Introduction

In State v. Wilson, the North Dakota Supreme Court addressed whether a probationer’s waiver of the right to counsel at a probation revocation hearing was knowing and intelligent. The case presents a recurring problem in revocation practice: what admonitions a district court must give before accepting a probationer’s decision to proceed without counsel. The Court clarifies that a probationer’s right to counsel at revocation is statutory (under N.D.R.Crim.P. 32(f)(3)(A)(iii)), not constitutional under the Sixth Amendment, and that the scope of warnings necessary to support a valid waiver must be calibrated to the nature of a revocation proceeding—where there is no jury, the rules of evidence do not apply, and admissions may obviate witness confrontation.

The appellant, Zachery A. Wilson, had initially pled guilty in 2022 to multiple offenses, received jail time, and was placed on two years’ probation with conditions including abstaining from controlled substances and remaining law-abiding. In 2025, the State petitioned to revoke his probation, alleging drug use, new charges (later withdrawn), and new convictions through guilty pleas. At the revocation hearing, despite the court’s repeated offers to continue for appointment of counsel, Wilson opted to proceed pro se, admitted two allegations, and was resentenced to five-year terms on each count, grouped to run concurrently within pairs and consecutively across pairs.

On appeal, Wilson argued his waiver was invalid because the court did not advise him of the dangers and disadvantages of self-representation in sufficient detail. The State countered that the waiver was voluntary, knowing, and intelligent under Rule 32 and that the Sixth Amendment framework did not control.

Summary of the Opinion

• The Court holds that a probationer’s right to counsel at a revocation hearing arises from N.D.R.Crim.P. 32(f)(3)(A)(iii), not the Sixth Amendment (citing State v. Jensen and State v. Holbach).
• Because the parties briefed the issue under the Sixth Amendment waiver standard, the Court analyzed the waiver under that framework without deciding whether a different standard applies under Rule 32 (following Holbach’s approach).
• Measured against that standard, Wilson knowingly and intelligently waived counsel. The court repeatedly advised him of his right, offered to continue the hearing to allow for appointed counsel, and highlighted the State’s recommendation of “considerable” jail time. Wilson insisted on proceeding pro se and admitted violations.
• The district court’s finding of a valid waiver was reviewed for clear error and was not clearly erroneous. The revocation and resentencing were affirmed.

Detailed Analysis

1) Precedents Cited and Their Influence

• Gagnon v. Scarpelli, 411 U.S. 778 (1973): Establishes that probation revocation is not a stage of a criminal prosecution and does not trigger the “full panoply” of trial rights. This foundational principle underlies the North Dakota Court’s repeated emphasis that revocation is different in kind from a criminal trial.
• State v. Olson, 2003 ND 23, 656 N.W.2d 650: Affirms that the full array of trial rights does not apply to revocation proceedings. The Court cites Olson to calibrate expectations about what warnings are necessary before accepting a waiver.
• State v. Holbach, 2007 ND 114, 735 N.W.2d 862: Rejects the assumption that a probationer’s right to counsel at revocation is grounded in the Sixth Amendment, and—importantly—demonstrates the Court’s willingness to assess waiver under the Sixth Amendment standard when the parties frame it that way, without deciding that standard’s universal applicability to revocations. Wilson follows this approach.
• State v. Jensen, 2010 ND 3, 777 N.W.2d 847: Confirms the right to counsel at revocation comes from Rule 32 and prescribes a two-step inquiry—voluntariness and knowing/intelligent waiver—with an on-the-record finding. Jensen also anchors the “clearly erroneous” standard of review for a trial court’s waiver finding.
• State v. Wardner, 2006 ND 256, 725 N.W.2d 215, and State v. Hemmes, 2007 ND 161, 740 N.W.2d 81: Define the minimum due process rights at revocation (notice, disclosure of evidence, opportunity to be heard, neutral factfinder, written reasons) and reinforce that lesser procedural formality applies.
• N.D.R.Crim.P. 32(f)(3)(A)–(B): Codifies the right to counsel at revocation unless waived, and the preponderance standard of proof for contested violations.
• N.D.R.Ev. 1101(d)(3)(E) and State v. Enriquez, 2024 ND 164, 10 N.W.3d 777: The Rules of Evidence do not apply at revocation; the Court leverages this to show why certain trial-centric warnings are unnecessary.
• State v. Janachovsky, 2025 ND 30, 17 N.W.3d 531; City of Fargo v. Rockwell, 1999 ND 125, 597 N.W.2d 406; City of Grand Forks v. Corman, 2009 ND 125, 767 N.W.2d 847; State v. Schneeweiss, 2001 ND 120, 630 N.W.2d 482: These cases articulate the “dangers and disadvantages” principle and make clear there is no rigid, scripted colloquy required so long as the record shows the defendant “knew what he was doing.” Wilson applies this flexible approach and tailors it to the revocation context.
• State v. Poitra, 1998 ND 88, 578 N.W.2d 121: Supplies the “eyes open” formulation for knowing and intelligent waiver, echoed in Wilson’s ultimate finding.
• State v. Wicks, 1998 ND 76, 576 N.W.2d 518: Cited by Wilson for the proposition that denial of the constitutional right to counsel is structural error. The Court distinguishes Wicks because probationers’ counsel rights at revocation are not Sixth Amendment rights.
• Garaas v. Continental Resources, Inc., 2025 ND 146, 25 N.W.3d 505; Overbo v. Overbo, 2024 ND 233, 14 N.W.3d 898; State v. Runck, 418 N.W.2d 262 (N.D. 1987): Cited to justify deciding only the issues actually briefed—here, to apply the Sixth Amendment waiver framework without definitively resolving the precise Rule 32 waiver standard.

2) The Court’s Legal Reasoning

The Court proceeds in three linked steps:

1. Source of the Right: A probationer’s right to counsel at revocation derives from N.D.R.Crim.P. 32(f)(3)(A)(iii), not from the Sixth Amendment. Because revocation is not part of the criminal prosecution, the “full panoply” of trial rights does not apply (Gagnon; Olson; Jensen).
2. Applicable Waiver Standard (Assumed): Although the right is statutory, the parties briefed the waiver issue under the Sixth Amendment. Following Holbach, the Court assumes—without deciding—that the Sixth Amendment “voluntary, knowing, and intelligent” framework governs the waiver analysis in this case and then tests the waiver against that standard.
3. Waiver Analysis, Calibrated to Revocation: The Court emphasizes that the content of “dangers and disadvantages” warnings depends on the proceeding’s nature. For revocation:
   • No jury is involved;
   • The Rules of Evidence are inapplicable;
   • The State’s burden is preponderance (for contested violations);
   • Admissions obviate cross-examination and evidentiary disputes.
   Therefore, trial-centric warnings—e.g., voir dire obligations, evidentiary rules mastery—are not necessary to validate waiver at a revocation hearing, especially where the probationer intends to admit the allegations. What matters most is that the probationer understands the right to counsel, the availability of appointed counsel, the option to continue for counsel, and the potential sentencing consequences of proceeding without counsel and admitting violations.

Applying these principles to the record, the Court finds that the district court:

• Confirmed Wilson’s knowledge of his right to counsel and eligibility for appointed counsel;
• Offered to provide another application and to continue the hearing to allow counsel to be appointed;
• Solicited the State’s recommendation, which revealed “considerable” jail time exposure (five years sought “straight time,” with consecutive recommendations);
• Advised Wilson of the gravity of potential consequences and again offered to continue the hearing;
• Confirmed that Wilson nonetheless wished to proceed without counsel and was waiving his right voluntarily.

Against this backdrop, Wilson admitted two of the three allegations (the second was withdrawn), reducing the proceeding to a consequence-focused, non-evidentiary determination well within the narrowed advisement framework the Court deems adequate for revocations. On clear-error review (Jensen), the trial court’s finding of a knowing and intelligent waiver stands.

3) What the Court Did Not Decide

The Court expressly declined to decide the precise waiver standard required by Rule 32(f)(3)(A)(iii) when the issue is squarely presented and fully briefed. It instead assumed the Sixth Amendment standard applied because the parties framed the dispute that way (Holbach; Garaas; Overbo). Future cases may refine whether a distinct, possibly less demanding, waiver standard flows directly from the statutory and due-process character of revocation proceedings.

4) Impact and Forward-Looking Implications

State v. Wilson carries significant practical consequences for revocation practice:

• No structural error presumption for counsel deprivations at revocation: By anchoring the right to Rule 32 rather than the Sixth Amendment and by applying clear-error review to the waiver finding, the Court implicitly rejects automatic reversal via structural error theories (e.g., Wicks) in this context. Appellants must show invalid waiver or other reversible error on the existing record.
• Tailored advisements suffice: Trial courts need not deliver “Faretta-style” trial warnings. Instead, they must ensure probationers understand the right to counsel (including appointment), the availability of a continuance to obtain counsel, and the potential consequences (including likely sentencing exposure) of going forward and admitting or contesting violations in a streamlined, judge-led proceeding.
• Record-making is critical: Wilson validates succinct but clear colloquies, particularly where judges repeatedly offer continuances for counsel, canvass the State’s recommendations on the record, and memorialize the probationer’s insistence on proceeding pro se.
• Efficient revocation administration: The decision supports efficient handling of revocation dockets while protecting core due process. It discourages post hoc attempts to import full criminal-trial formalities into revocation settings.
• Open doctrinal question remains: Because the Court again “assumed without deciding” the Sixth Amendment waiver standard applies, litigants should expect future clarification on whether Rule 32 implies a distinct waiver standard and, if so, what that standard requires.

5) Practical Checklist for Trial Courts Accepting Waiver at Revocation

Wilson effectively sets out a workable template for trial judges:

• Inform the probationer that they have a right to counsel at revocation and that the court will appoint counsel if they cannot afford one (Rule 32(f)(3)(A)(iii)).
• Offer to continue the hearing to allow for appointment and preparation by counsel; make this offer more than once if needed.
• Place on the record the State’s recommended sanction to illuminate potential consequences.
• Confirm that the probationer understands those consequences and still wishes to proceed without counsel.
• Obtain an explicit, on-the-record acknowledgment that the waiver is voluntary, knowing, and intelligent.
• If the probationer intends to admit, confirm the admissions are voluntary and informed, with an understanding that proof need only be by a preponderance if contested.

Strict trial-level warnings about jury selection, evidentiary rules, and cross-examination are not required at revocation—particularly when the probationer admits the allegations—because such features are typically absent or inapplicable in revocation proceedings.

Complex Concepts Simplified

• Statutory vs. Constitutional Right to Counsel: At a criminal trial, the Sixth Amendment guarantees counsel. At probation revocation, the right comes from court rule (Rule 32), not the Constitution. This distinction affects both the governing standards and the appellate posture.
• “Voluntary, Knowing, and Intelligent” Waiver: A waiver is valid if the person understands the right being relinquished and how it generally applies to the situation. The court does not need to catalog every disadvantage of self-representation; it must ensure the person “knows what he is doing” and proceeds with “eyes open.”
• Revocation Is Not a Criminal Prosecution: No jury, relaxed evidentiary rules, and a lower standard of proof (preponderance). This streamlined structure narrows the scope of necessary warnings.
• Clearly Erroneous Review: On appeal, the trial court’s waiver finding stands unless it reflects an erroneous view of the law, lacks evidentiary support, or leaves the reviewing court with a firm conviction that a mistake was made.
• “Full Panoply” of Rights: A phrase describing the robust set of rights at criminal trial (jury, confrontation, robust evidence rules) that do not fully carry over to revocation.
• Admissions at Revocation: If a probationer admits allegations, the hearing often bypasses contested proof and cross-examination, and the focus shifts to consequences and disposition—making counsel advisements about sentencing exposure especially critical.

Conclusion

State v. Wilson confirms that probationers’ right to counsel at revocation is a Rule 32 right, not a Sixth Amendment right, and that the measure of a valid waiver is shaped by the nature of revocation proceedings. The Court endorses a pragmatic, record-based approach: where a judge clearly informs the probationer of the right to counsel, offers a continuance for appointed counsel, places likely consequences on the record, and receives an unequivocal choice to proceed pro se, the waiver is valid—even without the fuller, trial-oriented warnings associated with self-representation at a criminal trial. The decision thus sharpens the doctrinal line between criminal prosecutions and revocations, provides a practical blueprint for trial courts, and signals that while the precise Rule 32 waiver standard awaits full briefing, tailored advisements tethered to revocation realities will sustain waiver findings on appeal.