Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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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.
The defendant was convicted in 1997 of two counts of first-degree statutory sex offense and was sentenced as a prior record level IV to 339 - 416 months in prison. He filed a motion for appropriate relief (MAR), arguing that he should have been sentenced at prior record level III. Before the hearing on the MAR, the trial judge asked the defendant whether he wanted to continue representing himself. The defendant said he did. The trial court asked the defendant to sign a waiver indicating that he had been apprised of his right to have counsel and indicating that he would like to represent himself. The trial court then proceeded with the hearing, which culminated in the defendant being resentenced as a prior record level III to 336 - 413 months imprisonment. The defendant appealed.
The Court of Appeals held that the trial court failed to ensure that the defendant validly waived his right to counsel before the resentencing hearing. The Court explained that the colloquy between the trial court and the defendant did not comply with the requirements for a valid waiver under G.S. 15A-1242. That statute requires a trial judge to make a thorough inquiry to determine whether the defendant: (1) has been clearly advised of his right to counsel, including appointed counsel; (2) understands and appreciates the consequences of the decision to waive counsel; and (3) comprehends the nature of the charges and proceedings and the range of permissible punishments. The surface inquiry conducted by the trial court in this case did not suffice.
The Court did not consider the State’s argument on appeal that the trial court erred in granting the MAR in the first place. The Court explained that the State failed to cross-appeal or seek discretionary review of this issue; nor did it oppose the defendant’s MAR before the trial court.
Finally, the Court rejected the State’s argument that the defendant was required to show prejudice resulting from the invalid waiver of counsel for resentencing on an MAR, which the State characterized as denial of a statutory rather than a constitutional right. The Court held that a constitutional right to counsel attaches at a resentencing proceeding; thus, the defendant was not required to show prejudice resulting from the invalid waiver.
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.
The defendant was charged with driving while license revoked, not an impaired revocation; assault on a female; possession of a firearm by a person previously convicted of a felony; attempted robbery with a dangerous weapon; and habitual felon status. The State proceeded to trial on the charges of speeding to elude arrest and attaining habitual felon status, dismissing the other charges. The defendant was found guilty of both, and the trial judge sentenced the defendant to 97 to 129 months’ imprisonment.
The defendant argued that that the trial judge failed to comply with the statutory mandate of G.S. 15A-1242 before allowing the defendant to represent himself. The Court of Appeals agreed, finding that the trial judge failed to inform the defendant of the nature of the charges and proceedings and the range of permissible punishments. The trial court erroneously informed the defendant that: obtaining the status of habitual felon is a Class D felony when being a habitual felon is a status, not a crime; erroneously indicated that the defendant faced a maximum possible sentence of 47 months for possession of a firearm by a person previously convicted of a felony when he faced a maximum of 231 months if determined to be a habitual felon; failed to inform the defendant of the maximum prison term of 231 months for the attempted robbery with a dangerous weapon if he were determined to be a habitual felon; erroneously referred to the speeding to elude arrest as fleeing to elude arrest and failed to inform the defendant that the habitualized maximum was 204 months; and asked the defendant whether he understood that he could face 231 months when he could actually have faced 666 months and 170 days. The Court of Appeals concluded that the defendant’s waiver of counsel was not knowing, intelligent, or voluntary and vacated his convictions and remanded for a new trial.
(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.
The trial court erred by requiring the defendant to proceed to trial pro se. On February 7, 2013, the defendant was determined to be indigent and counsel was appointed. On May 30, 2014, the defendant waived his right to assigned counsel, indicating that he wished to hire a private lawyer, Mr. Parker. Between May 2014 and May 2015 the trial was continued several times to enable the defendant to obtain funds to pay Parker. On May 11, 2015, Parker informed the court that the defendant had not retained him and that if the court would not agree to continue the case, Parker would move to withdraw. Although the defendant was employed when he first indicated his desire to hire Parker, he subsequently lost his job and needed time to obtain funds to pay counsel. The trial court continued the case for two months, to give the defendant more time to obtain funds to pay Parker. On June 29, 2015, Parker filed a motion to withdraw for failure to pay. On July 6, 2015, after the trial court allowed Parker to withdraw, the defendant asked for new counsel. The trial court declined this request, the case proceeded pro se, and the defendant was convicted. The court found that the trial court’s ruling requiring the defendant to proceed pro se was based in part on the ADA’s false representation that at the May 11, 2015 hearing the defendant was asked if he wanted counsel appointed, was warned that the case would be tried in July regardless of whether he were able to hire Parker, and was explicitly warned that if he had not retained counsel by July he would be forced to proceed to trial pro se. The court concluded: “None of these representations are accurate.” Thus, the court held that the trial court’s denial of defendant’s request for appointed counsel and its ruling that the defendant had waived the right to appointed counsel were not supported by competent evidence.
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.
Because defendant engaged in repeated conduct designed to delay and obfuscate the proceedings, including refusing to answer whether he wanted the assistance of counsel, he forfeited his right to counsel. Citing State v. Leyshon, 211 N.C. App. 511 (2011), the court began by holding that defendant did not waive his right to counsel. When asked whether he wanted a lawyer, defendant replied that he did not and, alternatively, when the trial court explained that defendant would proceed without counsel, defendant objected and stated he was not waiving any rights. Defendant's statements about whether he waived his right to counsel were sufficiently equivocal such that they did not constitute a waiver of the right to counsel. However, defendant forfeited his right to counsel. In addition to refusing to answer whether he wanted assistance of counsel at three separate pretrial hearings, defendant repeatedly and vigorously objected to the trial court's authority to proceed. Although defendant on multiple occasions stated that he did not want assistance of counsel, he also repeatedly made statements that he was reserving his right to seek Islamic counsel, although over the course of four hearings and about 3½ months he never obtained counsel. As in Leyshon, this behavior amounted to willful obstruction and delay of trial proceedings and therefore defendant forfeited his right to counsel.
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 defendant was denied his right to counsel at a suppression hearing. The suppression hearing was a critical stage. Although the trial court recorded waivers of counsel prior to the hearing, the waivers were not valid because the trial court failed to inform the defendant of the maximum possible sentence, as required by G.S. 15A-1242. The trial court advised the defendant that he could “go to prison for a long, long time[,]” and if convicted “the law requires you get a mandatory active prison sentence[.]” These statements do not meet the statutory requirements for a valid waiver. The court reiterated that a waiver will not be presumed from a silent record and that a completed waiver of counsel form is no substitute for compliance with the statute.
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.
In a per curiam opinion, the court affirmed State v. Anderson, 215 N.C. App. 169 (Aug. 16, 2011) (holding that the trial court erred by allowing the defendant to waive counsel after accepting a waiver of counsel form but without complying with G.S. 15A-1242; among other things, the trial court failed to clarify the specific charges or inform the defendant of the potential punishments or that he could request court-appointed 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 allowing the defendant to waive counsel after accepting a waiver of counsel form but without complying with G.S. 15A-1242. Significantly, on the waiver form the defendant checked the box waiving his right to assigned counsel, not the box waiving his right to all assistance of counsel. Citing State v. Callahan, 83 N.C. App. 323, 324 (1986), the court noted that “[t]he record must affirmatively show that the inquiry was made and that the defendant, by his answers, was literate, competent, understood the consequences of his waiver, and voluntarily exercised his own free will.” It continued, quoting Callahan and stating: “In cases where ‘the record is silent as to what questions were asked of defendant and what his responses were’ this Court has held, ‘[we] cannot presume that [the] defendant knowingly and intelligently waived his right to counsel[.]’ When there is no ‘transcription of those proceedings,’ the defendant “is entitled to a new trial.”
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].
(1) Because the trial court failed to comply with the statutory mandates of G.S. 15A-1242, 122C-268(d), and IDS Rule 1.6, the respondent’s waiver of counsel in his involuntary commitment hearing was ineffective. The court adopted language from State v. Moore, 362 N.C. 319, 327-28 (2008), endorsing a fourteen-question checklist for taking a waiver of counsel. The court also noted with approval language from an Arizona case suggesting the proper inquiry in involuntary commitment cases. (2) The fact that the respondent had standby counsel did not cure the improper waiver of counsel.
Trial court erred by allowing the defendant to dismiss counsel and proceed pro se mid-trial without making the inquiry required by G.S. 15A-1242.