{
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  "name": "STATE OF NORTH CAROLINA v. MARVIN MELLET RAMIREZ",
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    "judges": [
      "Judges HUNTER, Robert C. and ERVIN concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MARVIN MELLET RAMIREZ"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nDefendant appeals the revocation of his probation. For the following reasons, we reverse and remand for' a new hearing.\nI. Background\nOn or about 11 February 2011, defendant pled guilty to various offenses; defendant was placed on supervised probation. On 16 June 2011, defendant was informed that a hearing would be held regarding his violation of the conditions of probation. On 17 June 2011, defendant signed a \u201cWAIVER OF COUNSEL\u201d form (\u201cwaiver form\u201d) noting that he waived his \u201cright to assigned counsel\u201d but that he did not waive his \u201cright to all assistance of counsel which includes my right to assigned counsel and my right to the assistance of counsel.\u201d (Emphasis added). Furthermore, on the waiver form defendant did not check the box indicating that he \u201cdesire [d] to appear in [his] own behalff.]\u201d In summary, the waiver form indicated that defendant had waived his right to assigned counsel but intended to hire his own counsel and did not desire to proceed pro se. On 27 June 2011, at defendant\u2019s probation revocation hearing, the following dialogue took place:\nMS. HORNER [State\u2019s attorney]: Marvin Ramirez.\nMr. Ramirez is at 61 and 64 on the probation calendar. Mr. Ramirez previously waived counsel on June 17th, 2011. Mr. Ramirez, are you ready to proceed today?\nTHE DEFENDANT: Yes, ma\u2019am.\nMS. HORNER: And are you ready to proceed without a lawyer?\nTHE DEFENDANT: When I went to my first appearance, I was going \u2014 when they asked me did I want to hire a lawyer or have an appointed attorney, I told them I would hire one because of the new charge I had.\nMS. HORNER: Your Honor, in this particular case, he did waive on June 17th, 2011; however, because of the anticipated request today, I\u2019m- not sure of the Court\u2019s position as to reconsidering.\nTHE COURT: If he waived, we\u2019re ready to go.\nTHE COURT: Mr. Ramirez, is there anything you would like to tell me about yourself or your case?\nTHE DEFENDANT: Your Honor, the reason I don\u2019t have no attorney is because I\u2014\nTHE COURT: I\u2019m not interested.\nDefendant admitted to the probation violation and was subsequently sentenced to imprisonment by the trial court. Defendant appeals.\nII. Defendant\u2019s Right to Counsel\nDefendant contends that the trial court erred in allowing him to proceed without counsel as he had not waived counsel entirely but had waived only assigned counsel. We review this issue de novo. State v. Watlington,_N.C. App._,_, 716 S.E.2d 671, 675 (2011).\nThe State directs this Court\u2019s attention to State v. Warren, 82 N.C. App. 84, 345 S.E.2d 437 (1986), arguing that in Warren the defendant was not entitled to a new probation revocation hearing where \u201c[t]he defendant... signed ... a waiver, the trial court certified that defendant had been advised per G.S. Sec. 1242, and there is no record to support defendant\u2019s contention that the waiver of counsel was not knowing, intelligent and voluntary.\u201d Id. at 89, 345 S.E.2d at 441. However, we find this case distinguishable because in Warren the defendant indicated that he planned to represent himself and was waiving his right to all counsel; id. at 87, 345 S.E.2d at 440, here, both on defendant\u2019s waiver form and before the trial court defendant consistently maintained that he intended to hire an attorney, and he did not intend to proceed pro se. Thus, we find this case to be more in line with State v. McCrowre, 312 N.C. 478, 322 S.E.2d 775 (1984).\nIn McCrowre, at his arraignment, the defendant signed a waiver of assigned counsel stating that he planned to hire counsel. Id. at 479, 322 S.E.2d at 776. When defendant\u2019s case was called for trial, 13 days later, defendant asked for a continuance stating that he was going to hire an attorney. Id. at 479-80, 322 S.E.2d at 776. The trial court continued the case. Id. at 480, 322 S.E.2d at 776. A week later, defendant again appeared before the trial court without an attorney. Id. The defendant twice requested the assistance of counsel which the trial court denied because the defendant had waived his right to appointed counsel. Id. Our Supreme Court stated,\nThe record clearly indicates that when defendant signed the waiver of his right to assigned counsel, he did so with the expectation of being able to privately retain counsel. Before Judge Battle, the defendant stated that he wanted to discharge Mr. Britt, his assigned counsel, and employ his own lawyer. There is no evidence that defendant ever intended to proceed to trial without the assistance of some counsel.\nStatements of a desire not to be represented by court-appointed counsel do not amount to expressions of an intention to represent oneself. At most, defendant\u2019s statements amounted to an expression of the desire that his court-appointed lawyers be replaced. Given the fundamental nature of the right to counsel, we ought not to indulge in the presumption that it has been waived by anything less than an express indication of such an intention.\nThe waiver of counsel, like the waiver of all constitutional rights, must be knowing and voluntary, and the record must show that the defendant was literate and competent, that he understood the consequences of his waiver, and that, in waiving his right, he was voluntarily exercising his own free will.\nThe trial judge mistakenly believed that defendant had waived his right to all counsel at arraignment.\nHad defendant clearly indicated that he wished to proceed pro se, the trial court was required to make inquiry to determine whether defendant:\n(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;\n(2) Understands and appreciates the consequences of this decision; and\n(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.\nN.C. Gen. Stat. \u00a7 15A-1242 (1983).- Such was not done in the present case and it was therefore error to permit defendant to go to trial without the assistance of counsel. For this reason, defendant is entitled to a new trial.\nId. at 480-81, 322 S.E.2d at 776-77 (emphasis added) (citations, ellipses, and brackets omitted); see also State v. Proby, 168 N.C. App. 724, 726, 608 S.E.2d 793, 794 (2005) (\u201cBefore a defendant in a probation revocation is allowed to represent himself, the court must comply with the requirements of N.C. Gen. Stat. \u00a7 15A-1242[.]\u201d)\nHere, just as in McCrowre, defendant initially waived only his right to appointed counsel with the intent of hiring his own attorney. See McCrowre, 312 N.C. at 479, 322 S.E.2d at 776. The trial court also seems to have been under the mistaken belief that defendant had waived his right to all counsel as the State told the trial court that defendant had \u201cwaived counsel[,]\u201d and when directed by the trial court to begin only if counsel had been waived, the State began discussing the merits of the hearing. See id. at 481, 322 S.E.2d at 777. As the trial court did not conduct the inquiry as required by N.C. Gen. Stat. \u00a7 15A-1242, to ensure that defendant wanted to proceed pro se, we must reverse and remand for a new hearing. See id.\nIII. Conclusion\nFor the foregoing reasons, we reverse and remand for a new hearing.\nREVERSED and REMANDED.\nJudges HUNTER, Robert C. and ERVIN concur.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper, III, by Assistant Attorney General Gaines M. Weaver, for the State.",
      "John R. Mills, for defendant-appellant.",
      "Diener Law, by Cynthia E. Everson, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MARVIN MELLET RAMIREZ\nNo. COA11-1331\n(Filed 17 April 2012)\nConstitutional Law \u2014 right to counsel \u2014 revocation proceedings\u2014 waiver of counsel \u2014 failure to conduct sufficient inquiry\nThe trial court erred in a probation revocation proceeding by allowing defendant to proceed without counsel. Defendant had not waived counsel entirely but had waived only assigned counsel and the trial court did not conduct the inquiry as required by N.C.G.S. \u00a7 15A-1242 to ensure that defendant wanted to proceed ;pro se.\nAppeal by defendant from judgments entered on or about 27 June 2011 by Judge Alma L. Hinton in Superior Court, Pitt County. Heard in the Court of Appeals 4 April 2012.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Gaines M. Weaver, for the State.\nJohn R. Mills, for defendant-appellant.\nDiener Law, by Cynthia E. Everson, for defendant-appellant."
  },
  "file_name": "0150-01",
  "first_page_order": 160,
  "last_page_order": 164
}
