{ "id": 8376265, "name": "STATE OF NORTH CAROLINA v. TRAVIS LEE SCOTT", "name_abbreviation": "State v. Scott", "decision_date": "2007-12-18", "docket_number": "No. COA07-216", "first_page": "775", "last_page": "779", "citations": [ { "type": "official", "cite": "187 N.C. App. 775" } ], "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": "234 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "747" } ], "opinion_index": 0 }, { "cite": "292 N.C. 609", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571595 ], "year": 1977, "pin_cites": [ { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0609-01" ] }, { "cite": "530 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "69", "parenthetical": "stating that a defendant may forfeit his right to counsel when he uses that right \" 'for the purpose of obstructing and delaying his trial.' \"" }, { "page": "69" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080635 ], "year": 2000, "pin_cites": [ { "page": "524", "parenthetical": "stating that a defendant may forfeit his right to counsel when he uses that right \" 'for the purpose of obstructing and delaying his trial.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0521-01" ] }, { "cite": "539 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "676-77", "parenthetical": "alteration in original" }, { "page": "677" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 344", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441216 ], "year": 2000, "pin_cites": [ { "page": "346-47", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0344-01" ] }, { "cite": "411 U.S. 778", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10343 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/411/0778-01" ] }, { "cite": "345 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "439", "parenthetical": "\"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).\"" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 84", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358302 ], "year": 1986, "pin_cites": [ { "page": "85", "parenthetical": "\"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).\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0084-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(d)(2)" } ], "opinion_index": 0 }, { "cite": "621 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634313 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "304", "parenthetical": "citations and internal quotation marks omitted" }, { "page": "304" } ], "opinion_index": 1, "case_paths": [ "/se2d/621/0303-01" ] }, { "cite": "219 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "279" } ], "opinion_index": 1 }, { "cite": "27 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553868 ], "year": 1975, "pin_cites": [ { "page": "381" } ], "opinion_index": 1, "case_paths": [ "/nc-app/27/0379-01" ] }, { "cite": "174 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352756 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "598", "parenthetical": "citations and internal quotation marks omitted" }, { "page": "598" } ], "opinion_index": 1, "case_paths": [ "/nc-app/174/0596-01" ] }, { "cite": "539 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "677" }, { "page": "675" } ], "opinion_index": 1 }, { "cite": "141 N.C. App. 344", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441216 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "347" }, { "page": "344" } ], "opinion_index": 1, "case_paths": [ "/nc-app/141/0344-01" ] } ], "analysis": { "cardinality": 461, "char_count": 9918, "ocr_confidence": 0.73, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.35664164204167886 }, "sha256": "7f301b1977a3917af296c719768fb959a6a73eb127bf2b097404b433a2e96c28", "simhash": "1:0babf326ffc90d6a", "word_count": 1659 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs.", "Judge CALABRIA dissents in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. TRAVIS LEE SCOTT" ], "opinions": [ { "text": "STEPHENS, Judge.\nOn or about 3 January 2005, Travis Lee Scott (\u201cDefendant\u201d) pled guilty to one count of felony possession of cocaine in violation of N.C. Gen. Stat. \u00a7 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\u2019s probation officer filed a violation report alle'ging four violations of the terms of Defendant\u2019s 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.\nAt his next appearance on 16 October 2006, Defendant asked the trial court to appoint him an attorney.\nTHE COURT: Why is that, sir?\nTHE DEFENDANT: Because I don\u2019t have no money to afford to pay no lawyer.\nTHE 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?\nTHE DEFENDANT: No, ma\u2019am.\nTHE COURT: So you just came in here and waived thinking that you would be able to do it?\nTHE DEFENDANT: I didn\u2019t know it would be that much.\nTHE COURT: Have you ever had to hire an attorney before for anything?\nTHE DEFENDANT: Yes.\nTHE COURT: Your request is denied.\nTHE DEFENDANT: I was asking could I get a continuance.\nTHE COURT: No, sir.\nAfter hearing from Defendant and his probation officer, the trial court revoked Defendant\u2019s 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\u2019s waiver of counsel was made knowingly, intelligently, and voluntarily.\nA 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. \u00a7 15A-1345(e) (2005) (\u201cThe probationer is entitled to be represented by counsel at the [probation revocation] hearing and, if indigent, to have counsel appointed.\u201d); State v. Warren, 82 N.C. App. 84, 85, 345 S.E.2d 437, 439 (1986) (\u201cThere 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).\u201d) (citations omitted).\nA 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.\nState 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).\nIn 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 \u201clost [his] job[,]\u201d 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 \u201ccarried his burden of showing a change in his desire for assigned counsel, and the record reflects his request was for good cause.\u201d Id. Therefore, this Court determined, \u201cthe trial court\u2019s denial of the request for assistance violated defendant\u2019s constitutional right to an attorney.\u201d Id.\nLike 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 \u201cdidn\u2019t know it would be that much.\u201d The State\u2019s contention to the contrary, that Defendant \u201cmade no inquiry\u201d into the cost of retaining counsel, is simply not supported by the transcript. Moreover, we disagree with the State\u2019s suggestion that Defendant\u2019s request for appointed counsel was a tactic \u201cto delay and frustrate the orderly processes of the trial court[,]\u201d 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 \u201c \u2018for the purpose of obstructing and delaying his trial.\u2019 \u201d) (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 \u201cwas afforded ample opportunity over the course of fifteen months[] to obtain counsel[,]\u201d the \u201cdefendant was disruptive in the courtroom on two occasions,\u201d and the defendant \u201crefused to cooperate with [his attorney] and assaulted him[.]\u201d Id. at 525, 530 S.E.2d at 69. Defendant\u2019s \u201ctactic\u201d 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.\nThe trial court erred in denying Defendant\u2019s request, and this error violated Defendant\u2019s 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\u2019s remaining arguments.\nREVERSED and REMANDED.\nJudge McCULLOUGH concurs.\nJudge CALABRIA dissents in a separate opinion.", "type": "majority", "author": "STEPHENS, Judge." }, { "text": "CALABRIA, Judge,\ndissenting.\nI respectfully dissent from the majority opinion that defendant\u2019s constitutional right to an attorney was violated. Defendant\u2019s request for assigned counsel following a waiver was not for good cause; therefore the trial court\u2019s denial of the request was not in error.\n\u201cA waiver of counsel or decision to proceed pro se is good and sufficient until the trial [is] finally terminated, unless the defendant himself makes known to the court that he desires to withdraw the waiver and makes a showing that the change of mind to proceed (with or without an attorney) was for some good cause.\u201d State v. Hoover, 174 N.C. App. 596, 598, 621 S.E.2d 303, 304 (2005) (citations and internal quotation marks omitted) (emphasis added). The purpose behind the requirement of showing good cause to withdraw a waiver of counsel is that, in the absence of good cause, a defendant would be \u201cpermitted to control the course of litigation and sidetrack the trial.\u201d State v. Smith, 27 N.C. App. 379, 381, 219 S.E.2d 277, 279 (1975).\nAs Hoover indicates, to withdraw the waiver of counsel the defendant must do two things: make known to the court the desire to withdraw the waiver, and make a showing that the change of mind was for good cause. Hoover, 174 N.C. App. at 598, 621 S.E.2d at 304. It is on this second requirement that defendant has failed to meet the requirements set out in State v. Hoover.\nThe majority\u2019s reliance on State v. Sexton, 141 N.C. App. 344, 539 S.E.2d 675 (2000) is misplaced. In Sexton the defendant made his request for appointment of counsel because he \u201clost [his] job[,]\u201d Id., 141 N.C. App. at 347, 539 S.E.2d at 677. This Court, in a unanimous opinion, held that his request was for good cause. Id., 141 N.C. App. at 344, 539 S.E.2d at 675. The defendant in Sexton faced a dramatic change in circumstances that modified his ability to afford an attorney.\nUnlike the defendant in Sexton, the defendant in the case before us has not faced a change in circumstances that was not, or should not, have been anticipated. He has not shown that his circumstances had changed from the time he waived his right to appointed counsel and the time he attempted to withdraw that waiver.\nWe need not make an inquiry into the motives of the defendant to decide if he intended to \u201cdelay and frustrate the orderly processes of the trial court.\u201d We need only determine if defendant met his burden of showing his request for a withdraw of waiver of counsel was for good cause. Defendant failed to meet that burden, therefore the trial court\u2019s decision should be affirmed.", "type": "dissent", "author": "CALABRIA, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General James C. Holloway, for the State.", "Anne Bleyman for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TRAVIS LEE SCOTT\nNo. COA07-216\n(Filed 18 December 2007)\nConstitutional Law\u2014 right to counsel \u2014 denial of request to withdraw waiver of court-appointed attorney \u2014 probation revocation hearing\nThe trial court erred in a probation revocation hearing by denying defendant\u2019s request to withdraw his waiver of a court-appointed attorney, and the case is remanded for a new hearing, because: (1) defendant withdrew his prior waiver by explicitly asking the trial court to appoint counsel to represent him; (2) defendant indicated he sought to hire an attorney, but that he did not know it would cost so much; (3) the State\u2019s contention that defendant made no inquiry into the cost of retaining counsel was not supported by the transcript; (4) defendant did not forfeit his right to an attorney when his request for appointed counsel was not a tactic to delay and frustrate the orderly processes of the trial court based on the fact that he attempted to withdraw his waiver at his second appearance which was less than one month after signing the waiver form; and (5) defendant carried his burden of proving a change in his desire for the assistance of counsel, and his request was for good cause.\nJudge CALABRIA dissenting.\nAppeal by Defendant from judgment entered 16 October 2006 by Judge Alma L. Hinton in Halifax County Superior Court. Heard in the Court of Appeals 10 October 2007.\nAttorney General Roy Cooper, by Assistant Attorney General James C. Holloway, for the State.\nAnne Bleyman for Defendant." }, "file_name": "0775-01", "first_page_order": 805, "last_page_order": 809 }