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Waiver of Counsel: A Quick Refresher

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In addition to contributing to this blog, I publish summaries of N.C. appellate court and U.S. Supreme Court decisions through my Criminal Law Listserv (you can sign up for those emails here). That job involves reading a lot of cases and probably explains why my eyeglass prescription has been getting steadily stronger. But a side benefit of all of that case reading is that it helps me spot recurring issues. One that keeps appearing in the appellate decisions is improper waivers of the right to counsel. About a year ago, I wrote a post here on how to take a waiver of counsel. A recent case suggests an update is in order.

In State v. Frederick, the N.C. Court of Appeals held that the defendant was denied his right to counsel when the trial court allowed him to proceed pro se at a suppression hearing. The appellate court quickly concluded that a suppression hearing was a critical stage of the criminal trial for which the defendant was entitled to counsel. It then went on to address whether the defendant previously had waived his right to counsel. The defendant contended that any prior waivers shown in the record were invalid because the trial court failed to inform him of the maximum possible sentence associated with the charged crime, as required by G.S. 15A-1242. That statute requires, in part, that the trial judge make a “thorough inquiry” and “is satisfied that the defendant . . . . [c]omprehends the nature of the charges and proceedings and the range of permissible punishments.” This provision has long been understood to mean that the defendant needs to know, among other things, the maximum sentence associated with the crime charged.

In Frederick, the trial court addressed the defendant regarding sentence three times. First, at a hearing the trial court stated: “Now I’m satisfied that you . . . understand it’s a Class C felony, and that you can go to prison for a long, long time. And you just need to be aware of all of that.”

Second, at the later hearing on the suppression motion, the trial court stated: “Now do you understand if you’re convicted of these offenses, the law requires you get a mandatory active prison sentence? Do you understand that?”

And finally, later in that same hearing, the trial court stated: “Well, sir, I’m required to tell you these things because a lot of people, after the fact, say well the judge shouldn’t have let me represent myself and that’s how I ended up getting life in prison, or the death penalty, or 20 or 30 years.”

The court of appeals found the third advisement inadequate because it did nothing to inform the defendant of the range of punishments that he faced. As to the first two advisements, the court quickly concluded that the statements informing a defendant that he could be in prison for “a long, long time” and could receive an “active prison sentence” lacked the specificity required by G.S. 15A-1242.

Frederick thus reaffirms what we already knew about waivers: In order for the waiver to be valid, the judge must inform the defendant of the specific maximum that attaches to the charged crime. Failure to do so violates the statute. It also will result in a waiver that is unconstitutional on grounds that it was not knowing, voluntary, and intelligent. The good news is that there is no reason for mistakes. My chapter in the N.C. Superior Court Judges’ Bench Book on counsel issues (here), sets out all of the relevant law on waivers and includes a proposed colloquy that that been approved of by the N.C. appellate courts.

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