NO. COA13-1159
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Columbus County
No. 11 CRS 5387-39, 11 CRS
53961
NICHOLAS JAMES JACOBS
On a writ of certiorari by defendant from judgment entered
8 May 2013 by Judge Douglas B. Sasser in Columbus County
Superior Court. Heard in the Court of Appeals 17 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Jason R. Rosser, for the State.
Edward Eldred for defendant.
ELMORE, Judge.
On 15 November 2013, Nicholas James Jacobs (defendant)
filed a petition for writ of certiorari in this Court, seeking
review of the trial court’s order revoking his probation and
activating his prison sentence. This case arose after defendant
pled guilty to five counts of obtaining property by false
pretenses and five counts of breaking or entering a motor
vehicle, which were consolidated into five sentences. This
Court will hear defendant’s appeal pursuant to his petition for
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writ of certiorari for the purpose of reviewing the criminal
judgment. After careful consideration, we reverse the trial
court’s judgment and remand for further action consistent with
this opinion.
I. Factual Background
On 25 April 2012, defendant pled guilty to the above
mentioned offenses. Pursuant to defendant’s plea, the trial
court sentenced defendant to one term of 6 to 8 months active
time; four consecutive, suspended 8 to 10 months sentences; and
probation for 36 months. On 4 January 2012, defendant’s
probation officer filed notices of probation violations against
defendant in Columbus County. The notices alleged that
defendant failed (1) to attend a scheduled appointment, (2) to
make required payments to the Clerk of Superior Court, (3) to
obtain approval before moving, (4) to remain within the
jurisdiction of the court, (5) attend TASC (Treatment
Accountability for Safer Communities), and (6) was charged with
criminal offenses that could result in probation violations.
On 8 May 2013, a probation violation hearing was held in
Columbus County Superior Court. Defendant proceeded pro se at
the hearing. The trial court revoked defendant’s probation and
activated his sentences. That same day, defendant filed a
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written notice of appeal. However, the record shows that
defendant’s notice of appeal was defective. Accordingly,
defendant’s appeal is before us on writ of certiorari.
II. Analysis
Defendant’s sole argument on appeal is that the trial court
erred by allowing him to represent himself without establishing
that defendant’s waiver of his right to counsel was knowing,
voluntary, and intelligent as prescribed by N.C. Gen. Stat. §
15A-1242. We agree.
“It is well[-]settled that an accused is entitled to the
assistance of counsel at every critical stage of the criminal
process as constitutionally required under the Sixth and
Fourteenth Amendments to the United States Constitution.” State
v. Taylor, 354 N.C. 28, 35, 550 S.E.2d 141, 147 (2001), cert.
denied, 535 U.S. 934, 122 S Ct. 1312, 152 L. Ed. 2d 221 (2002).
Specifically, a defendant is entitled to be represented by
counsel at a probation revocation hearing and, if indigent, to
have counsel appointed for him. N.C. Gen. Stat. § 15A-1345(e)
(2013). A 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).
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“Before a defendant is allowed to waive in-court
representation by counsel, the trial court must insure [sic]
that constitutional and statutory standards are satisfied.”
State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994)
(citation omitted). To satisfy the trial court, a defendant
must first “‘clearly and unequivocally’ waive his right to
counsel and instead elect to proceed pro se.” Id. Second, the
trial court must determine whether the defendant knowingly,
intelligently, and voluntarily waived his right to in-court
representation by counsel.” Id. “A signed written waiver is
presumptive evidence that a defendant wishes to act as his or
her own attorney. However, the trial court must still comply
with N.C. Gen. Stat. § 15A-1242[.]” State v. Whitfield, 170
N.C. App. 618, 620, 613 S.E.2d 289, 291 (2005) (internal
citation omitted).
N.C. Gen. Stat. § 15A-1242 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
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3. Comprehends the nature of the charges and
proceedings and the range of permissible
punishments.
In the instant case, defendant’s appointed counsel withdrew
at the outset of defendant’s revocation hearing due to a
conflict in representation. In an attempt to appoint defendant
new counsel, the trial judge asked the clerk, “[h]ow about Mr.
Bill Gore?” Before the clerk responded, defendant interrupted
and the following colloquy occurred:
DEFENDANT: This case has been continued
since January. It’s the fourth—this will be
the fifth time it’s [sic] been continued.
I’m not happy about that. I have numerous
co-defendants in this case.
. . .
THE COURT: You understand if you want a
lawyer, I will be happy to appoint another
for you, you understand. If you go forward
with it today without an attorney, you are
held to the same standard. The Court can’t
walk you through it, you are held to the
same standard and I assume the State is
seeking revocation.
. . .
P.O.: Yes, your Honor.
THE COURT: You understand they are going to
ask me to put you in prison on this, so it
may be you will want to wait at this point
and have it continued for another 30 days
and have a lawyer come in and help out on it
as opposed to doing it yourself.
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DEFENDANT: If they’re going to violate me,
they’re going to violate me anyway with a
lawyer or without a lawyer.
THE COURT: If you are in violation, the
Court could find that and there’s a chance
you might be violated anyway. What’s the
underlying sentence?
THE STATE: There’s four, boxcar(ed), eight
to ten.
THE COURT: If he takes care of it himself
today and admits and I take one of those
boxcar(ed) and consolidate it with the rest,
which would be a pretty good offer.
. . .
THE STATE: If he would want to accept that
today and be done with it, the State
wouldn’t object.
THE COURT: The State wouldn’t object.
DEFENDANT: I’m not going to–if y’all are
going to give it to me, you’re going to have
to give it to me because I’m not going to
ask that my probation be revoked.
THE COURT: Okay, and I don’t have to give
you one day off, you understand that.
DEFENDANT: I understand.
(the hearing began and defendant’s parole
officer began testifying)
THE COURT: One moment. Let’s get a waiver
in the file. You indicated you didn’t want
an attorney, I’m going to let you sign a
waiver that you don’t want an attorney.
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This exchange reveals that the trial judge made no inquiry
as to whether defendant understood the “range of permissible
punishments” pursuant to N.C. Gen. Stat. § 15A-1242(3). The
State contends that defendant understood the range of
permissible punishments because “the probation officer told the
court that the State was seeking probation revocation.” This is
insufficient to satisfy N.C. Gen. Stat. § 15A–1242(3). As to
defendant’s underlying sentence, defendant was told only that,
“[t]here’s four, boxcar(ed), eight to ten.” The trial judge
then made defendant the “good offer” of having “one of those
boxcar(ed)” consolidated. However, there was no discussion
pertaining to the specific range of punishment.
We cannot assume that defendant understood the legal jargon
“boxcared” and “eight to ten” as it related to his sentence.
The phrase “eight to ten” is uncertain--is it in reference to
eight to ten days, weeks, months, or years? Further, the trial
judge had an unequivocal duty to ask defendant whether he
understood the nature of the charges and proceedings and
disclose the range of permissible punishments. State v. Pruitt,
322 N.C. 600, 604, 369 S.E.2d 590, 593 (1988) (citations
omitted). He neglected to do so. The foregoing is clearly
inadequate to constitute the “thorough inquiry” necessary to
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satisfy N.C. Gen. Stat. § 15A–1242(3). See State v. Taylor, 187
N.C. App. 291, 294, 652 S.E.2d 741, 743 (2007) (holding that the
trial court failed to properly inform the defendant regarding
the range of permissible punishments when it correctly informed
defendant of the maximum 60–day imprisonment penalty, but failed
to inform defendant that he also faced a maximum $1,000.00 fine
for each of the charges).
Although we recognize that defendant signed a written
waiver of his right to assistance of counsel, the trial court
was not abrogated of its responsibility to ensure the
requirements of N.C. Gen. Stat. § 15A-1242 were fulfilled.
Whitfield, supra. We need not discern whether the first two
subparts of the statute were satisfied—all three must be met to
ensure that a defendant’s waiver was made knowingly,
intelligently, and voluntarily. Accordingly, we reverse the
trial court’s judgment revoking defendant’s probation and remand
for a new probation revocation hearing.
Reversed and remanded.
Chief Judge MARTIN and HUNTER, Robert N., concur.