In Re Haas

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168 S.E.2d 457 (1969)

5 N.C. App. 461

In the Matter of William Eugene HAAS, Jr.

No. 6927DC364.

Court of Appeals of North Carolina.

July 23, 1969.

*458 Atty. Gen. Robert Morgan and Staff Atty. R. S. Weathers, Raleigh, for the State.

Hollowell, Stott & Hollowell, by Grady B. Stott, Gastonia, for defendant appellant.

CAMPBELL, Judge.

The first assignment of error is that, in conducting the hearing on 8 April 1969, the trial judge erred in failing to afford Haas representation by counsel. G.S. § 110-29.1 *459 of the North Carolina Juvenile Court Act provides:

"Appointment of counsel for indigent children in delinquency proceedings; compensation of counsel.Any judge authorized to conduct hearings in juvenile court matters, shall, prior to conducting a hearing pursuant to G.S. 110-29, in which a finding of delinquency and commitment to an institution is possible, inform the child and his parent or parents that the child is entitled to representation by counsel, and that if they are financially unable to retain counsel, the court will appoint counsel to represent the child. Determination of indigency shall be made under the standards established in G.S. 15-5.1 for indigency in adult cases. The fee for appointed counsel shall be fixed by the judge who conducts the hearing, and shall be paid under the same procedures and from the same fund as fees for counsel appointed in adult indigent cases. To assure a reasonable degree of uniformity in fees for appointed counsel in juvenile cases, the Administrative Officer of the Courts is authorized to promulgate, subject to the approval of the Supreme Court, rules for the guidance of juvenile court judges in fixing fees under this section."

The record in the instant case does not show compliance with the provisions of this statute. Although the record reveals that Haas and his father "knowingly, intelligently, and wilfully waived the right to be represented by counsel", there are no findings of fact to support this conclusion. There was no finding that Haas and his father were financially able to retain counsel and the necessary facts to support this set out, or that, if they were unable to do so because of indigency, they were advised that the State would afford counsel for them, and that with all information available, the juvenile and those responsible for him waived an attorney and elected to proceed without an attorney. In order for a trial judge to conclude that an alleged delinquent "knowingly and intelligently" waived the right to be represented by counsel, the necessary facts to support such a conclusion must appear of record.

For failure to comply with G.S. § 110-29.1, this cause must be remanded to the district court. We will refrain from discussing the other assignments of error brought forward as a new hearing must be conducted.

New trial.

BROCK and MORRIS, JJ., concur.