State v. McGirt

• Court: Court of Appeals of North Carolina
• Decided: March 19, 2025
• Docket: 24-551
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-551

Filed 19 March 2025

Wake County, Nos. 19CR204688-910—93-910

STATE OF NORTH CAROLINA

v.

DALLAS JEROME MCGIRT, Defendant.

Appeal by defendant from judgment entered 1 June 2023 by Judge G. Bryan

Collins in Wake County Superior Court. Heard in the Court of Appeals 15 January

2025.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Elizabeth B. Jenkins, for the State.

Mary McCullers Reece for defendant-appellant.

FLOOD, Judge.

Defendant Dallas Jerome McGirt appeals from the trial court’s judgment

finding him guilty of four counts of statutory sex offense with a child and ten counts

of indecent liberties with a child. On appeal, Defendant argues the trial court erred

in concluding Defendant voluntarily waived his right to counsel, and in the

alternative, forfeited his right to counsel. We likewise address whether Defendant

waived his right to counsel by the hybrid situation of waiver by conduct with a

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Opinion of the Court

warning, which combines aspects of waiver and forfeiture. Upon review, we conclude

Defendant did not “clearly and unequivocally” waive his right to counsel, commit

“egregious misconduct” to forfeit his right to counsel, nor waive his right to counsel

by engaging in dilatory conduct after receiving a warning. We therefore reverse and

remand for a new trial.

I. Factual and Procedural Background

On 8 April 2019, Defendant was indicted by a grand jury for six counts of

statutory sexual offense with a child and ten counts of indecent liberties with a child.

The trial court found Defendant to be indigent and ordered that Defendant be given

court-appointed counsel from the public defender’s office. The public defender’s office,

however, moved to withdraw as counsel for having previously represented one of the

victim’s mothers, which the trial court granted.

The trial court then appointed outside counsel, ordering James M. Wilson to

be Defendant’s counsel. Mr. Wilson, however, left private practice to work for the

Attorney General’s Office and could no longer represent Defendant. The trial court

reordered that outside counsel be appointed, and Cindy Popkin-Bradley was

appointed as Defendant’s counsel on 20 November 2019. On 3 May 2021, Ms. Popkin-

Bradley moved to withdraw as Defendant’s counsel for “personal reasons,” stating

that she could “not be effective in defending [Defendant].” The trial court granted the

motion and again ordered that Defendant be appointed substitute counsel.

On 19 April 2022, Defendant filed a handwritten motion alleging that

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Margaret Lumsden had been appointed to represent him in May 2021. Defendant

claimed he was dissatisfied with Ms. Lumsden’s representation, stating that she had

refused to meet his objectives, had lied to him about withdrawing from his case after

his request for her to do so, and had lied to him about her being on vacation.

Defendant requested that the trial court dismiss her from his case. The trial court

did not grant or deny the motion, but entered an order providing that because

Defendant had filed this request pro se, but was still under representation by Ms.

Lumsden, “the [trial c]ourt must conduct an in-person colloquy in open court before

the [trial c]ourt will grant [Defendant’s] request[,]” pursuant to N.C.G.S. § 7A-457.

The trial court stated that if Defendant wished for this hearing to be held,

“[Defendant] may request that [his] attorney schedule a hearing[.]”

On 16 May 2022, Defendant filed another handwritten motion, requesting that

the trial court grant him a hearing date on the matter, and further explaining that

Ms. Lumsden “went missing [in] September 2021,” returned 29 March 2022, and “has

been missing since.” Defendant lamented in his motion that “May 2022 makes one

year that she has been on my case and has not accomplished any of my objectives or

anything at all. Once again, I feel it’s time to move on with a new attorney who is

willing to help.” Defendant wrote, “[a]t this time, I would like to go pro se and have

court appointed counsel on stand-by.”

On 3 June 2022, the trial court granted Defendant’s motion in part, allowing

his counsel to be withdrawn, but ordered again that outside counsel be appointed.

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The trial court appointed Charles Christopher, Jr. to be Defendant’s counsel.

On 18 August 2022, Defendant again wrote a handwritten letter to the trial

court, requesting Mr. Christopher to be fired, alleging that Mr. Christopher “has yet

to come and see me.” On 24 April 2023, Mr. Christopher moved to withdraw as

Defendant’s counsel, stating that “Defendant refuses to discuss his case with this

attorney or assist this attorney in any way” and that Defendant refused to meet with

him on 21 April 2023.

On 4 May 2023, three weeks before the matter was set for trial, counsel’s

motion to withdraw came on for hearing. At the hearing, the trial court pointed out

that Mr. Christopher had attempted to meet with Defendant, and Defendant

responded that Mr. Christopher “wanted to play word games,” and that Defendant

would have one of his family members “buy [Mr. Christopher] a Scrabble game for

Christmas.”

The trial court granted Mr. Christopher’s motion to withdraw, and then

addressed Defendant:

We need to consider if you have effectively waived your right to the assistance of court-appointed counsel anyway and that you need to represent yourself or if we need to appoint standby counsel to assist you with this case. What are you asking to do, just so I have an understanding of that first?

Defendant replied: “Your Honor, I’ve been held almost [fifty] months, and it

doesn’t make sense. From my third attorney, Cindy Bradley, sat on my case

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[eighteen] months, provided no assistance, had no communication with her. She

didn’t even request the motion for discovery. She never requested one.” The trial

court asked whether the State had anything to say about Defendant’s counsel history.

The State’s attorney responded:

The State has every single time tried to get this to trial, and so he has continued to behave in ways that are making that impossible. The State is ready to proceed on May 30th. This has been set for several months, and I would ask that we either appoint somebody, potentially Mr. Christopher, as standby since he is aware of this case. Every single lawyer that he has had, I have given discovery, full discovery to. I actually recopied discovery for Mr. Christopher so I know he had all of it, so I would submit that that would make the most sense, to do standby counsel with somebody who is aware of the case and proceed.

The trial court then asked Defendant a series of questions: whether there was

anything impairing Defendant’s ability to understand what was happening in his

case, to which Defendant responded there was nothing to impair him; whether

Defendant could read, write, hear, and understand, to which Defendant responded in

the affirmative; and whether Defendant understood the minimum statutory

sentencing, to which Defendant responded in the affirmative. The trial court next

asked Defendant: “[Y]ou do understand that you have had the right to have attorneys

represent you, but it seems as though you’ve five times not been satisfied with counsel

that’s been provided[?]” Defendant acknowledged he had not been satisfied with

counsel.

The trial court then stated to Defendant, “I’m going to find that you have --

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that you have waived your right to the assistance of counsel. I will not assign a sixth

attorney to represent you on these matters. The case -- the case can still move

forward to trial. I will assign standby counsel.” Defendant did not object.

The trial court entered an order, finding Defendant was waiving counsel, and

ordering standby counsel be appointed by the public defender’s office. Additionally,

the trial court ordered that Defendant have access to the law library so that he could

prepare for trial.

On 22 May 2023, Defendant requested court-appointed counsel, and the trial

court denied his request, stating in an order:

Defendant currently represents himself (case is already set for trial) and would like court appointed counsel; the court finds [] Defendant has previously waived his right to court appointed counsel and can still have Mr. Liles as stand-by; Defendant can hire an attorney but the motion to get court appointed counsel is denied.

On 30 May 2023, the matter came on for trial, and the State filed a motion to

have standby counsel, rather than Defendant, examine the prosecuting witnesses.

Defendant did not object, and the trial court granted the motion.

At trial, standby counsel questioned the prosecuting witnesses, and otherwise,

Defendant represented himself. At the close of all evidence, the jury convicted

Defendant of four counts of statutory sex offense with a child and ten counts of

indecent liberties with a child. The trial court then sentenced Defendant to minimum

sentences totaling seventy-five years of imprisonment. Defendant timely appealed.

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II. Jurisdiction

This Court has jurisdiction to review an appeal from a final judgment by a

superior court, pursuant to N.C.G.S. §§ 7A-27(b)(1) and 15A-1444(a) (2023).

III. Standard of Review

This Court reviews de novo a criminal defendant’s appeal regarding wavier of

counsel. See State v. Jenkins, 273 N.C. App. 145, 150 (2020). Under a de novo review,

this Court “considers the matter anew and freely substitutes its own judgment for

that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33 (2008) (citation

omitted).

IV. Analysis

On appeal, Defendant argues the trial court erred in concluding (A) he

voluntarily waived his right to counsel, and in the alternative, (B) he forfeited his

right to counsel. We address each argument, in turn. We likewise address (C)

whether Defendant waived his right to counsel through the hybrid situation of waiver

by conduct with a warning.

A. Voluntary Wavier of Counsel

Defendant first argues the trial court erred in concluding he voluntarily waived

his right to representation. Specifically, Defendant contends he “did not ‘clearly and

unequivocally’ request to proceed pro se at the 4 May 2023 hearing where the trial

court found voluntary waiver of counsel.” We agree.

Criminal defendants have a constitutional right to the assistance of counsel

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under both the United States Constitution and the North Carolina State

Constitution. See U.S. Const. amend. VI.; see also N.C. Const. art. I, §§ 19, 23; Powell

v. Alabama, 287 U.S. 45, 66 (1932); State v. McFadden, 292 N.C. 609, 611 (1977).

“Criminal defendants also have the absolute right to waive counsel, represent

themselves, and make trial strategy decisions without the assistance of counsel.”

State v. Jones, 292 N.C. App. 493, 497 (2024) (citation omitted).

Before a defendant may waive this right, however, “a trial court must conduct

a statutorily-required colloquy to determine that ‘constitutional and statutory

safeguards are satisfied.’” Id. at 497 (quoting State v. Moore, 362 N.C. 319, 322

(2008)). During this colloquy, the trial court must determine “whether the defendant

knowingly, intelligently, and voluntarily waives the right to in-court representation

by counsel.” Moore, 362 N.C. at 322. “[A] criminal defendant’s election to proceed

pro se must be ‘clearly and unequivocally’ expressed.” State v. Watlington, 216 N.C.

App. 388, 393 (2011).

The trial court may enter an order to allow a defendant to waive their right to

counsel only after being satisfied the defendant:

(1) has been clearly advised of his rights to the assistance of counsel, including his right to the assignment of appointed counsel when he is so entitled; (2) understands and appreciates the consequences of the decision; and, (3) comprehends the nature of the charges and proceedings and the range of permissible punishments.

Jones, 292 N.C. App. at 498 (citation omitted); see also N.C.G.S. § 15A-1242 (2023)

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(codifying this procedure). We have held that during a trial court’s inquiry as to a

defendant’s understanding of the decision to proceed pro se, “[t]he trial court must

specifically advise a defendant of the possible maximum punishment, of the range of

permissible punishments, and of the consequences of representing himself. Failing

to advise a defendant of any of these requirements renders the subsequent waiver

invalid.” State v. Lindsey, 271 N.C. App. 118, 127 (2020) (cleaned up); see also State

v. Frederick, 222 N.C. App. 576, 583 (2012) (holding the trial court inadequately

advised the defendant of the range of permissible punishments by telling the

defendant “you can go to prison for a long, long time,” and “if you’re convicted of these

offenses, the law requires you get a mandatory active prison sentence”).

“A written waiver is important evidence to show a defendant wishes to act as

[his] own attorney.” Jenkins, 273 N.C. App. at 151. “When a defendant executes a

written waiver which is in turn certified by the trial court, the waiver of counsel will

be presumed to have been knowing, intelligent, and voluntary, unless the rest of the

record indicates otherwise.” Id. at 151 (citation omitted). A written waiver, however,

“is something in addition to the requirements of N.C.G.S. § 15A-1242, not an

alternative to it.” Id. at 151 (citation omitted) (cleaned up). “Any waiver of counsel

shall be effective only if the court finds of record that at the time of waiver the []

person acted with full awareness of his rights and of the consequences of the waiver.”

N.C.G.S. § 7A-457(a) (2023).

Looking to our case law, we have held a defendant has “voluntarily, knowingly

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and intelligently” waived his right to counsel where a defendant: has made explicit

statements such as, “I’ll represent myself,” after being directly asked multiple times

if he wanted to represent himself and being explained the difference between standby

counsel and court-appointed counsel, see State v. Bannerman, 276 N.C. App. 205,

207–09 (2021); has refused to answer any of the questions presented to him by the

trial court, see Jones, 292 N.C. App. at 498; has executed multiple waivers of counsel

and no contra evidence existed that the initial waiver was insufficient, see State v.

Harper, 285 N.C. App. 507, 517 (2022); and where the trial court has thoroughly

explained to the defendant the consequences of a potential conviction of the crime he

is charged with. See State v. Moore, 290 N.C. App. 610, 633 (2023); see also State v.

Seraphem, 90 N.C. App. 368, 371 (1988) (holding the defendant intelligently waived

counsel after the “trial judge explained to the defendant the maximum penalties for

the charges against her and emphasized the seriousness of her plight”).

We find Moore to be particularly helpful in highlighting what is required by a

trial court before finding a defendant has waived his right to counsel. In Moore, we

concluded the defendant, charged with first degree murder, waived his right to

counsel where the trial court had conducted two separate colloquies into the

defendant’s waiver of counsel. See Moore, 290 N.C. App. at 632–33. The record

revealed “[the d]efendant executed a written waiver of court-appointed attorney . . .

after the trial court had conducted a colloquy[,]” and the “trial court conducted a

similar colloquy when [the d]efendant sought to remove [another attorney] as his

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counsel during trial.” Id. at 632. The trial court directly explained to the defendant

that if the defendant fired his court-appointed counsel during the middle of trial,

“you’re going to be forfeiting your right to have an attorney[,]” and the defendant

responded, “[t]hat’s fine.” Id. at 633. The trial court explained to the defendant that

he “would not have the right to another appointed attorney, and [the d]efendant

would have to hire his own attorney or represent himself[, and the d]efendant stated

he understood.” Id. at 633.

On appeal, after reviewing the record, we held the defendant waived his right

to counsel “knowingly, intelligently, and voluntarily,” and in making this holding

explained:

At each colloquy, the trial court advised and counseled [the d]efendant about his right to an attorney, including his right to appointed counsel. The trial court counseled [the d]efendant on the complexity of handling his own jury trial and the fact the judge would neither be able to offer legal advice nor excuse non-compliance with any rules of evidence or procedure.

The trial court addressed the seriousness of the first-degree murder charge. The trial court advised a conviction by the jury of first-degree murder carried a life sentence without the possibility of parole. The trial court further told [the d]efendant that no other appointed counsel would be able or willing to immediately step into the middle of an ongoing trial. After being fully advised, [the d]efendant proceeded to fire [his counsel] and was left to acquire his own counsel or proceed pro se.

Id. at 633.

Alternatively, we have held a defendant does not waive his right to counsel

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where the defendant “repeatedly requested new counsel” even where he has signed a

waiver of court-appointed counsel. See In re S.L.L., 167 N.C. App. 362, 364–65 (2004).

Our review of the Record in the instant case reveals that, during the hearing

on Mr. Christopher’s motion to withdraw as counsel for Defendant, the following sole

colloquy occurred between the trial court and Defendant regarding potential waiver

of counsel:

THE COURT: All right. Well, [Mr. Christopher’s] motion to withdraw is allowed. The question now, sir, is whether or not we’ve come to a point where you have, in essence, waived your right -- well, you said you have a waiver?

THE DEFENDANT: Yeah, that’s what I -- I filed it just to get him off my case.

THE COURT: We’re somewhat coming to a point where we need to consider if you have effectively waived your right to the assistance of court-appointed counsel anyway and that you need to represent yourself or if we need to appoint standby counsel to assist you with this case. What are you asking to do, just so I have an understanding of that first?

THE DEFENDANT: Your Honor, I’ve been held almost 50 months, and it doesn’t make sense. From my third attorney, Cindy Bradley, sat on my case 18 months, provided no assistance, had no communication with her. She didn’t even request the motion for discovery. She never requested one. She filed a motion to withdraw and got my charges wrong, stood here and stated that she was working on my case the whole time. If you was working on my case the whole time, how you getting my charges wrong?

THE COURT: All right. Thank you.

....

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THE COURT: And you do understand that you have had the right to have attorneys represent you, but it seems as though you’ve five times not been satisfied with counsel that's been provided so you’ve fired -- you just mentioned you fired Ms. Lumsden; you wanted Mr. Christopher gone; you were dissatisfied with Ms. Bradley, and there were two other attorneys before that[.]

THE DEFENDANT: Theodore Dardess -- Theodore Dardess, he withdrew immediately, and the second one was Ryan Willis, who stated he had a overloaded caseload or something so he wouldn’t be able to take my case.

THE COURT: All right. And then there were the next three that -- where there have been complications at least one time when it was set for trial. And you do understand that this case is headed for trial?

THE DEFENDANT: Oh, yes.

THE COURT: All right, sir, I’m going to find that you have -- that you have waived your right to the assistance of counsel. I will not assign a sixth attorney to represent you on these matters. The case -- the case can still move forward to trial. I will assign standby counsel. Mr. Christopher, do you have any -- anything that you would add as it relates to being available as standby counsel in the event that [Defendant] would need assistance?

THE DEFENDANT: Appoint anybody but him. I’ll take him. (Indicating to the bailiff.) Anybody but Mr. Christopher.

Unlike the defendant in Moore, where the trial court directly explained to the

defendant that he would be forfeiting his right to counsel if he fired his attorney,

Defendant was not told by the trial court that he would be waiving his right to counsel

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if he fired Mr. Christopher. See Moore, 290 N.C. App. at 633. After the trial court

granted Mr. Christopher’s motion to withdraw, the trial court told Defendant, “I’m

going to find that you have -- that you have waived your right to the assistance of

counsel[,]” but that it would appoint standby counsel.

There is nothing in the colloquy with the trial court to indicate Defendant

“expressly and voluntarily” waived his right to counsel, see In re S.L.L., 167 N.C. App.

at 364, nor did Defendant “clearly and unequivocally” express his decision to proceed

pro se. See Watlington, 216 N.C. App. at 393; see also State v. Blakeney, 245 N.C.

App. 452, 460 (2016) (“[O]ur own review of the transcript fails to reveal any evidence

that [the] defendant indicated, much less ‘clearly and unequivocally’ requested, that

he be permitted to proceed pro se.”). The trial court never asked if Defendant wished

to represent himself, cf. Moore, 290 N.C. App. at 633, nor did Defendant make an

explicit statement that he would represent himself. See Bannerman, 276 N.C. App.

at 207–09.

The trial court further failed to determine whether Defendant “underst[ood]

and appreciat[ed] the consequences of the decision[,]” as it did not inquire whether

Defendant understood the difference between a court-appointed counsel versus

standby counsel, such that Defendant was now proceeding pro se. Although

Defendant wrote in a previous letter that he “would like to go pro se and have court[-

]appointed counsel on stand-by[,]” the trial court did not make a determination that

Defendant understood the consequences of that decision as required by N.C.G.S. §

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15A-1242. See id. at 207–09; see also N.C.G.S. § 15A-1242. In fact, Defendant

unequivocally stated, “[a]ppoint anybody but [Mr. Christopher].”

The trial court also failed to thoroughly advise Defendant of the consequences

of a conviction, as required, advising Defendant only as to the minimum punishment:

THE COURT: Okay. And so, sir, for each of the statutory sex offenses, you recognize that there is the possibility of life -- not life, but 25 years minimum for each of those six?

THE DEFENDANT: I’m very well aware, Your Honor.

See Moore, 290 N.C. App. at 633 (upholding a waiver where the trial court addressed

the seriousness of the charge and advised the defendant that a conviction carried a

maximum of a life sentence without the possibility of parole); see also Seraphem, 90

N.C. App. at 371 (upholding a waiver where the trial court explained to the defendant

the “maximum penalties for the charges against her and emphasized the seriousness

of her plight”); Lindsey, 271 N.C. App. at 127 (requiring a trial court to “specifically

advise a defendant of the possible maximum punishment, of the range of permissible

punishments, and of the consequences of representing himself”).

In State v. Gentry, this Court explained that “a mistake in the number of

months which a trial judge employs during a colloquy with a defendant contemplating

the assertion of his right to proceed pro se” does not constitute a per se violation of

N.C.G.S. § 15A–1242 unless “there was a reasonable likelihood that the defendant

might have made a different decision with respect to the issue of self-representation

had he or she been more accurately informed about the range of permissible

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punishment.” 227 N.C. App. 583, 599–600 (2013) (internal quotation marks omitted).

We did so, however, only after concluding “[t]he record . . . clearly reflect[ed] that the

trial court made a substantially proper inquiry into the extent to which [the

d]efendant’s waiver of counsel was knowing and voluntary.” See id. at 598. In Gentry,

“[t]he only component of the trial court’s discussion with [the d]efendant [with] which

[the d]efendant [took] issue [was] the information concerning ‘the range of

permissible punishments’ that the trial court provided.” Id. at 598. We reviewed the

trial court’s failure to properly state the maximum number of months to see whether

the error prejudiced the defendant in his “otherwise knowing and voluntary waiver

of counsel.” See id. at 600.

Here, however, this Court must consider whether Defendant “has been clearly

advised of his rights to the assistance of counsel, including his right to the assignment

of appointed counsel when he is so entitled[,]” “understands and appreciates the

consequences of the decision[,]” and “comprehends the nature of the charges and

proceedings[,]” such that we are not looking at whether this one failure to properly

state “the range of permissible punishments” prejudiced Defendant, but whether in

the context of the requirements stated above, Defendant knowingly and voluntarily

waived counsel. See Jones, 292 N.C. App. at 498.

Further, although Defendant captioned his request to remove Mr. Christopher

and others as “Waiver of Counsel” and wrote that he wished to represent himself, he

expressed that he requested this because he felt it was “time to move on with a new

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attorney who is willing to help.” Such evidence, expressing he wished to move on to

a new attorney and requesting someone else be appointed to him, is “contra” to a clear

waiver of counsel. See Harper, 285 N.C. App. at 517 (holding the defendant’s multiple

written waivers were enough to establish he had waived his right of counsel where

“no evidence contra exist[ed]”). Additionally, Defendant’s handwritten document

filed on 16 May 2022—the sole time he wrote “[a]t this time, I would like to go pro se

and have court appointed counsel on stand-by[,]” after lamenting he “feel[s] it’s time

to move on with a new attorney who is willing to help”—was not written in the

presence of the trial court for the trial court to determine if Defendant, “at the time

of the waiver . . . acted with full awareness of his rights and of the consequences of

the waiver.” Additionally, during the colloquy with the trial court, Defendant never

asked to proceed pro se nor did Defendant request standby counsel. Thus, this waiver

cannot be deemed effective. See N.C.G.S. § 7A-457(a).

Like in In re S.L.L., the trial court here erred in finding Defendant waived his

right of counsel where, although he once “wrote he would like to go pro se,” he

“repeatedly requested new counsel,” and even stated in that very handwritten note

that he felt like it was “time to move on with a new attorney who is willing to help.”

See In re S.L.L, 167 N.C. App. at 365. A fulsome review of the Record overcomes the

presumption that a written wavier of counsel by Defendant was done “knowing[ly],

intelligent[ly], and voluntar[ily].” See Jenkins, 273 N.C. App. at 151; see also Harper,

285 N.C. App. at 517; N.C.G.S. § 7A-457(a).

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Accordingly, we conclude Defendant did not “clearly and unequivocally” waive

his right to counsel, see Watlington, 216 N.C. App. at 393, the trial court failed to

determine whether Defendant “underst[ood] and appreciat[ed] the consequences of

the decision[,]” and thus the trial court erred in entering an order stating that

Defendant waived this right. See Jones, 292 N.C. App. at 498; see also N.C.G.S. §

15A-1242.

B. Forfeiture of Counsel

Defendant next argues that, even though the trial court spoke in terms of

waiver, he also did not forfeit his right to counsel. Defendant contends “the trial court

made several references to his having been represented by five different attorneys,

the implication being that [Defendant] was unreasonable in his dissatisfaction and

should therefore be deemed to have forfeit[ed] his right to counsel.” Defendant argues

“there was no showing, nor any finding by the trial court, that [his] requests for new

counsel arose from anything other than real efforts to prepare for a trial on the serious

charges pending against him.” We agree.

This Court has explained that “[t]he 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.” Blakeney, 245 N.C. App. at 460; see also State v.

Simpkins, 373 N.C. 530, 535 (2020) (“[I]n situations evincing egregious misconduct

by a defendant, a defendant may forfeit the right to counsel.”). In Simpkins, our

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Supreme Court explained:

[I]n rare circumstances a defendant’s actions frustrate the purpose of the right to counsel itself and prevent the trial court from moving the case forward. In such circumstances, a defendant may be deemed to have forfeited the right to counsel because, by his or her own actions, the defendant has totally frustrated that right. If one purpose of the right to counsel is to justify reliance on the outcome of the proceeding, then totally frustrating the ability of the trial court to reach an outcome thwarts the purpose of the right to counsel.

Id. at 536 (internal citations and quotations marks omitted). We have previously

explained that, although there is no “bright-line definition of the degree of misconduct

that would justify forfeiture[,]” the following conduct is usually a cause for forfeiture

of the right to counsel:

(1) flagrant or extended delaying tactics, such as repeatedly firing a series of attorneys; (2) offensive or abusive behavior, such as threatening counsel, cursing, spitting, or disrupting proceedings in court; or (3) refusal to acknowledge the trial court’s jurisdiction or participate in the judicial process, or insistence on nonsensical and nonexistent legal “rights.”

Blakeney, 245 N.C. App. at 461–62.

“[E]ven if a defendant’s conduct is highly frustrating, forfeiture is not

constitutional where any difficulties or delays are not so egregious that they

frustrated the purposes of the right to counsel itself.” State v. Atwell, 383 N.C. 437,

449 (2022) (citation omitted) (cleaned up). Additionally, where a trial court makes

“no factual findings about the circumstances which led to the withdrawal,” there is

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“no inference that [the] defendant was attempting to delay h[is] case.” Id. at 451.

Here, Defendant did not threaten counsel or disrupt any court proceedings, nor

did he refuse to acknowledge the trial court’s jurisdiction. Defendant participated in

the judicial process and did not insist on nonsensical or nonexistent legal rights. See

Blakeney, 245 N.C. App. at 461–62. The only potential misconduct is as to whether

Defendant used flagrant or extended delay tactics by “repeatedly firing a series of

attorneys.” Thus, we now look to our Courts’ previous cases regarding defendants

firing their attorneys, as a basis for forfeiting their right to counsel.

Our Supreme Court has previously held a defendant does not forfeit his right

to counsel where a defendant fires court-appointed counsel “due to differences related

to the preparation of [the] defendant’s defense rather than [the] defendant’s refusal

to participate in preparing a defense.” State v. Harvin, 382 N.C. 566, 590 (2022)

(cleaned up). A defendant likewise does not forfeit his right to counsel where he fires

his counsel for failing to pursue a non-frivolous jurisdictional issue that the defendant

desired. See Atwell, 383 N.C. at 451–52.

Alternatively, we have held a defendant forfeits his right to counsel when he

“refuse[s] to cooperate” with his counsel and “assault[s] him,” see State v.

Montgomery, 138 N.C. App. 521, 525 (2000), and where he “insist[s] that his attorneys

pursue defenses that [are] barred by ethical rules” and “refus[es] to cooperate when

they [do] not comply with his requests.” See State v. Smith, 292 N.C. App. 656, 661

(2024).

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In the present case, Defendant’s first two court-appointed counsel withdrew

immediately for conflicts of interest, one having represented the mother of one of

Defendant’s victim’s before, and one having left private practice to work at the

Attorney General’s office. Defendant’s third court-appointed counsel withdrew as

Defendant’s counsel for “personal reasons.”1 Defendant’s fourth court-appointed

counsel was Ms. Lumsden, who Defendant claimed “went missing [in] September

2021,” returned 29 March 2022, and “has been missing since.” Defendant lamented

he was dissatisfied with Ms. Lumsden’s representation because she had refused to

meet his objectives, lied about withdrawing from his case after his request for her to

do so, and lied to him about her being on vacation.2 Defendant’s fifth and final court-

appointed counsel was Mr. Christopher, whom Defendant requested to fire in August

2022 because Mr. Christopher “ha[d] yet to come and see [him].” Seven months later,

Mr. Christoper moved to withdraw, claiming “Defendant refuse[d] to discuss his case

with this attorney or assist this attorney in any way,” although Mr. Christopher

provided only one date that Defendant refused to meet with him, which was 21 April

2023, three days before Mr. Christopher moved to withdraw.

We can ascertain from the Record: Defendant’s first two attorneys withdrew

1 There is no hearing transcript in the Record, and thus we are left only with the knowledge

that the third court-appointed counsel, Ms. Popkin-Bradley, withdrew for “personal reasons.” 2 There is no motion from Ms. Lumsden to withdraw nor a hearing transcript in the Record;

there is only an order from the trial court granting the motion, and thus, we are unable to ascertain the reasons for Ms. Lumsden’s withdrawal.

- 21 - STATE V. MCGIRT

for reasons outside of Defendant’s conduct; Defendant fired his third attorney for

reasons not stated in the Record, only that she withdrew for “personal reasons,” and

thus we cannot say this was done as a delay tactic, see Atwell, 383 N.C. at 451;

Defendant fired his fourth attorney over disagreements on objectives of the case,

which is not a delay tactic, “rather than [D]efendant’s refusal to participate in

preparing a defense,” see Harvin, 382 N.C. at 590; and the trial court did not make

any findings regarding the withdrawal of Defendant’s fourth attorney. Nothing in

the Record indicates Defendant’s objectives were unethical. See Smith, 292 N.C. App.

at 661. Defendant fired his fifth attorney after claiming the attorney “ha[d] yet to

come and see [him].” The Record indicates that Defendant’s fifth attorney described

Defendant as “refus[ing] to discuss this case with” him after Defendant had already

filed a pro se motion to have him fired seven months before.

Unlike the defendant in Montgomery, Defendant never assaulted his

attorneys. See Montgomery, 138 N.C. App. at 525. Defendant only refused to discuss

the case with his last attorney after indicating he wished to fire that attorney for

previously failing to come to see him regarding his case. Cf. id. at 525.

The only negative Record evidence of Defendant’s actions is found in the trial

transcript, before the trial court’s colloquy with Defendant, where the State

lamented:

This defendant has literally, every single time something starts to get towards a trial, has done some kind of thing with his attorney to get them to withdraw. We were set for

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trial with Ms. Bradley and he did the same kind of stuff and she was able t[o] withdraw the week before trial.

The State has every single time tried to get this to trial, and so he has continued to behave in ways that are making that impossible. The State is ready to proceed on May 30th. This has been set for several months, and I would ask that we either appoint somebody, potentially Mr. Christopher, as standby since he is aware of this case. Every single lawyer that [Defendant] has had, I have given discovery, full discovery to. I actually recopied discovery for Mr. Christopher so I know he had all of it, so I would submit that that would make the most sense, to do standby counsel with somebody who is aware of the case and proceed.

The trial court, however, did not make any findings regarding Defendant’s

alleged actions by the State, and thus, we cannot make any inference that

Defendant’s actions were an attempt to delay the trial. See Atwell, 383 N.C. at 451.

Based on the Record evidence, we cannot say Defendant’s firing of his attorneys

was “egregious misconduct” or a flagrant delaying tactic. See Harvin, 382 N.C. at

590; see also Smith, 292 N.C. App. at 661; Atwell, 383 N.C. at 451; Blakeney, 245 N.C.

App. at 461–62; Simpkins, 373 N.C. at 535. Accordingly, the trial court erred in

concluding Defendant forfeited his right to counsel.

C. Hybrid: Waiver of Counsel by Conduct with Warning

We also consider the State’s argument that, in addition to voluntary waiver

and forfeiture, Defendant exhibited a “hybrid” form of waiving one’s right to counsel,

waiver by conduct. We conclude he did not.

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In Blakeney, this Court provided:

Finally, there is a hybrid situation (waiver by conduct) that combines elements of waiver and forfeiture. Once a defendant has been warned that he will lose his attorney if he engages in dilatory tactics, any misconduct thereafter may be treated as an implied request to proceed pro se and, thus, as a waiver of the right to counsel. Recognizing the difference between forfeiture and waiver by conduct is important. First, because of the drastic nature of the sanction, forfeiture would appear to require extremely dilatory conduct. On the other hand, a waiver by conduct could be based on conduct less severe than that sufficient to warrant a forfeiture. This makes sense since a waiver by conduct requires that a defendant be warned about the consequences of his conduct, including the risks of proceeding pro se. A defendant who engages in dilatory conduct having been warned that such conduct will be treated as a request to proceed pro se cannot complain that a court is forfeiting his right to counsel.

Blakeney, 245 N.C. App. at 464–65, (citation and internal quotation marks omitted)

(cleaned up) (emphasis added). In Blakeney, the defendant was not given a warning

that, should he continue in his conduct, he would be required to proceed pro se. See

id. at 464. In holding that the defendant did not waive his right to counsel by conduct,

this Court explained: “[W]e find it very significant that [the] defendant was not

warned or informed that if he chose to discharge his counsel but was unable to hire

another attorney, he would then be forced to proceed pro se. Nor was [the] defendant

warned of the consequences of such a decision.” Id. at 464.

Here, like the defendant in Blakeney, Defendant received no warning that he

was “engag[ing] in dilatory tactics” of any sort; instead, in the colloquy, the trial court

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stated: “All right. Well, [Mr. Christopher’s] motion to withdraw is allowed. The

question now, sir, is whether or not we’ve come to a point where you have, in essence,

waived your right[.]” See id. at 464. There is nothing in the Record to indicate the

trial court ever warned Defendant that any of his conduct was dilatory. See id. at

464. Because waiver by conduct “requires that a defendant be warned about the

consequences of his conduct,” and there is no Record here that the trial court provided

Defendant with any warning regarding his conduct, nor does the State argue there

was any warning, we hold Defendant did not waive his right to counsel by conduct.

See id. at 465.

Because we conclude Defendant did not knowingly and voluntarily waive his

right to counsel, forfeit his right to counsel by engaging in egregious misconduct, nor

waive his right to counsel by engaging in dilatory conduct after receiving a warning,

we hold the trial court erred in concluding Defendant waived his right to counsel.

V. Conclusion

Upon our de novo review, see Jenkins, 273 N.C. App. at 150, we conclude the

trial court erred in concluding Defendant voluntarily waived his right to counsel,

where Defendant requested new counsel and did not “clearly and unequivocally”

express his decision to proceed pro se, and the trial court did not determine Defendant

understood the consequences of proceeding pro se. The trial court likewise erred in

concluding Defendant forfeited his right to counsel where the Record lacks evidence

that Defendant fired multiple attorneys to delay his trial, and thus Defendant did not

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commit “egregious misconduct,” nor did Defendant waive his right to counsel by

engaging in dilatory conduct after receiving a warning. We therefore vacate and

remand for a new trial. See State v. Sorrow, 213 N.C. App. 571, 579 (2011) (vacating

and remanding where the trial court erred in concluding a defendant waived his right

to counsel).

VACATED AND REMANDED.

Judge ZACHARY concurs.

Judge TYSON dissents in separate opinion.

- 26 - No. COA24-551 – State v. McGirt

TYSON, Judge, dissenting.

The majority’s opinion erroneously concludes Defendant did not voluntarily

waive and/or forfeit his right to counsel. Defendant’s actions also present a “hybrid”

waiver/forfeiture situation from State v. Blakeney, 245 N.C. App. 452, 464-65, 782

S.E.2d 88, 96 (2016). There is no prejudice shown and no error in the judgment. I

respectfully dissent.

I. Background

Defendant was indicted for six counts of statutory sex offense with a child and

ten counts of indecent liberties with a child on 8 April 2019. The trial court initially

appointed the public defender’s office to represent Defendant. However, the public

defender’s office withdrew because of its prior representation of one of the victim’s

mothers. The trial court next appointed attorney James M. Wilson to represent

Defendant. Wilson left private practice to work for the North Carolina Department

of Justice, and he was allowed to withdraw.

The trial court next appointed attorney Cindy Popkin-Bradley on 20 November

2019. Popkin-Bradley moved to withdraw due to “personal reasons” the week before

the matter was set for trial. The trial court allowed her motion and then appointed

attorney Margaret Lumsden to represent Defendant in May 2021.

Defendant filed a handwritten motion alleging he was dissatisfied with

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TYSON, J., dissenting

Lumsden’s representation, and he requested the trial court to dismiss her from the

case. Defendant alleged Lumsden had refused to meet his objectives, had lied to him

about withdrawing from the case, and had lied about going on vacation.

The trial court did not either grant or deny Defendant’s motion, however, it

entered an order advising Defendant “the [trial] court must conduct an in-person

colloquy in open court before the [trial c]ourt will grant [Defendant’s] request.” The

trial court further advised Defendant, if he wanted this hearing to be held, Defendant

was to “request that [his] attorney schedule a hearing.”

Defendant field a handwritten motion to remove Lumsden on 16 May 2022

alleging she “went missing September 2021,” returned 29 March 2022, and “has been

missing since.” Defendant asserted: “At this time, I would like to go pro se and have

court appointed counsel on stand-by.” The trial court allowed Defendant’s motion for

Lumsden to withdraw, but it ordered outside counsel to be appointed instead of

allowing Defendant to proceed pro se. The trial court appointed Charles Christopher,

Jr. as Defendant’s fifth appointed counsel.

Defendant wrote another handwritten letter to the trial court requesting for

Christopher to be replaced on 18 August 2022. Defendant also filed a pro se document

with the Court entitled “Waiver of Counsel.” Attorney Christopher moved to

withdraw as Defendant’s counsel on 24 April 2023, alleging, “Defendant refuses to

discuss his case with this attorney or assist this attorney in any way.” Christopher

also stated Defendant had refused to meet with him on 21 April 2023.

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Three weeks before the matter was set for trial, Christopher’s motion was

heard on 4 May 2023. In open court, the trial court heard from both Defendant and

Christopher. The State opposed Defendant’s motion and alleged Defendant had

previously filed speedy trial motions. The State further asserted every time the State

was prepared to bring the case to trial, Defendant acted in a manner to cause his

attorney to withdraw. The State also asserted the victims had experienced emotional

troubles from being prepared for trial multiple times, only to then have the trial again

delayed.

The trial court and Defendant entered into the following colloquy:

THE COURT: We’re somewhat coming to a point where we need to consider if you have effectively waived your right to the assistance of court-appointed counsel anyway and that you need to represent yourself or if we need to appoint standby counsel to assist you with this case. What are you asking to do, just so I have an understanding of that first?

DEFENDANT: Your Honor, I’ve been held almost 50 months, and it doesn’t make sense. From my third attorney, Cindy Bradley, sat on my case 18 months, provided no assistance, had no communication with her. She didn’t even request the motion for discovery. She never requested one. She filed a motion to withdraw and got my charges wrong, stood here and stated that she was working on my case the whole time. If you was [sic] working on my case the whole time, how [are] you getting my charges wrong?

...

THE COURT: Well, I have some of the documents. I’m waiting for additional files to come up. All right, sir, I am going to find that you have waived – well, actually, let me

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ask a couple more questions. It seems as though you – do you have any difficulty being able to hear or understand?

DEFENDANT: No, Your Honor.

THE COURT: It seems like you’re well versed in – well, I know you’re able to read and write because you’ve clearly been reading and you’ve written the Court, so that’s true, correct?

DEFENDANT: Yes, it is. Also, Your Honor, I would like to state last year on June 3rd, upon firing my fourth attorney, Ms. Margaret Lumsden, the judge that presided over my case that day stated to me that she wanted to see my motion for discovery and granted me a court date for July 5th, the following month, which is the same day Mr. Christopher was appointed to me.

THE COURT: All right.

DEFENDANT: They refused to bring me in.

THE COURT: So you’re able to hear and understand me and you understand the right that you do have the ability to plea not guilty, obviously, correct?

DEFENDANT: Yes.

THE COURT: I know you’re in custody, but have you been using – has anybody allowed or have you used any alcohol or any drugs, narcotics or anything that would intoxicate you?

THE COURT: So nothing in the past 50 months?

THE COURT: And you do understand that you have had the right to have attorneys represent you, but it seems as

- 30 - STATE V. MCGIRT

though you’ve five times not been satisfied with counsel that’s been provided so you’ve fired – you just mentioned you fired Ms. Lumsden; you wanted Mr. Christopher gone; you were dissatisfied with Ms. Bradley, and there were two other attorneys before that that you –

DEFENDANT: Theodore Dardess – Theodore Dardess, he withdrew immediately, and the second one was Ryan Willis, who stated he had a overloaded caseload or something so he wouldn’t be able to take my case.

THE COURT: All right. And then there were the next three that – where there have been complications at least one time when it was set for trial. And you do understand that this case is headed for trial?

DEFENDANT: Oh, yes.

THE COURT: You understand that – what’s the minimum for a statutory – I’m trying to recall –

[THE STATE]: They are all – all six of those are the 25- year minimums.

THE COURT: Okay. And so, sir, for each of the statutory sex offenses, you recognize that there is the possibility of life – not life, but 25 years minimum for each of those six?

DEFENDANT: I’m very well aware, Your Honor.

THE COURT: Are there any – are you aware of each – the elements in each part of the offenses against you?

DEFENDANT: Yes, I am.

THE COURT: All right, sir, I’m going to find that you have – that you have waived your right to the assistance of counsel. I will not assign a sixth attorney to represent you on these matters. The case – the case can still move forward to trial. I will assign standby counsel. Mr. Christopher, do you have any – anything that you would add as it relates to being available as standby counsel in

- 31 - STATE V. MCGIRT

the event that Mr. McGirt would need assistance?

DEFENDANT: Appoint anybody but him. I’ll take him. (Indicating to the bailiff.) Anybody but Mr. Christopher.

THE COURT: All right. I’ll ask that the Public Defender’s Office assign someone to serve as standby counsel in your matter. It is still continuing for trial. Yes, I will order that the Public Defender’s Office still assign someone as standby counsel in this matter.

II. Waiver of Counsel

Both the Constitution of the United States and the North Carolina

Constitution recognize a criminal defendant’s right to the assistance of counsel. U.S.

Const. amend. VI.; N.C. Const. Art. I, §§ 19, 23; see also Powell v. Alabama, 287 U.S.

45, 66, 77 L.Ed. 158, 169 (1932); State v. McFadden, 292 N.C. 609, 611, 234 S.E.2d

742, 744 (1977). Criminal defendants also have the absolute right to waive or forfeit

counsel, represent themselves, and handle their case without the assistance of

counsel. State v. Mems, 281 N.C. 658, 670-71, 190 S.E.2d 164, 172 (1972).

The majority’s opinion incorrectly concludes Defendant did not waive or forfeit

his right to counsel. Before a defendant is allowed to waive the right to counsel, a

trial court must conduct a statutorily-required colloquy to determine that

“constitutional and statutory safeguards are satisfied.” State v. Moore, 362 N.C. 319,

322, 661 S.E.2d 722, 724 (2008) (citation omitted). Courts “must determine whether

the defendant knowingly, intelligently and voluntarily waives the right to in-court

representation by counsel.” Id. (citation omitted).

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N.C. Gen. Stat. § 15A-1242 (2023) governs the procedure to be used for a

defendant to waive counsel. Courts may only enter an order to allow a defendant to

waive their right to counsel after the court is satisfied and the record shows the

movant: (1) has been clearly advised of his rights to the assistance of counsel,

including his right to the assignment of appointed counsel when he is so entitled; (2)

understands and appreciates the consequences of the decision; and, (3) comprehends

the nature of the charges and proceedings and the range of permissible punishments.

Id. The record clearly shows compliance with all three statutory factors.

Our Supreme Court has held a “trial court must obtain a written waiver of the

right to counsel.” State v. Thomas, 3331 N.C. 671, 675, 417 S.E.2d 473, 476 (1992)

(citation omitted). The record does not indicate whether Defendant executed a

written waiver of court-appointed attorney after the trial court had conducted a

colloquy into Defendant’s present mental state. The trial court questioned Defendant

about whether he was under the influence of any drugs or intoxicants, whether he

understood the charges and its possible punishments, his level of education, his right

to appointed or retained counsel, his right to represent himself, and Defendant’s

obligations and responsibilities if he decided to represent himself.

Written waivers of counsel, certified by the trial court, create a rebuttable

presumption the waiver was executed knowingly, intelligently, and voluntarily

pursuant to N.C. Gen. Stat. § 15A-1242. See State v. Kinlock, 152 N.C. App. 84, 89,

566 S.E.2d 738, 741 (2002) (citation omitted), aff’d per curiam, 357 N.C. 48, 577

- 33 - STATE V. MCGIRT

S.E.2d 620 (2003).

The record does not include a signed waiver and certification by the superior

court judge that a proper inquiry and disclosure was made in compliance with the

statute. N.C. Gen. Stat. § 15A-1242 (2023). There is no mention of a signed waiver

in the transcript of the hearing wherein the trial court conducted the statutory

colloquy.

This absence in the record does not invalidate Defendant’s waiver. See State

v. Heatwole, 344 N.C. 1, 18, 473 S.E.2d 310, 318 (1996) (holding inter alia the lack of

a written waiver neither alters the conclusion that the waiver was knowing and

voluntary, nor invalidates the defendant’s waiver of counsel); State v. Fulp, 355 N.C.

171, 176, 558 S.E.2d 156, 159 (2002) (affirming Heatwole holding “that a waiver was

not invalid simply because there was no written record of the waiver” (citation and

internal quotation marks omitted)).

The majority’s opinion incorrectly concludes the trial court failed to ascertain

whether Defendant had “expressly and voluntarily” waived his right to counsel. It

also incorrectly concludes the trial court failed: to determine whether Defendant had

“clearly and unequivocally” expressed his decision to proceed pro se, to determine

whether Defendant “underst[ood] and appreciate[ed] the consequences of the

decision[,]” and to advise Defendant of the consequences of a conviction to the

charges.

The majority’s opinion holds the trial court did not ascertain whether

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Defendant had “expressly and voluntarily” waived his right to counsel. The record

shows Defendant had filed two separate motions entitled “Waiver of Counsel” with

the trial court on 16 May 2022 and again on 4 April 2023. The majority’s opinion

further holds Defendant did not “clearly and unequivocally” express his decision to

proceed pro se. This is also error. Defendant clearly and unambiguously stated in

his 16 May 2022 motion: “At this time I would like to go Pro Se and have Court

Appointed Counsel on stand-by.” During the colloquy, Defendant again requested

stand by counsel, which the trial court clearly allowed.

The majority’s opinion also asserts Defendant was not advised of the

consequences of being convicted of the crimes charged because Defendant was only

advised of the minimum punishment for each of the charges. The majority’s opinion

uses a string citation with accompanying parentheticals of this Court’s prior opinions

in State v. Moore, 290 N.C. 610, 893 S.E.2d 231, appeal dismissed, 385 N.C. 624, 895

S.E.2d 402 (2023), State v. Seraphem, 90 N.C. App. 368, 368 S.E.2d 643 (1988), and

State v. Lindsey, 271 N.C. App. 118, 843 S.E.2d 322 (2020). All of these cases assert

the trial court’s responsibility to inform a criminal defendant seeking to proceed pro

se with the maximum sentence.

However, this case is more analogous to “calculation errors” in informing

defendants of the maximum sentence they face if convicted. A “calculation error” in

the maximum sentence a criminal defendant is facing violates N.C. Gen. Stat. § 15A-

1242, only “if there was a reasonable likelihood that the defendant might have made

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a different decision with respect to the issue of self-representation had he or she been

more accurately informed about the ‘range of permissible punishments.’” State v.

Gentry, 227 N.C. App. 583, 600, 743 S.E.2d 235, 246 (2013) (internal quotation marks

omitted). See State v. Fenner, 290 N.C. App. 553, 892 S.E.2d 111 (2023)

(unpublished). Defendant has failed to make that required showing here.

In Gentry, the trial court had incorrectly informed the defendant he could be

sentenced to a maximum sentence of 740 months when he actually faced a 912

months active sentence. Gentry, 227 N.C. App. at 599, 743 S.E.2d at 246. This Court

found no prejudicial error had occurred and held the defendant:

waived his right to counsel knowingly and voluntarily as the result of a trial court’s failure to comply with N.C. Gen. Stat. § 15A-1242, it does not have such an effect in this instance given that either term of imprisonment mentioned in the trial court’s discussions with [the defendant] was, given [the defendant’s] age, tantamount to a life sentence.

Id. at 600, 743 S.E.2d at 246-47 (emphasis supplied).

Here, Defendant was born in 1970 and was charged with six counts of class B1

felonies, which each charge carries a minimum of 300 months and a maximum of 420

months. During the colloquy the State asserted, “[t]hey are all -- all six of those are

the 25-year minimums.” The trial court asked: “Okay. And so, sir, for each of the

statutory sex offenses, you recognize that there is the possibility of life -- not life, but

25 years minimum for each of those six?” Defendant responded: “I’m very well aware,

Your Honor.”

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Defendant was ultimately tried and convicted of four of the six counts of

statutory sex offense. A single conviction would cause Defendant to be over seventy-

five years old upon completion of a single sentence. Defendant was sentenced to a

minimum of 100 years and a maximum of 140 years for only his B1 convictions.

Presuming he only serves the minimum sentences imposed, he would be over 150

years old upon completion of his B1 convictions’ sentences. Defendant was clearly

informed and acknowledged these charges each carry a minimum sentence of twenty-

five years, or 300 months. These sentences are “tantamount to a life sentence” given

the Defendant’s advanced age upon expiration of his sentences. Id. at 600, 743 S.E.2d

at 246-47. The record does not contain evidence tending to show Defendant was

prejudiced or would have made a different choice had he been further told he could

be sentenced to a maximum of 35 years imprisonment for each charge instead of the

minimum 25 years. Id.

The majority’s opinion seeks to differentiate this analysis by boldly stating,

without citation to any authority, “[S]uch that we are not looking at whether this one

failure to properly state the ‘range of permissible punishments’ prejudiced Defendant,

but whether in the context of the requirements stated above, Defendant knowingly

and voluntarily waived counsel.” This statement is an incorrect application of both

our General Statutes and our case law. The case cited prior to the statement, State

v. Jones, 292 N.C. App. 493, 498, 898 S.E.2d 784, 788 (2024) (citing State v. Thomas,

331 N.C. 671, 675, 417 S.E.2d 473, 476 (1992)), includes the correct requirement from

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N.C. Gen. Stat. § 15A-1242 that a defendant “comprehends the nature of the charges

and proceedings and the range of permissible punishments.” N.C. Gen. Stat. § 15A-

1242 (2023).

III. Hybrid Waiver and Forfeiture

In State v. Moore, this Court examined a mixture of waiver and forfeiture of

counsel as described in State v. Blakeney. Moore, 290 N.C. App. at 628, 893 S.E.2d at

244. In Blakeney, this Court held:

Finally, there is a hybrid situation (waiver by conduct) that combines elements of waiver and forfeiture. Once a defendant has been warned that he will lose his attorney if he engages in dilatory tactics, any misconduct thereafter may be treated as an implied request to proceed pro se and, thus, as a waiver of the right to counsel. Recognizing the difference between forfeiture and waiver by conduct is important. First, because of the drastic nature of the sanction, forfeiture would appear to require extremely dilatory conduct. On the other hand, a waiver by conduct could be based on conduct less severe than that sufficient to warrant a forfeiture. This makes sense since a waiver by conduct requires that a defendant be warned about the consequences of his conduct, including the risks of proceeding pro se. A defendant who engages in dilatory conduct having been warned that such conduct will be treated as a request to proceed pro se cannot complain that a court is forfeiting his right to counsel.

Blakeney, 245 N.C. App. at 464-65, 782 S.E.2d at 96 (citation, ellipses, and quotation

marks omitted).

Defendant moved for a speedy trial and, as the trial dates approached, was

dilatory and refused to engage with, or otherwise fired, his three appointed attorneys.

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Defendant also filed two written notices to represent himself preceding the trial

court’s finding that he had waived his right to counsel and allowed him, as he had

requested in writing, to proceed pro se with appointed standby counsel. Id. Defendant

cannot now be heard to complain about the consequences directly resulting from his

own requests and actions. Id.

IV. Conclusion

Defendant has not shown prejudicial errors, and his convictions and sentences

should lawfully remain undisturbed. He knowingly waived and/or forfeited his right

to a further appointed sixth counsel and proceeded with standby counsel, as he had

requested. Moore, 290 N.C. App. at 628, 893 S.E.2d at 244.

Defendant received a fair trial, free from prejudicial errors he preserved and

argued. There is no reversible error in the jury’s verdicts or in the judgments entered

thereon.

The majority’s opinion erroneously vacates Defendant’s jury convictions and

remands for a new trial. The sexual assault victims are unnecessary traumatized

once again. I respectfully dissent.

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