In December, the North Carolina Supreme Court decided State v. Atwell, 2022-NCSC-135, ___ N.C. ___ (2022)—its third time weighing in on the issue of forfeiture of counsel. The defendant had had five court-appointed attorneys when the trial court determined that the defendant was engaging in delay tactics and entered an order of forfeiture. A majority of the Court of Appeals found no error. In reversing this decision, a majority of the Supreme Court concluded that the record did not show that the defendant engaged in the level of conduct sufficient to warrant a finding of forfeiture.
This post discusses State v. Atwell, forfeiture guidelines as set forth by the state Supreme Court, and suggested practices in dealing with forfeiture of counsel issues.
What are the facts?
The defendant was arrested for a felony violation of a domestic violence protective order on September 4, 2017 and was appointed counsel the next day. The defendant was not indicted until February 5, 2018. Between the defendant’s arrest and indictment, she filed two pro se continuances and sought to have her attorney removed, stating that she and the attorney had a “serious conflict.” The defendant filed a second pro se motion to remove her appointed attorney on February 12, and the motion was allowed on April 17. The defendant filed a waiver of counsel form on April 17 and another on May 15, waiving her right to appointed counsel.
The defendant filed a pro se motion for a continuance on June 12, noting that she was experiencing health problems and lacked an attorney. The trial court appointed a second attorney to represent the defendant that same day. On July 24 and again on August 13, the defendant filed additional pro se motions to dismiss the charge against her and requested a change of venue.
On September 11, the second attorney made a motion to withdraw for reasons not specified in the record, and the trial court appointed a third attorney. The third attorney was allowed to withdraw on October 11, again for reasons not specified in the record, and the defendant filed a third waiver of appointed counsel form. At a hearing on December 13, the defendant said she had been unsuccessful in obtaining private counsel, and the court appointed a fourth attorney. On January 31, 2019, the court granted the fourth attorney’s request to withdraw, again for reasons not specified in the record, and appointed a fifth attorney. By June 26, 2019, the defendant had filed a motion to remove the fifth attorney and sought another continuance in August. On August 21, the trial court allowed the fifth attorney to withdraw, and the defendant signed another waiver of appointed counsel form.
At a hearing on September 18, 2019, the defendant explained that she had made payments to a private attorney but could no longer afford to do so and requested appointed counsel. The trial court denied the defendant’s request for appointed counsel but granted a continuance to give the defendant additional time to retain an attorney. In its order, the court highlighted that the defendant had received five appointed counsel, two of which she asked be removed, and signed numerous waivers of appointed counsel. In finding that the defendant forfeited her right to counsel, the court stated that the defendant’s conduct was “nothing more than a delay tactic and an attempt to do whatever she can to avoid bringing this matter to a conclusion.” Slip op. at ¶ 7.
The court set the case for trial for December 2 and advised the defendant that she could still retain counsel but that the defendant would need to proceed on that date “with or without retained counsel.” The defendant was present without counsel on the first day of trial on December 2 but did not return for subsequent days and was ultimately convicted.
On appeal, the defendant challenged the trial court’s decision finding that she had forfeited the right to counsel. The Court of Appeals upheld the trial court’s decision, primarily on the ground that the defendant had waived counsel. The Court found that the trial court engaged in a sufficient colloquy with the defendant before she waived appointed counsel by advising her of her right to counsel, the consequences of proceeding without counsel, and the nature of the proceedings and potential punishments. The Court added that assuming the waiver was not effective, the defendant forfeited counsel because she repeatedly fired appointed counsel and alternatively sought appointed counsel or additional time to hire an attorney while filing multiple waivers of appointed counsel. The Supreme Court found that waiver principles were not applicable in this case because the defendant expressly stated that she wanted appointed counsel and that she did not want to proceed pro se. Instead, the determinative question, discussed below, was whether the defendant forfeited the right to counsel.
What’s the difference between forfeiture of counsel and waiver of counsel?
In overturning the Court of Appeals, the North Carolina Supreme Court emphasized the difference between waiver of counsel and forfeiture of counsel. A waiver of counsel involves a knowing, voluntary, and intelligent relinquishment of the constitutional right to counsel. Where a defendant expresses a desire to proceed without counsel, a court is required to engage in the colloquy set forth in G.S. 15A-1242 before allowing a defendant to be tried without counsel. The Supreme Court found in this case that the sufficiency of the colloquy was not a relevant point of analysis because the defendant did not express a desire to proceed pro se. She did the opposite, requesting appointment of counsel.
Forfeiture of counsel, on the other hand, is not an express choice to proceed pro se. Forfeiture is an involuntary relinquishment of the right to counsel as a result of a defendant’s egregious misconduct. Where a court finds that a defendant has forfeited the right to counsel, the court is not required to engage in the G.S. 15A-1242 colloquy.
What constitutes forfeiture?
Perhaps the most difficult part of finding that a defendant has forfeited the right to counsel is determining whether the defendant’s behavior reaches the level of egregious misconduct that warrants the finding. There is no bright line as to the degree of misconduct that must be displayed to warrant forfeiture, shown by the differences of opinion between the majority and dissenting opinions by the Court of Appeals and Supreme Court in Atwell. The Supreme Court, in State v. Simpkins, 373 N.C. 530 (2020), provided guidelines to finding of forfeiture.
The clearest avenue by which a defendant forfeits the right to counsel is by assaulting his or her attorney, making the representation itself physically dangerous. See State v. Montgomery, 138 N.C. App. 521 (2000) (finding forfeiture where a defendant disrupted court proceedings with profanity and assaulted his attorney in court); see also State v. Joyner, 237 N.C. App. 513 (2014) (finding forfeiture where a defendant yelled obscenities in court, threatened the trial judge and a law enforcement officer, and behaved in a belligerent manner).
Much less clear is finding that a defendant forfeits the right to counsel by engaging in a serious obstruction of the proceedings. A defendant can accomplish this by:
- refusing to obtain counsel after multiple opportunities to do so;
- refusing to say whether he or she wishes to proceed with counsel;
- refusing to participate in the proceedings; or
- continually hiring and firing counsel and significantly delaying the proceedings.
Even so, the Supreme Court has made clear that even if a defendant’s conduct is highly frustrating, forfeiture is not constitutional where any difficulties or delays are not so egregious that they frustrate the purposes of the right to counsel. Simpkins, 373 N.C. at 539. Simpkins observed that the purpose of the right to counsel is to assure that a defendant is not left to his own devices in facing prosecution and to guarantee “that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.” Id. at 535-36. An argumentative attitude with counsel, conspiratorial concerns, and unfounded beliefs might cause extreme difficulty between a defendant and attorney but is generally not considered conduct that would frustrate the right to counsel. See State v. Patterson, 272 N.C. App. 569 (2020).
Why was there not forfeiture in Atwell?
In each of the three forfeiture cases decided by our Supreme Court—Simpkins, State v. Harvin, 2022-NCSC-111, ___ N.C. ___ (2022), and now Atwell—the Court determined that the defendant’s conduct did not rise to a level sufficient to warrant a forfeiture of counsel. The Supreme Court in Atwell found that the trial court focused on its perception that the defendant had been appointed and had dismissed multiple attorneys in an effort to delay the proceedings. However, the Supreme Court found from a careful review of the course of the proceedings that the trial court misunderstood the defendant’s attorney situation and erroneously attributed blame for the delay in the proceedings to the defendant.
The Court noted the five-month delay between the defendant’s arrest on September 4, 2017, and her indictment on February 5, 2018, which the Court attributed solely to the State. The Court also considered the delays between the defendant’s motions to remove counsel and the disposition of those motions. The defendant’s first motion to remove the first attorney was never addressed by the State or the trial court, and the second motion to remove that attorney, filed on February 12, was not resolved until April 17. Similarly, the defendant’s motion to remove the fifth attorney was not resolved for almost two months. The Court also found it difficult to characterize the defendant’s requests for continuances and other motions as having delayed the matter, given that the State had not attempted to set the case for trial during the entire 18-month period.
The Court also engaged in an attorney-by-attorney analysis. The Court found that the trial court characterized the defendant as having “fired” her court-appointed attorneys, but the record did not indicate the reasons for the withdrawals, which previous judges had allowed. There were no findings of fact about the alleged conflict of interest between the defendant and the first attorney or any other potential reasons for the attorney’s withdrawal; nothing in the record about the reasons for the withdrawal of the second attorney or even that the defendant had requested his withdrawal; and no findings about the reason for the withdrawal of the third and fourth attorneys. As for the fifth court-appointed attorney, the defendant requested her withdrawal, alleging that the attorney was unwilling to pursue a jurisdictional and a notice issue involving the DVPO. The Supreme Court did not address these issues but found that whether or not the issues would have been determined to have merit, they could not be “characterized as frivolous.” Slip op. at ¶ 27. The Court thus concluded that the defendant’s desire to have the fifth attorney removed from her case did not appear to be obstructive or merely an attempt to delay trial.
The Court ultimately concluded—as it did in Simpkins and Harvin—that the record did not “permit an inference, much less a legal conclusion,” that the defendant engaged in the type of egregious misconduct that would constitute a forfeiture of counsel.” Slip op. at ¶ 31.
What’s a judge to do?
How should judges proceed when the defendant has a lengthy history of attorney changes and the case has taken some time to get to trial? I’ll start with two very important and simple takeaways: 1) the length of time that the case has been active is not dispositive, and 2) the number of attorneys (appointed or retained) that have been on the case is not dispositive. Neither of these factors, without more, constitutes automatic grounds for forfeiture.
How long is too long? How many attorneys is too many? There is no magic number. Judges should take a close look at the case history to determine the cause of any delays. Is the defendant raising last-minute counsel issues? Has the State contributed to the delay in the proceedings? Why are attorneys moving to withdraw?
The Supreme Court’s reasoning in Atwell indicates that the record simply did not support the trial judge’s determination that the defendant was deliberately delaying the case. Taking this into consideration, trial judges should be sure to make findings about the reasons, to the extent they may be disclosed, that attorneys are withdrawing from a case. It may also benefit all parties to note and address, where appropriate, delays between proceedings, including dispositions of motions.
This is not just a job for the judge who decides about forfeiture. When a defendant appears before a judge and is on their fourth or fifth attorney, the judge may look at the case history and be short on patience. As the last trial judge in Atwell observed, “I’ve never seen a file like this as far as your attorney situation goes.” 278 N.C. App. At 86. Without an adequate record of the prior proceedings, however, the last judge may not be in a position to determine whether a defendant crossed the high threshold for forfeiture. The Atwell decision cautions that where the answer is not clear, judges should engage every reasonable presumption against forfeiture.