State v. Patterson, ___ N.C. App. ___, ___ S.E.2d ___ (Jul. 21, 2020)

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.