).
In this case, defendant executed a written waiver only of his right to assigned counsel. "The fact that an accused waives his right to assigned counsel does not mean that he waives all right to counsel. . . ." State v. Graham, 76 N.C. App. 470, 474, 333 S.E.2d 547, 549 (1985). Moreover, "[t]here is no evidence that defendant ever intended to proceed . . . without the assistance of some counsel." State v. McCrowre, 312 N.C. 478, 480, 322 S.E.2d 775, 776-77 (1984). Defendant informed the court he had not "had the chance to come up with [the] money to get an attorney" and expressed his desire "to get one appointed." The trial court proceeded with the hearing without inquiring further into the reasons for defendant's failure to retain private counsel and without notifying him of the consequences of proceeding pro se as required by N.C. Gen. Stat. § 15A-1242.
In Scott, the defendant, at his first appearance for a probation violation, signed a waiver of counsel form and stated that he intended to hire his own attorney to represent him in the probation violation proceedings. 187 N.C. App. at 776, 653 S.E.2d at 909. At the next court date, a month later, the defendant asked the trial court to appoint an attorney because he could not afford an attorney. Id. After asking defendant whether he had inquired about how much it would cost before waiving court appointed counsel, the trial court denied his request for an attorney and then denied his subsequent request for a continuance. Id. at 776-77, 653 S.E.2d at 909.
This Court first held that the defendant effectively withdrew his prior waiver by explicitly asking the trial court to appoint counsel to represent him. Id. at 778, 653 S.E.2d at 909. The Court also determined that the record did not support any suggestion that the request for counsel was a tactic to delay and frustrate the court proceedings since the only "tactic" was "an attempt to withdraw his waiver at his second appearance, less than one month after signing the waiver form." Id., 653 S.E.2d at 910. The Court, therefore, concluded that "[t]he trial court erred in denying Defendant's request, and this error violated Defendant's right to an attorney." Id. The Court then reversed and remanded for a new probation revocation hearing. Id.
We agree with the State that this case is indistinguishable from Scott. Indeed, it is almost identical. Consequently, we reverse and remand for a new probation revocation hearing.
Reversed and remanded.
Judges McGEE and ROBERT HUNTER, JR. concur.
Report per Rule 30(e).