An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1054

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

v. Pitt County

Nos. 09 CRS 12865

09 CRS 61279

DONTE MAURICE PARKER

Appeal by defendant from judgments entered 18 March 2013 by 

Judge Quentin T. Sumner in Pitt County Superior Court. Heard in 

the Court of Appeals 23 January 2013.

Attorney General Roy Cooper, by Assistant Attorney General 

Lareena J. Phillips, for the State.

Assistant Public Defender James F. Hedgpeth, Jr., for 

defendant.

HUNTER, JR., Robert N., Judge.

Defendant Donte Maurice Parker (“Defendant”) appeals from 

judgments revoking his probation and activating his sentences. 

Defendant argues that the trial court (i) erred by proceeding 

without an indictment; (ii) erred by proceeding without a 

hearing; (iii) abused its discretion by finding Defendant 

violated the conditions of probation; (iv) did not provide 
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sufficient notice; and (v) erred by failing to apprise Defendant 

of his right to counsel. After careful review, we affirm in 

part and reverse and remand in part.

I. Facts & Procedural History

On 24 November 2009, Defendant was charged with Habitual 

Misdemeanor Assault in 09 CRS 61279 and indicted on 11 January 

2010. On 21 September 2010, Defendant pled guilty to the 

charge. Defendant received a suspended sentence of 19 to 23 

months imprisonment and was placed on supervised probation for 

36 months.

Defendant was also charged on 24 November 2009 with Driving 

While Impaired in 09 CRS 12865 and indicted on 22 February 2010. 

Defendant pled guilty to this charge on 7 February 2011 and 

received a suspended sentence of 34 to 41 months imprisonment 

and an active split sentence of 12 months. Defendant was placed 

on supervised probation for 30 months. 

Defendant’s supervised probation under both charges 

required Defendant to commit no criminal offense, pay court

costs and other fees, submit to officer supervision with the 

Intensive Probation Program for six months, and comply with 

curfew requirements.
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On 27 February 2013, Defendant’s probation officer Rodney 

Glover (“Officer Glover”) issued a probation violation report in 

09 CRS 61279 as well as an “Authority to Arrest” form for that 

offense. Another violation report concerning 09 CRS 12865 was 

filed on 12 March 2013. The reports stated that Defendant 

violated his curfew on 16 and 28 October 2012, that Defendant 

was in arrears with court costs and/or supervision fees in both 

09 CRS 61279 and 09 CRS 12865, and that Defendant was convicted 

of Driving While License Revoked (“DWLR”) on 25 January 2013. 

Defendant signed the report in 09 CRS 61279, which listed a 

hearing date of 11 March 2013. The report in 09 CRS 12865 

listed a hearing date of 18 March 2013 and Defendant did not 

sign the document. The report read “Offender In Cuffs 2-22-13”

at the signature line.

On 18 March 2013, 09 CRS 12865 was called for hearing in 

Pitt County Superior Court. Defendant completed a waiver of his 

right to counsel and proceeded pro se. The following exchange 

occurred when discussing Defendant’s choice to proceed pro se: 

[THE STATE]: Number 23 is present, your 

Honor, which is Donte Parker. He originally 

filled out an affidavit and decided he

wanted to waive. Once again, the underlying 

charge is habitual driving while impaired, 

and the sentence is thirty - suspended 

sentence is 34 to 41 months, your Honor.
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THE COURT: Mr. Parker?

THE DEFENDANT: Yes, sir.

THE COURT: You changed your mind, you don’t 

want a lawyer then?

THE DEFENDANT: No, sir.

THE COURT: Sign a waiver, please, sir. Do 

you understand the sentence that you’re 

under?

THE DEFENDANT: Yes, sir.

THE COURT: 34 to 41 months?

THE DEFENDANT: Yes, sir.

Defendant admitted to the probation violation on 28 October 

2012, to being in arrears on his court and supervision costs, 

and to being convicted of DWLR. Defendant did not admit the 

curfew violation on 16 October 2012 and said he was working that 

evening. The State withdrew the 16 October 2012 violation. The 

trial court revoked Defendant’s probation in both 09 CRS 12865 

and 09 CRS 61279 and activated Defendant’s sentences in both 

cases. Defendant filed written notice of appeal on 28 March 

2013.

II. Jurisdiction & Standard of Review

N.C. Gen. Stat. § 7A–27(b) (2013) vests jurisdiction in 

this Court to hear appeals “[f]rom any final judgment of a

superior court.” As a judgment activating a probationer’s 
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sentence is a “final judgment,” we have jurisdiction to hear the 

instant appeal. See N.C. Gen. Stat. § 15A–1347(a) (2013) (“When 

a superior court judge, as a result of a finding of a violation 

of probation, activates a sentence or imposes special probation, 

either in the first instance or upon a de novo hearing after 

appeal from a district court, [a] defendant may appeal under 

[N.C. Gen. Stat. § 7A–27].”).

However, Defendant’s written notice of appeal did not 

indicate which court he appealed to, and Defendant did not serve 

a copy of the Notice of Appeal on the State, in violation of 

N.C. R. App. P. 4 (providing that written notice of appeal must 

be served upon all adverse parties and must state the court to 

which appeal is taken). Failure to comply with Rule 4 

constitutes a jurisdictional default, which “precludes the 

appellate court from acting in any manner other than to dismiss 

the appeal.” Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co.,

362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008). Accordingly, we 

dismiss Defendant’s appeal, but, in our discretion, we allow 

Defendant’s petition for writ of certiorari to review the merits 

of his arguments pursuant to N.C. R. App. P. 21.

Defendant raises five arguments on appeal. Defendant first 

argues that the trial court lacked jurisdiction to hear the 
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probation revocation. The argument is without merit, as the 

State produced an indictment to establish jurisdiction.

Second, Defendant argues that his probation was revoked in

violation of the Fourteenth Amendment and N.C. Gen. Stat. § 15A1345 (2013). Defendant did not raise this issue at his 

probation revocation hearing. “[A] party’s failure to properly 

preserve an issue for appellate review ordinarily justifies the 

appellate court’s refusal to consider the issue on appeal.” 

Dogwood, 362 N.C. at 195–96, 657 S.E.2d at 364. Appellate 

courts may suspend the requirements of the Rules of Appellate 

Procedure when necessary to “prevent manifest injustice to a 

party.” N.C. R. App. P. 2. Such suspensions must be made 

cautiously, and only in exceptional circumstances. See Dogwood, 

362 N.C. at 196, 657 S.E.2d at 364. We grant Defendant’s 

request under Rule 2 to prevent manifest injustice in his case. 

“It is well settled that de novo review is ordinarily 

appropriate in cases where constitutional rights are 

implicated.” Piedmont Triad Reg’l Water Auth. v. Sumner Hills, 

Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001). Under de 

novo review, we examine the case with new eyes. “The word de 

novo means fresh or anew; for a second time, and an appeal de 

novo is an appeal in which the appellate court uses the trial 
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court’s record but reviews the evidence and law without 

deference to the trial court’s rulings.” Parker v. Glosson, 182 

N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks 

and citations omitted).

Third, Defendant argues the trial court erred in finding 

that Defendant willfully violated the terms of his probation. A 

trial court’s probation revocation is reviewed for an abuse of 

discretion. State v. Young, 190 N.C. App. 458, 459, 660 S.E.2d 

574, 576 (2008). “Abuse of discretion results where the court’s 

ruling is manifestly unsupported by reason or is so arbitrary 

that it could not have been the result of a reasoned decision.” 

State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

Fourth, Defendant argues that the trial court did not 

provide sufficient notice of his probation violations at the 

hearing. As this is an alleged violation of a statutory 

mandate, we review the matter de novo. State v. Wilkins, ___ 

N.C. App. ___, ___, 737 S.E.2d 791, 793 (2013).

Finally, Defendant argues the trial court did not properly 

inquire into his waiver of counsel. This is an issue of law 

also reviewed de novo. State v. Watlington, 216 N.C. App. 388, 

393–94, 716 S.E.2d 671, 675 (2011).
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III. Analysis

a. Due Process Claims

Prior to a probation revocation, the trial court must hold 

a hearing, unless the probationer waives the hearing. N.C. Gen. 

Stat. § 15A-1345(e). Section 15A-1345(e) also requires that 

“[t]he State must give the probationer notice of the hearing and 

its purpose, including a statement of the violations alleged. 

The notice, unless waived by the probationer, must be given at 

least 24 hours before the hearing.” “The purpose of the notice 

mandated by this section is to allow the defendant to prepare a 

defense and to protect the defendant from a second probation 

violation hearing for the same act.” State v. Hubbard, 198 N.C. 

App. 154, 158, 678 S.E.2d 390, 393 (2009). Further, “[a] 

probationary judgment does not have to be formally introduced 

into evidence at the revocation hearing if the record indicates 

. . . that the judge has the order before him, and where 

reference is made in the judgment to specific conditions that 

defendant allegedly violated.” State v. Hogan, 27 N.C. App. 34, 

35, 217 S.E.2d 712, 712–13 (1975). 

Defendant alleges that he was denied a probation violation 

hearing for 09 CRS 61279, as only 09 CRS 12865 was called for 

hearing and Defendant thereafter received judgments for both 09 
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CRS 61279 and 09 CRS 12865. We agree and our review of the 

record provides no indication that the trial court considered 09 

CRS 61279 or the probation revocation report relating to that 

charge.

Officer Glover provided Defendant with notice of a 11 March 

2013 hearing at 9 A.M. in the 09 CRS 61279 probation violation 

report, which would meet the 24-hour statutory notice 

requirement had the matter been considered at the hearing for 09 

CRS 12865. The 09 CRS 61279 probation violation report was 

signed by Defendant and filed on 27 February 2013, indicating an 

acknowledgment that a hearing would come on for 11 March 2013. 

Both probation violation reports noted that Defendant violated 

curfew on 10/16/12 and 10/28/12, that Defendant owed court 

costs, and that Defendant was convicted of DWLR on 25 January 

2013. The two probation violation reports were also nearly 

identical in showing that Defendant violated his curfew on two 

occasions and was arrested for DWLR. 

However, at the 09 CRS 12865 hearing, the trial court did 

not explicitly call 09 CRS 61279 for hearing, refer to 09 CRS 

61279 during the hearing, or refer to the 09 CRS 61279 probation 

violation report. Without an indication that Defendant waived 

his probation revocation hearing in 09 CRS 61279 or any indicia 
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that the court considered the matter at the 18 March 2013 

hearing, it is not clear that Defendant received the probation 

revocation hearing that he was entitled to by statute. As such, 

we reverse the trial court’s judgment in 09 CRS 61279 and remand 

for a probation revocation hearing. Accordingly, we do not 

address Defendant’s remaining arguments concerning 09 CRS 61279.

b. Notice of 09 CRS 12865

Defendant argues that he had insufficient notice of the 09 

CRS 12865 hearing because he did not sign the revocation form. 

We disagree.

“It is not a requisite to the validity of the service of 

the notice that the defendant sign it.” State v. Langley, 3 

N.C. App. 189, 191, 164 S.E.2d 529, 530 (1968). In Langley, 

Defendant refused to sign the probation report and the notice of 

the hearing did not include the date, time, and place of court 

for the probation revocation. Id. However, this Court upheld 

this service of notice, as the statute only required the 

probation officer to “‘inform the probationer in writing of his 

intention to pray the court to revoke probation or suspension 

and to put the suspended sentence into effect, and shall set 

forth in writing the grounds upon which revocation is prayed.’” 

Id. (quoting N.C. Gen. Stat. § 15-200.1 (1967) (repealed by 1977 
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N.C. Sess. Laws ch. 711, § 33 and recodified at N.C. Gen. Stat. 

§ 15A-1345))). Further, “when a defendant voluntarily appears 

at the appointed time and place and participates in the hearing 

as the defendant did in this case, he is not prejudiced by the 

failure of the written notice to contain such information.” Id.

In State v. King, this Court held that where a probation 

officer appeared in court to testify to the same facts contained 

in the unsigned probation violation report, the information was 

subject to cross examination. 34 N.C. App. 717, 719, 239 S.E.2d 

587, 588 (1977). As such, the defendant was provided with the 

opportunity to cross-examine the information, as the defendant 

participated in the hearing, testified, and put on evidence. 

Id.

Here, Defendant did not sign his probation revocation 

report. However, Defendant voluntarily appeared and 

participated in his probation revocation hearing. The 09 CRS 

12865 report, filed on 12 March 2013, listed a hearing date of 

18 March 2013. The notice provided was well before the 24-hour 

notice required under N.C. Gen. Stat. § 15A-1345(e). At the 

hearing, Defendant testified, had the opportunity to present 

evidence, and also received the opportunity to cross-examine 

testimony from his probation officer, Officer Glover. The 
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alleged violations of his probation listed were re-announced in 

court, and Defendant admitted all of the allegations except a 

curfew violation on 16 October 2012. The court waived the 16 

October 2012 curfew violation and found Defendant in willful 

violation of his probation. As Defendant participated in the 

hearing and had the opportunity to cross-examine the contents of 

the probation violation report, Defendant was not prejudiced by 

the lack of his signature on the 09 CRS 12865 report.

c. Right to Counsel

Before permitting a defendant to proceed pro se, a trial 

court must (i) advise the defendant of his right to counsel, 

(ii) ensure the defendant “[u]nderstands and appreciates the 

consequences of his decision,” and (iii) ensure the defendant 

“[c]omprehends the nature of the charges and proceedings and the 

range of permissible punishments.” N.C. Gen. Stat. § 15A-1242 

(2013); see also N.C. Gen. Stat. § 7A-457 (2013) (requiring such 

a waiver made by an indigent person to be in writing). 

“Compliance with the dictates of this section has been held to 

fully satisfy the constitutional requirement that waiver of 

counsel be knowing and voluntary.” State v. Warren, 82 N.C. 

App. 84, 87, 345 S.E.2d 437, 439 (1986). The critical issue of 

this statutory mandate “is whether the statutorily required 
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information has been communicated in such a manner that 

defendant’s decision to represent himself is knowing and 

voluntary.” State v. Carter, 338 N.C. 569, 583, 451 S.E.2d 157, 

164 (1994). 

Here, Defendant was asked by the trial court whether he 

wanted the services of a lawyer and he declined those services. 

Defendant was asked whether he understood the sentence he faced, 

which the trial court clarified by explaining the 34 to 41 month 

length of the activated sentence. The transcript clearly shows 

that Defendant (i) knew he had a right to counsel, (ii) 

understood his charges and the range of punishment, and (iii) by 

implication understood the consequences of his decision to waive 

his right to counsel. 

Defendant further argues that the waiver form was invalid

because it was not signed and thus not certified by the Clerk of 

Court. However, the Clerk of Court’s signature does not certify

Defendant’s waiver, nor does its absence invalidate a waiver. 

Defendant signed the waiver and Judge Sumner certified it for 

the trial court. See Warren, 82 N.C. App. at 89, 345 S.E.2d at 

441 (“When a defendant executes a written waiver which is in 

turn certified by the trial court, the waiver of counsel will be 

presumed to have been knowing, intelligent, and voluntary, 
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unless the rest of the record indicates otherwise.” (emphasis 

added)). The relevant statutes do not require certification by 

the clerk, nor does any previous case require the clerk’s 

signature for a certification to be valid. See N.C. Gen. Stat. 

§§ 7A-457, 15A-1242. Lastly, the waiver form contains a

signature box for the judge in the section entitled “CERTIFICATE 

OF JUDGE.” Conversely, the clerk’s signature is listed only as 

an authenticating device, namely that the signing defendant was 

sworn and that the defendant subscribed to the statement before 

the clerk. Accordingly, we hold that Defendant was properly 

apprised of his right to counsel, and that he completed a 

validly certified waiver of that right.

IV. Conclusion

For the foregoing reasons we

AFFIRM IN PART, REVERSE AND REMAND IN PART.

Judges STROUD and DILLON concur.

Report per Rule 30(e).