Waivers of Counsel at Probation Violation Hearings

In North Carolina a probationer has a statutory right to counsel at a probation violation hearing. G.S. 15A-1345(e); G.S. 7A-451(a)(4). The probationer can also waive the right to assistance of counsel and proceed pro se, Faretta v. California, 422 U.S. 806 (1975), but before that can happen the trial court must determine that the waiver is knowing, intelligent, and voluntary. The judge does that through the “thorough inquiry” required by G.S. 15A-1242, which our appellate courts have deemed applicable at probation violation hearings. State v. Warren, 82 N.C. App. 84 (1986). The statute requires the trial judge to satisfy himself or herself that the defendant:

(1) Has been clearly advised of his right to the assistance of counsel, including the right to the assignment of counsel if he is entitled;

(2) Understands and appreciates the consequences of the decision to waive counsel; and

(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.

Form AOC-CR-227 tracks the language of G.S. 15A-1242 and it should be completed any time a defendant waives counsel.

A recent case from the court of appeals reminds us that a signed waiver—or two—isn’t necessarily enough to satisfy G.S. 15A-1242. In State v. Sorrow, the defendant violated probation by getting terminated from a residential treatment program for rules violations. He chose to represent himself at his probation violation hearing and admitted to the violations. He signed an AOC-CR-227 waiver of counsel form at a preliminary appearance in June 2010 and then signed another one at the final revocation hearing in August. The second form was certified by the court.

On appeal, the defendant argued that the court erred by permitting him to waive counsel without first satisfying the requirements of G.S. 15A-1242. After noting that a written waiver is presumed valid unless the rest of the record indicates otherwise, the court of appeals reviewed the transcript of the exchange between the trial judge and the defendant at the violation hearing. The judge asked the defendant, “Do you understand you have the right to have an attorney represent you in this matter.” The defendant replied “Yes, ma’am.” The court then asked if the defendant was waiving both court-appointed and retained counsel. The defendant indicated that he was and that he just wanted to represent himself and take care of the hearing that day.

The court of appeals held the trial judge’s inquiry failed to address the second and third prongs of G.S. 15A-1242. The judge did not confirm that the defendant understood and appreciated the consequences of his decision to proceed pro se and never told the defendant the “range of permissible punishments”—which in this context would be the length of his suspended sentence. The court of appeals vacated the probation revocation and remanded the case for a new hearing.

Although there is no precise checklist for satisfying G.S. 15A-1242, the state supreme court has looked favorably on a fourteen-question checklist included in the former Institute of Government Superior Court Judges’ Bench Book. See State v. Moore, 362 N.C. 319 (2008). The present-day equivalent of that resource is Jessica Smith’s online Survival Guide; the section on Counsel Issues includes the relevant checklist. The bullet covering the maximum permissible punishment could be modified in the probation violation context to read:

Do you understand that you are alleged to have violated the conditions of your probation and that if you are found to have violated, your probation may be revoked and you could be imprisoned to serve your sentence of [_____ to ______ months (if a felony)] [___ days (if a misdemeanor)]?

I am sometimes asked whether a waiver executed at a preliminary appearance is valid throughout all the proceedings against the defendant. It’s a difficult question without a clear answer in the General Statutes or probation-related case law. The black-letter rule in the criminal trial context is that a waiver, once given, is good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he or she desires to withdraw the waiver and have counsel assigned. State v. Hyatt, 132 N.C. App. 697 (1999). A defendant can withdraw the waiver, but the burden of showing a change in the defendant’s desire for counsel rests upon the defendant. Id. at 700. When a defendant affirmatively asks for counsel at a final violation hearing it is error for the court to require the defendant to proceed pro se based on a waiver signed at an earlier appearance. State v. Sexton, 141 N.C. App. 344 (2000) (defendant’s request for assistance from the public defender carried his burden of showing a change in his desire for assigned counsel at his probation violation hearing).

When the initial waiver is taken at a preliminary appearance by a judge of the same court as the judge that hears the final violation hearing, there is authority supporting the continued validity of the waiver throughout the proceedings—notwithstanding the reference in G.S. 15A-1242 to the “trial judge.” See State v. Kinlock, 152 N.C. App. 84, 88–89 (2002) (quoting State v. Hyatt, 132 N.C. App. 697, 700 (1999) (“Once given, a waiver of counsel is good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he desires to withdraw the waiver and have counsel assigned to him.”)); State v. Lamb, 103 N.C. App. 646 (1991).

When a preliminary probation violation is held in district court (a practice that I believe to be permissible under G.S. 15A-1345(d), as discussed in this prior post) and the defendant waives counsel there, it’s less clear that the superior court can bypass the G.S. 15A-1242 inquiry. In State v. Debnam, 168 N.C. App. 707 (2005), for example, the court of appeals held that a defendant’s waiver of assigned counsel at a preliminary hearing in district court did not satisfy the superior court judge’s obligations under G.S. 15A-1242. The defendant in Debnam only waived assigned counsel in district court; he did not waive his right to all assistance of counsel. A recent unpublished case noted that distinction and held that a superior court judge did not err by failing to conduct a G.S. 15A-1242 inquiry when the defendant waived all assistance of counsel at a preliminary hearing in district court. State v. McClure, 702 S.E.2d 554 (2010) (unpublished). It’s worth noting that the superior court judge in McClure did at least confirm that the defendant had signed the district court waiver and still wished to represent himself. The safest practice, of course, is for the court to conduct a full inquiry in superior court.

Waiver of counsel is a tough and recurrent issue—and not just in the context of probation violation hearings. Just last week the court of appeals published two cases ordering a new criminal trial based on a failure to comply with G.S. 15A-1242. State v. Anderson, __ N.C. App. __ (Aug. 16, 2011); State v. Seymore, __ N.C. App. __ (Aug. 16, 2011). Anderson has a dissent. For a more complete treatment of this important subject, including a list of all the stages of a criminal trial at which a defendant must be informed of his or her right to counsel, see John Rubin & Alyson Grine, North Carolina Defender Manual, Vol. 1 (Pretrial), Chapter 12.5C, available at http://www.ncids.org/Def%20Manual%20Info/Defender_Manual/DefManChpt12_1-48.pdf.

2 thoughts on “Waivers of Counsel at Probation Violation Hearings”

  1. Probation violations are a no-man’s land for process. I sat through a days worth today in a busy county and noted two things:

    1) The judge almost never met the standards of this case when addressing counsel, nor could he, as there were over 100 matters on the docket.

    2) He found multiple people in violation, but found that the violation was not willful… then modified probation conditions and often extended probation.


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