State v. Whitfield , 170 N.C. App. 618 ( 2005 )

McCullough, Judge.

Defendant Kristie W. Whitfield appeals from the trial court’s order revoking her probation and activating her prison sentence. This case arose after defendant pled guilty to two separate drug convictions.

On 5 June 2002, defendant pled guilty to felony possession of cocaine. At that time, the trial judge sentenced defendant to between four and five months in prison. The judge suspended the sentence and placed defendant on probation for twenty-four months. On 22 May 2003, defendant pled guilty to possession of cocaine with intent to sell and deliver. The judge sentenced defendant to between eight and ten months in prison. The judge suspended the sentence and placed defendant on probation for eighteen months.

The terms of defendant’s probation for the two convictions required her to perform community service, follow a nighttime curfew, pay community service costs, and regularly visit her probation officer.

On or about 28 October 2003, defendant’s probation officer filed notices of probation violations against defendant in Wake County. The notices alleged that defendant failed to complete her community service hours, broke her curfew on several dates, missed office appointments with her probation officer, and did not pay community service fees, court fees, and probation fees.

A hearing occurred on 12 January 2004 in Wake County Superior Court. The trial court revoked defendant’s probation and activated her sentences. Defendant appeals.

On appeal, defendant argues that the trial court erred by permitting her to proceed pro se without properly determining whether her waiver of the right to counsel was knowing, intelligent, and voluntary. We disagree and affirm the decision of the trial court.

Pursuant to N.C. Gen. Stat. § 15A-1344 (2003), a trial court may modify or revoke probation when a person violates one of the terms of probation. Subsection (d) of the statute provides in pertinent part:

If a convicted defendant violates a condition of probation at any time prior to the expiration or termination of the period of probation, the court, in accordance with the provisions of G.S. 15A-1345, may continue him on probation, with or without modifying the conditions, may place the defendant on special probation as provided in subsection (e), or, if continuation, modification, or special probation is not appropriate, may revoke the probation and activate the suspended sentence imposed at the time of initial sentencing, if any, or may order that charges as to which prosecution has been deferred be brought to trial; provided that probation may not be revoked solely for conviction of a Class 3 misdemeanor.

N.C. Gen. Stat. § 15A-1344(d).

A defendant has a right to assistance of legal counsel during a probation revocation hearing. N.C. Gen. Stat. § 15A-1345(e) (2003). Defendant also has the right to refuse the assistance of counsel and proceed pro se. State v. Gerald, 304 N.C. 511, 516, 284 S.E.2d 312, 316 (1981). A defendant must clearly and unequivocally waive the right to counsel, and the trial court must make a thorough inquiry as to whether defendant’s waiver was knowing, intelligent, and voluntary. State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994), cert. denied, 531 U.S. 843, 148 L. Ed. 2d 67, reh’g denied, 531 U.S. 1002, 148 L. Ed. 2d 475 (2000). A signed written waiver is presumptive evidence that a defendant wishes to act as his or her own attorney. State v. Warren, 82 N.C. App. 84, 89, 345 S.E.2d 437, 441 (1986). However, the trial court must still comply with N.C. Gen. Stat. § 15A-1242 (2003). This statute allows a defendant to proceed without counsel if the trial judge makes a thorough inquiry and is satisfied that 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.

Id.

Defendant’s contention is that the trial judge failed to comply with this statutory mandate. During the hearing, the following exchange took place between the trial judge and defendant:

The Court: All right. Ms. Whitfield, do you understand that you have possibly 11 to 15 months hanging over your head?

Defendant: Yes, ma’am.

The Court: You understand that?

Defendant: Yes, ma’am.

The Court: If your probation is revoked, you may very well have your sentence activated, have to serve that time. You’re entitled to have an attorney to represent you. Are you going to hire an attorney to represent you, represent yourself, or ask for a court appointed attorney[?] [0]f those three choices, which choice do you make?

Defendant: Represent myself.

The Court: Put your left hand on the Bible and raise your right hand.

(The Defendant was sworn by the Court)

The Court: That is what you want to do, so help you God? Defendant: Yes, ma’am.

This exchange reveals that the trial judge did make the appropriate inquiry as to whether defendant’s waiver was knowing, intelligent, and voluntary. The trial judge followed all three requirements set forth in N.C.' Gen. Stat. § 15A-1242. She informed defendant of the right of assistance of counsel, including the right to a court-appointed attorney if defendant was entitled to one. The trial judge also made sure that defendant understood that her probation could be revoked, that her sentences could be activated, and that she could serve eleven to fifteen months in prison. Cognizant of these facts, defendant verbally gave a knowing, intelligent, and voluntary waiver of her right to counsel. Later, defendant signed a document indicating that she waived her right to counsel and wanted to appear on her own behalf. Therefore, we have no doubt that defendant intended to and did in fact waive her right to counsel.

In her brief, defendant seizes upon a partial statement to suggest that she was confused about her right to counsel. When the prosecutor asked defendant to admit or deny the charges, defendant responded: “Excuse me. I cannot hire my own lawyer because I[.]” The timing and context of the statement suggest that defendant was not confused about waiving her right to counsel.

First, defendant’s statement came after she waived her right to counsel verbally. As we have indicated, defendant was aware of the consequences of representing herself and made her decision without hesitation. Furthermore, the fact that defendant signed a written waiver is strong evidence tending to show that she made a knowing, intelligent, and voluntary waiver.

Second, after defendant waived her right to counsel, she was competent enough to make a motion to continue the case. The trial judge denied that motion and heard the matter immediately. This action is significant because it reveals defendant’s effort to proceed on her own and zealously represent herself; it also contradicts the suggestion that defendant was confused about her right to counsel.

Finally, defendant made the comment about why she could not hire an attorney after the prosecutor asked her to admit or deny the charges. Since defendant’s explanation as to why she could not hire her own lawyer was not responsive to that inquiry, it may have been a deliberate attempt to avoid answering the question.

After careful consideration, we conclude that the trial judge conducted the proper inquiry and determined that defendant’s waiver of counsel was knowing, intelligent, and voluntary. We hold that the trial judge acted properly in revoking defendant’s probation and activating her prison sentence. Therefore, the decision of the trial court is

Affirmed.

Chief Judge MARTIN concurs. Judge ELMORE dissents.