111.1Right to Counsel

A. Constitutional

1. Federal Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. U.S. Const. Amend. VI. The Sixth Amendment right to counsel is applicable to the states through the Fourteenth Amendment. Argersinger v. Hamlin, 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335 (1963). The right to appointed counsel applies to all felonies and any misdemeanor for which actual imprisonment or a suspended sentence is imposed. Alabama v. Shelton, 535 U.S. 654 (2002); Scott v. Illinois, 440 U.S. 367 (1979).

2. Federal Due Process

Custodial Interrogation. A person has a Fifth Amendment right to appointed counsel at any custodial interrogation. Miranda v. Arizona, 384 U.S. 436 (1966); see also Jeff Welty, The Law of Interrogation in North Carolina.

First Appeal of Right. A criminal defendant has a due process right to appointed counsel on a first appeal of right. Evitts v. Lucey, 469 U.S. 387 (1985).

Right to Counsel in Civil Proceedings. Outside of criminal context, a person may have right to counsel in other proceedings involving fundamental rights, such as a proceeding to terminate parental rights. Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981). A juvenile alleged to be delinquent is entitled to counsel in any delinquency proceeding. In re Gault, 387 U.S. 1 (1967); G.S. 7A-451(a)(8); 7B-2000(a). A person charged with civil contempt may be entitled to counsel if incarceration is imposed. See McBride v. McBride, 334 N.C. 124 (1993). But see Turner v. Rogers, 564 U.S. 431 (2011).

3. State Constitution

In all criminal prosecutions, every person charged with a crime has the right to have counsel for defense. N.C. Const. art. I, § 23. The state constitutional right to counsel is no broader than that provided by the federal constitution. See State v. Harris, 111 N.C. App. 58, 70 (1993).

B. Statutory

“Every person, accused of any crime whatsoever, shall be entitled to counsel in all matters which may be necessary for his defense.” G.S. 15-4. An indigent person is entitled to counsel in any case in which imprisonment, or a fine of $500, or more, is likely to be adjudged. G.S. 7A-451(a)(1). An indigent defendant charged with a capital crime is entitled to the appointment of two attorneys to represent him at trial and in postconviction proceedings. G.S. 7A-450(b1); G.S. 7A-451(c), (c1). For application of the statutory right to counsel, see the next section, When Right to Counsel Applies.

C. Scope of the Right

1. Attachment

The constitutional right to counsel attaches upon commencement of adversarial judicial proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Kirby v. Illinois, 406 U.S. 682, 689 (1972): State v. Tucker, 331 N.C. 12, 33 (1992). When a defendant is arrested, the right to counsel attaches at the initial appearance before a judicial official, though the initial appearance itself is not a critical stage at which the defendant is entitled to counsel. Rothgery v. Gillespie County, 554 U.S. 191, 212-13 (2008); State v. Detter, 298 N.C. 604 (1979). Entitlement to the statutory right to counsel identified in G.S. 7A-451 begins as soon as feasible after the indigent is arrested or served with process. G.S. 7A-451(b).

2. Critical Stages.

After commencement of judicial proceedings, a defendant has a right to counsel at all critical stages of a criminal prosecution. See Coleman v. Alabama, 399 U.S. 1 (1970); State v. Robinson, 290 N.C. 56 (1976). For application of the right to counsel at critical stages, see the next section, When Right to Counsel Applies.

3. Termination

The constitutional right to counsel generally terminates with the imposition of judgment and sentence at the trial level. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); State v. Velasquez-Cardenas, 259 N.C. App. 211, 214 (2018).