State v. Scott

On or about 3 January 2005, Travis Lee Scott (“Defendant”) pled guilty to one count of felony possession of cocaine in violation of N.C. Gen. Stat. § 90-95(d)(2). The trial court sentenced Defendant to six to eight months in prison, suspended the sentence, and placed Defendant on supervised probation. On 5 September 2006, Defendant’s probation officer filed a violation report alle'ging four violations of the terms of Defendant’s probation. At his first appearance on 18 September 2006, Defendant signed a waiver of counsel form and stated that he would hire his own attorney to represent him in the probation violation proceedings.

At his next appearance on 16 October 2006, Defendant asked the trial court to appoint him an attorney.

THE COURT: Why is that, sir?

THE DEFENDANT: Because I don’t have no money to afford to pay no lawyer.

THE COURT: Before you waived your right to counsel, had you made any inquiry as to how much it was going to cost to hire an attorney?

THE DEFENDANT: No, ma’am.

THE COURT: So you just came in here and waived thinking that you would be able to do it?

THE DEFENDANT: I didn’t know it would be that much.

THE COURT: Have you ever had to hire an attorney before for anything?

THE DEFENDANT: Yes.

THE COURT: Your request is denied.

*777THE DEFENDANT: I was asking could I get a continuance.

THE COURT: No, sir.

After hearing from Defendant and his probation officer, the trial court revoked Defendant’s probation and activated his suspended sentence: On appeal, Defendant argues the trial court erred in (1) denying his request to withdraw his waiver of court appointed counsel, (2) denying his request for a continuance, and (3) failing to ensure that Defendant’s waiver of counsel was made knowingly, intelligently, and voluntarily.

A defendant at a probation revocation hearing has a statutory right to counsel akin to the right enjoyed in a criminal trial. See N.C. Gen. Stat. § 15A-1345(e) (2005) (“The probationer is entitled to be represented by counsel at the [probation revocation] hearing and, if indigent, to have counsel appointed.”); State v. Warren, 82 N.C. App. 84, 85, 345 S.E.2d 437, 439 (1986) (“There is a statutorily recognized right to counsel at a probation revocation hearing in North Carolina that goes beyond the federal constitutional right enunciated in Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S.Ct. 1756 (1973).”) (citations omitted).

A criminal defendant may waive his [constitutional] right to be represented by counsel so long as he voluntarily and uhderstand-ingly does so. Once given, however, 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. The burden of establishing a change of desire for the assistance of counsel rests upon the defendant.

State v. Sexton, 141 N.C. App. 344, 346-47, 539 S.E.2d 675, 676-77 (2000) (alteration in original) (quotation marks and citations omitted).

In Sexton, the defendant waived his right to appointed counsel at his first appearance. Two months later, when the matter was called for hearing, the defendant specifically asked the trial court to appoint him counsel. The defendant made his request because he “lost [his] job[,]” id. at 347, 539 S.E.2d at 677, but the trial court denied the request based on the prior waiver. On appeal, this Court held that the defendant had “carried his burden of showing a change in his desire for assigned counsel, and the record reflects his request was for good cause.” Id. Therefore, this Court determined, “the trial court’s denial *778of the request for assistance violated defendant’s constitutional right to an attorney.” Id.

Like the defendant in Sexton, Defendant in this case withdrew his prior waiver by explicitly asking the trial court to appoint counsel to represent him. Defendant indicated that he had sought to hire an attorney, but that he “didn’t know it would be that much.” The State’s contention to the contrary, that Defendant “made no inquiry” into the cost of retaining counsel, is simply not supported by the transcript. Moreover, we disagree with the State’s suggestion that Defendant’s request for appointed counsel was a tactic “to delay and frustrate the orderly processes of the trial court[,]” and that, thus, Defendant forfeited his right to an attorney. See State v. Montgomery, 138 N.C. App. 521, 524, 530 S.E.2d 66, 69 (2000) (stating that a defendant may forfeit his right to counsel when he uses that right “ ‘for the purpose of obstructing and delaying his trial.’ ”) (quoting State v. McFadden, 292 N.C. 609, 616, 234 S.E.2d 742, 747 (1977)). In Montgomery, this Court held that the trial court did not err in requiring the defendant to proceed pro se where the defendant “was afforded ample opportunity over the course of fifteen months[] to obtain counsel[,]” the “defendant was disruptive in the courtroom on two occasions,” and the defendant “refused to cooperate with [his attorney] and assaulted him[.]” Id. at 525, 530 S.E.2d at 69. Defendant’s “tactic” in this case, by contrast, amounted to an attempt to withdraw his waiver at his second appearance, less than one month after signing the waiver form. In sum, Defendant carried his burden of proving a change in his desire for the assistance of counsel, and his request was for good cause.

The trial court erred in denying Defendant’s request, and this error violated Defendant’s right to an attorney. Accordingly, we reverse and remand the matter to the trial court for a new probation revocation hearing. In light of this result, we need not address Defendant’s remaining arguments.

REVERSED and REMANDED.