Case Summaries: N.C. Court of Appeals (June 15, 2021)

This post summarizes published criminal decisions from the North Carolina Court of Appeals released on June 15, 2021. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.

The defendant forfeited the right to counsel by firing various appointed attorneys and failing to hire an attorney after waiving appointed counsel

State v. Atwell, ___ N.C. App. ___, 2021-NCCOA-271 (June 15, 2021).  In this case where the defendant was convicted of violating a DVPO by attempting to purchase a firearm, the indictment was facially valid and the trial court did not err in concluding that the defendant forfeited her right to appointed counsel.

Reciting general principles regarding the facial validity of indictments, the court found the indictment in this case was valid because, among other things, it specifically referenced the defendant’s attempt to purchase a firearm and the existence of the DVPO.

As to the defendant’s forfeiture of her right to counsel, the court discussed State v. Simpkins, 373 N.C. 530 (2020) and State v. Curlee, 251 N.C. App. 249 (2016), noting that the Simpkins court contemplated that counsel may be forfeited in situations where a defendant obstructs proceedings by continually hiring and firing counsel or refusing to obtain counsel after multiple opportunities to do so.  The court noted that the Curlee court contemplated that a defendant properly may be required to proceed to trial without counsel when the defendant waives appointed counsel and has a case continued several times to hire counsel while knowing that he or she likely will be unable to do so, provided that the defendant is informed of the consequences of proceeding pro se and is subjected to the inquiry required by G.S. 15A-1242.  Here, the defendant appeared at a pretrial hearing without representation after her fifth attorney had withdrawn.  Over a period of two years, her previous appointed attorneys had either withdrawn or been fired by the defendant, and during that time the defendant had waived counsel on several occasions, including at the setting preceding the pretrial hearing.  At the pretrial hearing, the trial court denied the defendant’s request for another appointed attorney, advised her of the consequences of proceeding pro se, and conducted the inquiry required by G.S. 15A-1242.  The trial court then entered an order finding that the defendant had forfeited her right to counsel, though the trial court had reiterated that the defendant was free to hire counsel between the pretrial hearing and the trial date.  The majority opinion found no error.

Judge Jackson concurred in the majority’s opinion with respect to the validity of the indictment but dissented with respect to the counsel forfeiture issue, finding that the trial court’s colloquy with the defendant at the pretrial hearing was insufficient for purposes of G.S. 15A-1242 and that the record did not reveal that the defendant engaged in the sort of egregious misconduct that would support a finding of forfeiture.


The trial court did not err in denying the defendant’s motion to withdraw his Alford plea and there was a factual basis for the plea

State v. Crawford, ___ N.C. App. ___, 2021-NCCOA-272 (June 15, 2021).  The defendant entered an Alford plea pursuant to a plea agreement where convictions for felony larceny and felony possession of a stolen motor vehicle would be consolidated for sentencing.  The defendant failed to appear at a scheduled sentencing hearing and was later arrested.  When the defendant appeared over two months later at a sentencing hearing following his arrest, he moved to withdraw his plea but the trial court denied the motion.  Analyzing the non-exclusive list of factors enumerated in State v. Handy, 326 N.C. 532 (1990) bearing on whether a defendant has carried his or her burden of showing some “fair and just reason” supporting withdrawal of the plea, the court found, focusing particularly on the defendant’s failure to show the timeliness of his motion, that the trial court did not err in denying the defendant’s motion to withdraw his plea.

Addressing the defendant’s separate argument that there was an insufficient factual basis for his plea and recognizing precedent holding that a factual basis for an Alford plea cannot be supplied by a plea transcript standing alone, the court distinguished State v. Agnew, 361 N.C. 333 (2007) and concluded that factual information alleged in the indictments coupled with the plea transcript provided a sufficient factual basis for the plea and the trial court did not err in accepting it.


A Watauga County trial court lacked jurisdiction to revoke the defendant’s probation imposed in Lincoln and Catawba counties

State v. Ward, ___ N.C. App. ___, 2021-NCCOA-274 (June 15, 2021).  A Watauga County trial court lacked jurisdiction to revoke the defendant’s probation imposed in two separate cases in other counties, one probationary sentence imposed in Lincoln County and the other in Catawba County.  As to the Lincoln County case, the State failed to meet its burden to show that the defendant was properly being supervised in Watauga County as there was no evidence that the probation was imposed in Watauga County, that the defendant violated probation imposed in the Lincoln case while she was in Watauga, or that the defendant resided in Watauga County at any relevant time.  The State failed to meet its burden to show the same with respect to the Catawba County case.


The trial court did not plainly err with respect to an Allen charge and the defendant received statutory IAC during SBM proceedings

State v. Gordon, ___ N.C. App. ___, 2021-NCCOA-273 (June 15, 2021).  In this sex offense and indecent liberties case where the defendant was ordered to enroll in lifetime SBM, the trial court did not plainly err with respect to an Allen charge, the defendant did not preserve his argument related to SBM, and the defendant received statutory ineffective assistance of counsel during the SBM proceedings.  Approximately one hour after beginning deliberations, the jury sent a question to the court asking for clarification as to whether they must have unanimous agreement to render a guilty verdict and whether a lack of unanimity would require that they return a not guilty verdict.  In response and without objection from either party, the trial court responded to the jury’s question with instructions derived from G.S. 15A-1235(a).  The court of appeals rejected the defendant’s argument that the trial court plainly erred by omitting instructions from G.S. 15A-1235(b), explaining that the jury’s question asked for clarification on the issue of unanimity and did not clearly indicate that the jury was deadlocked, in disagreement, or at an impasse.  As such, the trial court did not err by reciting the unanimity instructions in G.S. 15A-1235(a) without providing the additional instructions in subsection (b).

As to SBM, the court first found that the defendant failed to preserve a Fourth Amendment challenge to the lifetime SBM order by failing to make a constitutional objection during the sentencing proceeding where SBM was addressed, and further declined to invoke Rule 2 to reach the issue.  The court went on to agree with the defendant’s alternative argument that he received statutory ineffective assistance of counsel under G.S. 7A-451(a)(18).  Likening the case to State v. Spinks, ___ N.C. App. ___, 2021-NCCOA-218 (2021), the court found that counsel was ineffective by failing to object to SBM enrollment or file a notice of appeal from the SBM order where the State offered no evidence of the reasonableness of lifetime SBM.

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