In McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018), the US Supreme Court held that a defendant’s Sixth Amendment counsel right was violated when trial counsel admitted guilt over the defendant’s intransigent objection. In this post, I’ll discuss what impact, if any, McCoy has on North Carolina law. Continue reading
Tag Archives: right to counsel
Twenty-five years ago the North Carolina Supreme Court departed from national standards on attorney-client decision-making and gave clients greater control over the direction of their case, including trial strategy and tactics. Since then, the North Carolina courts have sorted through various matters on which attorneys and clients have disagreed. A recent decision, State v. Ward (Nov. 1, 2016), applies and perhaps expands one of the exceptions to client control over the case. Continue reading →
Suppose that when a criminal defendant appears in court, he is advised of the right to have counsel appointed if indigent, tells the judge he wants to hire his own lawyer, and signs a written waiver of his right to appointed counsel. When the defendant next appears in court, he does not have a lawyer. May the judge rely on the waiver of appointed counsel to require the defendant to proceed, without inquiring whether the defendant wants the assistance of counsel? Continue reading →
The United States Supreme Court and North Carolina appellate courts have ruled that a defendant must make an unambiguous request for counsel under Miranda to bar an officer’s custodial interrogation. A week ago, the North Carolina Court of Appeals in State v. Taylor (April 19, 2016), ruled that the defendant did not make an unambiguous request for counsel under Miranda. This post provides the background to this issue and discusses the Taylor ruling. Continue reading →
In an opinion last week, the court of appeals helpfully summarized the law about how a defendant may lose the right to counsel, and may have recognized a new way that a defendant may lose that right. The case is State v. Blakeney, and this post explores it briefly. Continue reading →
I thought I’d take a few minutes and jot down some questions and answers about the new fine-only punishment scheme for Class 3 misdemeanors for many defendants (enacted as part of the 2013 Appropriations Act). Several hours later—after thinking about the different permutations, reading several cases, talking with patient colleagues, and pondering further—I came up with a list of 33 questions and answers on Appointment of Counsel for Class 3 Misdemeanors. The subject poses both constitutional and practical questions.
Beginning with offenses committed on or after December 1, 2013, the basic rule is that a court may not impose a punishment other than a fine for a Class 3 misdemeanor if the defendant has three or fewer convictions and no other statute authorizes a greater punishment. See G.S. 15A-1340.23(d). The impact of this rule is that defendants who cannot receive more than a fine are generally not entitled to appointed counsel because, under the Sixth Amendment, the right to counsel in misdemeanor cases applies only if the defendant receives a sentence of active or suspended imprisonment.
This aspect of Sixth Amendment jurisprudence has always been awkward to apply because it requires that courts work backward from the sentence to be imposed at the end of the case in determining the defendant’s entitlement to counsel at the outset of the case. (For felonies, an indigent defendant always has a right to appointed counsel.) The new punishment scheme for Class 3 misdemeanors poses new questions, such as:
- What dispositions are permissible for “fine-only” Class 3 misdemeanors? Are costs permissible? A deferred prosecution? A sentence of time served?
- When does the court have to determine the defendant’s prior record for purposes of appointing counsel?
- What of a defendant charged with a Class 3 misdemeanor who has been arrested and cannot make bond? Does he or she have a right to counsel although not subject to imprisonment if convicted?
- Do the collateral consequences of a conviction have a bearing on the analysis?
People undoubtedly will have more questions as well as different views about the impact of the change. As always, feel free to weigh in with your questions and comments.
The legislature has agreed on a budget, and it contains some provisions that will impact misdemeanor sentencing and the appointment of counsel — potentially in tens of thousands of cases each year.
Status of the budget. The current budget bill is S 402. It is available here. The accompanying “money report,” which provides narrative explanations of some of the provisions of the budget, is available here. Republican leaders in both chambers have endorsed the bill. The General Assembly is expected to approve it in the next two days, and Governor McCrory is expected to sign it.
Change to Structured Sentencing grid. Section 18B.13.(a) of the budget changes the misdemeanor Structured Sentencing grid as follows, effective for offenses committed on or after December 1, 2013:
This is the first change to the misdemeanor grid since 1995.
Fine only for many Class 3 misdemeanors. The same section states that “[u]nless otherwise provided for a specific offense, the judgment for a person convicted of a Class 3 misdemeanor who has no more than three prior convictions shall consist only of a fine.” Fines for Class 3 misdemeanors generally may not exceed $200. G.S. 15A-1340.23(b).
One question about this provision is whether it applies to a defendant who has three or fewer prior convictions that may be counted separately for Prior Conviction Level purposes, but who has four or more total prior convictions. (For example, a defendant who incurred several convictions in a single week or session of court. See generally G.S. 15A-1340.21(d).) The new fine-only provision appears in the General Statutes amidst the discussion of the Prior Conviction Level determination, so maybe so. But it does not expressly refer to or incorporate the Prior Conviction Level rules, so maybe not.
Reclassification of offenses. In addition to changing the punishments for Class 3 misdemeanors, the budget also creates more of them. Section 18B.14 reclassifies a number of misdemeanors – most currently Class 2 – as Class 3 offenses. The new Class 3 misdemeanors include:
- Obtaining property by worthless check, G.S. 14-106
- Simple worthless check, G.S. 14-107
- Failure to return hired property, G.S. 14-167
- Conversion by bailee, G.S. 14-168.1
- Failure to return rental property with purchase option, G.S. 14-168.4
- DWLR, G.S. 20-28 (unless revoked for DWI, then still Class 1)
- Certain motor vehicle misdemeanors that were Class 2 under G.S. 20-35, including:
- Most NOLs, G.S. 20-7
- Failure to tell DMV of address change by driver, G.S. 20-7.1
- Allowing vehicle to be driven by unlicensed person, G.S. 20-34
- Certain motor vehicle misdemeanors that were Class 2 under 20-176, including:
- Failure to carry registration card in vehicle, G.S. 20-57(c)
- Failure to sign registration card, G.S. 20-57(c)
- Failure to tell DMV of address change by vehicle, G.S. 20-67
- Certain license plate/registration violations, G.S. 20-111
- Window tinting violations, G.S. 20-127(d)
- Misdemeanor speeding, G.S. 20-141(j1)
- No insurance, G.S. 20-313(a)
- Repeat fishing without a license, G.S. 113-135(a) (referring to 113-174.1 and -270.1B)
Also, section 18B.15 of the budget reclassifies a number of boating safety offenses from Class 3 misdemeanors to infractions.
Ineligibility for appointed of counsel. It seems that one goal of these provisions was to save money on appointed counsel. The money report states that IDS’s budget will be reduced by $2,000,000 annually because the budget “[r]eclassifies low-level misdemeanors that rarely result in incarceration as Class 3 misdemeanors or infractions and modifies the sentencing structure for Class 3 misdemeanors so that the first three [editor’s note: probably should read “four”] charges are fineable offenses. With no possibility of incarceration, these offenses do not require legal counsel.”
In other words, the changes made by the budget will provide that a defendant charged only with a Class 3 misdemeanor, and who has no more than three prior convictions, will be facing a potential sentence of a fine of $200 or less. Constitutionally, an indigent defendant is entitled to appointed counsel when facing incarceration, Argersinger v. Hamlin, 407 U.S. 25 (1972), or even a suspended sentence, Alabama v. Shelton, 535 U.S. 654 (2002), but not a fine alone, Scott v. Illinois, 440 U.S. 367 (1979). Nor does a defendant facing a small fine have a right to counsel under the North Carolina statute governing appointment of counsel. It extends only to cases in which “imprisonment, or a fine of five hundred dollars . . . or more, is likely to be adjudged.” G.S. 7A-451(a)(1).
Note that if a defendant is sentenced to a fine but does not pay it, “the court, upon the motion of the prosecutor or upon its own motion, may require the defendant to appear and show cause” for his failure to pay, and if he cannot, may imprison the defendant for up to 30 days. G.S. 15A-1364. I don’t know how common these show cause proceedings are, but a defendant would appear to be entitled to counsel at any such hearing.
Administering the new provisions. It will be interesting to see how these changes work in practice. For example:
- Who will be responsible for determining how many prior convictions the defendant has? The prosecutor? The clerk?
- How thoroughly will the responsible party research the defendant’s prior record? Will an ACIS check of the county in which the charges are pending be the norm? A statewide ACIS check? Will CJLEADS or other systems be used for this purpose?
- Will judges err on the side of appointing counsel in order to protect defendants’ rights, or to preserve the possibility of a sentence other than a fine? Will that remove some of the anticipated cost savings?
As always, I’m interested in readers’ thoughts about the upcoming changes in the law. Given the number of cases affected, the changes appear to be quite significant.
In response to my recent post (here) about waivers of counsel, a number of you emailed asking me to write about forfeiture of the right to counsel. Your wish is my command.
Although cases sometimes confuse the terms, waiver is different from forfeiture. A waiver of counsel involves a knowing, voluntary, and intelligent relinquishment of the right to counsel. Forfeiture of the right to counsel involves an involuntary relinquishment of the right. Typically, forfeiture is understood to occur when the defendant’s misconduct results in a relinquishment of the right. State v. Montgomery, 138 N.C. App. 521, 524 (2000) is a commonly cited N.C. case on point. The facts were as follows. In January 1997, the defendant was found to be indigent and assistant public defender Thurston Fraizer was appointed as counsel. One month later, the defendant’s family retained George Laughrun to represent him. Then, in August 1997, Laughrun successfully moved to withdraw; a month later, the public defender again was appointed. In December 1997, private attorney Thomas Duncan filed a notice of appearance as defendant’s counsel. On February 16, 1998, the day of trial, Duncan moved for a continuance, and apparently to withdraw, saying that he was retained by the defendant’s girlfriend but that the defendant no longer wished to be represented by him. The court denied the motion to withdraw, informed the defendant of his right to proceed pro se, and told him that he was not entitled to appointment of another lawyer. The next day, the defendant appeared in court, reiterated his objection to Duncan’s representation, and disrupted court with profanity, leading to a finding of contempt. On February 23, 1998, the defendant appeared before another judge. After Duncan again unsuccessfully sought to withdraw, the defendant again became disruptive and again was found in contempt. Trial was set for February 25, 1998. In the courtroom on the day of trial, the defendant threw water in Duncan’s face. He again was found in contempt, and was charged with assault on Duncan. Duncan was allowed to withdraw and the case was continued. In April 1998, the defendant appeared before yet another judge, this time with attorney Fraizer, who said that he had been appointed to represent the defendant in connection with the assault case involving Duncan and that the defendant required representation in the present case. The judge refused to appoint Fraizer but allowed him to serve as standby counsel. After the defendant was convicted, he appealed, arguing that the trial judge had erred by requiring him to proceed pro se. The court of appeal disagreed, finding that the defendant had forfeited his right to counsel. It stated:
A forfeiture results when the state’s interest in maintaining an orderly trial schedule and the defendant’s negligence, indifference, or possibly purposeful delaying tactic, combine to justify a forfeiture of defendant’s right to counsel. A defendant who misbehaves in the courtroom may forfeit his constitutional right to be present at trial and a defendant who is abusive towards his attorney may forfeit his right to counsel.
Applying that rule, the court found that the defendant’s “purposeful conduct and tactics to delay and frustrate the orderly processes of our trial courts simply cannot be condoned.” Thus, it held he forfeited his right to counsel.
Following Montgomery, the court of appeals has found that forfeitures occurred in other cases. See State v. Quick, 179 N.C. App. 647 (2006) (failure to retain counsel over an eight month period amounted to “obstruction and delay of the proceedings” resulting in a forfeiture); State v. Leyshon, __ N.C. App. __, 710 S.E.2d 282 (2011) (forfeiture occurred when the defendant refused to sign a waiver of counsel form and refused to answer the court’s questions about whether he wanted counsel or to proceed pro se); State v. Boyd, 200 N.C. App. 97 (2009) (the defendant willfully obstructed and delayed court proceedings by refusing to cooperate with his appointed attorneys and insisting that his case would not be tried).
Notwithstanding this case law, some cautionary notes are in order. Specifically, in State v. Wray, __ N.C. App. __, 698 S.E.2d 137 (2010), the court articulated “a presumption against the casual forfeiture” of constitutional rights and stated that forfeiture should be restricted cases of “severe misconduct.” In that case, the defendant’s first lawyer was allowed to withdraw because of a breakdown in the attorney-client relationship. His second lawyer withdrew on grounds of conflict of interest. The defendant’s third lawyer was allowed to withdraw after the defendant complained that counsel had not promptly visited him and had “talked hateful” to his wife and after counsel reported that the defendant accused him of conspiring with the prosecutor and contradicted everything the lawyer said. The trial court appointed Mr. Ditz and warned the defendant that failure to cooperate with Ditz would result in a forfeiture of the right to counsel. After the defendant indicated that he did not want to be represented by Ditz, the trial court explained that the defendant either could accept representation by Ditz or proceed pro se. The defendant rejected these choices and asked for new counsel. When Ditz subsequently moved to withdraw, the trial court allowed the motion and found that the defendant had forfeited his right to counsel. On appeal the court held, among other things, that the record did not establish serious misconduct required to support a finding of forfeiture. Specifically, there was no evidence that the defendant used profanity in court, threatened counsel or court personnel, was abusive, or was otherwise inappropriate. Additionally, the court found that the record failed to support a finding of forfeiture because the defendant “was given no opportunity to be heard or to participate in the hearing at which the trial court ruled that he had forfeited his right to counsel.” Thus, Wray suggests that the trial judge should proceed with caution when finding a forfeiture of counsel, making sure that the record fully reflects the defendant’s “severe misconduct” and that the defendant was afforded an opportunity to be heard.
[Editor’s note: For a discussion of waivers in the context of probation violation proceedings, see Jamie Markham’s recent post here.]
In the last batch of N.C. Court of Appeals’ decisions there were two more cases in which convictions were reversed because the trial judge failed to take a proper waiver of counsel. It’s time for a waiver primer. Here are the basic rules:
- A waiver of the constitutional right to counsel – like all waivers of constitutional rights – must be knowing, voluntary, and intelligent.
- When the defendant is indigent, he or she must waive two rights before being allowed to proceed pro se: (a) the right to assignment of counsel at state expense and (b) the right to assistance of counsel. Sometimes an indigent defendant wishes to waive only the right to assignment of counsel at state expense. This could occur, for example, when a family member has agreed to hire a lawyer for the defendant. When an indigent defendant waives the right to assigned counsel with the intention of making arrangements for private counsel, the judge should afford the defendant a reasonable period of time in which to retain counsel. If the defendant repeatedly fails to obtain counsel after having waived only the right to assigned counsel, the judge may consider whether the defendant has forfeited the right to assistance of counsel. However, absent such a forfeiture it is reversible error to allow a defendant who has waived only the right to assigned counsel to proceed pro se.
- To properly take a waiver of counsel, the judge must make a thorough inquiry of the defendant; simply completing the Waiver of Counsel Form, AOC-CR-227 is insufficient and likely will result in reversible error. G.S. 15A-1242 provides that a defendant may proceed pro se only after the trial judge makes thorough inquiry and is satisfied that the defendant:
- Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when the defendant is so entitled;
- Understands and appreciates the consequences of this decision; and
- Comprehends the nature of the charges and proceedings and the range of permissible punishments.
The inquiry must be of the defendant, not defense counsel, and must be on the record. The N.C. Supreme Court has indicated that the following questions comply with the statutorily mandated inquiry:
- Are you able to hear and understand me?
- Are you now under the influence of any alcoholic beverages, drugs, narcotics, or other pills?
- How old are you?
- Have you completed high school? College? If not, what is the last grade you completed?
- Do you know how to read? Write?
- Do you suffer from any mental handicap? Physical handicap?
- Do you understand that you have a right to be represented by a lawyer?
- Do you understand that you may request that a lawyer be appointed for you if you are unable to hire a lawyer; and one will be appointed if you cannot afford to pay for one?
- Do you understand that, if you decide to represent yourself, you must follow the same rules of evidence and procedure that a lawyer appearing in this court must follow?
- Do you understand that, if you decide to represent yourself, the court will not give you legal advice concerning defenses, jury instructions or other legal issues that may be raised in the trial?
- Do you understand that I must act as an impartial judge in this case, that I will not be able to offer you legal advice, and that I must treat you just as I would treat a lawyer?
- Do you understand that you are charged with ________, and that if you are convicted of this [these] charge[s], you could be imprisoned for a maximum of ________ and that the minimum sentence is ________? [Add fine or restitution if necessary.]
- With all these things in mind, do you now wish to ask me any questions about what I have just said to you?
- Do you now waive your right to assistance of a lawyer, and voluntarily and intelligently decide to represent yourself in this case?
That’s it. That’s waiver 101. If there is interest, I can discuss a host of related issues, such as forfeiture of counsel, the life of the waiver, and withdrawal of the waiver.
In North Carolina a probationer has a statutory right to counsel at a probation violation hearing. G.S. 15A-1345(e); G.S. 7A-451(a)(4). The probationer can also waive the right to assistance of counsel and proceed pro se, Faretta v. California, 422 U.S. 806 (1975), but before that can happen the trial court must determine that the waiver is knowing, intelligent, and voluntary. The judge does that through the “thorough inquiry” required by G.S. 15A-1242, which our appellate courts have deemed applicable at probation violation hearings. State v. Warren, 82 N.C. App. 84 (1986). The statute requires the trial judge to satisfy himself or herself that the defendant:
(1) Has been clearly advised of his right to the assistance of counsel, including the right to the assignment of counsel if he is entitled;
(2) Understands and appreciates the consequences of the decision to waive counsel; and
(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.
Form AOC-CR-227 tracks the language of G.S. 15A-1242 and it should be completed any time a defendant waives counsel.
A recent case from the court of appeals reminds us that a signed waiver—or two—isn’t necessarily enough to satisfy G.S. 15A-1242. In State v. Sorrow, the defendant violated probation by getting terminated from a residential treatment program for rules violations. He chose to represent himself at his probation violation hearing and admitted to the violations. He signed an AOC-CR-227 waiver of counsel form at a preliminary appearance in June 2010 and then signed another one at the final revocation hearing in August. The second form was certified by the court.
On appeal, the defendant argued that the court erred by permitting him to waive counsel without first satisfying the requirements of G.S. 15A-1242. After noting that a written waiver is presumed valid unless the rest of the record indicates otherwise, the court of appeals reviewed the transcript of the exchange between the trial judge and the defendant at the violation hearing. The judge asked the defendant, “Do you understand you have the right to have an attorney represent you in this matter.” The defendant replied “Yes, ma’am.” The court then asked if the defendant was waiving both court-appointed and retained counsel. The defendant indicated that he was and that he just wanted to represent himself and take care of the hearing that day.
The court of appeals held the trial judge’s inquiry failed to address the second and third prongs of G.S. 15A-1242. The judge did not confirm that the defendant understood and appreciated the consequences of his decision to proceed pro se and never told the defendant the “range of permissible punishments”—which in this context would be the length of his suspended sentence. The court of appeals vacated the probation revocation and remanded the case for a new hearing.
Although there is no precise checklist for satisfying G.S. 15A-1242, the state supreme court has looked favorably on a fourteen-question checklist included in the former Institute of Government Superior Court Judges’ Bench Book. See State v. Moore, 362 N.C. 319 (2008). The present-day equivalent of that resource is Jessica Smith’s online Survival Guide; the section on Counsel Issues includes the relevant checklist. The bullet covering the maximum permissible punishment could be modified in the probation violation context to read:
Do you understand that you are alleged to have violated the conditions of your probation and that if you are found to have violated, your probation may be revoked and you could be imprisoned to serve your sentence of [_____ to ______ months (if a felony)] [___ days (if a misdemeanor)]?
I am sometimes asked whether a waiver executed at a preliminary appearance is valid throughout all the proceedings against the defendant. It’s a difficult question without a clear answer in the General Statutes or probation-related case law. The black-letter rule in the criminal trial context is that a waiver, once given, is good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he or she desires to withdraw the waiver and have counsel assigned. State v. Hyatt, 132 N.C. App. 697 (1999). A defendant can withdraw the waiver, but the burden of showing a change in the defendant’s desire for counsel rests upon the defendant. Id. at 700. When a defendant affirmatively asks for counsel at a final violation hearing it is error for the court to require the defendant to proceed pro se based on a waiver signed at an earlier appearance. State v. Sexton, 141 N.C. App. 344 (2000) (defendant’s request for assistance from the public defender carried his burden of showing a change in his desire for assigned counsel at his probation violation hearing).
When the initial waiver is taken at a preliminary appearance by a judge of the same court as the judge that hears the final violation hearing, there is authority supporting the continued validity of the waiver throughout the proceedings—notwithstanding the reference in G.S. 15A-1242 to the “trial judge.” See State v. Kinlock, 152 N.C. App. 84, 88–89 (2002) (quoting State v. Hyatt, 132 N.C. App. 697, 700 (1999) (“Once given, a waiver of counsel is good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he desires to withdraw the waiver and have counsel assigned to him.”)); State v. Lamb, 103 N.C. App. 646 (1991).
When a preliminary probation violation is held in district court (a practice that I believe to be permissible under G.S. 15A-1345(d), as discussed in this prior post) and the defendant waives counsel there, it’s less clear that the superior court can bypass the G.S. 15A-1242 inquiry. In State v. Debnam, 168 N.C. App. 707 (2005), for example, the court of appeals held that a defendant’s waiver of assigned counsel at a preliminary hearing in district court did not satisfy the superior court judge’s obligations under G.S. 15A-1242. The defendant in Debnam only waived assigned counsel in district court; he did not waive his right to all assistance of counsel. A recent unpublished case noted that distinction and held that a superior court judge did not err by failing to conduct a G.S. 15A-1242 inquiry when the defendant waived all assistance of counsel at a preliminary hearing in district court. State v. McClure, 702 S.E.2d 554 (2010) (unpublished). It’s worth noting that the superior court judge in McClure did at least confirm that the defendant had signed the district court waiver and still wished to represent himself. The safest practice, of course, is for the court to conduct a full inquiry in superior court.
Waiver of counsel is a tough and recurrent issue—and not just in the context of probation violation hearings. Just last week the court of appeals published two cases ordering a new criminal trial based on a failure to comply with G.S. 15A-1242. State v. Anderson, __ N.C. App. __ (Aug. 16, 2011); State v. Seymore, __ N.C. App. __ (Aug. 16, 2011). Anderson has a dissent. For a more complete treatment of this important subject, including a list of all the stages of a criminal trial at which a defendant must be informed of his or her right to counsel, see John Rubin & Alyson Grine, North Carolina Defender Manual, Vol. 1 (Pretrial), Chapter 12.5C, available at http://www.ncids.org/Def%20Manual%20Info/Defender_Manual/DefManChpt12_1-48.pdf.