State v. Warren
| Decision Date | 15 July 1986 |
| Docket Number | No. 8520SC1232,8520SC1232 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Peter WARREN. |
Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Karen E. Long, Dept. of Justice, Raleigh, for State.
George E. Crump, III, Rockingham, for defendant-appellant.
On 5 April 1985, defendant Peter Warren pleaded guilty to breaking or entering and possession of implements of housebreaking and was sentenced to five years in prison. Defendant had been convicted in 1983 of uttering forged paper, breaking or entering and larceny and sentenced to ten years in prison, suspended, after 141 days, for four years probation. Defendant had also been convicted in 1984 of credit card theft or withholding, breaking or entering and larceny and sentenced to three years in prison, suspended for five years probation.
Having violated the condition of his probation that "he commit no criminal offense in any jurisdiction" for the duration of his probation, a probation revocation hearing was held on 1 July 1985, and the superior court activated the defendant's 1983 ten-year sentence and defendant's 1984 three-year sentence. Defendant, who signed a waiver of his right to assigned counsel, now challenges the revocation proceeding as lacking in due process because the waiver was not knowingly, intelligently, and voluntarily made. Defendant contends that he was therefore effectively denied the assistance of counsel to which he is entitled under N.C.Gen.Stat. Sec. 15A-1345(e) (1983). We do not agree with defendant's contentions, and we affirm.
There is a statutorily recognized right to counsel at a probation revocation hearing in North Carolina that goes beyond the federal constitutional right enunciated in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See G.S. Sec. 15A-1345(3) (1983); State v. Coltrane, 307 N.C. 511, 514, 299 S.E.2d 199, 201 (1983). This right can be knowingly, intelligently and voluntarily waived; however, waiver cannot be inferred from a silent record. State v. Neeley, 307 N.C. 247, 252, 297 S.E.2d 389, 393 (1982).
When a defendant waives counsel at or before the trial phase of the proceedings against him or her, the record must show that the defendant was literate and competent, that he or she understood the consequences of the waiver, and that, in waiving the right, the defendant was voluntarily exercising his or her own free will. State v. Thacker, 301 N.C. 348, 354, 271 S.E.2d 252, 256 (1980) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ).
Although we have found no North Carolina cases that directly address the sufficiency of the waiver issue in the probation revocation context, there is federal case law that we find instructive and persuasive. In United States v. Ross, 503 F.2d 940 (5th Cir.1974), the defendant's lawyer was not notified of the revocation hearing because of the court's clerical error. Defendant was advised of his right to counsel, but waived it because he thought the hearing was "sort of informal." Ross, 503 F.2d at 945. He did not sign a written waiver, and the record supported his contention that he had waived counsel under a misapprehension about the nature of the proceeding. The appeals court stated:
Id. (emphasis added)
In addition, we look by way of analogy to N.C.Gen.Stat. Sec. 15A-1242 (1983) and the cases which have interpreted that section.
N.C.Gen.Stat. Sec. 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. (1977, c. 711, s.1.)
Compliance with the dictates of this section has been held to fully satisfy the constitutional requirement that waiver of counsel be knowing and voluntary. State v. Thacker, 301 N.C. at 355, 271 S.E.2d at 256.
Defendant argues that because there is no record that the trial court informed him of the range of permissible punishment he could receive from the probation violations, his waiver could not have been knowing and voluntary. We agree that when there is no evidence in the record that the trial court made a thorough inquiry sufficient to comport with the dictates of G.S. Sec. 1242, due process requirements have not been met. And even when the court signs a certification indicating that this procedure has been followed, but the record belies that fact, the waiver will be invalidated. See State v. Hardy, 78 N.C.App. 175, 179, 336 S.E.2d 661, 664 (1985); State v. Wells, 78 N.C.App. 769, 338 S.E.2d 573 (1986).
In this case, defendant signed the standard written waiver:
As the undersigned party in this action, I freely and voluntarily declare that I have been clearly advised of my right to the assistance of counsel, that I have been fully informed of the charges against me, the nature of and the statutory punishment for each such charge, and the nature of the proceedings against me; that I have been advised of my right to have counsel assigned to assist me in defending against these charges or in handling these proceedings, and that I fully understand and appreciate the consequences of my decision to waive counsel.
I freely, voluntarily and knowingly declare that I do not desire to have counsel assigned to assist me, that I expressly waive that right, and that in all respects I desire to appear in my own behalf, which I understand I have the right to do.
The court certified that the defendant had been "fully informed in open Court of the nature of the proceedings or the charges against him and of his right to have counsel assigned ... and that he has executed the ... waiver in my presence after its meaning and effect have been explained to him."
Unlike the situations in Ross, Hardy and Wells, there is no indication in the record before us that defendant misunderstood the nature of the proceedings, was misunderstood by the court, or was given no chance to explain. When asked if he had anything to say, defendant replied:
[Defendant]: Yes, sir. I just--I'm already doing time and I'd like to say that I'm guilty naturally by being sentenced. In other words, I automatically revoked my probation, but ask if anyway possible,...
To continue reading
Request your trial
-
State v. Reid
...presumed to have been knowing, intelligent, and voluntary, unless the rest of the record indicates otherwise.” State v. Warren, 82 N.C.App. 84, 89, 345 S.E.2d 437, 441 (1986). Our Supreme Court has offered a fourteen-question checklist “designed to satisfy requirements of N.C.G.S. § 15A–124......
-
State v. Hyatt, COA98-577.
...by the trial court, the waiver of counsel will be presumed to have been knowing, intelligent and voluntary." State v. Warren, 82 N.C.App. 84, 89, 345 S.E.2d 437, 441 (1986). However, we have also stated that "a written waiver of counsel is no substitute for actual compliance by the trial co......
-
State v. Brooks
...form, inquiring of defendant each necessary element of the form. "With nothing in the record to indicate otherwise, [State v.] Warren [, 82 N.C.App. 84, 345 S.E.2d 437 (1986) ] requires us to presume that defendant knowingly, intelligently, and voluntarily elected to proceed pro se." State ......
-
State v. Love
...presumed to have been knowing, intelligent, and voluntary, unless the rest of the record indicates otherwise." State v. Warren, 82 N.C.App. 84, 89, 345 S.E.2d 437, 441 (1986). This language, while originally used in a case in which a defendant had waived his right to assigned counsel, speak......