State v. Atwell, 2022-NCSC-135, ___ N.C. ___ (Dec. 16, 2022)

In this Union County case, the Supreme Court reversed the Court of Appeals decision that defendant effectively waived her right to counsel and remanded the case for a new trial.

Defendant was subject to a Domestic Violence Prevention Order (DVPO) entered against her in 2013; the terms of the order required her to surrender all firearms and ammunition in her position, and forbid her from possessing a firearm in the future, with a possible Class H felony for violation. In 2017, defendant attempted to buy a firearm in Tennessee while still subject to the DVPO and was indicted for this violation. Initially defendant was represented by counsel, but over the course of 2018 and 2019, defendant repeatedly filed pro se motions to remove counsel and motions to dismiss. The trial court appointed five different attorneys; three withdrew from representing defendant, and defendant filed motions to remove counsel against the other two. The matter finally reached trial in September of 2019, where defendant was not represented by counsel. Before trial, the court inquired whether defendant was going to hire private counsel, and she explained that she could not afford an attorney and wished for appointed counsel. The trial court refused this request and determined defendant had waived her right of counsel. The matter went to trial and defendant was convicted in January of 2020, having been mostly absent from the trial proceedings.

Examining the Court of Appeals opinion, the Supreme Court noted that the panel was inconsistent when discussing the issue of waiver of counsel verses forfeiture of counsel, an issue that was also present in the trial court’s decision. The court explained that “waiver of counsel is a voluntary decision by a defendant and that where a defendant seeks but is denied appointed counsel, a waiver analysis upon appeal is both unnecessary and inappropriate.” Slip Op. at 16. Here the trial court, despite saying defendant “waived” counsel, interpreted this as forfeiture of counsel, as defendant clearly expressed a desire for counsel at the pre-trial hearing and did not sign a waiver of counsel form at that time (although she had signed several waivers prior to her request for a new attorney).

Having established that the proper analysis was forfeiture, not waiver, the court explained the “egregious misconduct” standard a trial court must find before imposing forfeiture of counsel from State v. Harvin, 2022-NCSC-111, and State v. Simpkins, 373 N.C. 530 (2020). Slip Op. at 18. The court did not find such egregious misconduct in this case, explaining that defendant was not abusive or disruptive, and that the many delays and substitutions of counsel were not clearly attributable to defendant. Instead, the record showed legitimate disputes on defense strategy with one attorney, and was silent as to the reasons for withdrawal for the others. Additionally, the state did not move to set the matter for hearing until many months after the indictment, meaning that defendant’s counsel issues did not cause significant delay to the proceedings.

Chief Justice Newby, joined by Justices Berger and Barringer, dissented and would have found that defendant forfeited her right to counsel by delaying the trial proceedings. Id. at 28.