N.C. Supreme Court Weighs in, Again, on Forfeiture of Counsel

In December, the North Carolina Supreme Court decided State v. Atwell, 2022-NCSC-135, ___ N.C. ___ (2022)—its third time weighing in on the issue of forfeiture of counsel. The defendant had had five court-appointed attorneys when the trial court determined that the defendant was engaging in delay tactics and entered an order of forfeiture. A majority of the Court of Appeals found no error. In reversing this decision, a majority of the Supreme Court concluded that the record did not show that the defendant engaged in the level of conduct sufficient to warrant a finding of forfeiture. This post discusses State v. Atwell, forfeiture guidelines as set forth by the state Supreme Court, and suggested practices in dealing with forfeiture of counsel issues. What are the facts? The defendant was arrested for a felony violation of a domestic violence protective order on September 4, 2017 and was appointed counsel the next day. The defendant was not indicted until February 5, 2018. Between the defendant’s arrest and indictment, she filed two pro se continuances and sought to have her attorney removed, stating that she and the attorney had a “serious conflict.” The defendant filed a second pro se motion to remove her appointed attorney on February 12, and the motion was allowed on April 17. The defendant filed a waiver of counsel form on April 17 and another on May 15, waiving her right to appointed counsel. The defendant filed a pro se motion for a continuance on June 12, noting that she was [...]