State v. Bannerman, 268 N.C.App. 572, 836 S.E.2d 899 (Mar. 16, 2021)

On appeal, the defendant’s sole argument was that the trial court erred because his waiver of counsel was not voluntary and was a result of the defendant’s belief that representing himself was the only way to avoid delaying his trial. On May 19, 2019, the defendant requested that his first appointed counsel be removed. The defendant was appointed new counsel on June 3, 2019. On October 10, 2019, the defendant’s second appointed counsel filed a motion to withdraw because the defendant asked him to and the defendant was threatening to file a complaint with the state bar. 

After the trial court granted the motion to withdraw and announced new appointed counsel, the ADA told the trial court that the trial would need to be pushed back from the calendared date of December 16, 2019, to February 24, 2020, so that the new appointed counsel had time to become familiar with the case. Upon hearing this, the defendant stated to the court: “Excuse me, Your Honor. I withdraw for an attorney if we can have this date of December the 16th. I withdraw, and I will represent myself if I can have a date in court,” and “I would withdraw counsel if I could have my date in court.” Slip op. at ¶ 10. The trial court asked the defendant if he wanted to represent himself and the defendant responded, “Yes, I’m ready. I’ll represent myself.” Slip op. at ¶ 11. Following this response, the defendant signed a waiver of counsel form.

The defendant later sent a letter to the trial court requesting a “co-counselor” for trial and the defendant was brought back to court on December 10, 2020 to address this matter. The trial court again asked the defendant if he wanted to represent himself, to which he responded “yes”. The ADA asked the court to further go over with the defendant what it would mean to represent himself. The court ensured the defendant was competent and that he understood that he had a right to an attorney, that one would be appointed to him if he couldn’t afford one, that he would be required to follow the same rules of evidence and procedure if he represented himself, the nature of the charges against him, and the potential punishment. The trial court also explained that the defendant would not be given a co-counsel and explained the purpose of standby counsel. Following this conversation, the trial court again asked whether the defendant was waiving his right to be represented by counsel at trial to which the defendant said “Yes. I don’t want my court date pushed back. I don’t want the court date pushed back.” The defendant also said, “I’ll waive that if I could have a standby, if you don’t mind, for some legal issues.” Slip op. at ¶ 16. The trial court then accepted the Defendant’s waiver and appointed standby counsel. 

Noting that the trial court’s questions mirrored a fourteen-question checklist published by the School of Government cited approvingly in State v. Moore, 362 N.C. 319, 327 (2008), the Court of Appeals determined that “[t]hese exchanges show that on several occasions, Defendant clearly and unequivocally stated his desire to waive counsel and represent himself.” Slip op. at ¶ 18. The Court of Appeals also distinguished the defendant’s situation from that of the defendants in State v. Bullock, 316 N.C. 180 (1986) and State v. Pena, 257 N.C. App. 195 (2017). The Court of Appeals reasoned that “[u]nlike in Bullock and Pena where the trial court was unwilling to allow defendants more time to secure attorneys and, thus, defendants had no option but to represent themselves at trial, the trial court in this case had just announced that it would appoint” the defendant a new attorney. Slip op. at ¶ 22. The defendant then “voluntarily waived counsel to accommodate his own desire to keep a December trial date. His understanding, either correct or incorrect, that his trial could be delayed until February if he accepted the appointment of the third attorney did not make his choice to waive counsel involuntary. His motivation simply explains why he chose to voluntarily waive counsel and proceed pro se with standby counsel.” Slip op. at ¶ 22.