in the Court of Appeals February 28, 2019
by defendant from judgments entered on or about 8 June 2017
by Judge Andrew Taube Heath in Superior Court, Stanly County,
Nos. 16CRS1457, 704360
Attorney General Joshua H. Stein, by Assistant Attorney
General Alexandra M. Hightower, for the State.
Kimberly P. Hoppin, for defendant-appellant.
appeals his convictions for resisting a public officer and
failing to exhibit/surrender his license. Because the trial
court did not properly instruct defendant on waiver of the
right to counsel under North Carolina General Statute §
15A-1242 and because defendant did not forfeit his right to
such an instruction, we conclude defendant must receive a new
of 2016, Officer Trent Middlebrook of the City of Locust was
on patrol; he ran the "tag" of a vehicle and
discovered that the owner of the vehicle, defendant, had a
suspended driver's license and a warrant out for his
arrest. Officer Middlebrook pulled defendant over and asked
for his license and registration. Defendant refused to
provide them and was uncooperative and belligerent. Officer
Middlebrook arrested defendant.
first trial was in district court, and there is no transcript
of those proceedings. From the district court, there is an
unsigned and undated waiver of counsel form with a
handwritten note that appears to say, "Refused to
respond to to [(sic)] inquiry by the court and mark as
refused at this point[.]" There is also a waiver of
counsel form from 16 August 2016 that also has a handwritten
notation, "Defendant refused to sign waiver of counsel
upon request by the Court[.]" Also on or about 16 August
2016, defendant was convicted in district court of resisting
a public officer and failing to carry a registration card.
Defendant appealed his convictions to superior court.
superior court, defendant proceeded pro se.
Defendant was tried by a jury and convicted of resisting a
public officer and failing to exhibit/surrender his license.
The trial court entered judgments, and defendant appeals.
Subject Matter Jurisdiction
contends "the trial court lacked subject matter
jurisdiction to try [him] in violation of N.C. Gen. Stat.
§ 20-29 when the citation purporting to charge him was
fatally defective." (Original in all caps.) But at oral
argument before this Court, defendant's counsel withdrew
this argument and conceded that State v. Jones, ___
N.C.App. _____, 805 S.E.2d 701, (2017), aff'd,
___ N.C. ___, 819 S.E.2d 340 (2018), is the
controlling authority on this issue, and defendant cannot
prevail. Therefore, this argument is dismissed.
Waiver or Forfeiture of Counsel
argues that "the trial court erred by failing to make a
thorough inquiry of . . . [his] decision to proceed pro
se as required by N.C. Gen. Stat. § 15A-1242."
(Original in all caps.) We review whether the trial court
complied with North Carolina General Statute § 15A-1242
de novo. See State v. Watlington, 216
N.C.App. 388, 393-94, 716 S.E.2d 671, 675 (2011) ("Prior
cases addressing waiver of counsel under N.C. Gen. Stat.
§ 15A-1242 have not clearly stated a standard of review,
but they do, as a practical matter, review the issue de
novo. We will therefore review this ruling de
novo.") (citations omitted)).
Carolina General Statute § 15A-1242 provides,
A defendant may be permitted at his election to proceed in
the trial of his case without the assistance of counsel only
after the trial judge makes thorough inquiry and is satisfied
that the defendant:
(1) Has been clearly advised of his right to the assistance
of counsel, including his right to the assignment of counsel
when he is so entitled;
(2) Understands and appreciates the consequences of this
(3) Comprehends the nature of the charges and proceedings and
the range of permissible punishments.
N.C. Gen. Stat. § 15A-1242 (2015). "The trial
court's inquiry under N.C. Gen. Stat. § 15A-1242 is
mandatory and failure to conduct such an inquiry is
prejudicial error." State v. Sorrow, 213
N.C.App. 571, 573, 713 S.E.2d 180, 182 (2011) (citation and
quotation marks omitted).
was advised of his right to have counsel and of his right to
have appointed counsel. However, there is no showing on the
record that the trial court made the appropriate advisements
or inquires to determine that . . . [he] understood and
appreciate the consequences of his decision or comprehended
"the nature of the charges and proceedings and the range
of permissible punishments."
the trial court did inform defendant he could be subjected to
"periods of incarceration," the transcript confirms
that defendant was not explicitly informed of "the
range of permissible punishments." N.C. Gen.
Stat. § 15A-1242 (Emphasis added). The State
acknowledged at oral argument that without informing
defendant of the "range of permissible punishments[,
]" the trial court could not comply with the mandate of
North Carolina General Statute § 15A-1242. Failure to
comply with North Carolina General Statute § 15A-1242,
if required, would result in prejudicial error.
Sorrow, 213 N.C.App. 571, 713 S.E.2d 180. But the
State contends the trial court was not required to comply
with North Carolina General Statute § 15A-1242 due to
defendant's forfeiture of his right to counsel.
arguments, both defense counsel and the State relied heavily
on State v. Blakeley, as it addresses not
only the issue before us regarding waiver and forfeiture of
counsel, but also thoroughly analyzes many prior cases;
therefore, we turn to Blakeley, 245 N.C.App. 452,
782 S.E.2d 88 (2016). Blakeley first notes that
there are two ways a defendant may lose his right to be
represented by counsel: voluntary waiver after being fully
advised under North Carolina General Statute § 15A-1242
and forfeiture of the right by serious misconduct.
Id. at 459-61, 782 S.E.2d at 93-94.
A criminal defendant's right to representation by counsel
in serious criminal matters is guaranteed by the Sixth
Amendment to the United States Constitution and Article I,
§§ 19, 23 of the North Carolina Constitution. Our
appellate courts have recognized two circumstances, however,
under which a defendant may no longer have the right to be
represented by counsel.
First, a defendant may voluntarily waive the right to be
represented by counsel and instead proceed pro se.
Waiver of the right to counsel and election to proceed
pro se must be expressed clearly and unequivocally.
Once a defendant clearly and unequivocally states that he
wants to proceed pro se, the trial court must
determine whether the defendant knowingly, intelligently, and
voluntarily waives the right to in-court representation by
counsel. A trial court's inquiry will satisfy this
constitutional requirement if conducted pursuant to N.C. G.S.
§ 15A- 1242. . . .
. . . .
The second circumstance under which a criminal defendant may
no longer have the right to be represented by counsel occurs
when a defendant engages in such serious misconduct that he
forfeits his constitutional right to counsel. Although the
right to counsel is guaranteed by the Sixth and Fourteenth
Amendments of the United States Constitution and Article I of
the North Carolina Constitution, in some situations a
defendant may lose this right:
Although the loss of counsel due to defendant's own
actions is often referred to as a waiver of the right to
counsel, a better term to describe this situation is
forfeiture. Unlike waiver, which requires a knowing and
intentional relinquishment of a known right, forfeiture
results in the loss of a right regardless of the
defendant's knowledge thereof and irrespective of whether
the defendant intended to relinquish the right. A defendant
who is abusive toward his attorney may forfeit his right to
Id. (citations, quotation marks, ellipses, and
then notes a third way a defendant may lose the right to
representation by counsel, a hybrid of waiver and forfeiture:
Finally, there is a hybrid situation (waiver by conduct) that
combines elements of waiver and forfeiture. Once a defendant
has been warned that he will lose his attorney if he engages
in dilatory tactics, any misconduct thereafter may be treated
as an implied request to proceed pro se and, thus,
as a waiver of the right to counsel. Recognizing the
difference between forfeiture and waiver by conduct is
important. First, because of the drastic nature of the
sanction, forfeiture would appear to require extremely
dilatory conduct. On the other hand, a waiver by conduct
could be based on conduct less severe than that sufficient to
warrant a forfeiture. This makes sense since a waiver by
conduct requires that a defendant be warned about the
consequences of his conduct, including the risks of
proceeding pro se. A defendant who engages in
dilatory conduct having been warned that such conduct will be
treated as a request to proceed pro se cannot
complain that a court is forfeiting his right to counsel.
Id. at 464-65, 782 S.E.2d at 96 (quotation marks
the facts in Blakeley specifically,
In this case, neither defendant nor the State asserts that
defendant ever asked to represent himself at trial, and our
own review of the transcript fails to reveal any evidence
that defendant indicated, must less clearly and unequivocally
requested, that he be permitted to proceed pro se.
The record clearly indicates that when defendant signed the
waiver of his right to assigned counsel he did so with the
expectation of being able to privately retain counsel. Before
the trial court the defendant stated that he wanted to employ
his own lawyer. There is no evidence that defendant ever
intended to proceed to trial without the assistance of some
counsel. We conclude that the present case is not governed by
appellate cases addressing a trial court's responsibility
to ensure that a defendant who wishes to represent himself is
knowingly, intelligently, and voluntarily waiving his right
. . . .
In this case, the State argues that defendant forfeited his
right to counsel, relying primarily upon generalized language
excerpted from Montgomery stating that a forfeiture
of counsel results when the state's interest in
maintaining an orderly trial schedule and the defendant's
negligence, indifference, or possibly purposeful delaying
tactic, combine to justify a forfeiture of defendant's
right to counsel. The State also cites State v.
Quick, 179 N.C.App. 647, 649-50, 634 S.E.2d 915, 917
(2006), in which this Court cited Montgomery for the
proposition that any willful actions on the part of the
defendant that result in the absence of defense counsel
constitutes a forfeiture of the right to counsel.
Montgomery did not, however, include such a broad
holding or suggest that any willful actions resulting in the
absence of defense counsel are sufficient to constitute a
forfeiture. Instead, as this Court has observed, forfeiture
of the right to counsel has usually been restricted to
situations involving egregious conduct by a defendant[.]
Id. at 460-61, 782 S.E.2d at 93-94 (citations,
quotation marks, ellipses, and brackets omitted).
then provides a thorough review of the types of behavior
prior cases have determined support forfeiture,
Although the United States Supreme Court has never directly
addressed forfeiture of the right to counsel, the Court's
other holdings demonstrate reluctance to uphold forfeiture of
a criminal defendant's U.S. Constitutional rights, except
in egregious circumstances. Additionally, the federal and
state courts that have addressed forfeiture have restricted
it to instances of severe misconduct.
There is no bright-line definition of the degree of
misconduct that would justify forfeiture of a defendant's
right to counsel. However, our review of the published
opinions of our appellate courts indicates that, as discussed
in Wray, forfeiture has generally been limited to
situations involving severe misconduct and specifically to
cases in which the defendant engaged in one or more of the
following: (1) flagrant or extended delaying tactics, such as
repeatedly firing a series of attorneys; (2) offensive or
abusive behavior, such as threatening counsel, cursing,
spitting, or disrupting proceedings in court; or (3) refusal
to acknowledge the trial court's jurisdiction or
participate in the judicial process, or insistence on
nonsensical and nonexistent legal rights. The following is a
list of published cases from North Carolina in which a
defendant was held to have forfeited the right to counsel,
with a brief indication of the type of behavior in which the
1. State v. Montgomery, 138 N.C.App. 521, 530 S.E.2d
66 (2000): the defendant fired several lawyers, was
disruptive and used profanity in court, threw water on his
attorney while in court, and was repeatedly found in criminal
2. State v. Quick, 179 N.C.App. 647, 634 S.E.2d 915
(2006): the defendant in a probation revocation case waived
court-appointed counsel in order to hire private counsel, but
during an eight month period did not contact any attorney,
instead waiting until the day before trial.
3. State v. Rogers, 194 N.C.App. 131, 669 S.E.2d 77
(2008), disc. review denied, 363 N.C. 136, 676
S.E.2d 305 (2009): over the course of two years, the
defendant fired several attorneys, made unreasonable
accusations about court personnel, reported one of his
attorneys to the State Bar, accused another of racism, and
was warned by the court about his behavior.
4. State v. Boyd, 200 N.C.App. 97, 682 S.E.2d 463
(2009), disc. review denied, 691 S.E.2d 414 (2010):
during a period of more than a year, the defendant refused to
cooperate with two different attorneys, repeatedly told one
attorney that the case was not going to be tried, was totally
uncooperative with counsel, demanded that each attorney
withdraw from representation, and obstructed and delayed the
5. State v. Leyshon, 211 N.C.App. 511, 710 S.E.2d
282, appeal dismissed, 365 N.C. 338, 717 S.E.2d 566
(2011): for more than a year after defendant was arraigned,
he refused to sign a waiver of counsel or state whether or
not he wanted counsel, instead arguing that the court did not
have jurisdiction and making an array of legally nonsensical
assertions about the court's authority.
6. State v. Cureton, 223 N.C.App. 274, 734 S.E.2d
572 (2012): the defendant feigned mental illness, discharged
three different attorneys, consistently shouted at his
attorneys, insulted and abused his attorneys, and at one
point spat on his attorney and threatened to kill him.
7. State v. Mee, 233 N.C.App. 542, 756 S.E.2d 103
(2014): the defendant appeared before four different judges
over a period of fourteen months, during which time he hired
and then fired counsel twice, was represented by an assistant
public defender, refused to state his wishes with respect to
counsel, advanced unsupported legal theories concerning
jurisdiction, and refused to participate in the trial.
8. State v. Joiner, ___ N.C.App. ___, 767 S.E.2d 557
(2014): the defendant gave evasive and often bizarre answers
to the court's questions, shouted and cursed at the trial
court, smeared feces on the holding cell wall, had to be
gagged during trial, threatened courtroom personnel with
bodily harm, and refused to answer simple questions.
9. State v. Brown, ___ N.C.App. ___, 768 S.E.2d 896
(2015): like the defendants in Mee and
Leyshon, this defendant offered only repetitive
legal gibberish in response to simple questions about
representation, and refused to recognize the court's
Id. at 461-63, 782 S.E.2d at 94-95 (quotation marks
then explains how the defendant's actions in
Blakeley were not as egregious as those in the cases
where forfeiture was found:
In stark contrast to the defendants discussed above, in this
1. Defendant was uniformly polite and cooperative. In fact,
the trial court found as a mitigating factor that the
defendant returned to court as directed during the habitual
felon phase, even after he had been found guilty of the
2. Defendant did not deny the trial court's jurisdiction,
disrupt court proceedings, or behave offensively.
3. Defendant did not hire and fire multiple attorneys, or
repeatedly delay the trial. Although the case was three years
old at the time of trial, the delay from September 2011 until
August 2014 resulted from the State's failure to
prosecute, rather than actions by defendant.
We conclude that defendant's request for a continuance in
order to hire a different attorney, even if motivated by a
wish to postpone his trial, was nowhere close to the serious
misconduct that has previously been held to constitute
forfeiture of counsel. In reaching this decision, we find it
very significant that defendant was not warned or informed
that if he chose to discharge his counsel but was unable to
hire another attorney, he would then be forced to proceed
pro se. Nor was defendant warned of the consequences
of such a decision. We need not decide, and express no
opinion on, the issue of whether certain conduct by a
defendant might justify an immediate forfeiture of counsel
without any preliminary warning to the defendant. On the
facts of this case, however, we hold that defendant was
entitled, at a minimum, to ...