IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-471
Filed 19 March 2025
Rockingham County, No. 22 CRS 36
STATE OF NORTH CAROLINA
v.
DARRICK LORENZO FULLER
Appeal by Defendant from Judgments entered 7 September 2023 by Judge
Martin B. McGee in Rockingham County Superior Court. Heard in the Court of
Appeals 23 October 2024.
Attorney General Jeff Jackson, by Special Deputy Attorney General Kimberley A. D’Arruda, for the State.
Darrick Lorenzo Fuller, pro se Defendant-Appellant.1
HAMPSON, Judge.
Factual and Procedural Background
Darrick Lorenzo Fuller (Defendant) appeals from Judgments entered upon
jury verdicts finding him guilty of Obstruction of Justice, two counts of Attempting
to Access a Government Computer to Defraud, and two counts of Filing False Liens.
The Record before us tends to reflect the following:
1 Defendant was appointed counsel from the Appellate Defender’s office on 28 December
2023. On 2 September 2024, after all briefs were filed, Defendant discharged his counsel. Defendant is now pro se. STATE V. FULLER
Opinion of the Court
On 7 February 2022, Defendant was indicted for Obstruction of Justice, two
counts of Attempting to Access a Government Computer to Defraud, and two counts
of Filing False Liens. On 16 February 2022, Defendant’s first appearance on the
indictment, Defendant allegedly indicated he was waiving his right to the assistance
of counsel but refused to sign the waiver form.
The first pretrial hearing was held on 29 August 2023. At the hearing,
Defendant provided conflicting responses as to whether he wanted an attorney:
[Defendant]: May I have a -- yes, an attorney?
[Trial Court]: You want me to appoint a lawyer for you?
[Defendant]: (Unintelligible)
[Trial Court]: All right. And have you -- is a lawyer representing you in any other cases?
[Defendant]: I never asked being charged, but defendant -- defendant needs one.
[Trial Court]: Okay. So you’re not represented by any other lawyer at this time; is that right?
[Defendant]: I’ve never even seen the charging instruments, you know, commercial bill or allegation, I haven’t seen one.
[Trial Court]: Okay.
[Defendant]: I don’t know what the charges are.
[Trial Court]: I just told you what the charges are, sir.
....
[Trial Court]: Okay. All right. You want me to appoint you a
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lawyer; is that what you're telling me?
[Defendant]: I want you to appoint the defendant a lawyer.
[Trial Court]: And you are the defendant at this point is my --
[Defendant]: I’m a secured-party creditor --
[Trial Court]: All right.
[Defendant]: -- third-party intervenor in this matter over title to the book.
The trial court appointed James Reaves, who had represented Defendant in a
separate matter a year prior, to be Defendant’s counsel.
At the second pretrial hearing on 31 August 2023, the trial court removed
Defendant from the courtroom for being disruptive. Reaves told the trial court he
had asked Defendant if he wanted Reaves to represent him, to which Defendant
allegedly responded, “[n]o way in hell.” Reaves told the trial court he did not believe
there was anyone in the county “equipped” to work with Defendant.
The trial court informed Defendant it was going to resume the hearing in the
afternoon and Defendant would be allowed back in the courtroom if he would not be
disruptive. The trial court also warned Defendant that if he continued “to disrupt
and obstruct court proceedings,” he may forfeit his right to be present in the
courtroom for trial. At the afternoon session of the hearing, the trial court concluded
Defendant had forfeited his right to counsel based on “inappropriate behavior” and
released Reaves from his appointment as Defendant’s counsel.
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The case came on for trial on 5 September 2023. Defendant was brought into
the courtroom handcuffed to a wheelchair because he had been threatening to remove
his clothing. The trial court offered to reconsider whether Defendant had forfeited
his right to counsel:
[Trial Court]: And, Mr. Fuller, sir, I’m Judge Marty McGee. We were introduced last week, and as a result of your conduct, I asked that you be removed from the courtroom. And, ultimately, I had a hearing to determine that you had forfeited your rights to counsel. I want to review where we are at this point. I have found that -- I’m happy to reconsider all of the things that we’ve gone through at this point, but right now, you are representing yourself.
[Trial Court]: . . . I had a hearing in your absence because you were disruptive, as you continue to be disruptive, and determined that Mr. Reaves went back and talked with you and that you -- he indicated you were dissatisfied with him, not cooperating with him. I understand that at your previous trial he was your standby counsel but not counsel.
[Defendant]: I believe you gave the defendant Mark C. Keeney. I don’t know anything about a James Reaves. You gave the defendant Mark C. Keeney -- Kinney or Keeney or whatever his name is. That’s who you gave the defendant. You sent James Reaves to talk to the defendant.
[Trial Court]: Well --
[Defendant]: You didn’t -- you didn’t give the defendant James Reaves.
[Trial Court]: Well, that’s who I appointed, so that’s why he came to see you. I see --
[Defendant]: How did you appoint him? I --
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[Trial Court]: I see you have somebody’s card in your hand. That’s who I appointed, and that’s who came to see you.
[Defendant]: That’s not a fact. That’s a lie on the record.
[Trial Court]: All right. Well, I’m doing my best to tell you the information that I know that I believe to be true.
[Defendant]: Okay.
[Trial Court]: So I understand you did not want him to represent you. And you --
[Defendant]: I --
[Trial Court]: I understand you’re not being generally cooperative with anybody, let alone him or anybody else or the bailiffs or, frankly, me at this point.
[Defendant]: I am a secured party creditor. I don’t need representation from anybody. I don’t need to be represented by anybody.
[Trial Court]: I understand that you told me that you don’t want representation. You said you wanted representation, then you say you don’t want representation.
[Defendant]: I said this?
[Trial Court]: Yes, sir. I thought that’s what you said.
[Defendant]: When? When?
[Trial Court]: Last -- last time you were speaking. ....
[Trial Court]: So do you want a lawyer?
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[Defendant]: The defendant would like a lawyer.
[Trial court]: Okay. You’re pointing to the chair with your eyes. Are you saying you want a lawyer?
[Defendant]: I’m saying the defendant would love a lawyer.
[Trial Court]: Would you cooperate?
[Defendant]: The debtor would love a lawyer.
[Trial Court]: Let me say that you have not cooperated with the lawyer that came to you. You haven’t cooperated with anyone, it seems, going through this process.
[Defendant]: I haven’t spoken to a lawyer, but James Reaves -- I was told from the defendant that James Reaves was not representing.
The trial court again concluded Defendant had forfeited his right to counsel through
misconduct:
[Trial Court]: All right. Well, I have found that you have forfeited your right to counsel due to conduct. I’ve reconsidered that. Under the circumstances, I find that you -- that through your conduct that you have again forfeited your right to counsel. It is clear to the Court that you don’t intend to cooperate with your counsel or anyone else.
The State made Defendant a plea offer. Defendant requested counsel again
before rejecting the plea offer. The trial court denied Defendant’s requests for
counsel, explaining it had already concluded Defendant had forfeited his right to
counsel. Defendant continued to assert his right to counsel. While the State
attempted to discuss the plea offer, Defendant repeatedly interjected, asking if “a
bond [was] present”. Defendant also accused the State of lying about Defendant’s
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prior record level and continued to address the State after the trial court admonished
him not to. The trial court warned Defendant that if he continued to be disruptive,
he would be removed from the courtroom.
The trial court temporarily removed Defendant from the courtroom while it
conducted orientation for the prospective jurors. Afterwards, Defendant was brought
back into the courtroom. The trial court asked Defendant if he had reconsidered the
State’s plea offer. Defendant again rejected the plea offer, denying he was “Mr.
Fuller” and stating he did not “sign contracts” nor “contract with the government”.
The trial court reminded Defendant that he could be removed from the courtroom if
he was disruptive in front of the jury.
The jury venire was returned to the courtroom for jury selection. The trial
court informed the prospective jurors that Defendant was proceeding pro se. During
jury selection, Defendant interrupted the State’s questioning, so the trial court sent
the jury venire out of the courtroom. As the jurors were exiting the courtroom,
Defendant made comments that he had been denied his right to counsel:
[Defendant]: I have the right to speak. That’s what they do. Never had the right to an attorney. Ever. Tell them the truth. Tell them how I’ve been abused.
[Trial Court]: Sir, I asked you to remain quiet.
[Defendant]: Tell them how I’ve been abused. Tell them how I got these clothes on. You’re not talking that. You’re not doing that. Hell, no. Hell, no. Huh-uh. You’re not telling them the truth. Telling them a bunch of lies.
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The State indicated Defendant’s outburst was elicited in response to the State asking
members of the jury venire whether they were comfortable with the fact that
Defendant was representing himself. The State said Defendant made comments to
the effect of “Tell them the truth. I haven’t been given that opportunity. Tell them
about how you beat me.” The trial court concluded Defendant had forfeited his right
to be present in the courtroom and ordered Defendant be removed, but informed
Defendant he could return to the courtroom upon an assurance of improved behavior.
Defendant was brought into the courtroom the next morning of trial. The trial
court explained it had instructed the jury not to consider Defendant’s removal in
determining the issue of guilt. The trial court told Defendant he could return to the
courtroom if he followed instructions and assured the trial court he would not “yell[ ]
out in front of the jury”.
Defendant insisted the trial court provide him “clarity on how you forfeit a
right[,]” talked over the trial court, and told the trial court “I don’t think you get paid
to think. I think you get paid to know law.” The trial court concluded Defendant had
continued to forfeit his right to counsel and had not provided any assurances of
appropriate behavior. Again, Defendant was removed from the courtroom.
The trial continued with Defendant absent. Because the courtroom was not
equipped with audio or video conferencing capabilities, the trial court provided
written updates to Defendant as the trial progressed. The updates were written by
the trial court and delivered by the bailiff. In the first update to Defendant, the trial
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court included a copy of the witness list and extended Defendant the opportunity to
return to the courtroom “upon assurance of good behavior.” The trial court also
directed the bailiff to give Defendant the opportunity to respond. The bailiff delivered
the documents and reported Defendant had no message for the trial court.
At the end of the morning session on the second day of trial, the trial court
provided Defendant with a second update. After receiving the update, Defendant
allegedly laughed and said, “I should be over there”. The trial court concluded
Defendant’s comments “[fell] short” of an assurance of good behavior. At the end of
the afternoon session, the trial court sent Defendant a third update. After receiving
the third update, Defendant allegedly laughed and said “[y]’all are out for vengeance”
and “[y]’all are vicious”. The bailiff reported Defendant did not say anything about
whether he wished to be returned to the courtroom.
Once the State rested its case, the trial court made a motion to dismiss on
Defendant’s behalf but found there was sufficient evidence to move forward. The trial
court sent Defendant a fourth update, along with a draft copy of the jury instructions
and the State’s request for special instructions. After receiving the fourth update,
Defendant allegedly asked when he could return to the courtroom. The bailiff told
the trial court he had told Defendant he could return if he behaved. Defendant
allegedly responded by asking “What does that mean?” and saying he was “just trying
to ask questions.” The trial court concluded that because Defendant had not provided
any assurance of good behavior, it was not appropriate to return him to the
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courtroom.
The State made its closing argument to the jury. Immediately thereafter, the
jury received instructions and proceeded to deliberations. The trial court sent
Defendant a final update explaining that jury deliberations had begun. The trial
court indicated it remained concerned about Defendant’s potential behavior:
[Trial Court]: . . . I still am, frankly, concerned that if he’s brought over, that he will still be disruptive. I’m concerned of him saying something to the jury and causing a problem with a potential mistrial even at this late date. He has not provided those assurances that he would act appropriate. And I still, at this stage, would find the trial cannot proceed in an orderly manner if he is not absent from the Court.
The jury reached a verdict ten minutes later. With Defendant still absent from
the courtroom, the jury returned guilty verdicts on all charges. The jury was
dismissed, and Defendant was returned to the courtroom for sentencing.
At the sentencing hearing, the trial court concluded Defendant had a prior
record level of III, based in part upon a Virginia conviction for Identity Theft. The
trial court entered two judgments: both Judgments sentenced Defendant to an active
punishment of 17 to 30 months in prison. The trial court ordered the first Judgment
to run concurrent to Defendant’s current prison sentence on unrelated charges, and
the second Judgment to run concurrent to the first Judgment. On 21 September
2023, Defendant timely filed Notice of Appeal.
Issue
The issues on appeal are whether the trial court erred by: (I) concluding (A)
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Defendant had forfeited his right to counsel, (B) Defendant had forfeited his right to
be present in the courtroom for trial, or (C) it would not appoint standby counsel for
Defendant; and (II) concluding Defendant’s Virginia conviction for Identity Theft
under Va. Code Ann. § 18.2-186.3 is substantially similar to the North Carolina
offense of Identity Theft under N.C. Gen. Stat. § 14-113.20 (2023) for sentencing
purposes.
Analysis
I. Trial Proceedings
Our Courts review alleged violations of a defendant’s constitutional rights,
including the right to be present during trial and the right to counsel, de novo. State
v. Anderson, 222 N.C. App. 138, 142, 730 S.E.2d 262, 265 (2012) (citations omitted).
Both the right to be present at trial and the right to counsel may be forfeited.
State v. Montgomery, 138 N.C. App. 521, 524-25, 530 S.E.2d 66, 69 (2000) (“ ‘[A]
defendant who misbehaves in the courtroom may forfeit his constitutional right to be
present at trial[.]’ ”) and State v. Blakeney, 245 N.C. App. 452, 460, 782 S.E.2d 88, 93
(2016) (“The second circumstance under which a criminal defendant may no longer
have the right to be represented by counsel occurs when a defendant engages in such
serious misconduct that he forfeits his constitutional right to counsel.”). “ ‘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.’ ”
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Montgomery, 138 N.C. App. at 524, 530 S.E.2d at 69 (quoting United States v.
Goldberg, 67 F.3d 1092, 1100 (3d. Cir. 1995)).
A. Forfeiture of Right to Counsel
“A finding that a defendant has forfeited the right to counsel requires
egregious[,] dilatory[,] or abusive conduct on the part of the defendant which
undermines the purposes of the right to counsel . . . .” State v. Smith, 292 N.C. App.
656, 660, 899 S.E.2d 394, 397 (2024) (alterations in original) (citations and quotation
marks omitted). More specifically, forfeiture of the right to counsel can occur when a
defendant’s conduct “constitutes a ‘[s]erious obstruction of the proceedings[,]’ ” State
v. Jones, 292 N.C. App. 493, 501, 898 S.E.2d 784, 790 (2024) (quoting State v.
Simpkins, 373 N.C. 530, 538, 838 S.E.2d 439, 447 (2020)), such as when he refuses to
confirm his desire for counsel, refuses to participate, or causes significant delays. Id.
(citation omitted). “ ‘Even if a defendant’s conduct is highly frustrating,’ however,
‘forfeiture is not constitutional where any difficulties or delays are not so egregious
that they frustrated the purposes of the right to counsel itself.’ ” Smith, 292 N.C.
App. at 661, 899 S.E.2d at 398 (alternations and internal quotation marks omitted)
(quoting State v. Atwell, 383 N.C. 437, 449, 881 S.E.2d 124, 132 (2022)).
In Montgomery, this Court examined the issue of forfeiture of the right to
counsel as an issue of first impression. 138 N.C. App. at 524, 530 S.E.2d at 69. The
Court held “forfeiture results when the state’s interest in maintaining an orderly trial
schedule and the defendant’s negligence, indifference, or possibly purposeful delaying
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tactic, combine[ ] to justify a forfeiture of [the] defendant’s right to counsel[.]” Id.
(citation and quotation marks omitted).
In Smith, this Court affirmed the trial court’s determination the defendant had
forfeited his right to counsel where the defendant questioned whether the court could
be impartial, refused to cooperate with his attorney, and was “combative and
interruptive” during his court appearances. Smith, 292 N.C. App. at 661-62, 899
S.E.2d at 398. The Court held that causing “six different attorneys to withdraw” and
the “inability to work with court-appointed counsel and insistence that the trial court
could not be impartial,” amounted to obstreperous conduct resulting in forfeiture of
the right to counsel. Id.
In State v. Leyshon, we held the defendant forfeited his right to counsel for
obstructing and delaying the trial proceedings. 211 N.C. App. 511, 517, 710 S.E.2d
282, 287, appeal dismissed, 365 N.C. 338, 717 S.E.2d 566 (2011). The defendant
refused to sign a waiver of counsel form and stated, “I’m not waiving my right to
assistance of counsel[,]” but when the trial court appointed counsel, the defendant
stated, “I refuse his counsel.” Id. at 512, 710 S.E.2d at 285 (quotation marks omitted).
The defendant also repeatedly challenged the trial court’s jurisdiction instead of
answering whether he waived or asserted his right to counsel. Id. at 513. The Court
stated that by “continually refusing to state whether he wanted an attorney or would
represent himself when directly asked by the trial court at four different hearings[,]”,
the defendant “willfully obstructed and delayed the trial court proceedings” such that
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he forfeited his right to counsel. Id. at 519, 710 S.E.2d at 288-89.
By contrast, in Simpkins, our Supreme Court held the defendant’s conduct did
not rise to a forfeiture. 373 N.C. at 540, 838 S.E.2d at 449. In doing so, the court
recognized
[i]f a defendant refuses to obtain counsel after multiple opportunities to do so, refuses to say whether he or she wishes to proceed with counsel, refuses to participate in the proceedings, or 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 purposes of the right to counsel.
Id. at 538, 838 S.E.2d at 447.
The defendant in Simpkins did not obtain counsel before his trial and
presented “frivolous legal arguments about jurisdiction” throughout the proceedings.
Id. at 540, 838 S.E.2d at 448. These actions were not sufficiently egregious to lead
the Court to “conclude that the [defendant’s] failure to retain counsel was an attempt
to delay the proceedings, and certainly not an attempt so egregious as to justify
forfeiture of the right to counsel.” Id., 838 S.E.2d at 449. The Court also noted that
“nothing in the record” suggested the defendant was “rude or disrespectful” to the
trial court. Id. at 539, 838 S.E.2d at 448.
Here, the Record shows Defendant repeatedly disrupted the trial proceedings.
Defendant refused to sign the waiver of counsel form. At the 29 August 2022 pretrial
hearing, Defendant repeatedly interrupted the trial court, asking the trial court what
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kind of law it was practicing, whether the trial court had a claim against him, and
demanding that all charges “be dropped immediately.” At the 31 August 2023
pretrial hearing, immediately upon being brought into the courtroom, Defendant
again repeatedly asked the trial court if it “had a claim” against him and demanded
the charges be dismissed. Defendant refused to stop speaking over all parties in the
courtroom, including the trial court.
The trial court appointed Reaves as counsel for Defendant, but Defendant
refused to acknowledge or work with him. On the first day of trial, the trial court
tried to discuss Defendant’s asserted dissatisfaction with Reaves, but Defendant
instead argued with the trial court, asserting the trial court had never appointed
Reaves as his counsel, and accused the trial court of lying. Defendant later contended
Reaves would not “suffice” as counsel and demanded the trial court tell the jury what
Reaves had “done”. When the trial court asked Defendant to elaborate, Defendant
responded, “[Reaves] didn’t do anything to me as I stated. It was what [Reaves] done
to the defendant.”
Although the trial court concluded at the 31 August 2023 hearing that
Defendant had forfeited his right to counsel, the trial court gave Defendant the
opportunity to have the issue reconsidered. There, Defendant stated “the defendant
would like a[n] attorney[.]” Yet, at this same hearing, Defendant stated “I don’t need
representation from anybody[,]” “I’m the authorized representative for the
defendant[,]” and “I’m only here to represent the defendant at this point.” Defendant
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continued to speak in the third person and deny being the defendant on trial, making
statements such as “I was told from the defendant[,]” “The defendant would like a
lawyer[,]” and “The debtor would love a lawyer.”
Like the defendant in Smith, Defendant was combative and interruptive—he
insisted the trial court could not be impartial, interrupted and spoke out of turn,
threatened to remove his clothing, and refused to directly answer the trial court’s
questions. And like the defendant in Leyshon, Defendant provided conflicting
answers as to whether he desired assistance of counsel and refused to work with his
appointed counsel.
Likewise, when the trial court attempted to clarify whether Defendant was
waiving or asserting his right to counsel, Defendant instead challenged the trial court
by asking whether there was a bond and whether the trial court or the State had a
claim against him. Based upon the evidence in the Record, we conclude Defendant’s
actions were sufficiently obstructive and egregious such that they frustrated the
purpose of the right to counsel itself. See Smith, 292 N.C. App. at 661, 899 S.E.2d at
398 (citation omitted). Accordingly, Defendant forfeited his right to counsel, and the
trial court did not err by concluding the same.
B. Forfeiture of Right to be Present During Trial Phase
However, our inquiry does not end with Defendant’s forfeiture of his right to
counsel. The trial court also concluded Defendant forfeited his right to be present at
trial and had Defendant removed from the courtroom for the remainder of the trial
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proceedings.
Both the United States Constitution and the North Carolina Constitution
guarantee a criminal defendant the right to be present at trial. See U.S. Const.
amend. VI; N.C. Const. Art. I, §§ 19, 23. The right to be present at trial, like the right
to counsel, may be forfeited. See Montgomery, 138 N.C. App. at 524-25, 530 S.E.2d
at 69 (citation omitted). “[A] defendant can lose his right to be present at trial if, after
he has been warned by the judge that he will be removed if he continues his disruptive
behavior, he nevertheless insists on conducting himself in a manner so disorderly,
disruptive, and disrespectful of the court that his trial cannot be carried on with him
in the courtroom.” Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 1060-61, 25 L.
Ed. 2d 353, 359 (1970) (footnote omitted).
Defendant cites several cases wherein courts in other jurisdictions have
considered the issue of whether a pro se defendant may be removed from the
courtroom during trial. We think United States v. Mack, 362 F.3d 597 (9th Cir. 2004)
and People v. Cohn, 160 P.3d 336, 339 (Colo. Ct. App. 2007) are most relevant to our
discussion. In Mack, the pro se defendant was removed from the courtroom by the
trial court due to his disruptive conduct. 362 F.3d at 599. The trial court had offered
to appoint standby counsel but the defendant “refused unless he could have appointed
counsel of his choice—a person who was not on the court’s standard appointment list.”
Id. Holding the defendant had been denied his right to counsel, the United States
Court of Appeals for the Ninth Circuit explained “[a] defendant does not forfeit his
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right to representation at trial when he acts out. He merely forfeits his right to
represent himself in the proceeding.” Id. at 601. The Court also observed that when
the defendant was allowed to return to the courtroom, “he was required to remain
silent and was even told that no objections of his would have any effect whatsoever
on the proceedings.” Id. Thus, “[i]n practical effect, he had been removed as his own
counsel and nobody stepped in to fill the gap.” Id.
Similarly, the defendant in Cohn argued his right to counsel was violated when
the trial court removed him “from the courtroom at various times during the trial
without permitting him to appear by means of video conferencing equipment and
without counsel being appointed to represent him in his absence.” 160 P.3d at 339.
The Colorado Court of Appeals first determined the defendant had forfeited his right
to be present in the courtroom due to his disruptive behavior. Id. at 341. The Court
then asked “whether the trial court, by excluding the pro se defendant from the
courtroom, denied his right to counsel.” Id. The Court determined that under the
facts of the case, the defendant had not waived his right to counsel—expressly or by
conduct—and his exclusion during portions of jury selection and denial of the
opportunity to exercise peremptory challenges was a violation of his right to counsel.
Id. at 343. Thus, the defendant was “deprived of the presence of counsel at critical
stages of the proceedings” and there was “more than a minimal risk that counsel’s
absence . . . undermine[d] the defendant’s right to a fair trial.” Id. at 342 (citing Key
v. People, 865 P.2d 822, 825 (Colo. 1994)).
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Here, unlike the defendants in Mack and Cohn, the trial court concluded
Defendant had forfeited his right to counsel and did so prior to removing Defendant
from the courtroom. Moreover, the facts before us differ from those in Mack that
would tend to indicate the trial court effectively removed Defendant as his own
counsel; here, the trial court maintained an invitation for Defendant to return to the
courtroom and participate in the proceedings so long as he reassured the trial court
he would no longer be disruptive.
Relatedly, Defendant argues he was removed from the courtroom for “acting in
his capacity as his own attorney.” Defendant contends he was removed for “objecting
to the prosecutor’s characterization to the jury of how [he] came to be representing
himself.” Our review of the Record shows Defendant was not removed for objecting
to the State’s questioning, but for disrespectful, abusive, and disruptive behavior.
The trial court warned Defendant multiple times prior to his removal that if his
behaviors continued, he may forfeit his right to be in the courtroom.
In addition to his outburst in front of the jury pool—in which he accused the
State of lying, claimed the State had beaten him, and contended he never had the
opportunity to have the representation of counsel—Defendant demonstrated
persistent disregard for the trial court’s orders.
Despite the trial court’s admonitions, Defendant continued his behaviors,
accusing the trial court and the State of lying, interrupting, and challenging the trial
court’s authority. Defendant was, thus, “disruptive, contumacious, [and] stubbornly
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defiant”. See Allen, 397 U.S. at 343, 90 S. Ct. at 1061. Therefore, the trial court did
not err by concluding Defendant had forfeited his right to be present in the courtroom.
Furthermore, the trial court’s actions generally complied with N.C. Gen. Stat.
§ 15A-1032, which governs the procedures for removing a disruptive defendant from
the courtroom:
(a) A trial judge, after warning a defendant whose conduct is disrupting his trial, may order the defendant removed from the trial if he continues conduct which is so disruptive that the trial cannot proceed in an orderly manner. When practicable, the judge’s warning and order for removal must be issued out of the presence of the jury.
(b) If the judge orders a defendant removed from the courtroom, he must:
(1) Enter in the record the reasons for his action; and (2) Instruct the jurors that the removal is not to be considered in weighing evidence or determining the issue of guilt.
N.C. Gen. Stat. § 15A-1032 (2023). Additionally, “[a] defendant removed from the
courtroom must be given the opportunity of learning of the trial proceedings through
his counsel at reasonable intervals as directed by the court and must be given
opportunity to return to the courtroom during the trial upon assurance of his good
behavior.” Id.
It is true Section 15A-1032 presumes a defendant has counsel: it does not
specify how a defendant should be “given the opportunity of learning of the trial
proceedings” or who should give the updates if a defendant is pro se. Id.
Nevertheless, here, the trial court gave Defendant updates on the trial proceedings
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through written communications. Further, Defendant was routinely apprised of the
opportunity to return to the courtroom and participate in the proceedings by assuring
the trial court that his conduct would improve and not be disruptive. The Record
indicates Defendant chose not to provide any assurances of better behavior. Indeed,
when Defendant was first removed from the courtroom he stated, “I’m not here
anyway”, and when he was brought into the courtroom on the second morning of trial,
he commented that he “didn’t ask to come here.” Additionally, the jurors were
instructed that the removal was not to be considered in weighing evidence, and the
trial court entered in the Record the reasons for Defendant’s removal. Thus, there
was no error in the trial court’s compliance with N.C. Gen. Stat. § 15A-1032.
C. Decision Not to Appoint Standby Counsel
Ultimately, Defendant concedes the trial court “may have been justified” in
concluding he forfeited his right to counsel and to be present in the courtroom.
Rather, Defendant argues the trial court erred by failing to appoint standby counsel
to act on his behalf and/or failing to provide “some other mechanism” to allow
Defendant to participate in his trial. Defendant argues this resulted in a complete
deprivation of his right to counsel.
In State v. Mee, this Court considered whether the defendant’s right to counsel
was violated after the defendant “refused to be seated or stay in the courtroom,
despite being held in contempt three times,” and eventually was removed from the
courtroom by the trial court. 233 N.C. App. 542, 558, 756 S.E.2d 103, 112 (2014). The
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defendant said he did not want to “participate” in his trial, and he did not want
standby counsel to do anything on his behalf. Id. at 557-58, 756 S.E.2d at 111-12.
Standby counsel was sent periodically to speak with the defendant, “informing
him of his right to be present in court and asking if he had changed his mind about
participating in the trial.” Id. at 558, 756 S.E.2d at 112. The defendant continued to
refuse to participate. Id. In concluding “the defendant had a fair trial, free of error”,
this Court noted the defendant “engaged in ‘purposeful conduct and tactics to delay
and frustrate the orderly processes of our trial courts’ that resulted in a forfeiture of
his right to counsel.” Id. at 562-63, 756 S.E.2d at 114-15 (quoting Montgomery, 138
N.C. App. at 525, 530 S.E.2d at 69).
Defendant’s behavior was similar to the defendant in Mee. Although the Court
in Mee did not address whether the defendant had forfeited or waived his right to be
present in the courtroom, we have held there was no error at trial where a defendant
voluntarily missed portions of their trial. See id.; State v. Moore, 290 N.C. App. 610,
893 S.E.2d 231 (2023) (no error where defendant forfeited right to counsel and missed
portions of his trial to make phone calls).
Good and prudent practice may necessitate appointing standby counsel in
these situations. The role of standby counsel is to assist a pro se defendant,
understanding that the defendant “must be allowed to control the organization and
content of his own defense, to make motions, to argue points of law, to participate in
voir dire, to question witnesses, and to address the court and the jury at appropriate
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points in the trial.” McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S. Ct. 944, 949, 79
L.Ed.2d 122 (1984).
Indeed, standby counsel was appointed or available in many of our cases where
a defendant had forfeited their right to counsel. See, e.g., State v. Boyd, 200 N.C. App.
97, 682 S.E.2d 463 (2009); Montgomery, 138 N.C. App. 521, 530 S.E.2d 66; State v.
Joiner, 237 N.C. App. 513, 767 S.E.2d 557 (2014). Even in Mee, where the defendant
adamantly insisted he did not want standby counsel, standby counsel was
nonetheless present. See Mee, 233 N.C. App. at 550, 756 S.E.2d at 108.
Here, however, we cannot say the trial court prejudicially erred by not
appointing standby counsel. N.C. Gen. Stat. § 15A-1032 does not require the trial
court to appoint standby counsel when a defendant is removed from the courtroom.
Furthermore, a pro se defendant does not possess a right to standby counsel. See
State v. Brooks, 49 N.C. App. 14, 18, 270 S.E.2d 592, 596 (1980) (“If [the] defendant
was not confident of his ability to represent himself, he was entitled to counsel
appointed for his defense; but he had no right to standby counsel. The appointment
of standby counsel is in the sound discretion of the trial court.” (citing State v.
Brincefield, 43 N.C. App. 49, 258 S.E.2d 81, disc. rev. denied, 298 N.C. 807, 262 S.E.2d
2 (1979))).
Moreover, the Record shows the trial court considered appointing standby
counsel, but decided against it because of Defendant’s behavior:
[Trial Court]: I don’t find at this point appointing counsel to go
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back and forth would be helpful for a number of reasons, one of which, pretty clear to me, he’s not going to cooperate with anyone. And, second, I think it puts a lawyer in a very difficult position as to know what conduct -- what the wishes of the defendant would be.
Consequently, Defendant has failed to show the trial court abused its discretion by
not appointing standby counsel for him. Id. at 19, 270 S.E.2d at 596; Brincefield, 43
N.C. App. at 52, 258 S.E.2d at 83 (“The appointment of standby counsel for a
defendant is entirely in the sound discretion of the trial judge.” (citation omitted));
N.C. Gen. Stat. § 15A-1243 (2023) (“When a defendant has elected to proceed without
the assistance of counsel, the trial judge in his discretion may determine that standby
counsel should be appointed[.]”).
II. Prior Record Level
Defendant also contends the trial court erred in calculating his prior record
level. Specifically, Defendant argues the trial court should not have concluded
Virginia’s identity theft statute, Va. Code Ann. § 18.2-186.3, is substantially similar
to North Carolina’s identity theft statute.
“The determination of an offender’s prior record level is a conclusion of law that
is subject to de novo review on appeal.” State v. Bohler, 198 N.C. App. 631, 633, 681
S.E.2d 801, 804 (2009) (citation omitted). “It is not necessary that an objection be
lodged at the sentencing hearing in order for a claim that the record evidence does
not support the trial court’s determination of a defendant’s prior record level to be
preserved for appellate review.” Id. (citations omitted).
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A prior record level is determined by calculating the sum of the points assigned
to each of the offender’s prior convictions. N.C. Gen. Stat. § 15A-1340.14(a) (2023).
When a prior misdemeanor conviction is for an offense not substantially similar to an
offense defined by North Carolina law, the conviction is treated as a Class 3
misdemeanor and does not carry a prior record point for sentencing purposes. Id. §
15A-1340.14(b)(5), (e) (2023). However,
[i]f the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points.
Id. § 15A-1340.14(e) (2023).
Virginia’s identity theft statute defines the offense as a Class 1 misdemeanor
unless certain other criteria are met to elevate the offense to a felony. See Va. Code
Ann. § 18.2-186.3(D) (2023). The corresponding North Carolina offense is defined as
a Class G felony carrying four points for sentencing. N.C. Gen. Stat. § 14-113.22
(2023) (“A violation of G.S. 14-113.20(a) is punishable as a Class G felony[.]”); N.C.
Gen. Stat. § 15A-1340.14(b)(3) (2023) (assigning four points to Class G felonies).
Thus, to count towards Defendant’s prior record level, the State must prove by a
preponderance of the evidence the Virginia offense is substantially similar to the
North Carolina offense.
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“Determination of whether the out-of-state conviction is substantially similar
to a North Carolina offense is a question of law involving comparison of the elements
of the out-of-state offense to those of the North Carolina offense.” State v. Fortney,
201 N.C. App. 662, 671, 687 S.E.2d 518, 525 (2010) (citing State v. Hanton, 175 N.C.
App. 250, 254-55, 623 S.E.2d 600, 604 (2006)). “The Court of Appeals has held that,
for purposes of determining ‘substantial similarity’ under N.C.G.S. § 15A-1340.14(e),
a party may establish the elements of an out-of-state offense by providing evidence of
the statute law of such state.” State v. Sanders, 367 N.C. 716, 718, 766 S.E.2d 331,
332 (2014) (citation and quotation marks omitted).
“Further, the Court of Appeals has consistently held that when evidence of the
applicable law is not presented to the trial court, the party seeking a determination
of substantial similarity has failed to meet its burden of establishing substantial
similarity by a preponderance of the evidence.” Id. (citations omitted).
Here, the Record establishes the State provided the trial court with a prior
record level worksheet and a certified copy of Defendant’s criminal history. The State
also produced a copy of the 2023 version of Virginia’s identity theft statute with its
statutory history and a copy of the 2023 version of North Carolina’s identity theft
statute. See Va. Code Ann. § 18.2-186.3 (2023) and N.C. Gen. Stat. § 14-113.20 (2023).
The trial court found by a preponderance of the evidence the Virginia offense was
substantially similar to the North Carolina offense.
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Defendant contends the trial court could not have compared the elements of
the statutes as required by N.C. Gen. Stat § 15A-1340.14(e) because the Virginia
statute has multiple subsections setting out alternate elements of the offense, and
thus “we do not know which elements to use in comparing the Virginia statute to the
North Carolina statute”. Defendant also argues the trial court erred by concluding
the offenses were substantially similar because the State provided the 2023 version
of the Virginia statute instead of the 2006 version of the Virginia statute—the year
Defendant was convicted of the offense. Consequently, Defendant argues, we do not
know whether the trial court compared the North Carolina statute to the elements of
the Virginia statute as it was written in 2006.
Defendant’s first argument fails because both the prior record worksheet and
Defendant’s criminal history show Defendant was convicted under subsection (B1) of
the Virginia statute—“Identity Theft: Obtain ID to Avoid Arrest”. And although the
State gave the trial court the 2023 version of the Virginia statute, the 2023 statute
included its statutory history, demonstrating the differences between the current
version of the statute and the statute at the time of Defendant’s conviction in 2006.
See State v. Best, 230 N.C. App. 410, *5, 753 S.E.2d 397 (2013) (unpublished) (trial
court did not err by relying on statute with statutory history showing the statutes
“were the same version of the statute which were in effect at the time of” the
defendant’s conviction to conclude offenses were substantially similar).
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However, Defendant further argues the statutes are not substantially similar
because Virginia’s statute can be violated using the identifying information of a “false
or fictious person” whereas North Carolina’s statute requires the offender to have
used the identifying information of a “real person”. We agree.
Va. Code Ann. § 18.2-186.3(B1), at the time of Defendant’s conviction in 2006,
makes it unlawful “for any person to use identification documents or identifying
information of another person or of a false or fictitious person, whether that person is
dead or alive, to avoid summons, arrest, prosecution or to impede a criminal
investigation.” (emphasis added). The corresponding North Carolina statute
punishes anyone who
knowingly obtains, possesses, or uses identifying information of another person, living or dead, with the intent to fraudulently represent that the person is the other person for the purposes of making financial or credit transactions in the other person’s name, to obtain anything of value, benefit, or advantage, or for the purpose of avoiding legal consequences[.]
N.C. Gen. Stat. § 14-113.20 (2023).
A person in Virginia could be guilty of identity theft for using the identity of a
fictitious person, whereas a person in North Carolina could not. See State v. Faucette,
285 N.C. App. 501, 505-06, 877 S.E.2d 782, 785 (2022) (reversing denial of motion to
dismiss charge of identity theft under N.C. Gen. Stat. § 14-113.20 where the
defendant provided a fictitious name and birthdate but there was no evidence he
“used the identifying information of any other actual person, living or dead.”
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(emphasis added)). Thus, these statutory offenses are not substantially similar for
the purposes of N.C. Gen. Stat. § 15A-1340.14(e). See State v. Davis, 226 N.C. App.
96, 100, 738 S.E.2d 417, 420 (2013) (holding the Georgia offense of theft by taking is
not substantially similar to the North Carolina offense of misdemeanor larceny
because a person is guilty of the Georgia offense regardless of whether the taking is
permanent or temporary, whereas “temporary deprivation will not suffice” in North
Carolina (citation and quotation marks omitted)); Hanton, 175 N.C. App. at 258-59,
623 S.E.2d at 606-07 (determining the New York offense of second-degree assault is
not substantially similar to the North Carolina offense of assault inflicting serious
injury because, unlike the North Carolina offense, the New York offense does not
require the defendant cause “serious” physical injury).
The trial court, therefore, erred by concluding the offenses were substantially
similar and treating Defendant’s Virginia conviction as a Class G felony for purposes
of calculating Defendant’s prior record level. Without the four points assigned to this
conviction, Defendant would have a prior record level of II rather than III.
Consequently, we remand solely for resentencing. “At the resentencing hearing, the
trial court may consider additional information presented by the State or by
defendant regarding defendant’s prior offenses.” State v. Henderson, 201 N.C. App.
381, 388, 689 S.E.2d 462, 467 (2009).
Conclusion
Accordingly, for the foregoing reasons, we conclude there was no error in
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Defendant’s trial and remand for resentencing.
NO ERROR AT TRIAL; REMANDED FOR RESENTENCING.
Chief Judge DILLON and Judge TYSON concur.
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