State v. Arrowood
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA12-400 NORTH CAROLINA COURT OF APPEALS Filed: 6 November 2012 STATE OF NORTH CAROLONA v. Burke County No. 08 CRS 1251, 08 CRS 57795780, 09 CRS 205, 09 CRS 673, 09 CRS 4796 DENNIS JAMES ARROWOOD, JR., Defendant. Defendant appeals the judgment entered 15 November 2011 by Judge Hugh B. Lewis in Burke County Superior Court. Heard in the Court of Appeals 26 September 2012. Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State. Marie Hare Mobley, for defendant. ELMORE, Judge. Defendant appeals the judgment entered revoking his probation on the basis that he never made a voluntary, knowing, and intelligent waiver of counsel. that we review defendant s It is by writ of certiorari judgments. After careful -2consideration, we vacate the third judgment and remand for a new revocation hearing. I. Background On 3 March 2009, Dennis James Arrowood (defendant) pled guilty to defendant multiple was criminal sentenced for charges. these On offenses judgments (judgments one and two). September in two 2009, separate In judgments one and two, defendant s sentences were suspended supervised probation. The sentences consecutively. 18 and he were was placed ordered to on run On 27 September 2010, defendant pled guilty to felony breaking and entering 09 CRS 4796 (the third judgment). His prison sentence was suspended and he was again placed on supervised probation. Thereafter, defendant failed to report compliance review with his probation officer. for a scheduled Orders of arrest for felony probation violations were issued on 17 August 2011 in judgments one and two. appointed as counsel Attorney Nancy Einstein (Einstein) was for defendant to handle violations stemming from judgments one and two. the probation On 23 October 2011, defendant was served with a violation report in judgment three. Defendant was not appointed counsel for judgment three. On 15 November 2011, defendant, represented by Einstein, -3came before the resulting from guilty to the trial court for the judgments one and two. probation violations, probation violations After defendant pled his probation officer alerted the court that a third violation was before the court. The following exchange occurred: THE COURT: Please answer question: Do you admit violations, yes or no? the following or deny the THE DEFENDANT: I admit it. THE COURT: Okay, we ll deem that we have an admission. And do I understand that he wishes to activate his time at this point? EINSTEIN: I m not sure what he wants to do, Your Honor. He's got one, one sentence -about four months credit for pretrial -- and then he was picked up THE COURT: (Inaudible) four weeks. EINSTEIN: Yeah, he s probably got about five weeks on this bout in custody. So I m sure you d like to hear from the probation officer and then I'd like to briefly be heard. THE PROBATION OFFICER: Your Honor, actually, there s three cases. There's one on the addon that he was served with and cited after he was picked up. So we have three cases on the calendar this morning, Your Honor. EINSTEIN: He may not have a court-appointed attorney for that new one. THE COURT: Was that the '08 case? Which one -4is on that -- ? THE PROBATION OFFICER: 09-4796. EINSTEIN: All right, Your Honor, he said that he would waive his right to a courtappointed attorney on that. THE COURT: Thank you, that ll be so noted so we can go forward on all three. The court revoked defendant s probation and sentenced him consecutively on all three judgments. He received 10 to 12 months for judgments one and two and 8 to 10 months for judgment three. right After sentencing, defendant executed a waiver of his to court-appointed counsel for the third judgment. Defendant now appeals. II. Waiver of Counsel Defendant argues that the trial court erred in revoking his probation without first obtaining a voluntary, knowing, and intelligent waiver of counsel from him for judgment three. We agree. Conclusions of law are reviewed de novo and are subject to full review. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011); see also Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004) ( Conclusions of law drawn by the trial court from its findings -5of fact are reviewable de novo on appeal. ) (citation omitted). A defendant charged with the violation of conditions of a probation sentence is entitled to representation by an attorney. See State v. Atkinson, 7 N.C. App. 355, 358, 172 S.E.2d 249, 252 (1970). However, our Supreme Court has concluded that a defendant may handle his own case without the assistance of counsel provided certain constitutional and statutory standards are met. See State v. Fulp, 355 N.C. 171, 174-75, 558 S.E.2d 156, 158-59 (2002). First, defendant s waiver of the right to counsel and election to proceed pro se must be expressed clearly and unequivocally. Second, . . . the trial court must determine whether defendant knowingly, intelligently, and voluntarily waives his right to counsel. . . . In order to determine whether the waiver meets [this constitutional] standard, the trial court must conduct a thorough inquiry. This Court has held that N.C.G.S. § 15A-1242 satisfies any constitutional requirements by adequately setting forth the parameters of such inquiries. Id. at 175, 558 S.E.2d at 159 (citations and quotations omitted). In order to meet the first requirement, the defendant must have clearly and unequivocally expressed his desire to proceed pro se for the third probation violation. held that [g]iven the fundamental Our Supreme Court has nature of the right to -6counsel, we ought not to indulge in the presumption that it has been waived by anything less than an express indication of such an intention. State v. Hutchins, 303 N.C. 321, 339, 279 S.E.2d 788, 800 (1981). The record reflects that Einstein s statement to the trial court that defendant waived his right to courtappointed counsel for the third probation violation is the only indication that defendant waived his right to counsel. Here, Einstein provided that defendant waived his right to a court-appointed attorney. However, defendant was entitled to representation by private counsel of his own choosing should he so wish. waived There is no indication that defendant stated that he his right proceed pro se. asked defendant result, he to counsel completely and was electing to Furthermore, the trial court never directly whether never had he wished the to waive opportunity counsel. to As clearly a and unequivocally waive his right to counsel. We note that defendant s written waiver of counsel is not enough to establish that he clearly and unequivocally expressed his desire to proceed pro se. A written waiver of counsel is considered a further safeguard for the trial court. See State v. Thomas, 331 N.C. 671, 674-75, 417 S.E.2d 473, 476 (1992). It is not a substitute for actual compliance by the trial court -7with G.S. 15A-1242. State v. Wells, 78 N.C. App. 769, 773, 338 S.E.2d 573, 575 (1986). Accordingly, we conclude that the State failed to provide any competent evidence that defendant clearly and unequivocally expressed his desire to waive his right to counsel as to judgment three. As whether mentioned, defendant supra, knowingly, waived his right to counsel. 158-59. the trial court intelligently, shall and determine voluntarily 355 N.C. at 174-75, 558 S.E.2d at In order to make such determination, the trial court must thoroughly question the defendant to see whether defendant (1) [h]as 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) [u]nderstands and appreciates the consequences of this decision; and (3) [c]omprehends the nature of the charges and proceedings and the range of permissible punishments. N.C. Gen. Stat. § 15A-1242 (2011). The inquiry required [by this section] is mandatory and must be made in every case counsel. in which a defendant elects to proceed without State v. Callahan, 83 N.C. App. 323, 324 350 S.E.2d 128, 129 (1986) (citations and quotations omitted). Here, there is no indication that the trial court informed -8defendant of his right to counsel for judgment three. After defendant pled guilty to judgments one and two, Einstein stated that defendant may not have a court-appointed attorney for judgment three. inform At this point, the trial court was required to defendant that he was, in fact, entitled to representation, whether by a private attorney or by appointed counsel. As there is no indication that the trial court informed defendant of his right to the assignment of counsel, we conclude that the trial court failed to satisfy prong 1 above. Furthermore, the trial court made no inquiry as to whether defendant understood the consequences of his decision to proceed pro se. Thus, prong 2 was not satisfied. Finally, the trial court failed to ask defendant whether he understood the nature of the charges punishments. against him and the range of permissible Therefore, the trial court failed to satisfy prong 3. As the trial court failed to comply with N.C. Gen. Stat. § 15A-1242 in determine its whether intelligently vacate the hearing. entirety, trial court was unable defendant waived third the voluntarily, knowingly, his to Accordingly, right judgment and counsel. remand for a new to and we revocation -9III. Conclusion In sum, we conclude that the trial court erred by failing to comply with the requirements set out in N.C. Gen. Stat. § 15A-1242. Therefore, we vacate 09 CRS 4796 and remand for a new revocation hearing. Reversed. Judges CALABRIA and STEPHENS concur. Report per Rule 30(e).
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