STATE v. LOCKLEAR (2019)

Defendant Timothy O'Neal Locklear, Jr. appeals from a judgment revoking his probation.

I. Background

In 2017, Defendant pleaded guilty to larceny after breaking or entering. The trial court sentenced Defendant to a term of seven to eighteen (18) months of imprisonment, suspended Defendant's sentence, and placed him on supervised probation for thirty (30) months.

In November 2018, the State filed a probation violation report alleging a number of violations by Defendant.

Three months later, in February 2019, the trial court held a probation violation hearing. At the beginning of the hearing, the trial court asked Defendant “do you want a court appointed attorney, [to] represent yourself, or [to] hire your own [attorney]?” Defendant responded that he wanted to represent himself. The trial court then directed Defendant to sign a waiver of counsel form. However, the trial court did not engage in the colloquy as required by N.C. Gen. Stat. § 15-1242. Defendant admitted to the first and third allegations in the probation violation report. The trial court found that Defendant willfully violated the terms of his probation, revoked Defendant's probation, and activated his suspended sentence. Defendant appeals.

II. Analysis

Defendant argues the trial court erred by allowing him to represent himself without establishing that his waiver of counsel was knowing, voluntary, and intelligent as required by Section 15A-1242. The State concedes error, and we agree.

Here, Defendant executed a written waiver of counsel that was certified by the trial court. However, “[t]he fact that defendant signed a written waiver acknowledging that he was waiving his right to assigned counsel does not relieve the trial court of its duty to go through the requisite inquiry with defendant to determine whether he understood the consequences of his waiver.” State v. Pena, ––– N.C. App. ––––, ––––, 809 S.E.2d 1, 7-8 (2017), disc. review denied, ––– N.C. ––––, 813 S.E.2d 236 (2018) (citing State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002)). “A written waiver is ‘something in addition to the requirements of N.C. Gen. Stat. § 15A-1242, not ․ an alternative to it.’ ” Evans, 153 N.C. App. at 315, 569 S.E.2d at 675 (quoting State v. Hyatt, 132 N.C. App. 697, 703, 513 S.E.2d 90, 94 (1999)). The failure by the trial court to conduct a proper inquiry under section 15A-1242 automatically amounts to prejudicial error. State v. Pruitt, 322 N.C. 600, 603, 369 S.E.2d 590, 592 (1988).

III. Conclusion

In this case, the trial court wholly failed to conduct the inquiry mandated by Section 15A-1242. The State concedes this error. Accordingly, we vacate the judgment revoking Defendant's probation and remand for a new hearing.

VACATED AND REMANDED.

Report per Rule 30(e).

DILLON, Judge.

Judges DIETZ and MURPHY concur.