State v. SimpkinsÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-725
Filed: 7 May 2019
Stanly County, Nos. 16CRS1457; 704360
STATE OF NORTH CAROLINA
v.
JEFFERY MARTAEZ SIMPKINS
Appeal by defendant from judgments entered on or about 8 June 2017 by Judge
Andrew Taube Heath in Superior Court, Stanly County. Heard in the Court of
Appeals 28 February 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Alexandra M.
Hightower, for the State.
Kimberly P. Hoppin, for defendant-appellant.
STROUD, Judge.
Defendant appeals his convictions for resisting a public officer and failing to
exhibit/surrender his license. Because the trial court did not properly instruct
defendant on waiver of the right to counsel under North Carolina General Statute §
15A-1242 and because defendant did not forfeit his right to such an instruction, we
conclude defendant must receive a new trial.
I. Background
In July of 2016, Officer Trent Middlebrook of the City of Locust was on patrol;
he ran the “tag” of a vehicle and discovered that the owner of the vehicle, defendant,
STATE V. SIMPKINS
Opinion of the Court
had a suspended driver’s license and a warrant out for his arrest. Officer Middlebrook
pulled defendant over and asked for his license and registration. Defendant refused
to provide them and was uncooperative and belligerent. Officer Middlebrook arrested
defendant.
Defendant’s first trial was in district court, and there is no transcript of those
proceedings. From the district court, there is an unsigned and undated waiver of
counsel form with a handwritten note that appears to say, “Refused to respond to to
[(sic)] inquiry by the court and mark as refused at this point[.]” There is also a waiver
of counsel form from 16 August 2016 that also has a handwritten notation,
“Defendant refused to sign waiver of counsel upon request by the Court[.]” Also on
or about 16 August 2016, defendant was convicted in district court of resisting a
public officer and failing to carry a registration card. Defendant appealed his
convictions to superior court.
In superior court, defendant proceeded pro se. Defendant was tried by a jury
and convicted of resisting a public officer and failing to exhibit/surrender his license.
The trial court entered judgments, and defendant appeals.
II. Subject Matter Jurisdiction
Defendant contends “the trial court lacked subject matter jurisdiction to try
[him] in violation of N.C. Gen. Stat. § 20-29 when the citation purporting to charge
him was fatally defective.” (Original in all caps.) But at oral argument before this
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Opinion of the Court
Court, defendant’s counsel withdrew this argument and conceded that State v. Jones,
___ N.C. App. ___, 805 S.E.2d 701, (2017), aff’d, ___ N.C. ___, 819 S.E.2d 340 (2018),
is the controlling authority on this issue, and defendant cannot prevail. Therefore,
this argument is dismissed.
III. Waiver or Forfeiture of Counsel
Defendant argues that “the trial court erred by failing to make a thorough
inquiry of . . . [his] decision to proceed pro se as required by N.C. Gen. Stat. § 15A-
1242.” (Original in all caps.) We review whether the trial court complied with North
Carolina General Statute § 15A-1242 de novo. See State v. Watlington, 216 N.C. App.
388, 393-94, 716 S.E.2d 671, 675 (2011) (“Prior cases addressing waiver of counsel
under N.C. Gen. Stat. § 15A–1242 have not clearly stated a standard of review, but
they do, as a practical matter, review the issue de novo. We will therefore review this
ruling de novo.”) (citations omitted)).
North Carolina General Statute § 15A-1242 provides,
A defendant may be permitted at his election to proceed in
the trial of his case without the assistance of counsel only
after the trial judge makes thorough inquiry and is
satisfied that the defendant:
(1) Has been clearly advised of his right to the
assistance of counsel, including his right to the assignment
of counsel when he is so entitled;
(2) Understands and appreciates the consequences
of this decision; and
(3) Comprehends the nature of the charges and
proceedings and the range of permissible punishments.
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Opinion of the Court
N.C. Gen. Stat. § 15A-1242 (2015). “The trial court’s inquiry under N.C. Gen. Stat. §
15A–1242 is mandatory and failure to conduct such an inquiry is prejudicial error.”
State v. Sorrow, 213 N.C. App. 571, 573, 713 S.E.2d 180, 182 (2011) (citation and
quotation marks omitted).
Defendant contends he
was advised of his right to have counsel and of his right to
have appointed counsel. However, there is no showing on
the record that the trial court made the appropriate
advisements or inquires to determine that . . . [he]
understood and appreciate the consequences of his decision
or comprehended “the nature of the charges and
proceedings and the range of permissible punishments.”
While the trial court did inform defendant he could be subjected to “periods of
incarceration,” the transcript confirms that defendant was not explicitly informed of
“the range of permissible punishments.” N.C. Gen. Stat. § 15A-1242 (Emphasis
added). The State acknowledged at oral argument that without informing defendant
of the “range of permissible punishments[,]” the trial court could not comply with the
mandate of North Carolina General Statute § 15A-1242. Failure to comply with
North Carolina General Statute § 15A-1242, if required, would result in prejudicial
error. Sorrow, 213 N.C. App. 571, 713 S.E.2d 180. But the State contends the trial
court was not required to comply with North Carolina General Statute § 15A-1242
due to defendant’s forfeiture of his right to counsel.
In oral arguments, both defense counsel and the State relied heavily on State
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Opinion of the Court
v. Blakeley, as it addresses not only the issue before us regarding waiver and
forfeiture of counsel, but also thoroughly analyzes many prior cases; therefore, we
turn to Blakeley, 245 N.C. App. 452, 782 S.E.2d 88 (2016). Blakeley first notes that
there are two ways a defendant may lose his right to be represented by counsel:
voluntary waiver after being fully advised under North Carolina General Statute §
15A-1242 and forfeiture of the right by serious misconduct. Id. at 459-61, 782 S.E.2d
at 93-94.
A criminal defendant’s right to representation by
counsel in serious criminal matters is guaranteed by the
Sixth Amendment to the United States Constitution and
Article I, §§ 19, 23 of the North Carolina Constitution. Our
appellate courts have recognized two circumstances,
however, under which a defendant may no longer have the
right to be represented by counsel.
First, a defendant may voluntarily waive the right
to be represented by counsel and instead proceed pro se.
Waiver of the right to counsel and election to proceed pro
se must be expressed clearly and unequivocally. Once a
defendant clearly and unequivocally states that he wants
to proceed pro se, the trial court must determine whether
the defendant knowingly, intelligently, and voluntarily
waives the right to in-court representation by counsel. A
trial court’s inquiry will satisfy this constitutional
requirement if conducted pursuant to N.C.G.S. § 15A–
1242. . . .
....
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. Although the right to counsel is guaranteed by
the Sixth and Fourteenth Amendments of the United
States Constitution and Article I of the North Carolina
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Opinion of the Court
Constitution, in some situations a defendant may lose this
right:
Although the loss of counsel due to
defendant’s own actions is often referred to as
a waiver of the right to counsel, a better term
to describe this situation is forfeiture. 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. A
defendant who is abusive toward his attorney
may forfeit his right to counsel.
Id. (citations, quotation marks, ellipses, and brackets omitted).
Blakeley then notes a third way a defendant may lose the right to
representation by counsel, a hybrid of waiver and forfeiture:
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
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STATE V. SIMPKINS
Opinion of the Court
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.
Id. at 464-65, 782 S.E.2d at 96 (quotation marks omitted).
As to the facts in Blakeley specifically,
In this case, neither defendant nor the State asserts
that defendant ever asked to represent himself at trial, and
our own review of the transcript fails to reveal any evidence
that defendant indicated, must less clearly and
unequivocally requested, that he be permitted to proceed
pro se. The record clearly indicates that when defendant
signed the waiver of his right to assigned counsel he did so
with the expectation of being able to privately retain
counsel. Before the trial court the defendant stated that he
wanted to employ his own lawyer. There is no evidence that
defendant ever intended to proceed to trial without the
assistance of some counsel. We conclude that the present
case is not governed by appellate cases addressing a trial
court’s responsibility to ensure that a defendant who
wishes to represent himself is knowingly, intelligently, and
voluntarily waiving his right to counsel.
....
In this case, the State argues that defendant
forfeited his right to counsel, relying primarily upon
generalized language excerpted from Montgomery stating
that a forfeiture of counsel results when the state’s interest
in maintaining an orderly trial schedule and the
defendant’s negligence, indifference, or possibly purposeful
delaying tactic, combine to justify a forfeiture of
defendant’s right to counsel. The State also cites State v.
Quick, 179 N.C. App. 647, 649–50, 634 S.E.2d 915, 917
(2006), in which this Court cited Montgomery for the
proposition that any willful actions on the part of the
defendant that result in the absence of defense counsel
constitutes a forfeiture of the right to counsel. Montgomery
did not, however, include such a broad holding or suggest
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Opinion of the Court
that any willful actions resulting in the absence of defense
counsel are sufficient to constitute a forfeiture. Instead, as
this Court has observed, forfeiture of the right to counsel
has usually been restricted to situations involving
egregious conduct by a defendant[.]
Id. at 460-61, 782 S.E.2d at 93-94 (citations, quotation marks, ellipses, and brackets
omitted).
Blakeley then provides a thorough review of the types of behavior prior cases
have determined support forfeiture,
Although the United States Supreme Court
has never directly addressed forfeiture of the
right to counsel, the Court’s other holdings
demonstrate reluctance to uphold forfeiture of
a criminal defendant’s U.S. Constitutional
rights, except in egregious circumstances.
Additionally, the federal and state courts that
have addressed forfeiture have restricted it to
instances of severe misconduct.
There is no bright-line definition of the degree of
misconduct that would justify forfeiture of a defendant’s
right to counsel. However, our review of the published
opinions of our appellate courts indicates that, as discussed
in Wray, forfeiture has generally been limited to situations
involving severe misconduct and specifically to cases in
which the defendant engaged in one or more of the
following: (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. The following is a list of published
cases from North Carolina in which a defendant was held
to have forfeited the right to counsel, with a brief indication
of the type of behavior in which the defendant engaged:
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Opinion of the Court
1. State v. Montgomery, 138 N.C. App. 521, 530
S.E.2d 66 (2000): the defendant fired several
lawyers, was disruptive and used profanity in court,
threw water on his attorney while in court, and was
repeatedly found in criminal contempt.
2. State v. Quick, 179 N.C. App. 647, 634 S.E.2d
915 (2006): the defendant in a probation revocation
case waived court-appointed counsel in order to hire
private counsel, but during an eight month period
did not contact any attorney, instead waiting until
the day before trial.
3. State v. Rogers, 194 N.C. App. 131, 669 S.E.2d
77 (2008), disc. review denied, 363 N.C. 136, 676
S.E.2d 305 (2009): over the course of two years, the
defendant fired several attorneys, made
unreasonable accusations about court personnel,
reported one of his attorneys to the State Bar,
accused another of racism, and was warned by the
court about his behavior.
4. State v. Boyd, 200 N.C. App. 97, 682 S.E.2d
463 (2009), disc. review denied, 691 S.E.2d 414(2010): during a period of more than a year, the
defendant refused to cooperate with two different
attorneys, repeatedly told one attorney that the case
was not going to be tried, was totally uncooperative
with counsel, demanded that each attorney
withdraw from representation, and obstructed and
delayed the trial proceedings.
5. State v. Leyshon, 211 N.C. App. 511, 710
S.E.2d 282, appeal dismissed, 365 N.C. 338, 717
S.E.2d 566 (2011): for more than a year after
defendant was arraigned, he refused to sign a waiver
of counsel or state whether or not he wanted counsel,
instead arguing that the court did not have
jurisdiction and making an array of legally
nonsensical assertions about the court’s authority.
6. State v. Cureton, 223 N.C. App. 274, 734
S.E.2d 572 (2012): the defendant feigned mental
illness, discharged three different attorneys,
consistently shouted at his attorneys, insulted and
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Opinion of the Court
abused his attorneys, and at one point spat on his
attorney and threatened to kill him.
7. State v. Mee, 233 N.C. App. 542, 756 S.E.2d
103 (2014): the defendant appeared before four
different judges over a period of fourteen months,
during which time he hired and then fired counsel
twice, was represented by an assistant public
defender, refused to state his wishes with respect to
counsel, advanced unsupported legal theories
concerning jurisdiction, and refused to participate in
the trial.
8. State v. Joiner, ___ N.C. App. ___, 767 S.E.2d
557 (2014): the defendant gave evasive and often
bizarre answers to the court’s questions, shouted
and cursed at the trial court, smeared feces on the
holding cell wall, had to be gagged during trial,
threatened courtroom personnel with bodily harm,
and refused to answer simple questions.
9. State v. Brown, ___N.C. App. ___, 768 S.E.2d
896 (2015): like the defendants in Mee and Leyshon,
this defendant offered only repetitive legal gibberish
in response to simple questions about
representation, and refused to recognize the court’s
jurisdiction.
Id. at 461-63, 782 S.E.2d at 94-95 (quotation marks omitted).
Blakeley then explains how the defendant’s actions in Blakeley were not as
egregious as those in the cases where forfeiture was found:
In stark contrast to the defendants discussed above, in this
case:
1. Defendant was uniformly polite and cooperative. In
fact, the trial court found as a mitigating factor that the
defendant returned to court as directed during the habitual
felon phase, even after he had been found guilty of the
underlying offense.
2. Defendant did not deny the trial court’s jurisdiction,
disrupt court proceedings, or behave offensively.
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Opinion of the Court
3. Defendant did not hire and fire multiple attorneys,
or repeatedly delay the trial. Although the case was three
years old at the time of trial, the delay from September
2011 until August 2014 resulted from the State’s failure to
prosecute, rather than actions by defendant.
We conclude that defendant's request for a
continuance in order to hire a different attorney, even if
motivated by a wish to postpone his trial, was nowhere
close to the serious misconduct that has previously been
held to constitute forfeiture of counsel. In reaching this
decision, we find it very significant that 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 defendant warned
of the consequences of such a decision. We need not decide,
and express no opinion on, the issue of whether certain
conduct by a defendant might justify an immediate
forfeiture of counsel without any preliminary warning to
the defendant. On the facts of this case, however, we hold
that defendant was entitled, at a minimum, to be informed
by the trial court that defendant’s failure to hire new
counsel might result in defendant's being required to
represent himself, and to be advised of the consequences of
self-representation.
Id. at 463-64, 782 S.E.2d at 95 (quotation marks omitted).
Ultimately, Blakeley determines that based upon the facts the defendant had
not forfeited his right to counsel,
We find Goldberg’s analysis useful in determining that, on
the facts of this case, the defendant cannot be said to have
forfeited his right to counsel in the absence of any warning
by the trial court both that he might be required to
represent himself and of the consequences of this decision.
In reaching this conclusion, we have considered the
State’s arguments for a contrary result, some of which are
not consistent with the trial transcript. On appeal, the
State contends that at the outset of trial the trial court
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Opinion of the Court
found that Defendant had only fired Mr. Cloud so as to
attempt to delay the trial, citing page twenty-seven of the
transcript. In fact, at the start of the trial, the trial court
did not express any opinion on defendant’s motivation for
seeking to continue the case and hire a different attorney.
During the habitual felon phase, after defendant had been
found guilty of the charge, the jury was sufficiently
concerned about defendant’s self-representation to send
the trial court a note asking whether defendant had
refused counsel. It was only at that point that the trial
court expressed its opinion that defendant had hoped to
delay the trial by replacing one attorney with another. The
State also alleges several times in its appellate brief that
the trial court made specific findings about Defendant's
forfeiture of his right to counsel, maintaining that the trial
court specifically found that Defendant's conduct in firing
his lawyer to delay the trial forfeited his right to private
counsel, thus requiring Defendant to proceed pro se and
urging that we should affirm the trial court’s finding that
Defendant discharged his private counsel on the day of the
trial to obstruct and delay his trial and thereby forfeited
his right to counsel. However, as defendant states in his
reply brief, the trial court never found that Mr. Blakeney
forfeited his right to counsel. Indeed, the word forfeit does
not appear in the transcript of the trial proceedings.”
There is no indication in the record that the trial
court ruled that defendant forfeited the right to counsel by
engaging in serious misconduct. Moreover, defendant was
not warned that he might have to represent himself, and
the trial court did not conduct the inquiry mandated by
N.C. Gen. Stat. § 15A–1242, in order to ensure that
defendant understood the implications of appearing pro se.
In State v. Bullock, 316 N.C. 180, 340 S.E.2d 106 (1986),
our Supreme Court addressed a factual situation similar
both to the present case and to the waiver by conduct
scenario discussed in Goldberg. In Bullock, the defendants’
attorneys moved to withdraw shortly before trial, due to
irreconcilable differences with the defendant. . . .
....
The defendant consented to the
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Opinion of the Court
withdrawal of his retained counsel because of
irreconcilable differences but stated that he
would employ other counsel. On the day of
the trial, he said that he had been unable to
get any attorney to take his case because of
the inadequate preparation time. The trial
court reminded the defendant that he had
warned him he would try the case as
scheduled. The defendant acquiesced to trial
without counsel because he had no other
choice. Events here do not show a voluntary
exercise of the defendant’s free will to proceed
pro se.
The Court in Bullock also cited State v. McCrowre, 312 N.C.
478, 322 S.E.2d 775 (1984), noting that in that case the
court held that the defendant was entitled to a new trial
because the record did not show that the defendant
intended to go to trial without the assistance of counsel and
because the inquiry required by N.C.G.S. § 15A–1242 was
not conducted. Bullock appears to be functionally
indistinguishable from the present case as regards the trial
court’s obligation to conduct the inquiry required by N.C.
Gen. Stat. § 15A–1242.
For the reasons discussed above, we conclude that
defendant neither voluntarily waived the right to be
represented by counsel, nor engaged in such serious
misconduct as to warrant forfeiture of the right to counsel
without any warning by the trial court. As a result, the trial
court was required to inform defendant that if he
discharged his attorney but was unable to hire new
counsel, he would then be required to represent himself.
The trial court was further obligated to conduct the inquiry
mandated by N.C. Gen. Stat. § 15A–1242, in order to
ensure that defendant understood the consequences of self-
representation. The trial court’s failure to conduct either of
these inquiries or discussions with defendant resulted in a
violation of defendant’s right under the Sixth Amendment
to be represented by counsel, and requires a new trial.
Id. at 465-68, 782 S.E.2d at 96-98 (citations, quotation marks, ellipses, and brackets
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Opinion of the Court
omitted).
Turning to the facts before us, defendant did not “clearly and unequivocally”
waive his right to counsel nor did the trial court comply with North Carolina General
Statute § 15A-1224 as it failed to inform defendant of “the nature of the charges and
proceedings and the range of permissible punishments.” N.C. Gen. Stat. § 15A-1242;
Blakely, 245 N.C. App. at 459, 782 S.E.2d at 93. Thus, we consider whether
“defendant engage[ed] in such serious misconduct that he forfeit[ed] his
constitutional right to counsel” or if the “hybrid situation” is applicable where “[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.” Id. at 460-464, 782 S.E.2d at 93-96.
Both the State and defendant quote large sections of the discussions had by
defendant and the trial court as evidence of forfeiture or the lack thereof, but as a
whole there is no clear evidence of forfeiture. In summary, defendant raised
arguments that were not legally sound and made unreasonable requests of the Court,
including questioning the jurisdiction of the trial court and stating that he wanted an
appointed attorney -- but not one paid for by the State. Defendant did state he would
like to retain his own counsel, but the State objected unless he could retain the
counsel within 15 minutes because “[h]e’s been advised, I would contend, on at least
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Opinion of the Court
two or three occasions . . . as to his rights to obtain an attorney.”1 Defendant
countered that he was not informed his trial would start that day but merely that he
had “to be here or . . . be arrested.” Thereafter defendant agreed to standby counsel,
and the trial court informed him that at any point he could “step in” as counsel. The
trial court never warned defendant that he was engaging in “dilatory conduct” or that
he may lose his right to counsel based upon “dilatory conduct[.]” Id. at 464-65, 782
S.E.2d at 96. But before the jury was empaneled the trial court announced it was
turning its “attention to the issue of standby counsel” and defendant waived his right
to standby counsel.
However, defendant was not combative or rude. There is no indication
defendant had ever previously requested the case to be continued, so defendant did
not intentionally delay the process by repeatedly asking for continuances to retain
counsel and then failing to do so. As a whole defendant’s arguments did not appear
to be designed to delay or obstruct but overall reflected his lack of knowledge or
understanding of the legal process. Ultimately, defendant was neither combative nor
cooperative, and both trial court and defendant’s tone express frustration.
Defendant’s case, like Blakeley, is inapposite from Montgomery, Quick, Rogers,
Boyd, Cureton, Mee, and Joiner, as defendant here had not fired or refused to
cooperate with multiple lawyers, was not disruptive, did not use profanity or throw
1 The State was apparently referring to defendant’s proceedings in district court, since there is no prior
indication of advisement in superior court.
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Opinion of the Court
objects, and did not explicitly waive counsel but then fail to hire his own attorney
over the course of several months. See id. at 462-63, 782 S.E.2d at 94-95. Even the
cases with more factual similarities ultimately diverge from this case. See id. In both
Brown and Leyshon, the defendants were found to have “obstructed and delayed the
trial proceedings” because they had at least three hearings to discuss the matter; here
it appears this was defendant’s only appearance before the trial court. See State v.
Brown, 239 N.C. App. 510, 519, 768 S.E.2d 896, 901 (2015); State v. Leyshon, 211 N.C.
App. 511, 518-19, 710 S.E.2d 282, 288-89 (2011).
This case also diverges from Blakeley, as in that case a specifically enumerated
ground for not finding forfeiture was because the defendant did not challenge the
jurisdiction of the court. Blakeley, 245 N.C. App. at 463, 782 S.E.2d at 95. Here,
defendant repeatedly denied the trial court’s jurisdiction and insisted on an attorney
that was provided for him but was not paid for by the State, an unavailable option.
Further, Blakeley, ultimately relied on two cases which are also distinguishable: In
State v. Bullock and State v. McCrowre, the defendants had the clear intent to hire
private counsel. See Blakeley, 245 N.C. App. at 467-68, 782 S.E.2d at 97-98; State v.
Bullock, 316 N.C. 180, 185, 340 S.E.2d 106, 108-109 (1986); State v. McCrowre, 312
N.C. 478, 480, 322 S.E.2d 775, 776-77 (1984).
Ultimately, after considering all of the factors noted in the cases discussed
above, we conclude that the reasoning in Blakeley applies:
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Opinion of the Court
defendant neither voluntarily waived the right to be
represented by counsel, nor engaged in such serious
misconduct as to warrant forfeiture of the right to counsel
without any warning by the trial court. As a result, the trial
court was required to inform defendant that if he
discharged his attorney but was unable to hire new
counsel, he would then be required to represent himself.
The trial court was further obligated to conduct the inquiry
mandated by N.C. Gen. Stat. § 15A–1242, in order to
ensure that defendant understood the consequences of self-
representation. The trial court’s failure to conduct either of
these inquiries or discussions with defendant resulted in a
violation of defendant’s right under the Sixth Amendment
to be represented by counsel, and requires a new trial.
Id. at 468, 782 S.E.2d at 98. Because defendant did not “voluntarily waive the right
to be represented by counsel” or “engage[] in such serious misconduct as to warrant
forfeiture of the right to counsel” the trial court was required to comply with the
mandate of North Carolina General Statute § 15A-1242. Id. Further, without any
finding of dilatory conduct or warning that he may waive his right by dilatory tactics,
the hybrid situation cannot apply here. Id. at 464-65, 782 S.E.2d at 96 (“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.” (emphasis
added)). As the trial court failed to properly advise defendant of his right to counsel,
defendant must receive a new trial. See id. at 468, 782 S.E.2d at 98.
IV. Conclusion
Because defendant did not waive his right to counsel after proper advisement
under North Carolina General Statute § 15A-1242; did not forfeit his right by serious
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Opinion of the Court
misconduct; and did not engage in dilatory tactics after having been warned of the
consequences; he did not forfeit his right to counsel, so defendant must receive a new
trial.
NEW TRIAL.
Judge COLLINS concurs.
Judge TYSON concurs in part and dissents in part.
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No. COA18-725 – State v. Simpkins
TYSON, Judge, concurring in part and dissenting in part.
I. Background
City of Locust Police Officer Trent Middlebrook was patrolling during July of
2016. He came upon and verified the validity of the registration of a vehicle. Officer
Middlebrook was informed the owner of the vehicle, Defendant herein, Jeffrey
Martaez Leroy Simpkins’ driver’s license was suspended, and an outstanding
warrant for his arrest was issued and pending. Officer Middlebrook stopped the
vehicle and asked Defendant to present his driver’s license and registration.
Defendant refused to provide either of them and was uncooperative and belligerent.
Officer Middlebrook placed Defendant under arrest.
Defendant initially appeared and was tried in district court. He refused to
enter a plea, and the trial court noted in the record that it entered a plea of not guilty
on his behalf. He also twice refused to sign a waiver of counsel, after being advised
of his rights as set out in North Carolina General Statutes § 15A-1242. Included in
the record on appeal is an unsigned and undated waiver of counsel form with a
handwritten note that states, “Refused to respond to to [sic] inquiry by the court and
mark as refused at this point[.]”
There is another waiver of counsel form in the record, dated 16 August 2016
and signed by the presiding judge, which shows Defendant being advised of his rights
as set out in North Carolina General Statutes § 15A-1242, and also contains a
handwritten notation, “Defendant refused to sign waiver of counsel upon request by
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
the Court[.]” On 16 August 2016, Defendant was tried and convicted in district court
of resisting a public officer and failing to carry a registration card. The district court’s
judgments also expressly note that Defendant had waived counsel. Defendant
appealed his convictions to superior court.
In superior court, Defendant did not assert he was indigent, but requested
appointment of counsel, “not paid for by the State of North Carolina.” No affidavit of
indigency appears in the record. He also refused to enter a plea or to sign a waiver
of counsel. After an extensive colloquy with the trial court, a plea of not guilty was
entered on his behalf and the court appointed standby counsel. Defendant’s “Living
man” pro se motion to dismiss asserting lack of jurisdiction was heard and denied by
written order dated 7 June 2017. Defendant eventually elected in open court to
dismiss and to waive his appointed standby counsel, and to proceed pro se. Defendant
was tried by a jury and convicted of resisting a public officer and of failing to
exhibit/surrender his license. The trial court entered judgments on the verdicts. The
judgments again expressly note that Defendant had waived counsel. Defendant
appeals.
II. Subject Matter Jurisdiction
I concur to dismiss Defendant’s challenge to subject matter jurisdiction.
Defendant’s counsel conceded that State v. Jones, ___ N.C. App. ___, 805 S.E.2d 7012
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
(2017), aff’d, 371 N.C. 548, 819 S.E.2d 340 (2018), is the controlling authority on this
issue and withdrew this argument.
III. Issue
Defendant argues that “the trial court erred by failing to make a thorough
inquiry of . . . [his] decision to proceed pro se as required by N.C. Gen. Stat. § 15A-
1242.”
IV. Standard of Review
Whether the trial court complied with North Carolina General Statutes § 15A-
1242 is reviewed de novo. See State v. Watlington, 216 N.C. App. 388, 393-94, 716
S.E.2d 671, 675 (2011) (“Prior cases addressing waiver of counsel under N.C. Gen.
Stat. § 15A–1242 have not clearly stated a standard of review, but they do, as a
practical matter, review the issue de novo. We will therefore review this ruling de
novo.”) (citations omitted)). Whether Defendant was entitled to or forfeited counsel
is also reviewed de novo. See State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335, 341-
42 (1982); State v. Blakeney, 245 N.C. App. 452, 459, 782 S.E.2d 88, 93 (2016).
V. Waiver or Forfeiture of Counsel
The State acknowledged at oral argument Defendant was not informed in the
superior court of the “range of permissible punishments[,]” and Defendant had not
waived counsel under North Carolina General Statutes § 15A-1242.
North Carolina General Statutes § 15A-1242 provides,
3
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
A defendant may be permitted at his election to proceed in
the trial of his case without the assistance of counsel only
after the trial judge makes thorough inquiry and is
satisfied that the defendant:
(1) Has been clearly advised of his right to the
assistance of counsel, including his right to the assignment
of counsel when he is so entitled;
(2) Understands and appreciates the consequences
of this decision; and
(3) Comprehends the nature of the charges and
proceedings and the range of permissible punishments.
N.C. Gen. Stat. § 15A-1242 (2017).
Defendant concedes he
was advised of his right to have counsel and of his right to
have appointed counsel. However, there is no showing on
the record that the trial court made the appropriate
advisements or inquires to determine that [he] understood
and appreciated the consequences of his decision or
comprehended the nature of the charges and proceedings
and the range of permissible punishments.
While the trial court did inform Defendant he could be subjected to “periods of
incarceration” if convicted, the transcript confirms Defendant was not explicitly
informed of “the range of permissible punishments.” N.C. Gen. Stat. § 15A-1242. In
State v. Sorrow, this Court previously held: “The trial court’s inquiry under N.C. Gen.
Stat. § 15A–1242 is mandatory and failure to conduct such an inquiry is prejudicial
error.” State v. Sorrow, 213 N.C. App. 571, 573, 713 S.E.2d 180, 182 (2011) (citation
and quotation marks omitted).
4
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
The State argues a per se new trial is not required, as Defendant forfeited
counsel and cannot show any prejudice, given his history of belligerent and
recalcitrant behaviors, and his non-acceptance and continued denial of and challenge
to the trial court’s jurisdiction over him. Defendant persisted in his jurisdictional
challenges, even after his filed motion to dismiss on jurisdiction was formally denied
by written order with findings of fact and conclusions of law, as Defendant had
requested. Defendant has not appealed the entered order denying his motion to
dismiss, and any arguments concerning the trial court’s jurisdiction are conceded and
wholly without merit.
The State argues Defendant forfeited his right to counsel and asserts the trial
court was not required to comply with North Carolina General Statutes § 15A-1242.
Both parties’ arguments cite and rely upon State v. Blakeney, 245 N.C. App. 452, 782
S.E.2d 88 (2016). Blakeney discusses two means by which a defendant may lose his
right to be represented by counsel: (1) voluntary waiver after being fully advised
under North Carolina General Statutes § 15A-1242; and, (2) forfeiture of the right by
serious misconduct. Id. at 459-61, 782 S.E.2d at 93-94.
First, a defendant may voluntarily waive the right
to be represented by counsel and instead proceed pro se.
Waiver of the right to counsel and election to proceed pro
se must be expressed clearly and unequivocally. Once a
defendant clearly and unequivocally states that he wants
to proceed pro se, the trial court must determine whether
the defendant knowingly, intelligently, and voluntarily
waives the right to in-court representation by counsel. A
5
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
trial court’s inquiry will satisfy this constitutional
requirement if conducted pursuant to N.C.G.S. § 15A-1242.
...
....
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. Although the right to counsel is guaranteed by
the Sixth and Fourteenth Amendments of the United
States Constitution and Article I of the North Carolina
Constitution, in some situations a defendant may lose this
right:
Although the loss of counsel due to
defendant’s own actions is often referred to as
a waiver of the right to counsel, a better term
to describe this situation is forfeiture. 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. A
defendant who is abusive toward his attorney
may forfeit his right to counsel.
Id. (internal citations and quotation marks omitted).
The Court in Blakeney also describes a third manner, a mixture of waiver and
forfeiture, in which a defendant may lose the right to counsel:
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
6
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
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.
Id. at 464-65, 782 S.E.2d at 96 (emphasis supplied) (quotation marks omitted).
This Court in Blakeney stated:
In this case, the State argues that defendant
forfeited his right to counsel, relying primarily upon
generalized language excerpted from Montgomery stating
that a forfeiture of counsel results when the state’s interest
in maintaining an orderly trial schedule and the
defendant’s negligence, indifference, or possibly purposeful
delaying tactic, combine to justify a forfeiture of defendant’s
right to counsel. The State also cites State v. Quick, 179
N.C. App. 647, 649-50, 634 S.E.2d 915, 917 (2006), in which
this Court cited Montgomery for the proposition that any
willful actions on the part of the defendant that result in the
absence of defense counsel constitutes a forfeiture of the
right to counsel. Montgomery did not, however, include
such a broad holding or suggest that any willful actions
resulting in the absence of defense counsel are sufficient to
constitute a forfeiture. Instead, as this Court has observed,
forfeiture of the right to counsel has usually been restricted
to situations involving egregious conduct by a defendant[.]
Id. at 461, 782 S.E.2d at 94 (emphasis supplied) (internal citations marks omitted).
7
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
This Court in Blakeney reviewed behavior in prior cases to support forfeiture.
Although the United States Supreme Court
has never directly addressed forfeiture of the
right to counsel, the Court’s other holdings
demonstrate reluctance to uphold forfeiture of
a criminal defendant’s U.S. Constitutional
rights, except in egregious circumstances.
Additionally, the federal and state courts that
have addressed forfeiture have restricted it to
instances of severe misconduct.
There is no bright-line definition of the degree of
misconduct that would justify forfeiture of a defendant’s
right to counsel. However, our review of the published
opinions of our appellate courts indicates that, as discussed
in Wray, forfeiture has generally been limited to situations
involving severe misconduct and specifically to cases in
which the defendant engaged in one or more of the
following: (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.
Id. at 461-62, 782 S.E.2d at 94 (emphasis supplied) (quotation marks omitted).
The majority’s opinion includes brief descriptions of the nine prior decisions
cited in Blakeney, wherein this Court found the defendants had forfeited their right
to counsel. Whether a “defendant engage[d] in such serious misconduct that he
forfeit[ed] his constitutional right to counsel,” or if the “hybrid situation” is applicable
where “[a] defendant who engages in dilatory conduct having been warned that such
8
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
conduct will be treated as a request to proceed pro se cannot complain that a court is
forfeiting his right to counsel.” Id. at 460, 465, 782 S.E.2d at 93-94, 96.
In their briefs, both the State and Defendant quote large sections of the
discussions had by Defendant and the trial court as evidence of forfeiture or the lack
thereof. Overall, the transcript supports a finding and conclusion that Defendant
forfeited his right to counsel. From the start of the proceedings, Defendant repeatedly
questioned the jurisdiction of the trial court:
[Defendant]: Objection, sir. I did not enter any pleas. Do I
need to stand?
THE COURT: What is the basis of your objection?
[Defendant]: There is no proof of jurisdiction here. There
hasn’t been since last year. I’ve been coming here over a
year, and there’s no evidence of anything besides the
allegation.
THE COURT: Well, sir, evidence is put on at the trial. So
there is no evidence at this point.
[Defendant]: So how can you force someone here without
evidence, sir?
THE COURT: You’ve been charged with a crime. And this
is your day in court, your opportunity to be heard.
The trial court and Defendant engaged in detailed discussions concerning
Defendant’s representation:
[The Court]: Mr. Simpkins, I see that in the Court’s file
there are waiver of counsel forms with notations that you
refused to respond when you were notified of your right to
9
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
an attorney, and so you were marked down as having
waived an attorney. You are charged with violations that
could subject you to periods of incarceration. And so I
would like to advise you that it is your right to have an
attorney and if you cannot afford an attorney, the State can
provide one for you. If you would like to apply for court-
appointed counsel, we’ll have you fill out an affidavit. If you
wish to retain your own, you certainly have that opportunity
as well. How would you like to proceed with respect to an
attorney?
[Defendant]: May I proceed with counsel that’s not paid for
by the plaintiff?
[The Court]: There’s no plaintiff in this case. Would you
like to hire your own attorney or would you like the State
to provide an attorney for you if you qualify for one?
[Defendant]: How is there no plaintiff, sir?
[The Court]: Sir, this is the second time that I’m going to
remind you that it is not your opportunity to ask questions
of the Court. The Court asks you questions. The question
before you right now is: Would you like to apply for a court-
appointed attorney, or would you like to retain your own
attorney or would you like to waive your right to an
attorney?
[Defendant]: I would like counsel that’s not paid for by the
State of North Carolina.
[The Court]: Okay. So you would like an opportunity to
retain your own attorney?
[Defendant]: That’s not paid for by the State of North
Carolina, yes.
(Emphasis supplied).
10
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
When asked for its response, the State objected unless Defendant could retain
the counsel within fifteen minutes because “[h]e’s been advised, I would contend, on
at least two or three occasions . . . as to his rights to obtain an attorney.”
The colloquy continued, and Defendant was appointed standby counsel:
[The Court]: Mr. Simpkins, according to the court file, you
were advised of your right to an attorney on August 16th of
2016.
[Defendant]: I asked for standby counsel then, sir.
[The Court]: Would you like to be appointed standby
counsel today?
[Defendant]: Yes. Sure.
[The Court]: All right.
Defendant never asserted he was indigent or was unable to afford to retain
counsel. The record before us does not contain Defendant’s affidavit of indigency to
qualify for appointed counsel. Defendant’s right to be appointed counsel was
dependent upon a claim, an affidavit, and a finding of him being indigent. State v.
Cradle, 281 N.C. 198, 204, 188 S.E.2d 296, 300 (1972).
Defendant continued to question the trial court’s jurisdiction prior to and after
jury selection:
THE COURT: Any questions before we proceed?
[Defendant]: Can the Court proceed without evidence of
jurisdiction?
11
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
THE COURT: Sir, evidence will be presented during the
case in chief after a jury is selected. Any other questions?
[Defendant]: If -- no.
...
[Defendant]: Can I see the evidence of jurisdiction then?
THE COURT: Sir, you -- you are the defendant in a
criminal proceeding.
Following the trial court’s address to the prospective jurors, the jurors left the
courtroom and a bench conference was held between the trial court, Defendant,
Defendant’s standby counsel, and the prosecutor, concerning a possible plea:
THE COURT: What I heard at the bench was the mention
of a potential plea. So, Mr. Simpkins, is it your wish to
enter a plea in this matter?
[Defendant]: I’ve been trying to enter a plea. I just wanted
the evidence of jurisdiction.
The plea negotiations were ultimately unsuccessful. The trial court advised
Defendant on his right to proceed with or to waive his standby counsel, which
Defendant decided to waive and to proceed pro se. Defendant conducted jury selection
on his own.
After bringing the trial court’s attention to a previously filed motion to dismiss,
and hearing the trial court’s ruling on the motion, Defendant again argued with the
trial court concerning its jurisdiction:
12
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
THE COURT: All right. Would you like to be heard on the
motion?
[Defendant]: No. The motion speaks for itself, sir.
THE COURT: All right. The motion to dismiss is denied.
Thank you.
[Defendant]: On what grounds, sir?
THE COURT: Well, to the extent that the motion is a
motion to dismiss for lack of jurisdiction, I find and
conclude that this Court has jurisdiction --
[Defendant]: May I have a copy of that, sir?
THE COURT: A copy of what?
[Defendant]: The jurisdiction.
THE COURT: Jurisdiction is not reduced to writing or a
document that I can hand you. Thank you.
[Defendant]: So it’s territorial?
THE COURT: Sir, I’ve ruled on the motion. Thank you.
[Defendant]: I don’t get to speak at all, sir?
THE COURT: You were just heard on the motion. I issued
my ruling. I issued my findings and conclusion. And that is
all for that matter. Thank you, sir.
[Defendant]: Okay. Do I have a right to a fair and
meaningful hearing if there’s conflict of interest?
THE COURT: I’m sorry?
[Defendant]: Do I have the right to a fair and meaningful
hearing if there’s a conflict of interest?
13
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
THE COURT: You have a right to a fair and impartial
hearing of your case, which is what we’re doing right now.
Okay.
[Defendant]: So --
THE COURT: Please bring in the jury.
[Defendant]: Sir? And what is the jurisdiction?
THE COURT: This is not an appropriate time to be asking
questions. The jurisdiction of the superior court of the State
of North Carolina.
[Defendant]: Does jurisdiction have to be submitted before
the proceedings proceed?
THE COURT: Please have a seat, sir.
Defendant repeatedly: (1) contested jurisdiction; (2) refused to enter pleas, sign
waivers, or complete an affidavit of indigency to qualify for appointed counsel; (3)
failed to retain his own counsel in the ten months between his district court and
superior court trials; (4) filed motions and raised arguments that were not legally
sound; and, (5) made unreasonable requests of the Court. Defendant repeatedly
questioned the jurisdiction of the trial court and stated that he wanted an appointed
attorney but “not one paid for by the State of North Carolina,” something clearly not
within the trial court’s power.
This appearance and trial took place over three days. Defendant argued he
was not informed his trial would start that day, but asserted he had “to be here or . .
14
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
. be arrested.” Defendant requested and was appointed standby counsel. The trial
court informed Defendant that at any point standby counsel could “step in” as
counsel.
The trial court warned Defendant that he was engaging in “dilatory conduct”
by arguing and continuing to question the jurisdiction of the court. Blakeney, 245 N.C.
App. at 464-65, 782 S.E.2d at 96. Before the jury was empaneled, Defendant initially
indicated he intended to enter a plea, though negotiations failed. The trial court
announced it was turning its “attention to the issue of standby counsel,” and
Defendant waived his right to standby counsel.
Defendant sought to delay the process by repeatedly arguing and asking for
rulings on jurisdiction, offering and withdrawing guilty pleas, requesting and
dismissing standby counsel, and seeking to retain counsel after a ten-month delay
between trials and then failing to do so. Defendant never asserted he was indigent
and eligible for appointed counsel, nor filed an affidavit of indigency. Viewing the
record as a whole, from arrest through district and superior court, Defendant’s
conduct, tactics, and arguments were designed to deny the legitimacy and jurisdiction
of the courts and to delay or obstruct its proceedings. Defendant’s prior record reflects
extensive contact with the legal system in multiple states and reflects his general
attitude that the law does not apply to him and he is above it.
Defendant, like the defendants in the cases of Montgomery, Quick, Rogers,
15
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
Boyd, Cureton, Mee, and Joiner, refused to cooperate, was disruptive and
argumentative, explicitly waived counsel twice in district court, failed to hire his own
attorney over the course of several months between his district court convictions in
August and his scheduled trial in superior court the following June. See id. at 462-
63, 782 S.E.2d at 94-95.
In cases with more factual similarities, Brown and Leyshon, the defendants
were found to have “obstructed and delayed the trial proceedings” because they had
at least three hearings to discuss the matters. The defendants’ appearances, motions,
and trials in superior court occurred over multiple days. See State v. Brown, 239 N.C.
App. 510, 519, 768 S.E.2d 896, 901 (2015); State v. Leyshon, 211 N.C. App. 511, 518-
19, 710 S.E.2d 282, 288-89 (2011).
The facts before us also diverge from Blakeney, as that Court specifically
enumerated a ground for not finding forfeiture because the defendant did not
challenge or deny the jurisdiction of the court. Blakeley, 245 N.C. App. at 463, 782
S.E.2d at 95. Here, Defendant repeatedly denied the trial court’s jurisdiction, argued
frivolous motions and grounds as a “Living man” and sovereign citizen, refused to
accept the trial court rulings, and insisted an attorney be provided for him, but not
one “paid for by the State of North Carolina,” an unavailable option. In State v.
Bullock and State v. McCrowre, the defendants had the clear intent and opportunity
to hire private counsel prior to trial. See Blakeley, 245 N.C. App. at 467-68, 782 S.E.2d
16STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
at 97-98; State v. Bullock, 316 N.C. 180, 185, 340 S.E.2d 106, 108-109 (1986); State v.
McCrowre, 312 N.C. 478, 480, 322 S.E.2d 775, 776-77 (1984).
Looking at the totality of Defendant’s statements, conduct, actions, demeanor,
and knowledge from prior multiple arrests through trials in both trial court divisions,
Defendant knowingly forfeited his right to counsel, dismissed standby counsel, and
elected to proceed pro se. Defendant also has made no showing nor argued that he
was indigent and could not afford, or was unable, to retain counsel during the ten
months pendency of his appeal from district court. His arguments are without merit.
VI. Conclusion
Defendant concedes and withdraws his argument on appeal challenging
jurisdiction. The State concedes Defendant did not waive his right to counsel under
North Carolina General Statutes § 15A-1242. Defendant’s overall demeanor and
conduct, from arrest through trial in superior court, supports a finding and conclusion
that he dismissed standby counsel and forfeited his right to counsel by frivolous and
repeated objections to jurisdiction, serious misconduct, and dilatory tactics, all after
being warned of the consequences of his behavior.
Defendant received a fair trial, free of prejudicial errors he preserved or
argued. I find no error in Defendant’s jury convictions or in the judgments entered
thereon. I respectfully dissent.
17
STATE V. SIMPKINS
TYSON, J., concurring in part and dissenting in part
18