State v. Atwell, 278 N.C.App. 84, 2021-NCCOA-271, 862 S.E.2d 7 (Jun. 15, 2021)

In this case where the defendant was convicted of violating a DVPO by attempting to purchase a firearm, the indictment was facially valid and the trial court did not err in concluding that the defendant forfeited her right to appointed counsel.

Reciting general principles regarding the facial validity of indictments, the court found the indictment in this case was valid because, among other things, it specifically referenced the defendant’s attempt to purchase a firearm and the existence of the DVPO.

As to the defendant’s forfeiture of her right to counsel, the court discussed State v. Simpkins, 373 N.C. 530 (2020) and State v. Curlee, 251 N.C. App. 249 (2016), noting that the Simpkins court contemplated that counsel may be forfeited in situations where a defendant obstructs proceedings by continually hiring and firing counsel or refusing to obtain counsel after multiple opportunities to do so.  The court noted that the Curlee court contemplated that a defendant properly may be required to proceed to trial without counsel when the defendant waives appointed counsel and has a case continued several times to hire counsel while knowing that he or she likely will be unable to do so, provided that the defendant is informed of the consequences of proceeding pro se and is subjected to the inquiry required by G.S. 15A-1242.  Here, the defendant appeared at a pretrial hearing without representation after her fifth attorney had withdrawn.  Over a period of two years, her previous appointed attorneys had either withdrawn or been fired by the defendant, and during that time the defendant had waived counsel on several occasions, including at the setting preceding the pretrial hearing.  At the pretrial hearing, the trial court denied the defendant’s request for another appointed attorney, advised her of the consequences of proceeding pro se, and conducted the inquiry required by G.S. 15A-1242.  The trial court then entered an order finding that the defendant had forfeited her right to counsel, though the trial court had reiterated that the defendant was free to hire counsel between the pretrial hearing and the trial date.  The majority opinion found no error.

Judge Jackson concurred in the majority’s opinion with respect to the validity of the indictment but dissented with respect to the counsel forfeiture issue, finding that the trial court’s colloquy with the defendant at the pretrial hearing was insufficient for purposes of G.S. 15A-1242 and that the record did not reveal that the defendant engaged in the sort of egregious misconduct that would support a finding of forfeiture.