Opinion
No. 04-1197.
Filed 6 December 2005.
Davidson County Nos. 03 CRS 12907-8; 03 CRS 12914; 03 CRS 51800; 03 CRS 52259.
Appeal by defendant from judgments entered 1 April 2004 by Judge Kimberly S. Taylor in Davidson County Superior Court. Heard in the Court of Appeals 10 October 2005.
Attorney General Roy Cooper, by Special Deputy Attorney General Victoria L. Voight, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant.
Defendant Theodore Williams appeals from the revocation of his probation, arguing that the trial court violated N.C. Gen. Stat. § 15A-1242 (2003) by allowing defendant to proceed without counsel and that the trial court violated defendant's right to confrontation in allowing testimony of his probation officer. Based on our review of the record, we hold that the trial court did not err and, therefore, affirm.
On 10 April 2003, in Davidson County, defendant pled no contest to assault on a female, simple assault, assault with a deadly weapon, a second charge of simple assault, and second degree trespass. The trial court sentenced defendant to two consecutive sentences of 120 days imprisonment, suspended the sentences, and placed defendant on 18 months supervised probation for each conviction. On 12 June 2003, in Guilford County, defendant pled guilty to larceny and impaired driving. The trial court sentenced defendant to 30 days imprisonment for the larceny conviction and 60 days imprisonment for the impaired driving conviction, suspended the sentences, and placed defendant on 12 months supervised probation for each conviction. Two months later, defendant pled guilty to felony possession of cocaine in Guilford County. The trial court sentenced defendant to 9 to 11 months imprisonment, suspended the sentence, and placed defendant on 36 months supervised probation.
On 17 October 2003, defendant's probation officer Shawn Owens filed five probation violation reports. Officer Owens alleged that defendant had: (1) failed to complete community service; (2) failed to pay his monetary obligation; (3) left his residence and refused to make his whereabouts known; (4) failed to provide proof of gainful employment; and (5) failed to obtain a substance abuse assessment. All five reports alleged violations (2), (3), and (4).
A probation violation hearing was initially heard in district court as to all of defendant's cases except for the felony possession conviction. Defendant executed a written waiver of counsel prior to the hearing. The district court concluded that defendant wilfully violated his probation and revoked defendant's probation. Defendant appealed to superior court.
Judge Kimberly S. Taylor held a probation violation hearing on1 April 2004 regarding the district court cases and the felony possession of cocaine case. Defendant executed a second written waiver of counsel, signed by Judge Taylor, and proceeded pro se.
Officer Owens testified that he was assigned to supervise defendant's probation in both defendant's Davidson County and Guilford County cases. Officer Owens further testified that defendant had not made required monetary payments, had not maintained employment, and had left his residence without permission. Officer Owens testified that he had not spoken to defendant since August 2003, when defendant moved to Randolph County and probation officer Michael Tyson in Randolph County had agreed to provide "courtesy supervision" of defendant. Probation officer Tyson informed Owens of defendant's change of residence without permission.
Defendant testified on his own behalf. Defendant acknowledged that he had paid no money to the clerk of court, that "[f]or the most part" he was unemployed, and that he did not obtain the required substance abuse assessment. Defendant's testimony was not clear about where he was residing at the time of his arrest or whether he had obtained permission from anyone to move there.
The trial court concluded that defendant had willfully and unlawfully violated the terms and conditions of his probation and activated defendant's suspended sentences. Defendant appealed in open court, at that time stating that he would represent himself on the appeal because "North Carolina has turned [him] against a public defender." Subsequently, the Appellate Defender was appointed to represent defendant.
Defendant first contends the trial court erred by allowing him to proceed pro se without conducting a sufficient inquiry under N.C. Gen. Stat. § 15A-1242 (2003). Before a defendant in a probation revocation hearing is allowed to represent himself, 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). That statute 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.
"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. at 315, 569 S.E.2d at 675 (internal citations omitted). When a claim is made relating to the adequacy of the foregoing statutory inquiry, "the critical issue is whether the statutorily required information has been communicated in such a manner that defendant's decision to represent himself is knowing and voluntary." State v. Carter, 338 N.C. 569, 583, 451 S.E.2d 157, 164 (1994). The inquiry detailed in N.C. Gen. Stat. § 15A-1242 has been deemed sufficient to meet the constitutional standards in determining whether the defendant knowingly, intelligently, and voluntarily waives the right to in-court representation by counsel. State v. Thomas, 331 N.C. 671, 674, 417 S.E.2d 473, 476 (1992).
At the call of defendant's cases for hearing, the following exchange occurred:
[PROSECUTOR]: Mr. Theodore Williams appears on page 131 of the court calendar, several file numbers. These are all misdemeanor revocation appeals. He needs to be advised on these matters, one felony.
THE COURT: What is he facing?
[PROSECUTOR]: Nine to 11 months on one of them, your Honor; 30 days, 60 days — two 120-day sentences; 340 days plus 9 to 11 months, total maximum possible on all of these — I don't know if some of them were ordered to run concurrently at some point.
THE COURT: Do you understand if you are found in violation on all of those charges, do you understand the possible sentence that you could receive if your probation is revoked and your active sentence is placed into effect?
THE DEFENDANT: 9 to 11 months.
THE COURT: Do you understand it might be a little more than that? It sounds like you might have more than one sentence.
THE DEFENDANT: Four of them are misdemeanor sentences, all of them run concurrent. I was placed on probation for all of them.
THE COURT: I understand you know what you are facing. Do you want a lawyer to represent you?
THE DEFENDANT: No, pro se.
THE COURT: Let him sign a waiver of counsel.
THE DEFENDANT: I already have.
THE COURT: When did you sign it?
THE DEFENDANT: I signed several in District Court. One of them is on appeal from District Court.
[PROSECUTOR]: Mr. Williams, do you want to handle this yourself? Do you want to have a hearing or activate your time?
THE DEFENDANT: I would like to have a hearing.
[PROSECUTOR]: Mr. Williams, would you admit that you willfully, without lawful excuse, violated your probation?
THE DEFENDANT: I would deny and move for dismissal for lack of venue, your Honor.
We believe the court's discussion with defendant in open court was sufficient to satisfy the requirements of N.C. Gen. Stat. § 15A-1242. From defendant's statements, it is apparent that defendant knew he had a right to court-appointed counsel. The trial judge's inquiry informed defendant that if he was found to have violated his probation, then he would face the possible consequence of active service of the sentences; and defendant revealed a concrete understanding of the sentences potentially facing him. Because the court's inquiry elicited the information necessary for the court to make a determination that defendant's decision to represent himself was knowing and voluntary, we conclude the court complied with the requirements of the statute and with defendant's constitutional rights.
Defendant also contends the trial court erred "by allowing the probation officer present at the hearing to testify concerning alleged violations that took place while [defendant] was under the supervision of another officer." He argues that he "was unable to question [Officer Tyson] concerning his alleged violations, in violation of his right to confront the witnesses against him."
Defendant acknowledges that the Sixth Amendment Confrontation Clause does not apply in probation violation hearings. See State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973). Nevertheless, he contends that the Due Process Clause grants an essentially identical right of confrontation, citing Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973), and N.C. Gen. Stat. § 15A-1345(e) (2003) (stating that at a probation revocation hearing, the probationer "may present relevant information, and may confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation").
Our courts have, however, concluded that neither Gagnon nor N.C. Gen. Stat. § 15A-1345 requires that the State produce a witness for examination by a defendant in a probation revocation hearing. In State v. Terry, 149 N.C. App. 434, 436-37, 562 S.E.2d 537, 539 (2002), the probation officer testified about his conversations with the defendant's professor regarding her class schedule. In rejecting the defendant's argument that she was denied her constitutional and statutory right to cross-examine the professor, this Court first pointed out that "proceedings to revoke probation are informal in nature such that the trial court is not bound by the strict rules of evidence." Id. at 437, 562 S.E.2d at 540. The Court then observed that the information from the professor merely confirmed other evidence presented and the defendant had not requested that the professor be subpoenaed. Id. at 438, 562 S.E.2d at 540. Similarly, in State v. Gamble, 50 N.C. App. 658, 662, 274 S.E.2d 874, 877 (1981), the defendant contended that he was denied the right to cross-examine adverse witnesses when the State presented no witnesses, but rather merely read the probation violation report into the record. This Court found no violation of the defendant's rights, reasoning: "The State presented no witnesses against the defendant, and defendant failed to request that he be allowed to examine his probation officer or anyone else. . . . We thus overrule defendant's assignment of error here." Id. at 662, 274 S.E.2d at 877.
In this case, defendant was allowed the opportunity to cross-examine Officer Owens about defendant's alleged probation violations and did so. Officer Owens, who was assigned to supervise defendant's probation, testified that defendant failed to provide proof of satisfactory employment, failed to make payments to the clerk of court, failed to obtain a substance abuse assessment, and left his residence without permission. Defendant's own testimony corroborated the lack of employment, the failure to make payments, and the failure to obtain the substance abuse assessment. Further, the record contains no indication that defendant sought to have Officer Tyson subpoenaed. In light of Terry and Gamble, defendant has failed to demonstrate that his right to cross-examine adverse witnesses was violated.
Officer Owens' testimony and defendant's own testimony provided sufficient evidence for the trial court to conclude that defendant willfully violated his probation. Accordingly, the trial court's judgments revoking defendant's probation are affirmed.
Affirmed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).