State v. Boderick, ___ N.C. App. ___, 812 S.E.2d 889 (Mar. 20, 2018)

The trial court’s determination that the defendant had forfeited his right to counsel does not “carry over” to the new trial, ordered by the court for unrelated reasons. In the 3½ years leading up to trial the defendant, among other things, fired or threatened to fire three separate lawyers, called them liars, accused them of ethical violations, reported one to the Bar, cursed at one in open court, and refused to meet with his lawyers. After the defendant refused to cooperate with and attempted to fire his third attorney, the trial court found that the defendant had forfeited his right to court-appointed counsel and appointed standby counsel. On the first day of trial, the defendant informed the trial court that he finally understood the seriousness of the situation and asked the trial court to appoint standby counsel as his lawyer. Standby counsel said that he would not be ready to go forward with trial that day if appointed. The trial court denied the motion for counsel based on the prior forfeiture orders, and the trial court declined to reconsider this matter when it arose later. The defendant represented himself at his bench trial, with counsel on standby, and was convicted. After finding that the trial court erred by proceeding with a bench trial, the court considered the defendant’s forfeiture claims. Specifically, the defendant argued on appeal that his conduct did not warrant forfeiture and that the trial court’s forfeiture order should have been reconsidered in light of the defendant’s changed conduct. In light of the court’s determination that a new trial was warranted on unrelated grounds, it declined to address these issues. However, it concluded that a break in the period of forfeiture occurs when counsel is appointed to represent the defendant on appeal following an initial conviction. Here, because the defendant accepted appointment of counsel on appeal following his trial and allowed appointed counsel to represent him through the appellate process, “the trial court’s prior forfeiture determinations will not carry over to defendant’s new trial.” The court concluded: “Thus, defendant’s forfeiture ended with his first trial. If, going forward, defendant follows the same pattern of egregious behavior toward his new counsel, the trial court should conduct a fresh inquiry in order to determine whether that conduct supports a finding of forfeiture.”