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 [...]