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North Carolina Supreme Court Announces Defendant Can Forfeit Right to Counsel by Egregious Misconduct; Trial Court May Forgo Compliance with N.C.G.S. § 15A-1242

In a case of first impression in the Supreme Court of North Carolina, the Court announced that when a defendant forfeits the right to counsel, a trial court may forgo compliance with N.C.G.S. §15A-1242 (required court inquiry before allowing defendant to proceed without assistance of counsel).

Jeffery Martaez Simpkins was charged with various offenses related to his failure to maintain a valid driver’s license. After being tried and convicted in Stanly County District Court, he appealed to the Stanly County Superior Court where he was tried de novo.

Because Simpkins did not have counsel, the superior court examined him to determine whether he waived counsel. During this time, the superior court warned Simpkins that he could not ask the court for legal advice and that he could not ask the court questions.

When informed he could have counsel assigned to him if he qualified, Simpkins responded that he “would like counsel that’s not paid for by the State of North Carolina.” The court understood this to mean Simpkins desired to hire private counsel to which the State objected on the grounds of delay because Simpkins had known of the impending trial for more than a year and should’ve already hired counsel if he intended to do so.

The court then acknowledged that the district court judgment sheet stated Simpkins had waived counsel in that court. There also was a “Waiver of Counsel” form signed by the district court judge with a handwritten notation explaining that Simpkins had refused to sign the form. Based on this, the superior court determined in less than 20 minutes that Simpkins waived counsel and Simpkins proceeded to trial pro se. He was convicted by a jury of failing to exhibit or surrender a license and of resisting a public officer.

On appeal, Simpkins argued that the trial court erred by not thoroughly inquiring into his decision to proceed pro se as required by N.C.G.S. § 15A-1242. The State argued the inquiry wasn’t required because Simpkins had forfeited, not waived, his right to counsel. A majority of the Court of Appeals vacated the judgment, concluding that Simpkins did not forfeit his right to counsel, and therefore, the trial court erred in not conducting the statutorily required inquiry. On the basis of the dissent, which had concluded the opposite, the State appealed to the North Carolina Supreme Court.

The Supreme Court observed “[w]e have never previously held that a criminal defendant in North Carolina can forfeit the right to counsel.” The Court then observed that the Court of Appeals had recognized that “a defendant who engages in serious misconduct may forfeit his constitutional rights to counsel.” State v. Forte, 817 S.E.2d 764 (N.C. Ct. App. 2018). Forfeiture of counsel is “restricted to situations involving egregious conduct by a defendant.” State v. Blakeney, 782 S.E.2d 88 (N.C. App. 2016). The Court announced: “We agree and hold that, in situations evincing egregious misconduct by a defendant, a defendant may forfeit the right to counsel.”

The right to counsel guarantees “that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.” Strickland v. Washington, 466 U.S. 668 (1984). But in rare cases, a defendant’s actions frustrate the proceeding and prevent any outcome from occurring by which he, therefore, forfeits the right to counsel. For example, in State v. Montgomery, 530 S.E.2d 66 (N.C. Ct. App. 2000), the defendant switched counsel three times and then on the date of trial informed the court that he did not want to be represented by then-current counsel. The defendant refused to allow his counsel to meet with witnesses, repeatedly disrupted the proceedings with profanity, and assaulted his attorney in court. It was determined the defendant forfeited the right to counsel because his actions undermined the purpose of counsel by making representation impossible and by seeking to prevent a trial from happening. And in State v. Brown, 768 S.E.2d 896 (N.C. Ct. App. 2015), the defendant refused to participate in the proceedings, refused to answer questions as to whether he desired to proceed without counsel, and repeatedly hired and fired counsel to delay trial. It was determined that by engaging in such conduct he forfeited the right to counsel.

Simpkins, by contrast, participated in the proceedings, answered the court’s questions, stopped asking questions when instructed, and did nothing to delay the proceeding. Consequently, his actions did not warrant forfeiture of the right to counsel.

Tellingly, the trial court did not rule that Simpkins had forfeited counsel, finding instead that he had waived counsel. But to determine if the waiver of counsel was knowing, intelligent, and voluntary, N.C.G.S. § 15A-1242 requires the trial court to conduct a colloquy to determine that Simpkins (1) had been clearly advised of his right to assistance of counsel and his right to appointment of counsel if he was entitled, (2) understood and appreciated the consequences of the decision to proceed without counsel, and (3) comprehended the nature of the charges and proceedings and the range of permissible punishments. The superior court failed to make such inquiry.

The Court concluded that only when a defendant’s egregious dilatory or abusive conduct undermines the right to counsel and prevents the court from complying with N.C.G.S. § 15A-1242 is the right to counsel forfeited and the trial court permitted to forgo compliance with the statute. Simpkins’ conduct did not rise to that level, the Court ruled.

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State v. Simpkins



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