{ "id": 9441216, "name": "STATE OF NORTH CAROLINA v. JACK CLAYTON SEXTON, JR.", "name_abbreviation": "State v. Sexton", "decision_date": "2000-12-29", "docket_number": "No. COA99-1213", "first_page": "344", "last_page": "348", "citations": [ { "type": "official", "cite": "141 N.C. App. 344" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "521 S.E.2d 117", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "121", "parenthetical": "\"trial court ha[s] an affirmative obligation to be aware of and comply with all the provisions contained in the [AOC] forms.\"" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 489", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241655 ], "year": 1999, "pin_cites": [ { "parenthetical": "\"trial court ha[s] an affirmative obligation to be aware of and comply with all the provisions contained in the [AOC] forms.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0489-01" ] }, { "cite": "274 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "876" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2676790 ], "year": 1981, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0658-01" ] }, { "cite": "206 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566817, 8566858, 8566746, 8566716, 8566782 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0595-04", "/nc/285/0595-05", "/nc/285/0595-02", "/nc/285/0595-01", "/nc/285/0595-03" ] }, { "cite": "204 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "540-41" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 374", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556114 ], "year": 1974, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0374-01" ] }, { "cite": "235 S.E.2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "886" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551641 ], "year": 1977, "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0628-01" ] }, { "cite": "513 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "93", "parenthetical": "citing State v. Clark, 33 N.C. App. 628, 629, 235 S.E.2d 884, 886 (1977)" }, { "page": "93" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239923 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "700", "parenthetical": "citing State v. Clark, 33 N.C. App. 628, 629, 235 S.E.2d 884, 886 (1977)" }, { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0697-01" ] }, { "cite": "480 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "663", "parenthetical": "quoting N.C.R. App. P. Rule 21(a)(1)" } ], "opinion_index": 0 }, { "cite": "345 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53948 ], "year": 1997, "pin_cites": [ { "page": "482", "parenthetical": "quoting N.C.R. App. P. Rule 21(a)(1)" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0480-01" ] } ], "analysis": { "cardinality": 465, "char_count": 8320, "ocr_confidence": 0.762, "pagerank": { "raw": 1.934876034462277e-07, "percentile": 0.7346843387394401 }, "sha256": "e9c3eb41ec627c5e564b050fc5b3f42a38074d7fdd80fedfb50dd1b2c8024887", "simhash": "1:83eeceaeb35c5f66", "word_count": 1324 }, "last_updated": "2023-07-14T21:28:13.659098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge TIMMONS-GOODSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JACK CLAYTON SEXTON, JR." ], "opinions": [ { "text": "FULLER, Judge.\nDefendant Jack Clayton Sexton, Jr. appeals the revocation of his probation and activation of a ten-year prison sentence. On 24 August 1995 defendant pled guilty to seven counts of Larceny by Employee. Defendant received a consolidated sentence of ten years imprisonment, suspended in exchange for three years supervised probation, community service, and restitution.\nOn 7 July 1998 a probation violation report was filed, alleging defendant failed to keep appointments with his probation officer and was in arrears in required payments. During his initial 17 August 1998 appearance in the matter, defendant signed Administrative Office of the Courts form AOC-CR-227, entitled \u201cWaiver of Counsel,\u201d in which he affirmed that he \u201cwaiv[ed his] right to assigned counsel and that [he] .. . expressly waiv[ed] that right.\u201d Although the trial judge signed the form, he did not acknowledge whether defendant elected in open court to be tried \u201cwithout assignment of counsel\u201d or \u201cwithout the assistance of counsel, which includes the right to assigned counsel and the right to assistance of counsel.\u201d\nThe hearing was called on 19 October 1998, and defendant, who was unrepresented, requested a continuance and appointment of counsel. The trial court denied both requests, finding defendant previously waived his right to an attorney. Upon finding defendant willfully violated the terms of his probation, the trial court extended defendant\u2019s term of probation by two years, and ordered defendant to perform additional community service in lieu of monetary payments.\nOn 22 April 1999 a second probation violation report was filed, alleging defendant\u2019s failure to inform of a change in residence, failure to keep appointments with his probation officer, and failure to perform community service. The matter was called to hearing on 17 May 1999. Defendant was advised of his right to counsel, but expressed a desire to proceed pro se. Defendant signed a Waiver of Counsel form, acknowledging he was fully advised of his right to counsel. At the hearing\u2019s conclusion, the trial court entered judgment revoking defendant\u2019s probation and activating defendant\u2019s ten-year sentence.\nDefendant appeals, alleging: (1) the trial courts presiding over the October 1998 and May 1999 hearings violated defendant\u2019s right to assistance of counsel by requiring defendant proceed pro se; and (2) the trial court presiding over the October 1998 hearing erred in extending defendant\u2019s probation and the trial court presiding over the May 1999 hearing erred in revoking defendant\u2019s probation after the expiration of the period of probation.\nAs a preliminary matter, we note defendant\u2019s arguments pertaining to the October 1998 hearing and resulting order are not properly before this Court. Defendant failed to make objections at the hearing or file a timely notice of appeal in accordance with the Rules of Appellate Procedure. However, given the fundamental nature of a defendant\u2019s right to assistance of counsel, and the clear error in the trial court\u2019s denial of counsel upon defendant\u2019s request, we exercise our discretion to entertain defendant\u2019s arguments pursuant to a writ of certiorari. See N.C.R. App. P. 21(a)(1) (a \u201c \u2018writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments [and orders] of trial tribunals when the right to prosecute an appeal has been lost. . . .\u2019 \u201d); Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997) (quoting N.C.R. App. P. Rule 21(a)(1)). We do not pass judgment on the merits of the State\u2019s argument that defendant has no statutory right to appeal from an order modifying an ordinary term of probation.\nA criminal defendant may \u201cwaive his [constitutional] right to be represented by counsel so long as he voluntarily and understandingly does so.\u201d State v. Hyatt, 132 N.C. App. 697, 700, 513 S.E.2d 90, 93 (1999) (citing State v. Clark, 33 N.C. App. 628, 629, 235 S.E.2d 884, 886 (1977)). Once given, however, \u201ca 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.\u201d Id. (citing State v. Watson, 21 N.C. App. 374, 379, 204 S.E.2d 537, 540-41, cert. denied, 285 N.C. 595, 206 S.E.2d 866 (1974)); see also, e.g., State v. Gamble, 50 N.C. App. 658, 661, 274 S.E.2d 874, 876 (1981). The burden of establishing a change of desire for the assistance of counsel rests upon the defendant. Hyatt, 132 N.C. App. at 700, 513 S.E.2d at 93.\nIn the present case, we first note the trial judge\u2019s failure to complete the AOC form entitled \u201cWaiver of Counsel.\u201d See Tevepaugh v. Tevepaugh, 135 N.C. App. 489, 493 n.4, 521 S.E.2d 117, 121 (1999) (\u201ctrial court ha[s] an affirmative obligation to be aware of and comply with all the provisions contained in the [AOC] forms.\u201d). Questions concerning the incomplete form\u2019s effect on the sufficiency of defendant\u2019s waiver aside, we find that defendant clearly requested withdrawal of his initial waiver and unequivocally expressed a desire to be assigned counsel.\nThe transcript of the 1998 hearing begins with a statement from the Assistant District Attorney that defendant \u201cpreviously signed a waiver and . . . would request a Public Defender.\u201d In response to the trial court\u2019s question as to why he wished the assistance of a Public Defender, defendant responded, \u201cI lost my job. Really, no excuse. I lost my job, and I don\u2019t have a lawyer. [The judge] told me to save the money for my lawyer the last time instead of getting a Public Defender.... Now, I\u2019m sitting here fixing to face ten years over seven hundred dollars because I lost my job.\u201d\nAfter hearing the Assistant District Attorney\u2019s recommendation that defendant\u2019s probation be revoked for various violations, the trial judge stated, \u201cI\u2019m not going to continue the matter. You signed this waiver before Judge Bridges and gave up your right to a lawyer. We\u2019ll proceed with the hearing.\u201d\nIn short, defendant affirmatively requested the assistance of a Public Defender. The trial court was aware of defendant\u2019s desire for assistance of counsel, but denied the request based on defendant\u2019s prior waiver. Defendant carried his burden of showing a change in his desire for assigned counsel, and the record reflects his request was for good cause. Thus, the trial court\u2019s denial of the request for assistance violated defendant\u2019s constitutional right to an attorney. In view of this conclusion, we need not address defendant\u2019s remaining arguments.\nThe 1 December 1998 order of the trial court extended defendant\u2019s term of probation in a proceeding in which defendant was denied his right to an attorney. We therefore reverse the trial court\u2019s 1 December 1998 order and remand the matter to the trial court for hearing. It necessarily follows that the trial court\u2019s 17 May 1999 order, in which the trial court revoked defendant\u2019s probation for violations occurring within the erroneously extended period, be vacated. However, we vacate the 17 May 1999 order without prejudice, authorizing the court below to take appropriate action if a probation violation should be found and properly adjudicated.\nReversed and remanded.\nChief Judge EAGLES and Judge TIMMONS-GOODSON concur.", "type": "majority", "author": "FULLER, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Diane Martin Pom-perfor the State.", "Paul Pooley for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JACK CLAYTON SEXTON, JR.\nNo. COA99-1213\n(Filed 29 December 2000)\nConstitutional Law\u2014 right to assistance of counsel \u2014 denial based on prior waiver \u2014 violation\nThe trial court violated defendant\u2019s constitutional right to assistance of counsel in an action revoking defendant\u2019s probation and activating a ten-year prison sentence where defendant affirmatively requested the assistance of a public defender and the trial court was aware of defendant\u2019s desire for assistance but denied the request based on defendant\u2019s prior waiver, because: (1) defendant carried his burden of showing a change in his desire for assigned counsel; and (2) the record reflects his request was for good cause.\nAppeal by defendant from judgment entered 17 May 1999 by Judge Timothy S. Kincaid in Gaston County Superior Court. Heard in the Court of Appeals 18 September 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General Diane Martin Pom-perfor the State.\nPaul Pooley for defendant-appellant." }, "file_name": "0344-01", "first_page_order": 374, "last_page_order": 378 }