State v. Guinn, ___ N.C. App. ___, 2022-NCCOA-36 (Jan. 18, 2022)

The defendant was on supervised probation in Gaston County after pleading guilty to two counts of uttering a forged instrument. 24 months into a 30-month period of probation, a probation violation was filed, accusing the defendant of willful failure to pay. The defendant was not represented by counsel at the hearing, and the trial court ultimately extended probation by 12 months. A year later, probation filed a violation report accusing the defendant of numerous violations. An absconding violation was filed soon after. A hearing was held where the defendant’s probation was revoked, and his sentence activated.

On appeal, the defendant argued that the initial extension of his probation was invalid based on a violation of his right to counsel. (1) The State argued that the defendant was not permitted to collaterally attack the underlying judgment. The court disagreed, finding that the defendant sought to challenge the order extending his probation, not the underlying criminal judgment placing him on probation. Because the defendant had no right of appeal from that order, he retained the right to challenge it in the present case.

(2) The trial court failed to conduct a colloquy pursuant to G.S. 15A-1242 to ensure the defendant knowingly, intelligently, and voluntarily waived his right to counsel at the first probation hearing. While the defendant and judge had signed a waiver of counsel form indicating that the defendant waived all counsel, the judge failed to check either box (indicating partial or total waiver of counsel) on the certification section of the form. The certification attests that the G.S. 15A-1242 colloquy with the defendant was completed. This was a substantive error and not a clerical mistake—the trial court only had jurisdiction to revoke probation in the current case if the initial extension was valid, and the initial extension was only valid if the defendant’s right to counsel was honored, so a mistake here spoke directly to the length of the defendant’s probation. While a knowing, voluntary, and intelligent waiver of counsel may be presumed from the defendant’s signature on the waiver form, that presumption will not be indulged where other record evidence contradicts that conclusion. According to the court:

[A]lthough a signed written waiver is generally ‘presumptive evidence that a defendant wishes to act as his or her own attorney,’ we conclude that the written waiver in the instant case is insufficient—notwithstanding the presence of both parties’ signatures—to pass constitutional and statutory muster. Guinn Slip op. at 18 (cleaned up).

Further, the transcript revealed that no waiver of counsel colloquy occurred. Even assuming the signed waiver of counsel form was valid, the trial court still has a duty to conduct the colloquy of G.S. 15A-1242 and its failure to do so was prejudicial error. The trial court’s original order extending probation by 12 months was therefore invalid, as those proceedings violated the defendant’s right to counsel. Accordingly, the trial court lacked jurisdiction at the later probation violation hearing, and the order of revocation was vacated.

Judge Tyson dissented. He would have found that the signed form conclusively established the defendant’s valid waiver of counsel and would have affirmed the trial court’s revocation order.