Opinion
No. COA09-1513
Filed 15 June 2010 This case not for publication
Appeal by Defendant from judgments and commitments entered 29 June 2009 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 8 June 2010.
Attorney General Roy Cooper, by Assistant Attorney General Seth P. Rosebrock, for the State. Guy J. Loranger for Defendant-Appellant.
Nash County Nos. 06 CRS 52034-43, 06 CRS 52047, 06 CRS 52053-57, 06 CRS 52221-25, 06 CRS 53071.
Callie Franklin ("Defendant") appeals from judgments and commitments entered upon revocation of probation. For the following reasons, we reverse and remand.
I. Procedural History
On 24 May 2006, Defendant pled guilty in twelve separate cases to one count of felony forgery of endorsement (06 CRS 52047); one count of felony financial transaction card fraud, and nine counts of misdemeanor financial transaction card fraud (06 CRS 52034-43); five separate counts of felony forgery of endorsement (06 CRS 52053-57); five additional separate counts of felony forgery of instrument (06 CRS 52221-25); and one additional count of felony forgery of endorsement (06 CRS 53071). In each of the 12 cases, the trial court sentenced Defendant to six to eight months imprisonment, to run consecutively. The trial court suspended the sentences and imposed supervised probation for a term of 60 months. The trial court also ordered Defendant to pay probation supervision fees and $12,474.00 in court costs, attorney's fees, and restitution as monetary conditions of her probation.
On 8 June 2009, Defendant's probation officer filed violation reports in each of the twelve cases alleging that Defendant had violated her supervised probation. The trial court held a probation revocation hearing, at which Defendant represented herself. At the conclusion of the hearing, the trial court found that Defendant willfully and without lawful excuse violated the terms and conditions of her probation and activated Defendant's original sentences. Defendant appeals.
II. Discussion
In her sole argument on appeal, Defendant contends the trial court erred by allowing her to proceed pro se without conducting the inquiry required by N.C. Gen. Stat. § 15A-1242. The State concedes, and we agree, that the trial court failed to conduct the necessary inquiry under N.C. Gen. Stat. § 15A-1242, thus requiring remand of this case to the trial court.
Before a defendant in a probation revocation hearing is allowed to represent herself, the court must comply with the requirements of N.C. Gen. Stat. § 15A-1242. State v. Evans, 153 N.C. App. 313, 314-15, 569 S.E.2d 673, 674 (2002). N.C. Gen. Stat. § 15A-1242 provides:
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.
N.C. Gen. Stat. § 15A-1242 (2009). "The provisions of N.C. Gen. Stat. § 15A-1242 are mandatory where the defendant requests to proceed pro se. The execution of a written waiver is no substitute for compliance by the trial court with the statute." Evans, 153 N.C. App. at 315, 569 S.E.2d at 675.
The following transpired in this case prior to the commencement of Defendant's probation revocation hearing:
THE COURT: Okay. Do you understand that you have the right to have a lawyer to represent you?
[THE DEFENDANT]: Yes, sir.
THE COURT: If you're unable to hire one I will be happy to appoint a lawyer for you, or you may hire your own lawyer, or you may proceed without a lawyer. What would you like to do ma'am?
[THE DEFENDANT]: I don't want a lawyer.
THE COURT: Do you understand that you could be losing very valuable rights that a lawyer could assist you with ma'am?
[THE DEFENDANT]: (Nodded head).
THE COURT: Is that a yes, ma'am?
[THE DEFENDANT]: Yes, sir.
Thereafter, Defendant signed a written waiver of her right to all assistance of counsel, which the trial court certified.
Our Court has held that "where both the defendant and trial judge properly completed the form, the signed and certified written waiver creates a presumption that the waiver was knowing, intelligent and voluntary." State v. Hill, 168 N.C. App. 391, 396, 607 S.E.2d 670, 673, disc. review denied, 359 N.C. 324, 611 S.E.2d 839 (2005). However, "where the record indicates otherwise, that presumption is rebutted." Evans, 153 N.C. App. at 315, 569 S.E.2d at 675. "The execution of a written waiver of the right to assistance of counsel does not abrogate the trial court's responsibility to ensure the requirements of N.C. Gen. Stat. § 15A-1242 are fulfilled." Id. at 316, 569 S.E.2d at 675.
In State v. Cox, 164 N.C. App. 399, 595 S.E.2d 726 (2004), this Court held that the presumption created by a signed, written waiver was rebutted where the trial court failed to conduct the inquiry required by N.C. Gen. Stat. § 15A-1242. Id. at 402, 595 S.E.2d at 728. In Cox, the "defendant clearly and unequivocally stated he would represent himself. Thereafter, the trial court instructed him to execute a waiver but failed to proceed with the inquiry required under N.C. Gen. Stat. § 15A-1242." Id. at 401-02, 595 S.E.2d at 728. Our Court held that a written waiver of counsel was not a substitute for actual compliance with section 15A-1242 and "`that in the absence of . . . the inquiry required by [N.C. Gen. Stat.] § 15A-1242, it was error to permit [the] defendant to go to trial without the assistance of counsel.'" Id. at 402, 595 S.E.2d at 728 (quoting State v. White, 78 N.C. App. 741, 746, 338 S.E.2d 614, 617 (1986)).
In the present case, Defendant clearly stated she wished to represent herself. The trial court then instructed Defendant to execute a waiver but failed to proceed with the inquiry required under N.C. Gen. Stat. § 15A-1242. Specifically, the trial court failed to conduct the second and third components of the inquiry required by the statute. Although the trial judge explained Defendant's right to have an attorney represent her, he did not ensure that Defendant understood the consequences of her decision to proceed pro se, nor did he ensure that Defendant comprehended the nature of the charges and proceedings and the possible punishments. See N.C. Gen. Stat. § 15A-1242. Thus, although Defendant signed a written waiver of her right to counsel which created a presumption that her waiver was "knowing, intelligent and voluntary[,]" that presumption was rebutted by the trial court's failure to satisfy the second and third components of the inquiry required by N.C. Gen. Stat. § 15A-1242. See Hill, 168 N.C. App. at 396, 607 S.E.2d at 673.
Accordingly, we reverse the trial court's judgments revoking Defendant's probation and remand for a new hearing on the probation violations. On remand, the trial court shall first determine if Defendant is entitled to proceed pro se in accordance with this opinion and the requirements of N.C. Gen. Stat. § 15A-1242.
REVERSED and REMANDED.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).