                                      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
                                          -2-
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
                                          -3-
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).
                                           -4-
       “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
                                   -5-
            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.
                     -6-


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.
                                           -7-
      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
                                            -8-
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.
