111.3When Right to Counsel Applies
- Defendant has a constitutional and statutory right to counsel, which applies at many stages of a criminal prosecution.
- Violation of defendant’s right to counsel may result in suppression of evidence, a vacated conviction, or other consequences.
The Sixth Amendment right to counsel exists in all felony cases. Gideon v. Wainwright, 372 U.S. 335 (1963). This right attaches regardless of the punishment that is authorized or imposed for the offense. An indigent defendant charged with a capital crime is statutorily entitled to the appointment of two attorneys to represent him or her at trial and in post-conviction proceedings. See G.S. 7A-450(b1) (trial); G.S. 7A-451(c), (c1) (post-conviction). A statutory right to counsel also exists in all felony cases, and in any misdemeanor cases in which imprisonment or a fine of $500 or more “is likely” to be adjudged. G.S. 7A-451(a)(1).
A sentence of imprisonment for a conviction of a misdemeanor cannot be imposed when an indigent defendant has been denied counsel. Argersinger v. Hamlin, 407 U.S. 25 (1972); Scott v. Illinois, 440 U.S. 367 (1979) (Sixth Amendment right to appointed counsel in misdemeanor cases is limited to those cases in which an indigent defendant is actually sentenced to jail); Nichols v. United States, 511 U.S. 738 (1994) (court overruled Baldasar v. Illinois, 446 U.S. 222 (1980), and ruled that an uncounseled misdemeanor conviction, when no active sentence imposed, is valid for later use as a prior conviction).
The United States Supreme Court ruled in Alabama v. Shelton, 535 U.S. 654 (2002), that a defendant has a Sixth Amendment right to counsel at a misdemeanor trial in which the sentence for a conviction includes a suspended sentence. Thus, a judge may not impose a suspended sentence after a trial without counsel for a misdemeanor unless: (1) an indigent defendant has waived his or her right to the assistance of counsel and the right to appointed counsel, or (2) a non-indigent defendant has waived the right to the assistance of counsel. As a result, upon conviction of a misdemeanor, including a traffic misdemeanor such as speeding more than 15 miles over the speed limit, a judge may not constitutionally impose a suspended sentence unless the defendant was represented by counsel or properly waived counsel. A judge does not, however, violate a defendant’s Sixth Amendment right to counsel if the judge orders a fine, costs, or restitution without counsel or waiver of counsel—as long as a suspended sentence is not also imposed. A suspended sentence imposed in violation of Alabama v. Shelton may not subsequently be activated. See also State v. Neeley, 307 N.C. 247 (1982) (where record was silent as to whether the alleged indigent defendant was afforded counsel when he pled guilty, trial court should not have imposed active prison sentence on defendant).
Right to Counsel at “Critical Stages”
The Sixth Amendment grants a defendant the right to the presence of counsel at trial and at each “critical stage” of a trial proceeding. United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967). “Critical stages” under the Sixth Amendment occur after a defendant has been formally charged. Kirby v. Illinois, 406 U.S. 682 (1972); State v. McDowell, 301 N.C. 279 (1980). A “critical stage” includes any proceeding where there is a potential for substantial prejudice to the defendant’s rights, and the assistance of counsel could help avoid that prejudice. See Coleman v. Alabama, 399 U.S. 1 (1970); State v. Robinson, 290 N.C. 56 (1976). Critical stages include both pretrial and trial proceedings, but generally end upon judgment and sentence at the trial level. But see Mempa v. Rhay, 389 U.S. 128 (1967) (trial judge placed defendant on probation without fixing term of imprisonment; subsequent probation revocation proceeding at which judge determined and imposed sentence was form of deferred sentencing, and defendant had Sixth Amendment right to counsel); 3 LAFAVE, CRIMINAL PROCEDURE § 11.2(b), at 624 (certain post-verdict motions made immediately after conclusion of trial are extension of trial proceedings and should be treated as subject to Sixth Amendment).
Constitutional provisions other than the Sixth Amendment afford defendants additional rights to counsel after judgment and sentence at trial. For example, a person has a due process right to counsel for a first appeal of right. A defendant has statutory rights to counsel after judgment and sentence at the trial level, including the right to counsel for probation revocation proceedings, post-conviction motions, and additional appeals.
Common Proceedings Where Right to Counsel Does Apply
G.S. 7A-451(b) states that entitlement to court-appointed counsel and other assistance at court proceedings begins “as soon as feasible” after an indigent defendant is arrested or served with a criminal charge. This provision does not confer a right to counsel at the initial appearance (G.S. 15A-511(b)) or first appearance (G.S. 15A-601) (see discussion in Section D, below), but the Sixth Amendment right to counsel does attach at all “critical stages” of a prosecution. According to G.S. 7A-451(b), critical stages entitling a defendant the right to counsel include the following:
- Lineup After Judicial Proceedings Have Commenced
An indigent defendant who has been formally charged has a right to counsel at a pretrial lineup or other identification procedure at which defendant’s presence is required. Kirby v. Illinois, 406 U.S. 682 (1972); State v. McLain, 64 N.C. App. 571 (1983). See United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); cf. United States v. Ash, 413 U.S. 300 (1973) (no Sixth Amendment right to counsel at photographic identification procedure). In Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Court held that the Sixth Amendment right to counsel attaches at initial appearance; therefore, defendants have a right to have counsel present at any live lineup that follows an initial appearance.
- Deliberate Elicitation of Information by Police After Judicial Proceedings Have Commenced
Officers’ deliberate efforts, by themselves or through an informant, to elicit information, by interrogation or simple conversation, from the defendant about a pending charge after adversarial judicial proceedings have begun is a critical stage. See Fellers v. United States, 540 U.S. 519 (2004); Massiah v. United States, 377 U.S. 201 (1964); State v. Tucker, 331 N.C. 12 (1992) (taking of statement by police after first appearance (now, initial appearance) violated Sixth Amendment right to counsel). However, a defendant may waive the Sixth Amendment right to counsel during questioning by the police after judicial proceedings have begun, provided the waiver is knowing, intelligent, and voluntary. In Montejo v. Louisiana, 556 U.S. 778 (2009), the U.S. Supreme Court held that officers may initiate contact with and question a defendant, even one who has been appointed counsel, if the officers advise the defendant of the right to have counsel present (through Miranda-style warnings) and the defendant knowingly and voluntarily waives the right to have counsel present.
- Custodial Interrogation by Police at Any Time
An in-custody defendant has a right to counsel during an interrogation. Miranda v. Arizona, 384 U.S. 436 (1966); State v. Buchanan, 353 N.C. 332 (2001); G.S. 7A-451(b)(1). However, Miranda is based on Fifth Amendment protections, rather than a Sixth Amendment “critical stage” analysis, and therefore its protections may not be as broad. See, e.g., Illinois v. Perkins, 496 U.S. 292, 300 (1990) (holding that an undercover law enforcement officer posing as a fellow inmate was not required to give Miranda warnings to a suspect incarcerated on unrelated charges before asking the suspect questions that were likely to elicit an incriminating response).
- Nontestimonial Identification Procedures
The defendant has a statutory right to counsel at nontestimonial identification procedures conducted under G.S. 15A-271 through G.S. 15A-282, such as the taking of fingerprints or blood, and must be advised of this right before the procedure takes place. See G.S. 15A-279(d); State v. Satterfield, 300 N.C. 621 (1980) (recognizing right but finding no violation); cf. Gilbert v. California, 388 U.S. 263 (1967) (taking of handwriting exemplar not critical stage under Sixth Amendment); Schmerber v. California, 384 U.S. 757 (1966) (no Fifth Amendment right to counsel at taking of blood sample, which did not compel communications or testimony); State v. Wright, 274 N.C. 84 (1968) (nontestimonial identification procedures involving physical characteristics are generally not subject to Sixth Amendment; however, when accused is required to perform act, such as repeating of words, for purpose of identification by victim, procedure may be critical stage under Sixth Amendment). If the defendant’s statutory right to counsel is violated, any statements made by the defendant during the proceeding must be suppressed; however, suppression of the results of the identification procedure itself is not required. See G.S. 15A-279(d); Coplen, 138 N.C. App. 48.
This statutory right does not apply to nontestimonial procedures which are lawfully conducted by law enforcement without a nontestimonial identification order. See State v. Coplen, 138 N.C. App. 48 (2000) (upholding denial of motion to suppress results of gunshot residue test that was based on probable cause and exigent circumstances and was conducted without a nontestimonial identification order).
- Chemical Analysis in Impaired Driving Cases
A defendant has a statutory right to consult with an attorney regarding submitting to a chemical analysis, as long as the testing is not delayed by more than 30 minutes. See G.S. 20-16.2(a)(6); State v. Rasmussen, 158 N.C. App. 544 (2003) (recognizing statutory right to counsel but finding no violation); cf. State v. Howren, 312 N.C. 454 (1984) (chemical test for impairment not a critical stage under Sixth Amendment).
- Extradition Proceedings
A defendant has a statutory right to counsel at extradition proceedings. See G.S. 7A-451(a)(5) (appointed counsel must be provided to indigent person whose extradition to another state is sought); cf. State v. Taylor, 354 N.C. 28 (2001) (Sixth Amendment right to counsel did not attach to out-of-state extradition proceedings; adversary criminal judicial proceedings had not yet commenced).
- Bail Hearing
An indigent person is statutorily entitled to appointed counsel at a hearing to reduce bail or fix bail if bail was earlier denied. See G.S. 7A-451(b)(3). If the bail hearing is conducted by audio-visual transmission, the defendant must be allowed to communicate fully and confidentially with his or her attorney. See G.S. 15A-532(b) (defendant who has counsel must be permitted to consult with counsel).
- Probable Cause Hearing
A defendant has a statutory right to request a probable cause hearing under G.S. 15A-606(a), and an indigent defendant is entitled to appointment of counsel if such a hearing is held. G.S. 7A-451(b)(4); State v. Gainey, 280 N.C. 366 (1972); Coleman v. Alabama, 399 U.S. 1 (1970) (probable cause hearing is critical stage; although hearing is not constitutionally required, defendant has constitutional right to counsel if one is held); State v. Cobb, 295 N.C. 1 (1978) (probable cause hearing is critical stage); G.S. 7A-451(b)(4); G.S. 15A-611(c); see also Moore v. Illinois, 434 U.S. 220 (1977) (Sixth Amendment violated by identification of defendant at preliminary hearing in absence of counsel).
Arraignment is a critical stage, and the right to appointed counsel applies. G.S. 15A-942; -1012. See Hamilton v. Alabama, 368 U.S. 52 (1961) (arraignment is critical stage); White v. Maryland, 373 U.S. 59 (1963) (per curiam) (plea of guilty made without counsel and then later revoked inadmissible at trial); see also G.S. 15A-942 (defendant who appears at arraignment must be informed of right to counsel); G.S. 15A-1012 (defendant may not be called on to plead until he or she has had opportunity to retain counsel, has been assigned counsel, or has waived counsel).
- Pretrial Evidentiary/Suppression Hearing
Evidentiary and suppression hearings are a critical stage; thus, the right to counsel applies. See Pointer v. Texas, 380 U.S. 400 (1965) (pretrial hearing where evidence is presented is critical stage); State v. Frederick, 222 N.C. App. 576 (2012) (suppression hearing is critical stage at which defendant has right to counsel; waiver of counsel not adequate).
- Trial and Sentencing
The right to counsel applies at trial and sentencing, since these are both critical stages in the criminal process. G.S. 7A-451(b)(5). See Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel for felonies); Scott v. Illinois, 440 U.S. 367 (1979) (right to counsel for trial of misdemeanor where actual imprisonment imposed); Alabama v. Shelton, 535 U.S. 654 (2002) (right to counsel for trial of misdemeanor where suspended sentence of imprisonment imposed); see also G.S. 7A-451(a)(1), (b)(5). Sentencing is also a critical stage of the proceedings. State v. Boyd, 205 N.C. App. 450 (2010). A defendant is statutorily entitled to two attorneys in a capital case. See G.S. 7A-450(b1). Failure to appoint a second attorney is reversible error. See State v. Hucks, 323 N.C. 574 (1988).
- Habeas Corpus
The defendant has a right to counsel at a hearing on a petition for writ of habeas corpus under Chapter 17 of the General Statutes. See G.S. 7A-451(a)(2).
- Motion for Appropriate Relief
If the defendant has been convicted of a felony, fined $500 or more, or given an active sentence, a defendant has the right to appointed counsel on a related motion for appropriate relief. See G.S. 7A-451(a)(3). If the defendant has been sentenced to death, the defendant has the right to two appointed counsel. G.S. 7A-451(c), (c1).
- Innocence Inquiry Commission
A convicted person has the right to advice of appointed counsel before signing a waiver of rights related to the claim of innocence and, if a formal inquiry is granted, throughout the formal inquiry. See G.S. 15A-1467(b). The convicted person also has a right to be represented by counsel at the evidentiary hearing before the three-judge panel reviewing a Commission finding of innocence. G.S. 15A-1469(d). For more information about Commission proceedings, see the 2013 Defender Manual, Chapter 35.8.
- Probation Revocation Hearing
A defendant has a statutory right to counsel at a probation revocation hearing. See G.S. 7A-451(a)(4); G.S. 15A-1345(e); State v. Coltrane, 307 N.C. 511 (1983) (court finds that G.S. 15A-1345(e) was intended to provide rights exceeding the constitutional right to counsel; State v. Ramirez, 220 N.C. App. 150 (2012) (recognizing right to counsel at probation revocation hearing and finding waiver of counsel inadequate); see also State v. Neeley, 307 N.C. 247 (1982) (judge may not activate suspended sentence if defendant was not represented by counsel and did not waive counsel when suspended sentence and probation were imposed).
- Post-conviction DNA Testing Hearing
An indigent defendant who moves for post-conviction DNA testing is entitled to appointed counsel if the testing may be material to a claim of wrongful conviction. See S. 15A-269(c); State v. Gardner, 227 N.C. App. 364 (2013) (requiring showing of materiality for appointment of counsel and finding that defendant’s conclusory statement of materiality insufficient). An indigent defendant whose motion for post-conviction DNA testing is denied is entitled to appointed counsel for purposes of appealing the order denying testing. See G.S. 15A-270.1.
- Parole and Post‐release Supervision Revocation and Contempt Hearings
The Post-Release Supervision and Parole Commission determines whether a parolee or post-release supervisee is entitled to appointed counsel at a revocation hearing. See G.S. 148-62.1. Appointment is determined on a case-by-case basis, to ensure “fundamental fairness,” when defendant claims not to have committed the violation, or that substantial and complex reasons justified or mitigated the violation, or the defendant is incapable of speaking effectively for himself. G.S. 148-62.1(1)-(3). G.S. 143B-720(a), amended in 2011, gives the Post-Release Supervision and Parole Commission authority to conduct contempt proceedings, in accordance with the requirements for plenary contempt proceedings under G.S. 5A-15, for a violation of post-release supervision by a person on post-release supervision for an offense subject to sex offender registration requirements. In plenary contempt proceedings, an indigent respondent is entitled to appointed counsel if imprisonment is imposed or likely to be imposed. See G.S. 7A-451(a)(1) (providing for the right to appointed counsel if imprisonment is likely to be imposed); Hammock v. Bencini, 98 N.C. App. 510 (1990) (recognizing the right to appointed counsel for criminal contempt if imprisonment is likely to be imposed); McBride v. McBride, 334 N.C. 124 (1993) (recognizing similar right for civil contempt).
- Satellite-based Monitoring “Bring-back” Hearing
Ordinarily, the sentencing judge determines whether a person has been convicted of an offense requiring registration as a sex offender and warranting satellite-based monitoring (SBM). If a defendant is represented by an appointed attorney for the trial or plea, he or she will continue to be represented by that attorney at the SBM determination at sentencing. If the judge makes no determination at sentencing about the appropriateness of SBM, the Division of Adult Correction may request the prosecution to schedule another hearing for the court to make that determination, commonly called a “bring-back” hearing. See G.S. 7A-451(a)(18); 14-208.40B(b). Under G.S. 14-208.40B(b), an indigent defendant is entitled to have counsel appointed for a bring-back hearing. The statutes do not provide for counsel to be appointed on a petition to terminate sex offender registration requirements and associated SBM obligations. G.S. 14-208.12A.
- Juvenile Delinquency Cases
A juvenile who is alleged to be delinquent is entitled to counsel at all proceedings before the juvenile court, including transfer proceedings, adjudications, and disposition hearings. This right is based on both due process and state statute. See G.S. 7B-2000(a) (juvenile within jurisdiction of juvenile court has right to appointed counsel in all proceedings); G.S. 7A-451(a)(8) (juvenile has right to counsel at hearing in which commitment to institution or transfer to superior court for felony trial is possible); In re Gault, 387 U.S. 1 (1967) (recognizing due process right to counsel in juvenile delinquency proceedings). Juveniles are “conclusively presumed to be indigent,” and if they have not retained counsel, counsel must be appointed for them. G.S. 7B-2000(b). Note, however, that a juvenile generally has no right to appointed counsel in cases in which he or she is alleged to be “undisciplined.” See In re Walker, 282 N.C. 28 (1972) (counsel not required at hearing on an undisciplined child petition).
- Custodial Interrogation of Juvenile
In addition to Fifth and Sixth Amendment protections, juvenile interrogation rights apply to any person under 18. See G.S. 7B-2101; State v. Fincher, 309 N.C. 1 (1983) (juvenile is defined as person under 18 years of age under former G.S. 7A-517(20), now codified as G.S. 7B-101(14)).
Common Proceedings Where Right to Counsel Does Not Apply
- Initial Appearance
On arrest the defendant must be taken before a judicial official, usually a magistrate, and the magistrate must advise the defendant of the right to communicate with counsel and friends. See G.S. 15A-511(b)(2). The chief district judge may delegate to magistrates the authority to appoint counsel and accept waivers at initial appearance, except in potentially capital cases. See G.S. 7A-146(11).
A hearing before a magistrate to determine whether there was probable cause for an arrest without a warrant (see G.S. 15A-511(c), also called an initial appearance in North Carolina) is not a critical stage. See Gerstein v. Pugh, 420 U.S. 103 (1975); G.S. 15A-511 (describing function of initial appearance). However, the right to counsel attaches at the defendant’s initial appearance before a magistrate, and counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage thereafter. Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008).
- First Appearance
A first appearance is statutorily required in felony cases, but it is not a critical stage requiring counsel. G.S. 15A-601(a). At a defendant’s first appearance before a district court judge, the judge must: (i) determine whether the defendant has retained or been assigned counsel; (ii) if the defendant is unrepresented, inform the defendant of the right to counsel and right to appointed counsel if he or she is indigent; (iii) appoint counsel if necessary; and (iv) if the defendant desires to proceed without counsel, obtain a written waiver. See G.S. 15A-601(a), 603.
- Capacity Evaluation
The N.C. Supreme Court has held that the defendant does not have a Sixth Amendment right to have counsel present at a capacity evaluation (although the mental health facility or trial court may permit counsel to attend). See State v. Davis, 349 N.C. 1 (1998).
Right to Counsel in Contempt Proceedings:
Criminal contempt is intended to punish a person for a past act in violation of a court order. There are three different types of criminal contempt proceedings:
- Summary Proceedings for Direct Contempt
The court is not required to appoint counsel when imposing summary measures for direct contempt. See In re Williams, 269 N.C. 68 (1967) (summary punishment for direct contempt does not contemplate trial at which person charged with contempt must have counsel). There are three requirements for direct contempt. First, the contempt must be “direct” – that is, the act must be committed within sight or hearing of presiding official, and be committed in, or in immediate proximity to, the room where proceedings are being held before court, and be likely to interrupt or interfere with matters before the court. See G.S. 5A-13. Second, the court must act “summarily” — that is, the court must impose any necessary measures “substantially contemporaneously” with the contempt. G.S. 5A-14(a). Third, before imposing summary punishment, the court must give the defendant summary notice and opportunity to respond, and must find facts beyond a reasonable doubt supporting summary measures. See G.S. 5A-14(b). A person held in summary criminal contempt by a “judicial official inferior to a superior court judge” (i.e., a district court judge) has the right to a de novo review in superior court. G.S. 5A-17. A de novo hearing is a plenary proceeding. See State v. Ford, 164 N.C. App. 566 (2004). Therefore, the person would be entitled to counsel at that hearing, as in plenary proceedings, discussed below.
- Plenary Proceedings
In plenary proceedings, an indigent person has a right to have counsel appointed if imprisonment, a suspended sentence, or a fine over $500 is likely to be imposed. See S. 7A-451(a)(1); Hammock v. Bencini, 98 N.C. App. 510 (1990).
- Direct Contempt
Plenary proceedings for direct criminal contempt are required when the judicial official chooses not to proceed summarily (that is, the judge does not act immediately), or is not authorized to proceed summarily. See G.S. 5A-15; O’Briant v. O’Briant, 313 N.C. 432 (1985) (when court does not act immediately to punish act constituting direct contempt, notice and hearing are required); see also Groppi v. Leslie, 404 U.S. 496 (1972) (in case alleging contempt of legislative body, due process violated by failure of legislature to give defendant notice and opportunity to respond to contempt charge that was brought two days after alleged contempt).
- Indirect Contempt
Proceedings for indirect criminal contempt include child support and probation violations. An indigent person has the same right to appointed counsel in proceedings for indirect criminal contempt as in plenary proceedings for direct criminal contempt. Any criminal contempt that is not a direct criminal contempt constitutes an indirect criminal contempt. For example, a contempt committed outside the courtroom, such as a failure to pay child support or a probation violation under G.S. 5A-11(a)(9a), constitutes an indirect criminal contempt, and plenary proceedings are therefore required pursuant to G.S. 5A-15.
- Direct Contempt