State v. Schumann, ___ N.C. App. ___, 810 S.E.2d 379 (Feb. 6, 2018)

In this drug trafficking case, the trial court did not err by requiring the defendant to represent himself at trial. In September 2013, the defendant appeared before a Superior Court Judge and signed a waiver of counsel form. In December 2013 the defendant appeared before another judge and signed a second waiver of counsel form. On that same day, attorney Palmer filed a notice of limited appearance, limiting his representation of the defendant to pretrial case management. In September 2015 the defendant again appeared in Superior Court. Palmer informed the court that the State “got their labs back” and would be ready to set a trial date. The trial court informed the defendant that if he wanted a court appointed lawyer, he should ask now. Among other things, the trial court informed the defendant of the hazards of proceeding pro se. In response to the judge’s questioning, the defendant indicated that he would hire an attorney for trial. The ADA stated that the case would come on for trial in the middle of the following year. The judge told the defendant he had two months to hire a lawyer and scheduled him to return to court on November 5 with his lawyer to talk about trial date. He expressly warned the defendant not to return in November saying that he did not have a lawyer. On November 5, 2015 the defendant appeared in court without a lawyer. The judge again warned the defendant that it was his responsibility to hire a lawyer and of the hazards of proceeding pro se. On December 10, 2015 the defendant again appeared in court, indicating that he continued to have trouble hiring a lawyer. The court informed the defendant to report back on January 27, and warned the defendant that the trial was soon approaching. In January 2016, the defendant again appeared in court, this time with attorney Byrd. Byrd told the court he was not in a position to make an appearance for the defendant and asked for more time. The judge scheduled the matter to return in February. On February 15, 2016, the trial court reported to the defendant that Mr. Byrd was not ready to make an appearance in his case. He warned the defendant to make arrangements to hire Byrd or someone else because a trial date would be set on March 10. On March 28, 2016, the defendant appeared before a different judge. The State indicated it was ready to proceed to trial. After hearing from the defendant regarding his dealings with various lawyers over the past months, the trial court informed the defendant of his counsel rights and asked the defendant how he intended to proceed. During this colloquy the defendant indicated that he would represent himself. The trial court reset the matter for the next administrative session so that the senior resident judge could address the counsel issue. On April 7, 2016 the case came back in Superior Court. The State requested a July trial date and asked the court to address the counsel issue. The court summarized the prior discussions with the defendant and appointed standby counsel. Proceedings continued in this vein until the defendant’s case came on for trial August 30, 2016. The defendant appeared pro se with standby counsel. The defendant was found guilty and appealed, asserting a violation of his sixth amendment counsel rights. The court disagreed with the defendant’s assertion that the trial court did not adhere to the requirements of G.S. 15A-1242 in procuring his waiver. The court noted, in part:

The trial court gave Defendant years to find an attorney. At each stage the trial court advised and counseled Defendant about his right to an attorney including his right to appointed counsel. The trial court also repeatedly counseled Defendant on the complexity of handling his own jury trial and the fact the judge would not be able to help him. Finally, the trial court repeatedly addressed the seriousness of the charges and advised Defendant a conviction likely meant a life sentence. Despite this, Defendant proceeded to represent himself at trial.

Defendant’s assertion the trial court failed to take any measures to ascertain whether Defendant understood the various difficulties associated with representing himself is without merit. Our review of the record indicates the trial court advised Defendant he would have to adhere to rules of court and evidence. The trial court also informed Defendant the court would not assist Defendant, and Defendant was facing serious charges which could result in a life sentence upon conviction. The record also indicates Defendant repeatedly expressed his understanding of the trial court’s instruction on this issue. We conclude Defendant waived his right to court appointed counsel.

The court went on to hold that even if the defendant’s waiver of counsel was not knowing and voluntary, the defendant forfeited his right to counsel through extended delaying tactics. It explained:

First, Defendant waived his right to assigned counsel in 2013. The trial court repeatedly advised Defendant on the seriousness of the charges and informed Defendant a conviction could lead to a life sentence due to Defendant’s age. Time after time, Defendant stated he intended to hire his own attorney. Defendant made close to monthly appearances in court over a 10-month period, and consistently told the court he wished to hire his own attorney. During these appearances, the trial court asked Defendant at least twice if he needed appointed counsel. Defendant answered by claiming to have sufficient funds to hire an attorney. Additionally, the trial court continued Defendant’s case several times to give Defendant’s attorney time to prepare since Defendant claimed the attorneys he met with did not have adequate time to prepare for trial.