Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge.
The opinion of the court was delivered by: Crothers, Justice.
[¶1] Randy Scott Jensen appeals the district court order revoking his probation. We reverse and remand, concluding the district court erred in allowing Jensen to represent himself at the revocation of probation hearing without first determining Jensen voluntarily, knowingly and intelligently waived his right to counsel.
[¶2] In October 2008, Jensen was sentenced to two year's supervised probation for theft of property. The terms of Jensen's probation required him to abstain from using non-prescribed controlled substances, to abide by all laws and to inform his probation officer of any change in residence. On November 30, 2008, Jensen was arrested in Grand Forks, North Dakota and was cited for driving with a suspended license, driving without liability insurance and driving under the influence of alcohol. On December 3, 2008, Jensen's probation officer called Jensen's reported address and was informed Jensen did not live there. Based on these occurrences, the State petitioned for the revocation of Jensen's probation on December 24, 2008.
[¶3] Jensen was arrested on February 17, 2009, and his initial appearance was that same day. At his initial appearance, the district court informed Jensen, "You have the right to be represented by an attorney, and at public expense if you cannot afford one." Jensen said that he understood his rights and that he had no questions regarding them. The court next asked Jensen, "Before I have you respond to these allegations, would you like to first talk with an attorney?" Jensen answered he would not. The district court advised Jensen how to apply for a court appointed attorney and set bail at $7000.
[¶4] Jensen applied for indigent legal services on February 20, 2009, claiming he was unemployed and had no monthly income. Jensen's application was conditionally denied for failure to submit proof of his earning ability. Jensen was notified his request would be conclusively denied if he did not deliver proof of earning ability to the district court within five days.
[¶5] Jensen represented himself on February 26, 2009 when he moved for reduction of bail, claiming he could not post bail at the established rate and he needed to be in Fargo for a doctors appointment and for a court appearance in early March 2009. Jensen also claimed his incarceration prevented him from acquiring the documents necessary to prove his indigence. The district court acknowledged Jensen's claims but declined to reduce bail, informing Jensen somebody else would have to retrieve the documents for him.
[¶6] Jensen remained incarcerated and appeared at his March 10, 2009 revocation hearing without counsel. At the start of the hearing, the district court asked Jensen if he was ready to go forward, and Jensen answered in the affirmative. At no time prior to starting the adjudicative phase of this hearing did the district court ask Jensen on the record about proceeding without legal counsel or warn Jensen of the dangers of proceeding without counsel. During the hearing, Jensen objected to the State's exhibits and to the State's allegations. Both objections were overruled. Jensen did not cross-examine the State's only witness, and Jensen testified on his own behalf. Jensen's testimony focused on explaining why his probation officer could not locate him at his reported address.
[¶7] Following the hearing, the district court issued an order revoking Jensen's probation, sentencing Jensen to three years in prison, crediting 35 days previously served and suspending 18 months. Jensen timely filed this appeal.
[¶8] Jensen argues the district court erred in allowing him to represent himself at the revocation hearing because he did not voluntarily, knowingly or intelligently waive his right to counsel. While a probationer has a right to counsel at a revocation hearing, this right is statutorily based, rather than constitutionally based. N.D.R.Crim.P. 32(f)(3)(A)(iii); State v. Holbach, 2007 ND 114, ¶ 6, 735 N.W.2d 862 (disagreeing with the assumption a probationer's right to counsel is based on the Sixth Amendment). Because of the statutory origin of a probationer's right to counsel at a revocation hearing, "[t]he full panoply of rights due a defendant in a criminal proceeding does not apply." State v. Olson, 2003 ND 23, ¶ 14, 656 N.W.2d 650. This distinction exists because probation revocation "is not a stage of a criminal prosecution." Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973).
[¶9] At a revocation hearing, the probationer has a right to "representation by retained or appointed counsel unless waived." N.D.R.Crim.P. 32(f)(3)(A)(iii). "Before accepting a waiver of the right to counsel, we have stated the district court should engage in a two- part, fact-specific inquiry to determine the waiver of the right to counsel is voluntary, and to determine the waiver of counsel is made ...