The court reversed the Court of Appeals’ determination that the defendant was entitled to a new trial based on the trial court’s alleged failure to recognize and address an impasse between the defendant and his attorney during trial. The court concluded that the record did not allow it to determine whether the defendant had a serious disagreement with his attorney regarding trial strategy or whether he simply sought to hinder the proceedings. It remanded for entry of an order dismissing the defendant’s ineffective assistance of counsel claim without prejudice to his right to assert it in a motion for appropriate relief.

An absolute impasse did not occur when trial counsel refused to abide by the defendant’s wishes to pursue claims of prosecutorial and other misconduct that counsel believed to be frivolous. Under the absolute impasse doctrine counsel need only abide by a defendant’s lawful instructions with respect to trial strategy. Here, the impasses was not over tactical decisions, but rather over whether the defendant could compel counsel to file frivolous motions and assert theories that lacked any basis in fact. The court concluded: “Because nothing in our case law requires counsel to present theories unsupported in fact or law, the trial court did not err in failing to instruct counsel to defer to Defendant’s wishes.”

In this Wake County case, defendant appealed his convictions for forcible rape, sex offense, kidnapping, various assault charges, and interfering with emergency communication, arguing (1) he was deprived of his right to autonomy in the presentation of his defense, (2) he was deprived of effective assistance of counsel when his attorney admitted guilt during closing argument, and (3) the trial court lacked jurisdiction to sentence him for habitual misdemeanor assault due to a facially invalid indictment. The Court of Appeals majority disagreed, finding no error. 

In April of 2020, defendant came to trial for assaulting and raping a woman he was dating at the time. During the trial, defense counsel informed the court that defendant would not testify or present evidence, and the trial court conducted a colloquy to ensure defendant was knowingly waiving this right. During the colloquy, defendant mentioned documentary evidence he wanted to admit, but that his attorney had not admitted. The trial court did not instruct defense counsel to introduce the evidence. During closing argument, defense counsel mentioned that defendant was not guilty of kidnapping, sexual offense, or rape, but did not mention assault. Defendant was subsequently convicted, and appealed.  

In (1), defendant contended that he and defense counsel had reached an absolute impasse about the documentary evidence, and the trial court committed a structural error by failing to instruct defense counsel to comply with defendant’s wishes to admit the evidence. The Court of Appeals first noted the rule that “where the defendant and his defense counsel reach an absolute impasse and are unable come to an agreement on such tactical decisions, the defendant’s wishes must control.” Slip Op. at 5. However, here the court was “unable to determine from the cold record whether there was a true disagreement, which would amount to an absolute impasse.” Id. at 7-8. Additionally, the court explained that even if there was an error, it was not a type recognized as structural by the Supreme Court, referencing the list identified in State v. Minyard, 289 N.C. App. 436 (2023). 

Moving to (2), defendant argued his defense counsel committed an error under State v. Harbison, 315 N.C. 175 (1985), which would represent ineffective assistance of counsel. However, the court did not see a Harbison error, noting “defense counsel here never implied or mentioned any misconduct [by defendant]” while giving closing argument. Slip Op. at 15. Instead, the court held that “[defense counsel’s] statements cannot logically be interpreted as an implied concession of Defendant’s guilt.” Id.  

Finally, in (3) defendant argued that the indictment was flawed as it failed to state the assault caused “physical injury.” Id. at 17. The court explained that here, count VIII of the indictment alleged that defendant caused “serious injury” for the assault inflicting serious injury charge. Id. at 18. The court determined that the broader term was sufficient, as “it logically follows Defendant was noticed of his need to defend against an allegation that he caused physical injury as ‘serious injury’ is defined to include physical injury.” Id. at 21. 

Judge Murphy concurred in part and dissented in part by separate opinion, and would have held that the indictment for habitual misdemeanor assault in (3) was insufficient as physical injury and serious injury were not synonymous.  

In this Edgecombe County solicitation to commit murder case, the trial court did not err (1) in resolving the defendant’s request for substitute counsel; (2) by denying the defendant’s motion to dismiss for insufficient evidence; and (3) by declining to intervene ex mero motu in the State’s closing argument. Additionally, (4) any error in the jury instructions for solicitation to commit murder was harmless.

(1) The trial court did not err by denying the defendant’s request for the appointment of substitute counsel where the record did not reflect an absolute impasse between the defendant and his counsel. The trial court engaged in a lengthy colloquy with the defendant and its findings and conclusions that the defendant was acting in a disruptive manner and expressing dissatisfaction with his counsel to derail the trial but was not at an absolute impasse were well-supported.

(2) The trial court properly denied the defendant’s motion to dismiss a charge of solicitation to commit first-degree murder for insufficient evidence. Evidence at trial tended to show that the defendant had multiple conversations with another person, Capps, where he requested that Capps kill the defendant’s ex-girlfriend, Thomas; that the defendant gave Capps a map of Thomas’s house and the surrounding area; that the defendant provided detailed suggestions about how to kill Thomas; and that the defendant offered to kill Capps’s girlfriend if Capps killed Thomas. In the light most favorable to the State, this evidence was sufficient for the solicitation charge to be submitted to the jury.

(3) The trial court did not err by declining to intervene ex mero motu in the State’s closing argument that involved questioning the defendant’s credibility, characterizing the defendant as “angry” and “dangerous” among other things, stating that the evidence rebutted the presumption of innocence, and calling the jury’s attention to the specific deterrence a conviction would provide and the jury’s role as representatives of the community. In the context of the evidence at trial and relevant precedent, the arguments were not grossly improper.

(4) The Court of Appeals determined on plain error review that any error in the trial court’s jury instruction on solicitation to commit first-degree murder was harmless. The trial court instructed the jury using NCPI Crim. 206.17, which omits any mention of the elements of premeditation and deliberation, which distinguish first-degree from second-degree murder. The court reasoned that any error in the omission of these elements in the instruction was harmless on the facts of this case where the evidence showed that the defendant “solicited [Capps] to kill [Thomas] with malice upon [Capps’s] release from prison.” As the solicited killing necessarily would occur in the future and according to the defendant’s suggested plans, the evidence unavoidably established the defendant solicited a premeditated and deliberated homicide with the specific intent to kill. Thus, there was no indication that the jury would have reached a different verdict absent any error in the instruction, and the defendant’s ability to defend himself from the charge was not frustrated as his strategy was to deny asking Capps to kill Thomas regardless of premeditation, deliberation, or specific intent.

Judge Murphy concurred in result only and without a separate opinion with respect to the court’s conclusion that the trial court did not err by failing to intervene ex mero motu in the State’s closing argument.

No violation of the defendant’s Sixth Amendment right to counsel occurred when the trial court found that the defendant forfeited his right to counsel because of serious misconduct and required him to proceed pro se. The court rejected the defendant’s argument that Indiana v. Edwards prohibits a finding of forfeiture by a “gray area” defendant who has engaged in serious misconduct. 

Because a SBM hearing is not a criminal proceeding to which the right to counsel applies, the defendant cannot assert an ineffective assistance of counsel claim as to counsel’s performance at such a hearing.

The court rejected the defendant’s argument that the trial court failed to make the proper inquiry required by G.S. 15A-1242 before allowing him to proceed pro se, concluding that the defendant’s actions “absolved the trial court from this requirement” and resulted in a forfeiture of the right to counsel. As recounted in the court’s opinion, the defendant engaged in conduct that obstructed and delayed the proceedings.

(1) No violation of the defendant’s Sixth Amendment right to counsel occurred when the trial court found that the defendant forfeited his right to counsel because of serious misconduct and required him to proceed pro se. The court rejected the defendant’s argument that Indiana v. Edwards prohibits a finding of forfeiture by a “gray area” defendant who has engaged in serious misconduct. (2) The trial court did not err by finding that the defendant forfeited his right to counsel because of serious misconduct. The court rejected the defendant’s argument that the misconduct must occur in open court. The defendant was appointed three separate lawyers and each moved to withdraw because of his behavior. His misconduct went beyond being uncooperative and noncompliant and included physically and verbally threatening his attorneys. He consistently shouted at his attorneys, insulted and abused them, and spat on and threatened to kill one of them. The court also rejected the defendant’s argument that State v. Wray, 206 N.C. App. 354 (2010), required reversal of the forfeiture ruling.

In this Stanly County case, defendant appealed the trial court’s ruling that he forfeited his right to counsel. The Court of Appeals found no error. 

Defendant pleaded guilty to first degree kidnapping, second degree rape, and second degree burglary in December of 2017. However, due to a sentencing error, defendant was brought back before the trial court in July 2020, and there he requested to set aside his guilty plea. At the same time, defendant’s first attorney requested to withdraw. This began a series of six appointed attorneys that represented defendant from July 2020 to July 2022. During this time, defendant was also disruptive to the proceedings, and at one point was held in contempt by the trial court. Eventually, due to defendant’s disruptions and dispute with his sixth appointed attorney, the trial court ruled that defendant had forfeited his right to court-appointed counsel. Defendant appealed.

The Court of Appeals explained that the trial court was correct in finding that defendant forfeited his right to counsel, pointing to defendant’s “insistence that his attorneys pursue defenses that were barred by ethical rules and his refusal to cooperate when they would not comply with his requests[,]” along with defendant’s conduct that “was combative and interruptive during the majority of his appearances in court.” Slip Op. at 10. These behaviors caused significant delay in the proceedings, and justified forfeiture of counsel. 

In this Onslow County case, defendant appealed his conviction for first-degree murder, arguing error in (1) denial of his right to counsel, (2) denial of his motion to continue, and (3) allowing a witness to testify about unrelated allegations against him. The Court of Appeals found no error. 

After Thanksgiving in 2017, defendant borrowed his girlfriend’s car and drove from Florida to North Carolina, telling her that he was visiting family. After arriving in North Carolina, defendant contacted a prostitute and eventually killed her and buried her body in a remote area at the end of a dirt road. During the same December 2017 time period, defendant met with a different prostitute, who would later testify about how defendant took her to the same area, raped her, and stole all the money from her purse. When defendant indicted for murder in 2018, he was represented by his sister, a Georgia attorney who was admitted pro hac vice for the trial. Defendant also had a series of local attorneys represent him, all of whom withdrew due to disputes with defendant and his sister. During these disputes, defendant’s sister apparently filed several complaints with the N.C. State Bar against defense counsel and prosecutors. Eventually, the trial court revoked the sister’s pro hac vice admission due to her lack of experience and interference with other counsels’ ability to prepare. When the matter reached trial, defendant had another appointed counsel, but several days after opening statements, the appointed counsel moved to withdraw, explaining that defendant had asked her to stop representing him; she also informed the trial court defendant had implied she should withdraw for her own safety. The trial court conducted a colloquy with defendant, where defendant told the trial court he was not happy with the appointed counsel and understood that he would be forfeiting his right to an attorney. After the trial court allowed counsel to withdraw, the trial went forward with defendant representing himself; he did not present evidence, cross-examine witnesses, or provide a closing argument. Defendant was ultimately convicted, and subsequently filed a motion for appropriate relief (MAR). The trial court denied the MAR, finding that defendant forfeited his right to counsel by misconduct. Defendant’s appeals of his conviction and the denial of his MAR led to the current opinion.

Taking up (1), the Court of Appeals first explained the distinction between a knowing and voluntary waiver of counsel under G.S. 15A-1242, and forfeiture of counsel by misconduct, referencing State v. Blakeney, 245 N.C. App. 452 (2016). Although the record indicated that defendant signed a written waiver of counsel that was certified by the trial court, the waiver was not included on appeal. Despite this absence, the court explained that the missing waiver and certification document did not invalidate defendant’s waiver of his right to counsel. After determining the trial court clearly advised defendant of his rights and the consequences of waiving an attorney, the court found that defendant had “clearly waived and/or forfeited his right to further court-appointed counsel.” Slip Op. at 32. The court then explored the forfeiture ruling, noting that the N.C. Supreme Court had first recognized that a defendant could forfeit counsel in State v. Simpkins, 373 N.C. 530 (2020), and had expanded on the analysis in State v. Harvin, 382 N.C. 566 (2022), and State v. Atwell, 383 N.C. 437 (2022). Slip Op. at 35-36. After examining defendant’s conduct, including the interference from his sister and the seven attorneys representing him through the process, the court concluded defendant had committed “serious misconduct” sufficient to forfeit counsel, in addition to his “knowing and voluntary waivers of counsel.” Id. at 42. 

Turning to (2), the court explained that defendant filed his motion intending to replace the attorney he had just fired after the jury was already empaneled and the State was presenting its case-in-chief. Because no attorney could have adequately represented him in the middle of his trial, and defendant had waived and forfeited his right to counsel in (1), the court found no error in denial of the motion. 

Considering (3), the court established that the objection was not properly preserved for review, and that the review was under a plain error standard. The court then turned to the substance of the second prostitute’s testimony that defendant had raped her and the other details of the encounter, explaining that defendant asserted it was not relevant and inadmissible. Here the court disagreed, explaining that the details were admissible and relevant under Rules of Evidence 401 and 402. The court likewise found the testimony admissible under Rule of Evidence 404(b), explaining that the proximity and similarity of the events along with the prostitute’s testimony identifying defendant “far exceed” simply showing defendant had “the propensity or disposition to commit” the offense. Id. at 55. Finally, the court found no error with the trial court’s conclusion that the events described in the testimony were sufficiently similar and not too remote in time from the events of the crime to be considered prejudicial and inadmissible under Rule of Evidence 403. 

The defendant was charged with multiple crimes related to a break-in at the home of the elected district attorney. The trial court allowed the defendant’s first appointed lawyer to withdraw based on an unspecified conflict in February 2018. In April 2018 his second appointed lawyer also moved to withdraw when the defendant was uncooperative. The trial court allowed the motion and appointed a third lawyer. The third lawyer moved to withdraw in November 2018. The court held a hearing on that motion, ultimately granting it and finding that the defendant had forfeited his right to counsel based on his conduct, “including incessant demands and badgering” of his three appointed lawyers. The trial judge appointed the third lawyer as standby counsel. The defendant represented himself at trial, presented no evidence, was convicted of all charges and sentenced. On appeal, the defendant argued that the trial court erred by determining that he had forfeited his right to counsel. In light of State v. Simpkins, 373 N.C. 530 (2020)—a case decided by the Supreme Court while the defendant’s appeal was pending—the Court of Appeals agreed. The test first articulated in Simpkins is that a finding that a defendant has forfeited his right to counsel requires “egregious dilatory or abuse conduct on the part of the defendant which undermines the purpose of the right to counsel.” The Supreme Court further clarified that forfeiture is appropriate when the defendant’s behavior is so threatening or abusive toward counsel that it makes the representation itself physically dangerous, or when the defendant’s actions related to counsel are an attempt to obstruct the proceedings and prevent them from coming to completion. Here, the defendant’s attorneys moved to withdraw because the defendant was uncooperative, uncivil, and made unreasonable demands based at least in part on his concern that any court-appointed counsel would be biased against him due to his or her relationship with the victim in the case—the District Attorney. However, no evidence in the record suggested that the defendant threatened or physically abused his lawyers. And nothing in the record indicated that the defendant’s behavior actually delayed or obstructed the proceedings. The defendant’s actions therefore did not fit within the forfeiture criteria recently spelled out in Simpkins, and the Court of Appeals vacated the criminal judgments. Nevertheless, based on the reference in the trial court’s order to the defendant’s “abusive nature” and “abuse of counsel,” the court remanded the matter for a new forfeiture hearing at which the trial judge could put into the record any evidence from prior in-chambers discussions with counsel that might support a forfeiture under either prong of the new Simpkins test.

The trial court erred by requiring the defendant to proceed pro se. After the defendant was indicted but before the trial date, the defendant signed a waiver of the right to assigned counsel and hired his own lawyer. When the case came on for trial, defense counsel moved to withdraw, stating that the defendant had been rude to him and no longer desired his representation. The defendant agreed and indicated that he intended to hire a different, specifically named lawyer. The trial court allowed defense counsel to withdraw and informed the defendant that he had a right to fire his lawyer but that the trial would proceed that week, after the trial court disposed of other matters. The defendant then unsuccessfully sought a continuance. When the defendant’s case came on for trial two days later, the defendant informed the court that the lawyer he had intended to hire wouldn’t take his case. When the defendant raised questions about being required to proceed pro se, the court indicated that he had previously waived his right to court-appointed counsel. The trial began, with the defendant representing himself. The court held that the trial court’s actions violated the defendant’s Sixth Amendment right to counsel. The defendant never asked to proceed pro se; although he waived his right to court-appointed counsel, he never indicated that he intended to proceed to trial without the assistance of any counsel. Next, the court held that the defendant had not engaged in the type of severe misconduct that would justify forfeiture of the right to counsel. Among other things, the court noted that the defendant did not fire multiple attorneys or repeatedly delay the trial. The court concluded:

[D]efendant’s request for a continuance in order to hire a different attorney, even if motivated by a wish to postpone his trial, was nowhere close to the “serious misconduct” that has previously been held to constitute forfeiture of counsel. In reaching this decision, we find it very significant that defendant was not warned or informed that if he chose to discharge his counsel but was unable to hire another attorney, he would then be forced to proceed pro se. Nor was defendant warned of the consequences of such a decision. We need not decide, and express no opinion on, the issue of whether certain conduct by a defendant might justify an immediate forfeiture of counsel without any preliminary warning to the defendant. On the facts of this case, however, we hold that defendant was entitled, at a minimum, to be informed by the trial court that defendant’s failure to hire new counsel might result in defendant’s being required to represent himself, and to be advised of the consequences of self-representation.

The trial court did not err by considering the defendant’s pro se speedy trial motion, filed when he was represented by counsel.

Where appointed counsel was allowed to withdraw, on the sixth day of a bribery trial, pursuant to Comment 3, Rule 1.16(a) of the N.C. Rules of Professional Conduct, the trial court was not required to appoint substitute counsel. Comment 3 states in relevant part:

Difficulty may be encountered if withdrawal is based on the client’s demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.

Under G.S. 7A-450(b), appointment of substitute counsel at the request of either an indigent defendant or original counsel is constitutionally required only when it appears that representation by original counsel could deprive the defendant of his or her right to effective assistance. The statute also provides that substitute counsel is required and must be appointed when the defendant shows good cause, such as a conflict of interest or a complete breakdown in communications. Here, counsel’s representation did not fail to afford the defendant his constitutional right to counsel nor did the defendant show good cause for the appointment of substitute counsel. Nothing in the record suggests a complete breakdown in communications or a conflict of interest. Indeed, the court noted, “there was no indication that [counsel]’s work was in any way deficient. Rather, [his] withdrawal was caused by [defendant] himself demanding that [counsel] engage in unprofessional conduct. 

The trial court did not err by denying defense counsel’s motions to withdraw and for the appointment of substitute counsel. The court rejected the defendant’s argument that he and his trial counsel experienced “a complete breakdown in their communications” resulting in ineffective assistance of counsel. The court noted that in the absence of a constitutional violation, the decision about whether to replace appointed counsel is a discretionary one. Although the defendant expressed dissatisfaction with counsel’s performance on several occasions, he did not establish the requisite “good cause” for appointment of substitute counsel or that assigned counsel could not provide him with constitutionally adequate representation. The court concluded that any breakdown in communication “stemmed largely from Defendant’s own behavior” and that the defendant failed to show that the alleged communication problems resulted in a deprivation of his right to the effective assistance of counsel.

The trial court did not abuse its discretion by denying the defendant’s request for substitute counsel where there was no evidence that the defendant’s constitutional right to counsel was violated. The defendant waived the right to appointed counsel and retained an attorney. The day after the jury was impaneled for trial the defendant requested substitute counsel, asserting that counsel had not communicated enough with him, that the defendant was unaware the case would be tried that day, and that he had concerns about counsel’s strategy, particularly counsel’s advice that the defendant not testify. None of these concerns constituted a violation of the defendant’s constitutional right to counsel.

In this drug trafficking case, the trial court did not err by requiring the defendant to represent himself at trial. In September 2013, the defendant appeared before a Superior Court Judge and signed a waiver of counsel form. In December 2013 the defendant appeared before another judge and signed a second waiver of counsel form. On that same day, attorney Palmer filed a notice of limited appearance, limiting his representation of the defendant to pretrial case management. In September 2015 the defendant again appeared in Superior Court. Palmer informed the court that the State “got their labs back” and would be ready to set a trial date. The trial court informed the defendant that if he wanted a court appointed lawyer, he should ask now. Among other things, the trial court informed the defendant of the hazards of proceeding pro se. In response to the judge’s questioning, the defendant indicated that he would hire an attorney for trial. The ADA stated that the case would come on for trial in the middle of the following year. The judge told the defendant he had two months to hire a lawyer and scheduled him to return to court on November 5 with his lawyer to talk about trial date. He expressly warned the defendant not to return in November saying that he did not have a lawyer. On November 5, 2015 the defendant appeared in court without a lawyer. The judge again warned the defendant that it was his responsibility to hire a lawyer and of the hazards of proceeding pro se. On December 10, 2015 the defendant again appeared in court, indicating that he continued to have trouble hiring a lawyer. The court informed the defendant to report back on January 27, and warned the defendant that the trial was soon approaching. In January 2016, the defendant again appeared in court, this time with attorney Byrd. Byrd told the court he was not in a position to make an appearance for the defendant and asked for more time. The judge scheduled the matter to return in February. On February 15, 2016, the trial court reported to the defendant that Mr. Byrd was not ready to make an appearance in his case. He warned the defendant to make arrangements to hire Byrd or someone else because a trial date would be set on March 10. On March 28, 2016, the defendant appeared before a different judge. The State indicated it was ready to proceed to trial. After hearing from the defendant regarding his dealings with various lawyers over the past months, the trial court informed the defendant of his counsel rights and asked the defendant how he intended to proceed. During this colloquy the defendant indicated that he would represent himself. The trial court reset the matter for the next administrative session so that the senior resident judge could address the counsel issue. On April 7, 2016 the case came back in Superior Court. The State requested a July trial date and asked the court to address the counsel issue. The court summarized the prior discussions with the defendant and appointed standby counsel. Proceedings continued in this vein until the defendant’s case came on for trial August 30, 2016. The defendant appeared pro se with standby counsel. The defendant was found guilty and appealed, asserting a violation of his sixth amendment counsel rights. The court disagreed with the defendant’s assertion that the trial court did not adhere to the requirements of G.S. 15A-1242 in procuring his waiver. The court noted, in part:

The trial court gave Defendant years to find an attorney. At each stage the trial court advised and counseled Defendant about his right to an attorney including his right to appointed counsel. The trial court also repeatedly counseled Defendant on the complexity of handling his own jury trial and the fact the judge would not be able to help him. Finally, the trial court repeatedly addressed the seriousness of the charges and advised Defendant a conviction likely meant a life sentence. Despite this, Defendant proceeded to represent himself at trial.

Defendant’s assertion the trial court failed to take any measures to ascertain whether Defendant understood the various difficulties associated with representing himself is without merit. Our review of the record indicates the trial court advised Defendant he would have to adhere to rules of court and evidence. The trial court also informed Defendant the court would not assist Defendant, and Defendant was facing serious charges which could result in a life sentence upon conviction. The record also indicates Defendant repeatedly expressed his understanding of the trial court’s instruction on this issue. We conclude Defendant waived his right to court appointed counsel.

The court went on to hold that even if the defendant’s waiver of counsel was not knowing and voluntary, the defendant forfeited his right to counsel through extended delaying tactics. It explained:

First, Defendant waived his right to assigned counsel in 2013. The trial court repeatedly advised Defendant on the seriousness of the charges and informed Defendant a conviction could lead to a life sentence due to Defendant’s age. Time after time, Defendant stated he intended to hire his own attorney. Defendant made close to monthly appearances in court over a 10-month period, and consistently told the court he wished to hire his own attorney. During these appearances, the trial court asked Defendant at least twice if he needed appointed counsel. Defendant answered by claiming to have sufficient funds to hire an attorney. Additionally, the trial court continued Defendant’s case several times to give Defendant’s attorney time to prepare since Defendant claimed the attorneys he met with did not have adequate time to prepare for trial.

The trial court did not err by allowing the defendant to waive his right to counsel and proceed pro se. Notwithstanding the defendant’s refusal to acknowledge that he was subject to court’s jurisdiction, the trial court was able to conduct a colloquy that complied with G.S. 15A-1242. The court reminded trial judges, however, that “our Supreme Court has approved a series of 14 questions that can be used to satisfy the requirements of Section 15A-1242.” “[B]est practice,” it continued “is for trial courts to use the 14 questions . . . which are set out in the Superior Court Judges’ Benchbook provided by the University of North Carolina at Chapel Hill School of Government.”

The trial court did not err when taking the defendant’s waiver of counsel. The trial court complied with the statute and asked the standard waiver questions in the judges’ bench book. The court rejected the defendant’s argument that the waiver was invalid because the trial judge did not inform him of his right to hire a private lawyer.

(1) The defendant’s waiver of counsel was sufficient even though a box on the waiver form was left blank and the form was executed before the court advised the defendant of the charges and the range of punishment. Citing State v. Heatwole, 344 N.C. 1, 18 (1996), and State v. Fulp, 355 N.C. 171, 177 (2002), the court first concluded that a waiver of counsel form is not required and any deficiency in the form will not render the waiver invalid, if the waiver was knowing, intelligent, and voluntary. Next, the court concluded that the waiver was not invalid because the trial court failed to go over the charges and potential punishments prior to the defendant signing the waiver form. The trial court discussed the charges and potential punishments with the defendant the following day, and defendant confirmed his desire to represent himself in open court. Although the waiver form requires the trial judge to certify that he or she informed the defendant of the charges and punishments, given that the form is not mandatory, no prejudice occurs when the trial court does, in fact, provide that information in accordance with the statute and the defendant subsequently asserts the right to proceed pro se. (2) The trial court conducted an adequate inquiry under G.S. 15A-1242. The court noted that there is no mandatory formula for complying with the statute. Here, the trial judge explicitly informed the defendant of his right to counsel and the process to secure a court-appointed attorney; the defendant acknowledged that he understood his rights after being repeatedly asked whether he understood them and whether he was sure that he wanted to waive counsel; the judge informed him of the charges and potential punishments; and the judge explained that he would be treated the same at trial regardless of whether he had an attorney. The trial court’s colloquies at the calendar call and before trial, coupled with the defendant’s repeated assertion that he wished to represent himself, demonstrate that the defendant clearly and unequivocally expressed his desire to proceed pro se and that such expression was made knowingly, intelligently, and voluntarily.

In March 2018 the defendant was charged with multiple crimes after breaking into a gas station. In August 2018, the trial court first addressed the defendant’s right to counsel. The defendant said that he did not want a lawyer, but then, when asked by the judge, “You’re not just waiving court appointed counsel, you’re waiving all counsel; is that correct?,” the defendant replied that he was “simply waiving court appointed counsel.” The defendant signed a waiver of counsel form, checking only box one, waiving his right to assigned counsel. The trial judge appointed standby counsel. The defendant argued several preliminary motions without the assistance of counsel between August 2018 and when his case came on for trial in March 2019. At that point, a different judge presiding over the trial noticed that the defendant had waived court-appointed counsel but not all counsel. After a full colloquy with the judge, the defendant checked box 2 on a new form, waiving his right to all assistance of counsel. The defendant was convicted and sentenced.

On appeal, the defendant argued that the trial court erred by failing to appoint counsel or secure a valid waiver of counsel until more than a year after the defendant’s initial arrest. Over a dissent, the Court of Appeals agreed with him and ordered a new trial. The majority first established that the issue was properly preserved for appellate review, noting that prejudicial violations of a statutory mandate (here G.S. 15A-1242) are preserved for appeal notwithstanding the defendant’s failure to object at trial, and the Supreme Court of North Carolina has recently reviewed unobjected-to Sixth Amendment denial of counsel claims. The court then concluded that the trial court erred by allowing the defendant to proceed unrepresented without first obtaining a proper waiver of all counsel after a proper inquiry under G.S. 15A-1242. The August 2018 colloquy was flawed to the extent that the trial court did not ask whether the defendant understood and appreciated the consequences of his decision to proceed without representation, and in any event resulted only in a waiver of assigned counsel. The State failed to establish that the defendant’s self-representation through the pretrial period from August 2018 until the proper waiver colloquy in March 2019 was harmless beyond a reasonable doubt—which the court noted would have been difficult even if the State had tried, given the many issues addressed during the uncounseled period (possible plea negotiations, discovery, and evidentiary issues).

A dissenting judge would have concluded that the defendant failed to preserve the issue for appellate review.

(1) In this sexual assault case the court reversed and remanded for a new trial, finding that even if the defendant had clearly and unequivocally asked to proceed pro se, the record did not establish that the defendant’s waiver of counsel complied with G.S. 15A-1242. The defendant was indicted on multiple sexual assault charges. He later was found to be indigent and Timothy Emry was appointed as counsel. Emry later moved to withdraw claiming that he and the defendant were at an impasse regarding representation. He asserted that the defendant was unwilling to discuss the case with him and the defendant was upset with Emry to asking him to sign a form acknowledging that he understood a plea offer and the consequences of taking or rejecting the plea. At a January hearing on the motion, the State asserted that if Emry was allowed to withdraw, the defendant would be on his fourth lawyer. Emry however clarified that this was inaccurate. The trial court told the defendant that he could have Emry continue as counsel, have the trial court find that the defendant had forfeited his right to counsel, or hire his own lawyer. The defendant opted to proceed pro se and the trial court appointed Emry as standby counsel. A waiver of counsel form was signed and completed. However, on the form the defendant only indicated that he waived his right to assigned counsel, not his right to all assistance of counsel. The case came to trial before a different judge. Although the trial court engaged in a colloquy with the defendant about counsel, the transcript of this event was indecipherable in parts. The defendant was convicted and appealed. On appeal, the defendant argued that the trial court erred by requiring him to proceed to trial pro se when he did not clearly and unequivocally elect to do so. Although the defendant did say that he wished to represent himself, he only did so after being faced with no other option than to continue with Emry’s representation. The court noted: “This case is a good example of the confusion that can occur when the record lacks a clear indication that a defendant wishes to proceed without representation.” Here, even assuming that the defendant did clearly and unequivocally assert his wish to proceed pro se, he still would be entitled to a new trial because the waiver was not knowing and voluntary as required by G.S. 15A-1242. At the January hearing, after explaining the defendant’s options to him the court asked that the defendant “be sworn to [his] waiver.” At this point the clerk simply asked the defendant if he solemnly swore that he had a right to a lawyer and that he waived that right. This colloquy did not meet the requirements of the statute. The court stated: “The fact that defendant signed a written waiver acknowledging that he was waiving his right to assigned counsel does not relieve the trial court of its duty to go through the requisite inquiry with defendant to determine whether he understood the consequences of his waiver.” Additionally, the written waiver form indicates that the defendant elected only to waive the right to assigned counsel, not the right to all assistance of counsel. With respect to the colloquy that occurred at trial, defects in the transcript made it unclear what the defendant understood about the role of standby counsel. In any event, “simply informing defendant about standby counsel’s role is not an adequate substitute for complying with [the statute].” Additionally, there is no indication that the trial court inquired into whether the defendant understood the nature of the charges and permissible punishments as required by the statute. The court rejected the State’s suggestion that the fact that Emry had informed the defendant about the charges could substitute for the trial court’s obligation to ensure that the defendant understood the nature of the charges and the potential punishments before accepting a waiver of counsel.

(2) The defendant did not engage in conduct warranting forfeiture of the right to counsel. Although the state and the trial court hinted that the defendant was intentionally delaying the trial and that he would be on his fourth attorney after counsel was dismissed, the record indicates that this was an inaccurate characterization of the facts. As explained by Emry, although other attorneys had been listed as the defendant’s counsel at various points early in the proceedings, the defendant received substantial assistance only from Emry. Additionally, nothing in the transcript indicates any type of “flagrant” tactics that would constitute extreme misconduct warranting forfeiture. Specifically, there is no indication that the defendant sought other delays of his trial or that he engaged in any inappropriate behavior either in court or with counsel.

Because the trial court did not take a proper of waiver of counsel, the defendant was entitled to a new trial. The State conceded error, noting that the defendant had not been advised of the range of permissible punishments as required by G.S. 15A-1242.

The trial court erred by allowing the defendant to proceed pro se at a probation revocation hearing without taking a waiver of counsel as required by G.S. 15A-1242. The defendant’s appointed counsel withdrew at the beginning of the revocation hearing due to a conflict of interest and the trial judge allowed the defendant to proceed pro se. However, the trial court failed to inquire as to whether the defendant understood the range of permissible punishments. The court rejected the State’s argument that the defendant understood the range of punishments because “the probation officer told the court that the State was seeking probation revocation.” The court noted that as to the underlying sentence, the defendant was told only that, “[t]here’s four, boxcar(ed), eight to ten.” The court found this insufficient, noting that it could not assume that the defendant understood this legal jargon as it related to his sentence. Finally, the court held that although the defendant signed the written waiver form, “the trial court was not abrogated of its responsibility to ensure the requirements of [G.S.] 15A-1242 were fulfilled.”

The trial court committed reversible error by requiring the defendant to proceed pro se in a probation revocation hearing when the defendant had waived only the right to assigned counsel not the right to all assistance of counsel.

The trial court committed reversible error by allowing the defendant to proceed pro se without conducting the inquiry required by G.S. 15A-1242. 

The trial court erred by permitting the defendant to waive counsel and proceed pro se at a probation revocation hearing without first satisfying the requirements of G.S. 15A-1242. The court concluded that even though the defendant executed two Waiver of Counsel forms (AOC-CR-227), one of which was certified by the trial court, “these waivers are not presumed to have been knowing, intelligent, and voluntary because the rest of the record indicates otherwise.” Nothing in the record indicated that the defendant understood and appreciated the consequences of the decision to proceed pro se, the nature of the charges, the proceedings, or the range of possible punishments. Noting that the trial court is not required to follow a specific “checklist” of questions when conducting the waiver inquiry, the court referenced a checklist that appears in the judges’ bench book. [Author’s note: the Bench Book cited in the opinion is out of print. However, the relevant section in the current version of the Superior Court Judges’ Bench Book is available here, and it includes the relevant checklist].