State v. Harvin

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-111

No. 485PA19

Filed 4 November 2022

STATE OF NORTH CAROLINA

v.
CASHAUN K. HARVIN

On writ of certiorari pursuant to N.C.G.S. § 7A-32(b)1 to review a divided

decision of the Court of Appeals, 268 N.C. App. 572 (2019), vacating judgments

entered on 8 May 2018 by Judge Phyllis M. Gorham in Superior Court, New Hanover

County and ordering that defendant is entitled to a new trial. Heard in the Supreme

Court on 11 May 2022.

Joshua H. Stein, Attorney General, by Marissa K. Jensen, Assistant Attorney
General, for the State-appellant.

Marilyn G. Ozer for defendant-appellee.

MORGAN, Justice.

¶1 In this case we consider whether defendant Cashaun K. Harvin was wrongly

denied his constitutional right to counsel when the trial court compelled him to

proceed pro se to trial on multiple serious felonies, including first-degree murder. At

1 As discussed in more detail herein, the State lost its appeal of right where a decision
of the Court of Appeals includes a dissent as a result of the State’s failure to timely give notice
of appeal. N.C.G.S. § 7A-30(2) (2021).
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the conclusion of the trial, defendant was found guilty of all charges. This Court’s

review of the record in this case does not support the trial court’s determination that

defendant’s actions were sufficiently obstructive to constitute a forfeiture of

defendant’s right to counsel. Accordingly, defendant is entitled to a new trial, and we

affirm the decision of the Court of Appeals which vacated the judgments entered upon

defendant’s convictions.

I. Factual background and procedural history

A. Defendant’s alleged crimes, resulting indictments, and proceedings
prior to defendant’s trial date

¶2 The Court’s resolution of the matters presented by this case is predicated

primarily upon the facts and circumstances which occurred following defendant’s

arrest and during the pretrial proceedings in his case, and therefore, we present only

a brief summary of the facts regarding defendant’s alleged serious crimes. The

evidence at defendant’s trial tended to show the following: On 2 February 2015, Tyler

Greenfield arranged to purchase marijuana from the victim in this case, Robert Scott,

Jr., as a pretext for Greenfield and defendant to rob Scott. Scott instructed Greenfield

to come to Scott’s apartment for the drug transaction and was surprised when

defendant arrived with Greenfield. Nonetheless, Scott allowed both Greenfield and

defendant to enter the living room of Scott’s home. Once inside the residence,

Greenfield produced a handgun and demanded money from Scott.

¶3 Unbeknownst to defendant and Greenfield, Scott’s girlfriend Azariah Brewer
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had been resting in a bedroom of the apartment. When she overheard the

confrontation taking place in the living room, Brewer retrieved a gun. When

defendant, armed with a handgun, entered the bedroom where Scott kept a safe,

defendant saw Brewer and yelled, “She has a gun!”2 Greenfield ordered Brewer to

bring her gun into the living room and threatened to shoot Scott if Brewer resisted.

Brewer complied and placed her gun onto a coffee table in the living room. Scott then

attempted to grab the gun from the coffee table, at which point defendant and

Greenfield both began shooting, ultimately firing twelve rounds of ammunition in

total. Scott was able to shoot at least once, striking Greenfield. Scott and Brewer were

both shot several times, and Scott died from his injuries.

¶4 Defendant, who was seventeen years of age, was summoned from his high

school classroom and arrested on 6 February 2015. Attorney Bruce Mason was

appointed as defendant’s counsel on 9 February 2015. On 26 May 2015, defendant

was indicted on charges of first-degree murder, attempted first-degree murder,

attempted robbery with a dangerous weapon, and assault with a deadly weapon with

intent to kill inflicting serious injury. On 25 July 2016, Attorney Mason withdrew due

to circumstances unrelated to defendant. During his approximately eighteen months

of representation of defendant, Mason made three filings: a discovery motion on or

2 During the alleged robbery, Greenfield accidentally “pocket-dialed” Scott on a
cellular telephone, and Scott’s voicemail recorded portions of the alleged robbery as well as
the killing of Scott.
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about 18 February 2015, an objection to joinder of defendant’s and Greenfield’s

charges, and a motion to substitute counsel on 25 July 2016 in which Mason’s law

partner Alex Nicely was recommended for appointment.

¶5 Upon Mason’s withdrawal, attorney Alex Nicely was assigned as substitute

counsel. During the nearly ten months that he represented defendant, Nicely filed

numerous motions on defendant’s behalf, including a motion to suppress certain

statements that defendant made to law enforcement officers. On 31 October 2016, the

New Hanover County grand jury indicted defendant on the same charges recounted

above by means of the return of a superseding indictment. In December 2016, the

State agreed to a sentence which included probation for a cooperating witness in the

case in exchange for that witness’s testimony at defendant’s trial.

¶6 On 20 March 2017, after the conclusion of Greenfield’s trial on charges arising

from the robbery and killing of Scott and the shooting of Brewer,3 the New Hanover

County grand jury issued a second superseding indictment, charging defendant with

the same four offenses included in the original indictment and the first superseding

indictment—first-degree murder, attempted first-degree murder, attempted robbery

3 Greenfield was tried separately and was found guilty by a jury of “first-degree
murder based on the felony murder rule with the assault charge as the underlying felony.
The jury also found [Greenfield] guilty of second-degree murder, but the trial court set that
verdict aside. The jury found [Greenfield] not guilty of attempted first-degree murder and
attempted robbery with a deadly weapon.” State v. Greenfield, 375 N.C. 434, 438 (2020). On
appeal, this Court granted Greenfield a new trial on all charges. Id. at 447. The record in
Greenfield’s case is before this Court.
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with a dangerous weapon, and assault with a deadly weapon with intent to kill

inflicting serious injury—along with additional charges of robbery with a dangerous

weapon and conspiracy to commit robbery with a dangerous weapon. On 12 May 2017,

the State offered defendant a plea agreement which, if defendant had accepted it,

would have potentially resulted in defendant serving a sentence of 144 to 185 months

in prison. Defendant rejected the plea offer. On the same date of 12 May 2017, Nicely

withdrew as defense counsel due to circumstances unrelated to defendant, and the

trial court then appointed attorney J. Merritt Wagoner to represent defendant. The

State announced that it was ready to proceed with the trial of defendant and that it

had hoped to schedule the matter for the 5 June 2017 trial calendar; however, the

State and the trial court agreed that in light of defendant’s new counsel just having

been appointed, such a trial date of 5 June 2017 was not realistic and the parties

looked instead to an administrative calendar date of 14 July 2017 which focused on

pending murder cases.

¶7 On 28 September 2017, Wagoner filed a motion to withdraw as defense counsel,

stating that defendant had asked Wagoner to withdraw and asserting that “the

attorney client relationship with this defendant has been irreparably severed.”4

Wagoner’s motion to withdraw was granted, and Shawn Robert Evans was

4 Wagoner never filed any motions on behalf of defendant during Wagoner’s
representation of defendant.
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immediately appointed as replacement counsel on 28 September 2017 to represent

defendant. On 8 December 2017, Evans filed a motion seeking to withdraw as

defendant’s attorney, relating that defendant had verbally fired Evans on that date

and representing that there had “been a complete breakdown of the attorney-client

relationship” with defendant.

¶8 At a 12 December 2017 hearing before the Honorable Ebern T. Watson, III,

Evans’s motion to withdraw as defendant’s court-appointed attorney was addressed.

Defendant’s trial had already been scheduled to begin on 28 January 2018. Evans

explained to the trial court that defendant had expressed a desire to represent himself

at trial; defendant confirmed Evans’s statements to the trial court. Attorney Evans’s

motion to withdraw as defense counsel was allowed by the trial court. Defendant

stated to the trial court that he desired assistance from standby counsel, and attorney

Paul Mediratta was appointed by the trial court to serve in the role of standby counsel

on behalf of defendant. Also at the 12 December 2017 hearing, the State registered

its opposition to any postponement of defendant’s 28 January 2018 trial date given

that the case had already been pending for three years. However, the State did not

divulge to the trial court that the State had elected to try Greenfield before bringing

defendant’s case to trial or that the State—the party which typically scheduled trial

dates—had first noted that defendant’s case was ready for trial in May 2017, some

seven months previously. The trial court stated in open court that it did “not find at
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this point in time that [defendant] has vacated his right to request counsel, nor that

any of his actions have forfeited his opportunity to have assigned counsel.”

¶9 On 28 December 2017, defendant, defendant’s standby counsel Mediratta, and

the State appeared before the trial court with Judge Phyllis M. Gorham again

presiding. The State noted that defendant had asked previously to proceed pro se, but

the State expressed concern that the mandatory inquiry set forth in N.C.G.S. § 15A-

1242 regarding defendant’s election to represent himself may not have been fully

satisfied. Accordingly, the State asked that the trial court undertake the statutory

inquiry. The trial court thereupon engaged in the statutorily required colloquy with

defendant. Defendant indicated to the trial court that he understood the implications

of representing himself5 but expressed concern about the legal resources to which he

had access while incarcerated and also noted that some of the charges pending

against him were new and unfamiliar to defendant, citing defendant’s past

interactions with his appointed counsel. The State acknowledged that it intended to

hand deliver updated discovery materials, including “the most recent indictment,” to

defendant during the hearing. In addition, defendant’s standby counsel had alerted

the State that defendant desired a continuance. Although the State opposed a

continuance, the trial court nonetheless postponed defendant’s trial date to 23 April

2018.

5 Defendant also signed a waiver of counsel on 28 December 2017.
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¶ 10 On 26 March 2018, defendant again appeared before the trial court, with the

Honorable Joshua Willey presiding. The State informed the trial court that it had

offered a plea agreement to defendant which would have resulted in a sentence of 144

to 192 months and defense countered with a possible sentence of “about ten years

which would be 120 months” for defendant. Defendant rejected the State’s plea offer

and instead, moved to continue the trial.6 The State suggested that the motion to

continue the trial be considered by Judge Gorham as the assigned trial judge.

Defendant then responded with a motion to have Judge Gorham removed from

defendant’s case due to Judge Gorham’s alleged lack of impartiality in that she had

previously presided over Greenfield’s trial and therefore “has knowledge of disputable

evidentiary facts of the proceeding.” The trial court noted that it would be setting the

recusal motion for consideration by Judge Gorham at a future date, at which point

defendant expressed concern about the potential delay which would result:

And I filed [the recusal motion], but it seems as though,
like, they keep on telling me, well, that won’t be heard until
the trial date. Well, if I get a continuance, then that means
I have to wait another additional six months or three
months in order for that motion to be heard, and I don’t see
why it doesn’t seem as though it’s an appropriate time to
hear it and, you know, the next week or next couple of days,
like --

¶ 11 The State then stated that it would be ready to address the recusal motion in

6 Apparently, the defense never made a formal counteroffer to the State’s plea offer.
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April 2018 and inquired about defendant’s affirmative defenses. Defendant expressed

that he was “not all the way sure” about such defenses, and he then engaged in a

discussion with the trial court about affirmative defenses versus assertions of

innocence. At the conclusion of the exploration of these subjects regarding his trial

preparation, defendant stated that the trial court’s rulings on his motions would

affect defendant’s decisions on the manner in which to proceed in the case. Defendant

also renewed his previous request for internet access for purposes of legal research.

At this juncture, defendant addressed the trial court as follows:

So my question is is it unreasonable for my request for
proper learning tools, reviewing different cases, making
reference to case laws, and allow me to look at things from
a scientific perspective considering that the prosecutor has
at least 5 years in training and law and at least 7 years in
experience compared to my limited knowledge of 8 months,
and I also ask that it may be considered that I recently been
provided with a new statutory law book so anything prior
was of old context, indeed irrelevant.

....

It may be contested that my lawyer should provide
me with these things. One, I’m not sure about what -- well
one, if I’m not sure about what I am looking for, then a
request cannot even be formulated and the purpose for the
internet is for me to learn the law. It’s not like I fully
understand and it’s possible for me to be oblivious to
certain things pertaining to the law. Also, it is difficult for
me to contact my lawyer most of the times -- and most of
the times my messages don’t get delivered so I don’t receive
a response, plus I have minimum outside support and even
if my lawyer did decide to come see me every week, I would
still have to wait when it may be something important at
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the present moment.

So considering my circumstances -- I mean, my
circumstance and my lawyer’s, it may be inconvenient for
both of us. He cannot provide me assistance every day if
needed and I need the assistance. I would still need him for
updates, filing motions and as by-stand [sic] counsel in case
I decide to step down from pro se and also for mediation
purposes.

So Your Honor, I ask that I am granted internet
access for the purpose of research and because one of the
disks requires the web and this was told for me to bring to
your attention by the captain of New Hanover County.

¶ 12 The State responded that defendant “has the same resources” as the State,

despite the State’s acknowledgement that defendant was only able to conduct

research using a non-internet-connected computer which could search “disks.” The

State further posited to the trial court that allowing internet access to defendant for

purposes of legal research “sets a dangerous precedent regarding inmate access to

resources that could be dangerous and, you know, have negative consequences in the

community, as well as the jail.” Defendant countered that he had to ask jail staff to

print various items for him and that the lack of internet access limited defendant’s

ability, as a person without a college education, to research and understand matters

relevant to his presentation. The prosecutor then replied:

The issue in my understanding is the deputies told
me that he was asking for cases on self-defense, a topic, and
I told them they can’t do that. It’s legal advice, basically
providing cases on a certain topic. That’s what a lawyer has
to do and bailiffs are certainly not going to do that kind of
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thing, so that’s what I advised them not to do.

As far as cases, Judge, go, if there’s an issue of him
getting a specific case, let us know what case, we’ll make
sure he gets it. We do have a list, the bailiff did send us all
the books that he has been provided in the library there.
One of which is a criminal procedure book, one is an arrest,
search and seizure book, the statutes, the crimes book, the
Prisoner Self-Help Litigation Manual, the Black’s Law
Dictionary, another copy of the arrest, search and
investigation. Judge, he would have all the resources that
a prosecutor would be using in preparation of a case, Judge.
Again, the only issue of the internet access again is because
the personnel needed to monitor that is just not available
at the jail.

Without any comment regarding the State’s candid acknowledgement that it was

advising jail personnel about the type of legal research materials to provide to

defendant or that the State was advised of defendant’s access to specific research

materials, the trial court denied defendant’s request for internet access; additionally,

the recusal motion and the trial continuance motion were continued until April 2018

in order to permit Judge Gorham to decide them.

¶ 13 On 3 April 2018—three weeks before defendant’s scheduled trial date of 23

April 2018—defendant appeared before Judge Gorham and again raised his motion

for her recusal—along with his motion for continuance of the trial date. Judge

Gorham denied defendant’s motion for Judge Gorham to recuse herself from

defendant’s case. With regard to his motion to continue the trial date, defendant

represented that he “need[ed] more time to prepare for [his] case sufficiently.”
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Specifically, defendant noted his difficulty in contacting an investigator who was

working on defendant’s case and the delay that defendant experienced in obtaining a

DVD7 player and laptop computer in order to review portions of the discovery

materials which had been provided to defendant by the State. Defendant further

expressed his belief that “other lawyers [who had represented defendant previously

in the matter], they were allowed to prepare [ ] for the case within no less than a year,

but me, it seems as though like I’m being compelled to take upon, you know, the

actions of defending myself when I have lack of resources and lack of knowledge,”

noting that he had received “5,000 pages of discovery.” The State objected to another

continuance of the trial, citing the length of time that defendant’s case had already

been pending, emphasizing that defendant would have five months to prepare for

trial after receiving full discovery from the State, and asserting that the State would

be prejudiced by a continuance due to the upcoming early June 2020 expiration of the

probation period of the State’s witness referenced earlier8 who had been placed on

supervised release with a condition that he testify truthfully in defendant’s case.

After raising the issue of inadequate access to potential expert witnesses and after

expressing his frustration with his current investigator, defendant stated that he did

not feel prepared to proceed to trial.

This is an acronym for “digital video disc.”
7
8The State described the witness as “the co-defendant who . . . allegedly drove . . .
defendant and Tyler Greenfield away after the shooting.”
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¶ 14 At the conclusion of the hearing, the trial court denied defendant’s motion to

continue. At that point, Mediratta reminded the trial court that he had only been

preparing for trial in his role as standby counsel and indicated that he would need

several weeks to prepare if he was asked to assume full representation of defendant,

also noting that defendant had asked for representation of counsel at the 26 March

2018 hearing before Judge Willey. The trial court responded that its “understanding

from [defendant] today is that he still intends to represent himself . . . So unless he

says that to me, that he does not want to represent himself anymore, then at that

point I can appoint you, but that’s not what [defendant] has said.”

B. Proceedings on defendant’s trial date

¶ 15 On 23 April 2018, Judge Gorham considered pretrial motions in defendant’s

case, beginning with defendant’s pro se motion which was couched as an ineffective

assistance of counsel claim:

[DEFENDANT]: There are some things that I would like to
address before the Court today before we proceed with, you
know, the trial motions and stuff. I would like to address
the situation of ineffective assistance of counsel, Your
Honor.

THE COURT: Let me stop you right there. You don’t have
an attorney so there is no ineffective assistance of counsel
claim that you can raise.

[DEFENDANT]: But having -- have I not -- is he not by
stand [sic] counsel to provide me with assistance in things
that I do not understand?
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THE COURT: He is standby counsel but he is not your
attorney. You have waived your right to all counsel.

[DEFENDANT]: Yes, ma’am.

THE COURT: So Mr. Mediratta is not your attorney, so
what is your question?

[DEFENDANT]: So if it was the decision that he was able
to replace me or take over the case, like, that’s what I was
told by Judge Watts9 [sic]. He said if I wanted to, that he
could take over my case at any time if I had decided.

THE COURT: If you decide that you no longer wish to
represent yourself --

[DEFENDANT]: Yes, ma’am.

THE COURT: -- and you wish for counsel, that the Court
has assigned a standby counsel to take over and try your
case, that is correct.

[DEFENDANT]: Yes, ma’am.

THE COURT: But until that happens, standby counsel is
not your attorney.

[DEFENDANT]: Yes, ma’am, I understand.
This is what I wanted to present to you, Your Honor,
so you can in your discretion you can make a ruling upon
it.

Defendant continued to demonstrate his confusion about Mediratta’s potential ability

to “take over and represent” defendant if defendant determined at some point that

9 Defendant apparently intended to refer to Judge Watson, who had presided over a
hearing in defendant’s case on 26 March 2018.
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defendant could not adequately represent himself and also continued to express his

dissatisfaction with Mediratta’s honesty, knowledge, and commitment to assisting

defendant in this matter.

¶ 16 The trial court then began to address defendant in a fashion typifying the

colloquy required under N.C.G.S. § 15A-1242 when a defendant wishes to engage in

self-representation, apparently possibly in response to Mediratta’s comment at the

close of the 3 April 2018 hearing which informed Judge Gorham that defendant had

expressed a desire for representation to Judge Willey during the 26 March 2018

hearing:

THE COURT: All right, let me ask you, Mr. Harvin,
do you still wish to represent yourself at this trial?

[DEFENDANT]: If it --

THE COURT: Let me ask you some questions.

[DEFENDANT]: Yes, ma’am.

THE COURT: Are you able to hear and understand
me?

[DEFENDANT]: Yes, ma’am.

THE COURT: Are you now under the influence of any
alcohol, narcotics, drugs, medicines, pills, or any other
substance?

[DEFENDANT]: No, ma’am.

THE COURT: How old are you?
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[DEFENDANT]: 21 at this time.

THE COURT: What is the highest grade you
completed in school?

[DEFENDANT]: The 10th grade, Your Honor.

THE COURT: And what grade level can you read and
write?

[DEFENDANT]: I would believe the 10th grade, Your
Honor.

THE COURT: Do you presently suffer from any . . .
mental or physical disabilities?

....

[DEFENDANT]: Yes, ma’am.

The trial court and defendant then spent some time discussing defendant’s

representation that he had been diagnosed with attention deficit disorder while

defendant was a student before returning to a discussion of the defendant’s potential

self-representation:

THE COURT: I’m just asking you questions about
your representation, about whether or not you want to
continue to represent yourself.

[DEFENDANT]: And what are, like, if I decide to
proceed --

THE COURT: No, I just need to know, do you have
any questions about what I just said to you about that?

[DEFENDANT]: Can you read the last part, please?
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THE COURT: I’m going to read the next question to
you.
Do you still wish to waive your right to the assistance
of an attorney and do you voluntarily and intelligently
decide to represent yourself in this case?

[DEFENDANT]: No, ma’am.

THE COURT: You do not wish to represent yourself?

[DEFENDANT]: No, ma’am.

THE COURT: So what are you asking the Court for
today?

[DEFENDANT]: Your Honor, what I was asking for
initially was asking was that, like I said, I be provided with
adequate by stand [sic] counsel and I was asking for more
sufficient time to prepare my own defense. And what I was
going to address was that I don’t feel like I should
relinquish my rights as counsel, I just need more time to
prepare and understand the law.

....

THE COURT: The question I have for you today: Are
you going to continue to represent yourself in your case?

[DEFENDANT]: No, ma’am.

THE COURT: What are you asking for?

[DEFENDANT]: I’m asking for effective assistance of
counsel.

THE COURT: You are asking to be represented by an
attorney?

[DEFENDANT]: Yes, ma’am.
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THE COURT: And you are asking this court to once
again appoint an attorney to represent you in your case?

[DEFENDANT]: Yes, ma’am.

THE COURT: Mr. Harvin, you understand that if I
choose to appoint an attorney to represent you --

[DEFENDANT]: Yes, ma’am.

THE COURT: -- that it will be over from that point?
You can't come back in here and say you don’t like that
particular attorney.

[DEFENDANT]: Yes, ma’am.

THE COURT: Because by law, you will have forfeited
your right to have any attorney to represent you.
Do you understand that?

[DEFENDANT]: Yes, ma’am.

THE COURT: And you will be back in the same
position that you are now.
Do you understand that?

[DEFENDANT]: Yes, ma’am.

(Emphases added.)

¶ 17 Defendant then started to return to his ineffective assistance of counsel

argument. The trial court reprised its explanation to defendant that defendant could

not lodge a claim of ineffective assistance of counsel because he no longer had an

attorney representing him. The trial court also reiterated the distinction between the

status of representation by counsel and the status of proceeding pro se with standby
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counsel. During the end of this exchange, defendant confirmed twice more that he did

not want to represent himself:

THE COURT: Do you understand that if you have an
attorney appointed to represent you, it is your attorney
who will try your case and not you?

[DEFENDANT]: But it’s my right.

THE COURT: Listen to me.

[DEFENDANT]: Yes, ma’am.

THE COURT: If an attorney is appointed to represent
you, your attorney tries your case, you don’t try your case.
Are you willing to give up that right?

[DEFENDANT]: Yes, ma’am.

THE COURT: Because you have a right to represent
yourself.

[DEFENDANT]: Yes, ma’am.

THE COURT: Do you understand that?

[DEFENDANT]: Yes, ma’am.

THE COURT: And you still choose to give up that right
today?

[DEFENDANT]: Yes, ma’am.

(Emphases added.) At this point in the pretrial hearing, defendant had informed the

trial court nine times that he did not want to represent himself at trial. The

prosecutor then asked to be heard, emphasizing that “defendant now wants an
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attorney” and expressing his belief that defendant was “playing games with the

system,” restating his concern about the expiration of the probationary period of the

State’s witness, and representing that the State would be prejudiced by any delay

caused by the appointment of another attorney to be defendant’s counsel of record.

¶ 18 The trial court asked of Mediratta if he was prepared to proceed as defendant’s

counsel. Mediratta replied that he had only been preparing to serve at trial in his

appointed role as standby counsel and that he was not ready to serve as counsel of

record for trial, echoing his similar statement to the trial court during the 3 April

2020 hearing. After further discussion of defendant’s concerns about defendant’s

ability to access information provided by the State in discovery, the trial court took a

two-hour recess, during which the trial court contacted defendant’s previous

appointed attorneys who had been allowed to withdraw from the case and asked them

to appear. Attorney Mason told the trial court that he had experienced a scheduling

conflict that required defendant’s case to be “transferred” to Mason’s colleague,

Attorney Nicely in July 2016, some sixteen months after Mason had been appointed

to represent defendant. Attorney Nicely testified that he represented defendant for

approximately ten months until May 2017, and that he withdrew due to his changing

employment. Attorney Wagoner testified that he had represented defendant from

May 2017 to September 2017 and had withdrawn at defendant’s request. Attorney

Evans testified that he had represented defendant from late September 2017 until
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December 2017, at which point he also withdrew at the request of defendant.

¶ 19 After the evidentiary portion of the hearing, the State informed the trial court

that the State believed that defendant’s “willful actions” warranted a conclusion that

defendant had forfeited his right to counsel, citing State v. Boyd, 200 N.C. App. 97

(2009), while specifically noting that defendant had “fired two different attorneys”

and had requested counsel “on the day of trial.” The State further asserted that

defendant bore the burden of showing “good cause” in order for the trial court to

permit defendant to “rescind” his previous waiver of counsel, citing State v. Clark, 33

N.C. App. 628 (1977) and State v. Banks, 250 N.C. App. 823 (2016) (unpublished), and

emphasizing the issues of timing and delay as dispositive in determinations of

forfeiture.

¶ 20 In responding to the State’s depiction of his actions, defendant denied any

attempt on his part “to frustrate” the trial court, while restating his position that he

had not had sufficient time to prepare for trial to represent himself. The trial court

first found that defendant was competent to proceed to trial and then concluded

that [defendant] had no good cause as of today, the day of
trial, to ask this [c]ourt for an attorney to represent him.
That in fact this [c]ourt believes that based upon the
defendant’s actions from the time that . . . Wagoner was
appointed to represent him on May 12, 2017; . . . Evans was
appointed to represent him on September 28, 2017, the
defendant requesting that both of these attorneys
withdraw from representing him, finds that the defendant
has forfeited his right to have an attorney to represent him
at this trial; that his actions have been willful and that he
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has obstructed and delayed these court proceedings.

Therefore the [c]ourt finds that the defendant has
forfeited his right to have an attorney represent him at this
trial.

¶ 21 Upon the trial of this case, the jury returned verdicts of guilty on all of the

offenses charged. Defendant was sentenced to life in prison with the possibility of

parole for the first-degree murder conviction. For the remaining convictions, the trial

court sentenced defendant to 200 to 254 months for attempted first-degree murder,

60 to 84 months for attempted robbery with a dangerous weapon, 60 to 84 months for

assault with a deadly weapon with intent to kill inflicting serious injury, 60 to 84

months for robbery with a dangerous weapon, and 25 to 42 months for conspiracy to

commit robbery with a dangerous weapon, with all terms of incarceration to run

consecutively. Defendant appealed.

C. Decision by the Court of Appeals

¶ 22 Upon defendant’s appeal to the Court of Appeals which was heard on 7 August

2019, he presented two arguments: (1) defendant’s conduct at the trial court level was

not egregious so as to permit the trial court to conclude that defendant had forfeited

his constitutional right to the assistance of counsel, and (2) the trial court committed

plain error in instructing the jury that the jury could find defendant guilty of all of

the charges against him under the theory of acting in concert. In a decision from a

divided Court of Appeals panel, the lower appellate court addressed only the first
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issue in concluding that the trial court had erred in the trial court’s determination

that defendant had forfeited his right to counsel at trial and that, due to the

deprivation of this constitutional right, defendant was entitled to a new trial. State v.

Harvin, 268 N.C. App. 572, 573 (2019).

¶ 23 In reaching this result, the Court of Appeals majority first noted that, in

addition to forfeiture—the loss of the constitutional right to counsel as a result of a

defendant’s misconduct—a defendant may elect to waive his right to the assistance

of an attorney, so long as such decision is made “knowingly, intelligently, and

voluntarily.” Id. at 593. In order to ensure compliance with this constitutional

mandate, the North Carolina General Assembly enacted N.C.G.S. § 15A-1242 which

delineates the inquiry that a trial court must make of a defendant who has expressed

the desire to proceed pro se and which provides that the failure to engage in the

statutorily defined colloquy constitutes prejudicial error requiring the award of a new

trial. Id. at 592–93. The majority of the lower appellate court observed that, at the 23

April 2018 hearing, the trial court had begun the statutory colloquy to permit waiver

of counsel after defendant requested to replace his standby counsel, but that during

defendant’s exchange with the trial court during the execution of the statutory

colloquy under N.C.G.S. § 15A-1242, defendant actually invoked his right to the

assistance of counsel, “stating no fewer than five times that he did not wish to

represent himself at trial.” Id. at 595.
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¶ 24 With specific regard to the issue of forfeiture, the Court of Appeals majority

focused upon defendant’s conduct in light of the forum’s decision in State v. Simpkins,

which held that a defendant who had engaged in extended discussions with the trial

court and attempted to raise arguments that were not legally sound had not forfeited

his right to counsel where the defendant had not been “combative or rude” or “did not

intentionally delay the process,” and whose actions, although causing evident

frustration on the part of the trial court, merely “reflected his lack of knowledge or

understanding of the legal process.” Id. at 596 (quoting State v. Simpkins, 265 N.C.

App. 325, 337 (2019), aff’d, 373 N.C. 530 (2020)). In the present case, the Court of

Appeals majority similarly found that defendant had remained courteous in all of his

interactions with the trial court albeit expressing confusion about the different roles

of standby and primary counsel. Id. at 595. The decision further acknowledged that

defendant had received assistance from a series of five court-appointed attorneys

during the course of his case but emphasized that two of those attorneys had

withdrawn for their own professional reasons rather than as a result of defendant’s

behest or defendant’s conduct, while two other appointed attorneys withdrew “due to

differences related to the preparation of [d]efendant’s defense” and not because

“[d]efendant was refusing to participate in preparing a defense.” Id. Defendant’s other

appointed attorney—Mediratta—had been designated as standby counsel after

defendant expressed his desire to represent himself on 12 December 2017. Id. at 593.
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In light of these circumstances, the Court of Appeals majority determined that “[t]he

trial court deprived [d]efendant of his constitutional right to counsel by concluding

that he had forfeited this right,” and thus awarded defendant a new trial. Id. at 596.

As a result, the Court of Appeals did not address defendant’s jury instruction

challenge regarding the theory of acting in concert. Id.

¶ 25 The dissenting judge at the lower appellate court, while conceding that a

defendant who has previously waived his right to counsel “should generally be able

to withdraw his waiver by simply informing the trial court that he now wants to be

represented,” id. at 597 (Dillon, J., dissenting), opined that if the trial court’s

appointment of counsel under such circumstances “would require that the trial judge

continue the trial to another term, our case law suggests that the defendant must

generally show ‘good cause,’ ” id. at 598 (first citing State v. Blankenship, 337 N.C.

543, 553 (1994), overruled in part on other grounds by State v. Barnes, 345 N.C. 184,

230 (1997); and then citing State v. McFadden, 292 N.C. 609, 616 (1977)). The dissent

expressed the belief

that the “good cause” standard and the “forfeiture”
standard are generally treated similarly. That is, a pro se
defendant’s desire to be represented by counsel, in and of
itself, generally constitutes “good cause” to justify a
continuance. But the additional fact that defendant has
been dilatory in making his request may support a finding
that the defendant has failed to show “good cause” for a
delay or otherwise has “forfeited” his right . . . to counsel
where the invocation of the right would require a delay.
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Id. at 599. In light of this approach, the dissent would have found no error by the trial

court based on the trial court’s statements during the 23 April 2018 hearing that

defendant had “no good cause” to request appointment of counsel on the day of trial

and that forfeiture of defendant’s right to counsel was appropriate because his willful

actions had “obstructed and delayed these court proceedings.” Id. at 599–600

(emphasis omitted). The dissenting opinion found further support for the trial court’s

forfeiture of counsel determination based upon the dissent’s perception that

defendant had “admitted that he was only asking for his stand-by counsel to

represent him as a way to delay the trial, as he made the request only moments after

his request that his appointed stand-by counsel be replaced was denied and his

subsequent motion to continue was denied.” Id. at 602 (emphasis omitted).

¶ 26 Finally, upon consideration of defendant’s argument that the trial court

“plainly erred by instructing the jury that [d]efendant could be found guilty on a

theory of acting in concert,” the dissent simply offered that, upon review of the record,

“the instruction was supported by the evidence,” and even if the instruction had been

erroneous, “such error did not rise to the level of plain error.” Id. at 603.

¶ 27 On 19 December 2019, the State filed a motion for temporary stay, along with

a petition for writ of supersedeas, pursuant to Rule 23(e) of the North Carolina Rules

of Appellate Procedure. The motion for temporary stay was allowed by this Court on

20 December 2019, but the Court reserved determination of the petition for writ of
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supersedeas until the State filed its projected notice of appeal based upon the

dissenting Court of Appeals opinion, lodged pursuant to N.C.G.S. § 7A-30(2). But, on

6 February 2020, defendant moved this Court to lift the temporary stay, submitting

that the Court of Appeals decision in this case was filed on 3 December 2019 and that

the issue date for opinion mandates for the lower appellate court’s 3 December 2019

opinions was 23 December 2019. The State’s notice of appeal based upon the dissent

in the Court of Appeals was due within fifteen days of the 23 December 2019

mandate—namely, by 7 January 2020—and as defendant observed, the State had not

filed its notice of appeal as of the time of defendant’s 6 February 2020 motion to lift

the temporary stay. See N.C. R. App. P. 14(a). Accordingly, defendant asked this

Court to refrain from suspending the North Carolina Rules of Appellate Procedure

requiring the timely filing of a notice of appeal and to lift the temporary stay.

¶ 28 Later on the same day of 6 February 2020, the State filed a motion to maintain

the stay, along with a petition for writ of certiorari in which the State requested

review of the Court of Appeals decision. The State acknowledged that it had

inadvertently missed the deadline for filing its notice of appeal, and cited Appellate

Rule 21, which provides that the writ of certiorari “may be issued by the Supreme

Court in appropriate circumstances to permit review of the decisions and orders of

the Court of Appeals when the right to prosecute an appeal of right or to petition for

discretionary review has been lost by failure to take timely action.” Id. 21(a)(2). On
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29 April 2020, this Court allowed the State’s motion to maintain stay. The Court also

allowed the State’s petition for writ of certiorari on 29 April 2020.

II. Analysis

A. Precedent regarding waiver and forfeiture of the right to counsel

¶ 29 “The right to assistance of counsel is guaranteed by the Sixth Amendment to

the Federal Constitution and by Article I, Sections 19 and 23 of the Constitution of

North Carolina.” State v. McNeill, 371 N.C. 198, 217 (2018) (quoting State v. Sneed,

284 N.C. 606, 611 (1974)). The right to counsel in criminal proceedings is not only

guaranteed but is considered to be “fundamental in character.” Powell v. Alabama,

287 U.S. 45, 70 (1932) (citations omitted). “This means more than simply that the

State cannot prevent the accused from obtaining the assistance of counsel. The Sixth

Amendment also imposes on the State an affirmative obligation to respect and

preserve the accused’s choice to seek this assistance.” Maine v. Moulton, 474 U.S. 159,

170–71 (1985). “The core of this [Sixth Amendment] right has historically been, and

remains today, ‘the opportunity for a defendant to consult with an attorney and to

have him investigate the case and prepare a defense for trial.’ ” Kansas v. Ventris,

556 U.S. 586, 590 (2009) (quoting Michigan v. Harvey, 494 U.S. 344, 348 (1990)).

Nonetheless, there are certain circumstances in which a criminal defendant may

relinquish or lose his or her constitutional right to assistance of counsel.

¶ 30 One of the methods by which a criminal defendant may surrender the right to
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assistance of counsel is through voluntary waiver. “A waiver is ordinarily an

intentional relinquishment or abandonment of a known right or privilege. The

determination of whether there has been an intelligent waiver of the right to counsel

must depend, in each case, upon the particular facts and circumstances surrounding

that case, including the background, experience, and conduct of the accused.”

Johnson v. Zerbst, 304 U.S. 458, 464 (1938), overruled in part on other grounds by

Edwards v. Arizona, 451 U.S. 477 (1981). North Carolina’s General Assembly has

enacted a carefully crafted statutory framework to ensure that a criminal defendant’s

right to counsel is protected and that its entrenchment can only be waived where the

trial court is satisfied that the waiver is knowing, intelligent, and voluntary. See

N.C.G.S. § 15A-1242 (2021). In the state courts of North Carolina, “[b]efore allowing

a defendant to waive in-court representation by counsel, . . . the trial court must

insure that constitutional and statutory standards are satisfied.” State v. Thomas,

331 N.C. 671, 673 (1992). The first of these standards is that the waiver must be

expressed “clearly and unequivocally.” Id. at 673–74 (quoting State v. McGuire, 297

N.C. 69, 81 (1979)); see also State v. Hutchins, 303 N.C. 321, 339 (1981) (“Given the

fundamental nature of the right to counsel, [this Court] ought not to indulge in the

presumption that it has been waived by anything less than an express indication of

such an intention.”). The second standard is that “the trial court . . . must determine

whether the defendant knowingly, intelligently, and voluntarily waives the right to
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in-court representation by counsel.” Thomas, 331 N.C. at 674 (citing Faretta v.

California, 422 U.S. 806, 835 (1975)).

¶ 31 Section § 15A-1242 provides that:

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
decision; and

(3) Comprehends the nature of the charges and proceedings
and the range of permissible punishments.

If the trial court abides by and complies with the dictates of N.C.G.S. § 15A-1242,

then it “fully satisfies the constitutional requirement that waiver of counsel must be

knowing and voluntary.” State v. Thacker, 301 N.C. 348, 355 (1980).

¶ 32 Another means by which an accused may forego the constitutional right to

counsel is the forfeiture of the right to legal representation based upon his or her

conduct. “Forfeiture of counsel is separate from waiver because waiver requires a

‘knowing and intentional relinquishment of a known right’ whereas 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.’ ” State v. Schumann, 257

N.C. App. 866, 879 (quoting State v. Montgomery, 138 N.C. App. 521, 524 (2000)),
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disc. rev. denied, 370 N.C. 693 (2018). In other words, if a defendant has forfeited his

or her right to counsel, then a trial court “is not required to determine, pursuant to

[N.C.G.S.] § 15A-1242, that [the] defendant knowingly, understandingly, and

voluntarily waived such right before requiring him to proceed pro se.” State v.

Leyshon, 211 N.C. App. 511, 518, appeal dismissed, 365 N.C. 338 (2011); see also

United States v. Goldberg, 67 F.3d 1092, 1100 (3d. Cir. 1995) (“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.”).

¶ 33 While the aforementioned appellate cases reflect an extensive line of case law

generated by the Court of Appeals regarding forfeiture of the constitutional right to

counsel, this Court’s opportunity to address the issue of forfeiture has not been as

robust. But in State v. Simpkins, 373 N.C. 530, 535 (2020), we held that, “in situations

evincing egregious misconduct by a defendant, a defendant may forfeit the right to

counsel.” Id. at 535. While we reiterated in Simpkins that “[t]he purpose of the right

to counsel ‘is to assure that in any criminal prosecution, the accused shall not be left

to his own devices in facing the prosecutorial forces of organized society,’ ” id. at 535–

36 (quoting Moran v. Burbine, 475 U.S. 412, 430 (1986) (extraneity omitted)),

nonetheless we also recognized that a defendant may in certain circumstances forfeit

the right to counsel because there is a need to consider not only the constitutional
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concerns of the defendant’s right to counsel, but also a trial court’s obligation to

manage its proceedings because in forfeiture situations, “a defendant’s actions

frustrate the purpose of the right to counsel itself and prevent the trial court from

moving the case forward.” Id. at 536.

¶ 34 Misconduct by a criminal defendant which has been deemed sufficiently

egregious to permit a trial court to conclude that the accused has forfeited the right

to counsel occurs in two general circumstances. The first category includes a criminal

defendant’s display of aggressive, profane, or threatening behavior. See, e.g., id. at

536–39 (first citing State v. Montgomery, 138 N.C. App. 521 (2000) (finding forfeiture

where a defendant, inter alia, disrupted court proceedings with profanity and

assaulted his attorney in court); then citing State v. Brown, 239 N.C. App. 510, 519

(2015) (finding forfeiture where a defendant “refus[ed] to answer whether he wanted

assistance of counsel at three separate pretrial hearings [and] repeatedly and

vigorously objected to the trial court’s authority to proceed”); then citing State v.

Joiner, 237 N.C. App. 513 (2014) (finding forfeiture where a defendant, inter alia,

yelled obscenities in court, threatened the trial judge and a law enforcement officer,

and otherwise behaved in a belligerent fashion); then citing United States v. Leggett,

162 F.3d 237 (3d Cir. 1998) (finding forfeiture where a defendant physically attacked

and tried to seriously injure his counsel); and then citing Gilchrist v. O’Keefe, 260

F.3d 87 (2d Cir. 2001) (same)). This type of misconduct did not occur in the case at
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bar in that defendant remained polite and calm throughout all of his trial court

appearances and during defendant’s interactions in trial proceedings with his various

appointed attorneys.

¶ 35 The second broad type of behavior which can result in a criminal defendant’s

forfeiture of the constitutional right to counsel is an accused’s display of conduct

which constitutes a “[s]erious obstruction of the proceedings.” Simpkins, 373 N.C. at

538. Examples of obstreperous actions which may justify a trial court’s determination

that a criminal defendant has forfeited the constitutional right to counsel include the

alleged offender’s refusal to permit a trial court to comply with the mandatory waiver

colloquy set forth in N.C.G.S. § 15A-1242, “refus[al] to obtain counsel after multiple

opportunities to do so, refus[al] to say whether he or she wishes to proceed with

counsel, refus[al] to participate in the proceedings, or [the] continual hir[ing] and

fir[ing of] counsel and significantly delay[ing] the proceedings.” Id. at 538. In

Simpkins, we further cited the decisions of the Court of Appeals in Montgomery and

Brown, inter alia, as additional illustrations of this second mode of misconduct which

can result in the forfeiture of counsel.

¶ 36 In State v. Montgomery, the lower appellate court considered potential

constitutional error where, just as in the present case, a trial court failed to conduct

the waiver of counsel colloquy with an accused pursuant to N.C.G.S. § 15A-1242 and

went on to require the defendant to proceed to trial pro se with only the assistance of
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standby counsel. 138 N.C. App. at 522–23. The defendant changed counsel three

times over the span of thirteen months preceding his original trial date, then insisted

on the scheduled date for commencement of his trial that his counsel be allowed to

withdraw; however, the trial court denied counsel’s motion to withdraw. On the

following day of the trial proceedings, the defendant became disruptive and profane,

resulting in the trial court’s determination that the accused was in contempt of court

and consequently would serve thirty days in jail. Id. Counsel for the defendant

informed the trial court that the defendant had refused to allow key witnesses to meet

with him, and the defendant subsequently was found to be in contempt of court at

least twice more, including such a determination by the trial court after the defendant

assaulted his attorney in court. Id. In Simpkins, we noted our agreement with the

outcome which the Court of Appeals reached in Montgomery as we commented that

the lower appellate court properly concluded that “[t]hese facts demonstrate

forfeiture of the right to counsel because the defendant’s actions totally undermine

the purposes of the right itself by making representation impossible and seeking to

prevent a trial from happening at all.” Simpkins, 373 N.C. at 536.

¶ 37 In State v. Brown the defendant, “when asked whether he wanted a lawyer to

represent him, . . . replied that he did not and, alternatively, when the trial court

explained that [the] defendant would proceed without counsel, [the] defendant

objected and stated he was not waiving any rights.” 239 N.C. App. at 518. The
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defendant maintained his stance of both refusing to accept court-appointed counsel

and refusing to waive the right to counsel, while exacerbating the situation in open

court by asserting challenges to the trial court’s jurisdiction and its authority to

proceed. Id. at 518–19. The Court of Appeals concluded in Brown that the defendant

had forfeited his right to counsel because his behavior “amounted to willful

obstruction and delay of trial proceedings and, therefore, defendant forfeited his right

to counsel.” Id. at 519. In Simpkins this Court observed that “[b]y refusing to make

an election as to whether to proceed with counsel and by using the appointment and

firing of counsel to delay the proceedings, the defendant in Brown completely

frustrated his own right to assistance, warranting a finding of forfeiture.” 373 N.C.

at 537.

¶ 38 The defendant in Simpkins was arrested in the course of a traffic stop, during

which he refused to produce his driver’s license and vehicle registration after a law

enforcement officer researched the vehicle’s license plate and discovered that the

defendant “had a suspended driver’s license and a warrant out for his arrest.” State

v. Simpkins, 265 N.C. App. 325, 326 (2019), aff’d, 373 N.C. 530 (2020). “[D]uring the

proceedings in district court, the court noted on an unsigned waiver of counsel form

that Simpkins refused to respond to the court’s inquiry. . . . [A] waiver of counsel form,

signed by the trial judge, with a handwritten note indicat[ed] that Simpkins refused

to sign the form.” Simpkins, 373 N.C. at 532. After being convicted of resisting a
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public officer, failing to carry a registration card, and driving with a revoked license,

the defendant appealed to the superior court. Id. Throughout the superior court

proceedings, the defendant challenged the court’s jurisdiction, repeatedly spoke out

of turn, argued with and questioned the trial court, and requested appointed counsel

“not paid for by the State” but “later acquiescing when the court suggested he be

appointed standby counsel.” Id. at 539. Upon those circumstances, this Court

concluded that “[defendant]’s conduct, while probably highly frustrating, was not so

egregious that it frustrated the purposes of the right to counsel itself.” Id.

B. Application of precedent to defendant’s case

¶ 39 Defendant’s behavior which is at issue in the present case is markedly different

from the conduct exhibited by the respective defendants in Montgomery and Brown,

as well as the actions displayed by the defendant in Simpkins, in that the demeanor

of defendant here is far short of the degree of egregiousness demonstrated by the

defendants in Montgomery and Brown, and even less than any disruption of the trial

proceedings precipitated by the defendant in Simpkins, so as to constitute a forfeiture

of the constitutional right to counsel. In all of his interactions with the trial court and

throughout all of the trial proceedings, defendant did not use any profanity, make

any threats, or act in an assaultive, aggressive, or discourteous manner. Defendant

did not show any contempt for the trial court’s authority; further, defendant

incessantly extended deference and respect to the trial court and its determinations
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regarding defendant’s desire for answers to his questions and clarification of his

confusion in light of defendant’s limited education and understanding. In proceeding

pro se, defendant’s zealous representation of his own legal interests should not be

conflated with disrespect for the trial court, the trial proceedings, the legal system,

or the legal process. In light of defendant’s limitations which he identified in open

court, coupled with the seriousness of the criminal charges which he faced as the time

of his trial neared, defendant operated within proper bounds during the trial

proceedings to protect his rights and to advocate for himself.

¶ 40 Unfortunately, the dissent fixates upon our determination that defendant was

polite and cooperative in defendant’s interactions with the trial court in the dissent’s

attempt to cast our view of defendant’s conduct as the dispositive feature which we

have considered in concluding that defendant did not forfeit his right to counsel. The

dissent’s conveniently narrow focus to justify its position, however, serves to preclude

its ability to properly see the broader scope of additional considerations which we

realize have been established by appellate case law—namely, an indication of a

defendant's knowing, intelligent, and voluntary waiver of the right to counsel; the

performance of actions by a defendant to frustrate the trial court’s management of its

proceedings; and a serious obstruction of trial proceedings by a defendant—in order

to fairly and correctly evaluate the articulated standard of the egregiousness of a

criminal defendant’s conduct with regard to the denial of the individual's protected
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constitutional right to counsel. Despite the cited appellate case authorities which

have addressed the particular facts and circumstances presented in these respective

cases, the dissent would set the standard for forfeiture of counsel perilously low.

¶ 41 As we focus more specifically upon the trial court’s determination that

defendant “forfeited his right to have an attorney to represent him at this trial” due

to having “obstructed and delayed these court proceedings” in that defendant asked

the trial court “on the day of trial . . . for an attorney to represent him” after defendant

had already requested that “[A]ttorneys [Wagoner and Evans] withdraw from

representing him,” we agree with the evaluation of this circumstance by the Court of

Appeals that it did not constitute forfeiture of counsel by defendant. Harvin, 268 N.C.

at 595. While the four of defendant’s five court-appointed attorneys had been relieved

of their responsibilities to defendant by the trial court during the pendency of his

matter,10 two of them withdrew of their own volition and the remaining two withdrew

at defendant’s request. The two defense attorneys who filed motions to withdraw as

a result of their respective incompatible attorney-client relationships with defendant

did so not because of defendant’s willful tactics of obstruction and delay, as the trial

court found, but in the determination of the Court of Appeals, “due to differences

related to the preparation of [d]efendant’s defense” rather than defendant’s “refus[al]

10 Defendant’s standby trial counsel, who was defendant’s fifth court-appointed
attorney, remained in this role until the conclusion of the trial.
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to participate in preparing a defense.” Harvin, 268 N.C. App. at 595.

¶ 42 Once again, the dissent is riveted by one feature with which it becomes

fascinated, to the exclusion of other impactful considerations. The dissent

concentrates upon the trial court’s findings of fact chronicling defendant's

representation by court-appointed attorneys Mason, Nicely, Wagoner, Evans, and

standby counsel Mediratta; emphasizes the great deference which is to be afforded to

a trial court’s findings of fact where constitutional matters such as the right to

counsel are reviewed de novo; accentuates the binding nature on appeal of findings

of fact if they are supported by competent evidence; and underscores the need for the

findings of fact to support the conclusions of law. I agree with all of the recitations of

these established, unassailable legal principles which the dissent gleans from

appellate case decisions. Unfortunately, the dissent’s fixation with the trial court’s

findings of fact which mentioned the five attorneys assigned to aid defendant have

prompted the dissent to neglect the importance of the reality that the trial court’s

conclusions of law only identified the relevance of two court-appointed attorneys for

defendant—Wagoner and Evans—in the trial court’s determination

that based upon the defendant’s actions from the time that
Mr. Merritt Wagoner was appointed to represent him on
May 12, 2017; Mr. Shawn Evans was appointed to
represent him on September 28, 2017, the defendant
requesting that both of these attorneys withdraw from
representing him, finds that the defendant has forfeited his
right to have an attorney to represent him at this trial. . . .
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Id. at 589. In our de novo review of this case’s facts and circumstances, the trial court’s

unequivocal conclusion of law that defendant’s request that two court-appointed

attorneys withdraw from representing him constituted forfeiture of counsel does not

satisfy this Court’s determination in Simpkins that “[i]f a defendant . . . continually

hires and fires counsel and significantly delays the proceedings, then a trial court

may appropriately determine that the defendant is attempting to obstruct the

proceedings and prevent them from coming to completion.” Simpkins, 373 N.C. at 538

(emphasis added). Although the dissent attempts to inflate the importance of the

foundational findings of fact which mention defendant’s five court-appointed

attorneys and endeavors to deflate the significance of the dispositional conclusions of

law which expressly based defendant’s forfeiture of counsel upon the withdrawal of

two court-appointed attorneys, we recognize that the trial court’s conclusions of law

cannot be discounted or ignored, and must be evaluated de novo here in conjunction

with prevailing precedent.

¶ 43 In sum, defendant’s first two changes of counsel, which occurred in his case

over the course of two-and-one-half years between his arrest on 9 February 2015 and

Wagoner’s withdrawal from the case on 28 September 2017, were totally unrelated to

defendant’s actions. After the withdrawal of his first two appointed attorneys for their

own individual respective reasons, in the subsequent two-and-one-half month period

from 28 September 2017 to 12 December 2017, defendant requested the withdrawal
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of two other appointed attorneys. On 28 December 2017, the trial court completed the

statutory waiver inquiry and defendant agreed to represent himself. Afterwards,

through three additional hearings and until his trial began on 23 April 2018,

defendant, while remaining cooperative and polite, continued to represent himself

zealously while attempting to preserve his legal rights and pursue his legal strategies

as he attempted to prepare for trial.

¶ 44 We conclude that defendant’s actions, up to and including the day on which his

trial was scheduled to begin, did not demonstrate the type or level of obstructive and

dilatory behavior which allowed the trial court here to permissibly conclude that

defendant had forfeited the right to counsel. During the course of his case, defendant

did not ever display aggressive, profane, or threatening behavior. Likewise,

defendant did not ever act in a manner which constituted “[s]erious obstruction of the

proceedings” as exemplified in Montgomery and Brown, and as further discussed in

Simpkins. Simpkins, 373 N.C. at 538. On the other hand, defendant engaged

courteously and constructively with the relevant processes regarding the engagement

and withdrawal of appointed counsel throughout his case, complied responsibly with

the waiver colloquy undertaken by the trial court on 28 December 2017, and, shortly

thereafter, expressly and repeatedly requested the assistance of counsel at trial on

the basis that defendant did not consider himself to be in a position to proceed

effectively pro se in light of the numerous challenges that he deferentially, though
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Opinion of the Court

tenaciously, related to the trial court.

III. Conclusion

¶ 45 Defendant did not engage in the type of egregious misconduct that would

permit the trial court to deprive defendant of his constitutional right to counsel;

therefore, defendant is entitled to a new trial. Accordingly, we affirm the decision of

the Court of Appeals which vacated the judgments entered by the trial court upon

defendant’s convictions and remand this case to the Court of Appeals for further

remand to the trial court for a new trial on all charges.

AFFIRMED AND REMANDED.
 Justice BERGER dissenting.

¶ 46 Defendant’s trial was scheduled to begin on January 28, 2018. On December

8, 2017, Shawn R. Evans, defendant’s attorney filed a motion to withdraw. Within

the motion, Mr. Evans explained the following about his reasons for withdrawing as

counsel: “[d]efendant verbally fired the undersigned counsel on December 8, 2017”;

[d]efendant has refused to follow or even consider the advice of counsel and will not

communicate with counsel about his case or defense”; “[d]efendant also refused to

accept written correspondence from Counsel”; and “[c]ommunication has become

impossible.” Thus, “there is nothing counsel can do to rehabilitate the attorney client

relationship, despite efforts to do the same.”

¶ 47 Judge Ebern T. Watson III heard Mr. Evans’s motion to withdraw on December

12, 2017. Defendant informed the court that he would like to represent himself but

would like “assistance, perhaps.” Judge Watson described the role of standby counsel

to defendant and stated, “[A]t any point in time, if you chose to then request standby

counsel to be made first chair, then that would put you in the position to have to

speak to another judge about that at the appropriate time.”

¶ 48 Defendant asked the court to appoint another attorney besides Mr. Evans as

standby counsel, and Judge Watson appointed Paul Mediratta. Defendant waived

his right to counsel in open court; a signed waiver of counsel dated December 28,

2017, is in the record. As a result, defendant’s trial was delayed.
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Berger, J., dissenting

¶ 49 On April 3, 2018, Judge Phyllis M. Gorham heard defendant’s motion to

continue. The court denied the motion, and the court announced that defendant’s

trial would begin on April 23. During the April 3 hearing, Mr. Mediratta suggested

that if defendant wanted him to take over as first chair, he would need to know to

“prepare in a different way.” Judge Gorham stated, “My understanding from

[defendant] today is that he still intends to represent himself.” Defendant did not say

anything to the contrary.

¶ 50 On the day of trial, April 23, 2018, defendant requested new standby counsel,

stating that he “would like to address the situation of ineffective assistance of

counsel.” Judge Gorham informed defendant that he could not assert ineffective

assistance of counsel, as he only had standby counsel and did not have an attorney

representing him. Defendant then explained to Judge Gorham that he was “asking

for basically someone to replace [Mr. Mediratta] as standby counsel to provide [him]

with assistance, someone adequate.” Defendant also explained to the trial court that

he was “going to try to proceed without [Mr. Mediratta],” but defendant felt “like [he

couldn’t] adequately prepare . . . considering the limited time that [he] was given.”

Judge Gorham then began and completed the colloquy required under N.C. Gen. Stat.

§ 15A-1242. When the trial court asked Mr. Mediratta whether he was ready to

proceed with the case, he responded as follows:

I am not. Your Honor, I’m appearing as standby counsel.
[Defendant] has not been communicating, he is not willing
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to work with me. Even with the discovery, we’ve had
serious communication problems. I am not prepared to
take this case to trial today, Your Honor.

¶ 51 Judge Gorham requested that the State have all the attorneys who were

previously appointed to represent defendant appear in court. They all appeared and

provided testimony regarding their roles in the case, their opinion of defendant’s

competency, and their reasons for withdrawing. The court also heard from the State

and the defendant on the issues of capacity to proceed and forfeiture of counsel.

Defendant stated that he did not believe he could provide himself with “the

representation that’s required by law.”

¶ 52 On capacity to proceed, the court made findings that defendant was competent

and that he had “been representing himself in a rational and reasonable manner.”

The court then made the following findings of fact on the issue of forfeiture:

Now as to the defendant’s request on the day of trial
for an attorney, that on February 9, 2015, the Court
appointed Bruce Mason through the Public Defender who
requested Mr. Mason to represent the defendant. Mr.
Mason represented the defendant from February of 2015 to
July 25th of 2016. Mr. Mason testified that he had to
withdraw because he had other matters that were
pressing, and that Mr. Nicely substituted to represent the
defendant on or about July 25, 2016. . . .

Mr. Nicely testified and the record reflects that he
was appointed on or about July 25, 2016, until May 12,
2017, when Merritt Wagoner was appointed by the Court
to represent the defendant. Mr. Nicely testified that he
represented him up until the time that he went to work in
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the Brunswick County District Attorney’s Office. . . .

On or about May 12, 2017, the Court appointed
Merritt Wagoner to represent the defendant and he
represented the defendant until on or about September 28,
2017. Mr. Wagoner testified that he filed a motion to
withdraw from the defendant's case at the defendant’s
request and was allowed to withdraw from the case on
September 28, 2017. . . .

That on or about September 28, 2017, the Court
allowed Mr. Wagoner to withdraw. The Court appointed
Shawn Robert Evans to represent the defendant. Mr.
Evans represented the defendant until he was removed
from the case December 12, 2017.

....

That on December 12, 2017, Mr. Evans filed a
motion to withdraw as counsel for the defendant at the
defendant's request. On December 12, 2017, the defendant
at that time informed the Court that he wished to
represent himself. Judge Watson at that time—the
defendant at that time signed a waiver of his right to all
counsel. Judge Watson at that time appointed Paul
Mediratta as standby counsel.

That on December 28, 2017, this defendant was in
front of this judge. At that time, he still intended to waive
his right to counsel. This court advised defendant of his
waiver of counsel. At that time he still intended to
represent himself and he signed a waiver of his right to
counsel.

At that time he did not wish to have an attorney, he
wished to represent himself. That the defendant has had
multiple opportunities to ask the Court for an attorney to
represent him on his cases. That on January 28, 2018, the
defendant was before this Court and at that time if he
wished to have an attorney to represent him, he had the
opportunity to ask the Court for an attorney and he did not.
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Berger, J., dissenting

On March 26, 2018, he was before Judge Willey and
at that time he had an opportunity to inform the Court of
his—to ask the Court for an attorney. He did not.

On April 3, 2018, the defendant was again before
this Court. At that time, he had an opportunity to ask the
Court for an attorney, he did not.

¶ 53 Based on these findings of fact, the trial court ultimately determined that

defendant forfeited his right to counsel, explaining as follows:

The Court finds that he had no good cause as of
today, the day of trial, to ask this Court for an attorney to
represent him. That in fact this Court believes that based
upon the defendant's actions from the time that Mr.
Merritt Wagoner was appointed to represent him on May
12, 2017; Mr. Shawn Evans was appointed to represent
him on September 28, 2017, the defendant requesting that
both of these attorneys withdraw from representing him,
finds that the defendant has forfeited his right to have an
attorney to represent him at this trial; that his actions have
been willful and that he has obstructed and delayed these
court proceedings.

Therefore[,] the Court finds that the defendant has
forfeited his right to have an attorney represent him at this
trial. . . .

¶ 54 In sum, defendant’s third attorney was appointed on May 12, 2017, and

subsequently withdrew in September of that year. His fourth attorney was appointed

before he withdrew less than three months later in December, as the January trial

loomed. Still, defendant’s issues with counsel persisted; on April 23, 2018, defendant’s
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Berger, J., dissenting

trial date, defendant expressed his displeasure with standby counsel and sought to

have that attorney replaced, which would have further delayed trial.

I. Analysis

¶ 55 While constitutional matters, such as the right to counsel, are reviewed de

novo, a trial court’s findings of fact are afforded great deference. This Court has

stated that “[a]n appellate court reviews conclusions of law pertaining to a

constitutional matter de novo. The trial court’s findings of fact are binding on appeal

if they are supported by competent evidence, and they must ultimately support the

trial court’s conclusions of law.” State v. Bowditch, 364 N.C. 335, 340, 700 S.E.2d 1,

5 (2010) (cleaned up).

¶ 56 In State v. Simpkins, and as the majority does here as well, the Court employed

a de novo standard of review, substituting its judgment for that of the trial court. 373

N.C. 530, 533, 838 S.E.2d 439, 444 (2020). Yet, in footnote 3 of Simpkins, the Court

recognized that in that case the trial court never concluded that defendant had

forfeited his right to counsel; however, we explained that “[i]f it had, and had made

findings of fact supporting that conclusion, then those findings would be entitled to

deference.” Id. at 533 n.3, 838 S.E.2d at 444 n.3 (citing Bowditch, 364 N.C. at 340,

700 S.E.2d at 5).

¶ 57 Both the majority and dissenting opinions in Simpkins showed concern for the

deference given to trial courts. Dissenting in Simpkins, then-Justice Newby, joined
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Berger, J., dissenting

by Justice Morgan, pointed out that “the majority finds facts from a cold record to

reverse the trial court’s determination,” and opined that “[t]he majority’s decision

undermines the trial court’s fundamental authority over the courtroom.” Simpkins,

373 N.C. at 542, 838 S.E.2d at 450 (Newby, J., dissenting). Further, the dissent

explained that “[o]nly the trial courts could evaluate defendant’s tone of voice,

emotions, body language, and other non-verbal communication cues accompanying

his words to assess his sincerity . . . . The trial court could truly understand

defendant’s actions to know when to protect the court proceedings from undue

disruption and delay.” Id. at 545, 838 S.E.2d at 452 (Newby, J., dissenting).

¶ 58 Here, unlike the trial court in Simpkins, the trial court made findings of fact

which are entitled to deference. The trial court made appropriate findings that

defendant “obstructed and delayed” the court’s proceedings. In its findings, the trial

court listed numerous times when defendant could have had an attorney represent

him rather than use standby counsel and did not, while also detailing the times

defendant asked his attorneys to withdraw. The trial court determined these

behaviors to be willful and obstructive. These findings were supported by the

evidence in the record and are entitled to deference by this Court. Rather than defer

to the trial court, the majority makes findings from the record that defendant was

“polite” and “cooperative” to conclude that defendant did not forfeit his right to

counsel.
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Berger, J., dissenting

¶ 59 The Sixth Amendment and Fourteenth Amendment to the United States

Constitution and article I of the North Carolina Constitution guarantee a criminal

defendant’s right to counsel. There are two circumstances where “a defendant may

no longer have the right to be represented by counsel”: (1) waiver and (2) forfeiture.

State v. Blakeney, 245 N.C. App. 452, 460, 782 S.E.2d 88, 93 (2016); see also State v.

Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992); Simpkins, 373 N.C. at 541,

838 S.E.2d at 449.

¶ 60 A defendant may waive his Sixth Amendment right to counsel, but “[w]aiver

of the right to counsel and election to proceed pro se must be expressed clearly and

unequivocally.” Blakeney, 245 N.C. App. at 459, 782 S.E.2d at 93 (cleaned up). “Once

a defendant clearly and unequivocally states that he wants to proceed pro se, the trial

court, to satisfy constitutional standards, must determine whether the defendant

knowingly, intelligently, and voluntarily waives the right to in-court representation

by counsel.” Thomas, 331 N.C. at 674, 417 S.E.2d at 476. “In order to determine

whether the waiver meets that standard, the trial court must conduct a thorough

inquiry.” Id. The inquiry required by N.C.G.S. § 15A-1242 satisfies this

constitutional requirement. Id.

¶ 61 Forfeiture is the second circumstance in which a defendant may lose his right

to Sixth Amendment counsel. Blakeney, 245 N.C. App. at 460, 782 S.E.2d at 93.

“Unlike waiver, which requires a knowing and intentional relinquishment of a known
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Berger, J., dissenting

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.”

State v. Montgomery, 138 N.C. App. 521, 524, 530 S.E.2d 66, 69 (2000) (quoting

United States v. Goldberg, 67 F.3d 1092, 1100 (3d Cir. 1995)).

¶ 62 In Simpkins, this Court held that “in situations evincing egregious misconduct

by a defendant, a defendant may forfeit the right to counsel.” 373 N.C. at 535, 838

S.E.2d at 446. Further, this Court recognized that

in rare circumstances a defendant’s actions frustrate the
purpose of the right to counsel itself and prevent the trial
court from moving the case forward. In such circumstances,
a defendant may be deemed to have forfeited the right to
counsel because, by his or her own actions, the defendant
has totally frustrated that right. If one purpose of the right
to counsel is to justify reliance on the outcome of the
proceeding, then totally frustrating the ability of the trial
court to reach an outcome thwarts the purpose of the right
to counsel.

Id. at 536, 838 S.E.2d at 446 (cleaned up). The Court also noted that

[i]f a defendant . . . continually hires and fires counsel and
significantly delays the proceedings, then a trial court may
appropriately determine that the defendant is attempting
to obstruct the proceedings and prevent them from coming
to completion. In that circumstance, the defendant’s
obstructionist actions completely undermine the purpose of
the right to counsel.

Id. at 538, 838 S.E.2d at 447 (emphases added).

¶ 63 In this case, defendant forfeited his right to counsel by engaging in “egregious
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Berger, J., dissenting

misconduct” which “frustrat[ed] the ability of the trial court to reach an outcome” by

repeatedly acquiring and disposing of counsel. See id. at 536–36, 838 S.E.2d at 447.

Defendant asked his third attorney to withdraw. Then, as the trial date drew near,

defendant fired his fourth attorney. Mr. Evans’s motion to withdraw paints a

different picture from what the majority finds to be a “cooperative” defendant.

Finally, as the new date for the trial approached, defendant challenged the assistance

he received from standby counsel and sought to have standby counsel replaced. He

waived counsel, and then seemed to request counsel again.

¶ 64 As his trial approached, defendant attempted to delay the proceedings by

having his counsel removed and replaced. Defendant’s “obstructionist actions

completely undermine[d] the purpose of the right to counsel”—rather than utilizing

counsel to prepare for trial, defendant refused to engage with his attorneys and hired

and fired counsel to delay his trial. See id. at 538, 838 S.E.2d at 447. As the trial

court determined, defendant’s conduct rises to the level of egregious conduct that

should result in a forfeiture of the right to counsel.

¶ 65 In concluding that defendant did not forfeit his right to counsel, the majority

divides forfeiture into two categories, ultimately concluding that neither apply.

Supra ¶ 34. The first category includes “aggressive, profane, or threatening

misbehavior.” Supra ¶ 34. In this case, because “defendant remained polite and calm

throughout all of his . . . appearances and . . . interactions,” this category of forfeiture
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Berger, J., dissenting

does not apply. Supra ¶ 34. The majority’s second category requires that defendant

seriously obstruct the proceedings. Supra ¶ 35 (quoting Simpkins, 373 N.C. at 538,

838 S.E.2d at 447). To seriously obstruct proceedings, according to the majority,

defendant could engage in any of the following behaviors: refusing to permit a trial

court to comply with the mandatory waiver colloquy of N.C.G.S. § 15A-1242; refusing

to obtain counsel after multiple opportunities to do so; refusing to participate in the

proceedings;1 or continually hiring and firing counsel which significantly delays the

proceedings. Supra ¶ 35.

¶ 66 The majority ultimately concludes that defendant’s conduct here did not rise

to the level of forfeiture under these criteria despite facts in the record that defendant

delayed the resolution of his matter by refusing to engage with counsel and hiring

and firing counsel.

¶ 67 The majority argues that defendant’s conduct is “far short” of being so

egregious that it obstructed the trial court and constituted a forfeiture of his

constitutional right to counsel. Supra ¶ 39. The majority supports this conclusion by

pointing out that “defendant did not use profanity, make any threats, or act out in an

assaultive, aggressive, or discourteous manner” in court. Supra ¶ 39.

¶ 68 However, a defendant’s civility in the courtroom is not the gatekeeper for

1One could argue that the failure of a defendant to engage with counsel appropriately
in preparing a defense could constitute a refusal to participate in the proceedings.
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Berger, J., dissenting

forfeiture of counsel as a matter of law. One need not use profanity, threaten anyone,

act aggressively, become physically violent with counsel, or act discourteously to

delay a trial and frustrate the judicial process. This Court embarks on an unwise

path if a defendant may engage in delay tactics so long as he refrains from foul

language, violence, and threats of violence in front of a judge.

¶ 69 Next, the majority looks at this case from inception to conclusion, determining

that defendant’s first two attorneys withdrew for reasons beyond defendant’s control.

The majority finds that thirty months of the delay were not attributable to defendant.

However, the majority brushes past the fact that “[a]fter the withdrawal of his first

two appointed attorneys . . . in the subsequent two and one-half month period from

28 September 2017 to 12 December 2017, defendant requested the withdrawal of two

other appointed attorneys.” Supra ¶ 43.

¶ 70 The majority again points out the civility of defendant in noting that from

December 28, 2017 to April 23, 2018, defendant remained “cooperative and polite,”

while “attempting to preserve his legal rights and to pursue his legal strategies as he

attempted to prepare for trial.” Supra ¶ 43. Further, the majority asserts that

“defendant engaged courteously and constructively” with the trial court and thus his

behavior did not amount to egregious conduct sufficient to forfeit a right to counsel.

Supra ¶ 44.

¶ 71 Overall, the majority’s reliance on its finding of the civility of defendant is
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misplaced. This focus puts trial courts in an impossible position. Even when a trial

court makes findings that a defendant acted willfully and delayed the resolution of

his case, as the trial court did here, this Court engages in fact finding from a cold

record to conclude that defendant was “polite” and thus did not forfeit counsel. Trial

courts cannot be expected to know when enough is enough and are left to wonder how

“rude” a defendant must be before he may be found to have forfeited counsel.

II. Conclusion

¶ 72 For this Court to conclude from a cold record that defendant was “polite” and

“courteous,” and thus entitled to continue to delay his trial by hiring and firing

counsel strikes the wrong balance between the rights of criminal defendants and

judicial efficiency. While criminal defendants enjoy a right to counsel, they also have

the responsibility to cooperate with counsel and not obstruct the judicial process. As

the trial court determined, defendant’s conduct was sufficiently egregious to forfeit

counsel, and I respectfully dissent.

Chief Justice NEWBY and Justice BARRINGER join in this dissenting

opinion.