Opinion
NO. COA12-280
10-16-2012
STATE OF NORTH CAROLINA v. LEKESHIA CHARRON SMITH
Attorney General Roy Cooper, by Assistant Attorney General Derek L. Hunter, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Moore County
Nos. 09 CRS 50880-83
09 CRS 50892-93
10 CRS 474
Appeal by Defendant from judgments entered 8 August 2011 by Judge Joseph E. Turner in Moore County Superior Court. Heard in the Court of Appeals 8 October 2012.
Attorney General Roy Cooper, by Assistant Attorney General Derek L. Hunter, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for Defendant.
STEPHENS, Judge.
Following her indictment on six counts of simple worthless checks, Defendant Lekeshia Charron Smith signed a waiver of counsel form on 17 April 2009. On 28 August 2009, Smith pled guilty to the charges in Moore County District Court. The district court consolidated the convictions for judgment under the file number heading of 09 CR 50880, imposed a suspended sentence of 45 days' imprisonment, and placed Smith on supervised probation for 18 months. On 21 July 2010, following a probation violation hearing, the district court modified Smith's probation in case number 09 CR 50880 and extended the term of her probation by 12 months.
The file number in district court was 09 CR 50880; in superior court that number was changed to 09 CRS 50880. We refer to the case as 09 CR 50880 throughout this opinion.
On 16 September 2010, Smith pled guilty in Moore County District Court to providing fictitious information to a police officer and failure to notify the North Carolina Department of Motor Vehicles of a change in address in case number 10 CR 474. The district court imposed another suspended sentence of 45 days and placed Smith on supervised probation for 18 months.
On 9 March 2011, Smith's probation officer filed probation violation reports in case numbers 09 CR 50880 and 10 CR 474. On 4 May 2011, the district court revoked Smith's probation in both cases and activated the suspended sentences. Smith appealed to the superior court. On 8 August 2011, the superior court, the Honorable Joseph E. Turner presiding, revoked Smith's probation and entered judgments activating the sentences in both cases. Smith appeals from those judgments.
On appeal, Smith argues that the superior court erred in activating her suspended sentence because the record does not show that the district court conducted a proper inquiry under N.C. Gen. Stat. § 15A-1242 before allowing her to proceed pro se at the 28 August 2009 guilty plea and sentencing hearing in case number 09 CR 50880. We agree.
Initially, we note that generally "questioning the validity of the original judgment where sentence was suspended on appeal from an order activating the sentence is . . . an impermissible collateral attack." State v. Noles, 12 N.C. App. 676, 678, 184 S.E.2d 409, 410 (1971). However, where a court has activated a suspended prison sentence and the defendant argues on appeal that the waiver of her constitutional right to counsel at her original trial was invalid, we recognize an exception to that rule. See State v. Neeley, 307 N.C. 247, 250, 297 S.E.2d 389, 392 (1982) (holding that "when a court activates a suspended prison sentence, defendant may, upon appeal of such activation, raise the claim that he was unconstitutionally denied counsel at his original trial"). Thus, Smith's argument is properly before us.
As noted by our Supreme Court, a defendant's waiver of the right to counsel must be "expressed clearly and unequivocally," and the trial court must ensure that the defendant's decision to proceed pro se was knowing, intelligent, and voluntary. State v. Fulp, 355 N.C. 171, 175, 558 S.E.2d 156, 159 (2002) (citations omitted). By statute, a trial court is required to conduct a thorough inquiry into a defendant's decision to proceed pro se. N.C. Gen. Stat. § 15A-1242 (2011).
Moreover, the record must affirmatively show that the inquiry was made and that the defendant exercised "his own free will," State v. Gerald, 304 N.C. 511, 518-19, 284 S.E.2d 312, 317 (1981) (citation omitted), and this Court "cannot presume that [a] defendant knowingly and intelligently waived his right to counsel" in cases where "the record is silent as to what questions were asked of [the] defendant and what his responses were." State v. Callahan, 83 N.C. App. 323, 324-25, 350 S.E.2d 128, 129 (1986).
Although Smith signed a written waiver, "the real issue to be decided is whether the trial court adequately performed the statutory inquiry [under section 15A-1242] and defendant knowingly and intelligently waived counsel." State v. Paterson, __ N.C. App. __, __, 703 S.E.2d 755, 760 (2010) (citation omitted), disc. review denied, 365 N.C. 196, 710 S.E.2d 36 (2011). Indeed, a written waiver is "something in addition to the requirements of [section] 15A-1242, not [] an alternative to it." State v. Hyatt, 132 N.C. App. 697, 703, 513 S.E.2d 90, 94 (1999) (citation omitted).
As noted by Smith, there is no transcript of the 17 April 2009 proceedings where she signed a written waiver of counsel and there is no evidence that the requirements of section 15A-1242 were satisfied before she pled guilty. In fact, the written waiver does not indicate whether Smith waived her right to appointed counsel or all counsel, a fact that renders the written waiver fundamentally defective. Thus, Smith is correct that the record is silent on whether the district court complied with the statutory mandate. Without evidence showing that a thorough inquiry was conducted into Smith's decision to proceed pro se, we cannot presume that she knowingly and voluntarily waived her right to counsel based only on a written waiver of the type contained in the present record. State v. Seymore, __ N.C. App. __, __, 714 S.E.2d 499, 502 (2011) (holding that defendant's signed written waiver of counsel alone could not show that he intended to proceed pro se because there was no transcript in the record showing that the trial court conducted a thorough inquiry as mandated by section 15A-1242). Accordingly, Smith is "entitled to a new trial" in case number 09 CR 50880. Callahan, 83 N.C. App. at 325, 350 S.E.2d at 131; see also State v. Barnes, 65 N.C. App. 426, 427, 310 S.E.2d 30, 31 (1983) (vacating a judgment revoking defendant's probation and imposing an active sentence where the record was silent on whether defendant had made a knowing waiver of his right to counsel at his original trial), disc. review denied, 310 N.C. 478, 312 S.E.2d 886 (1984).
Having concluded that Smith is entitled to a new trial on the charges in case number 09 CR 50880, we need not address Smith's remaining arguments regarding that case. In addition, Smith raises no issues on appeal regarding case number 10 CR 474. Accordingly, the judgment activating Smith's sentence in that case will stand.
Based on the foregoing, we vacate the judgment entered in case 09 CR 50880. That case is remanded to the superior court for proceedings consistent with this opinion. The judgment in case number 10 CR 474 is affirmed.
AFFIRMED in part; REVERSED and REMANDED in part.
Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).