111.7Waiver/Forfeiture of Right to Counsel

Last Updated: 04/15/24

Key Concepts

  • An indigent defendant is entitled to appointed counsel, but that right may be waived or forfeited.
  • Waiver of counsel must be knowing and voluntary.
  • Waiver of appointed counsel does not automatically waive all rights to counsel, including retained counsel.

General Requirements

Implicit in the Sixth Amendment right to counsel is the right to reject counsel and represent oneself. See Faretta v. California, 422 U.S. 806 (1975) (criminal defendant has Sixth Amendment right to refuse counsel and conduct his or her own defense); State v. Thacker, 301 N.C. 348 (1980). But cf. Martinez v. Court of Appeal of California, 528 U.S. 152 (2000) (declining to recognize constitutional right of self-representation on direct appeal of criminal conviction but also recognizing that appellate courts may allow defendant to represent self).  Any waiver of counsel must be voluntarily and understandingly made. “[T]he waiver of counsel, like the waiver of all constitutional rights, must be knowing and voluntary, and the record must show that the defendant was literate and competent, that he understood the consequences of his waiver, and that, in waiving his right, he was voluntarily exercising his own free will.” Thacker, 301 N.C. at 354; see also 3 LAFAVE, CRIMINAL PROCEDURE § 11.5(d), at 752–59 (discussing circumstances in which court need not honor defendant’s request to proceed pro se).  Waiver is a voluntary decision by a defendant; a defendant who seeks but is denied appointed counsel has not waived counsel. State v. Atwell, 383 N.C. 437, 448 (2022).

A defendant may waive the right to self-representation by delay in asserting it. Compare State v. Wheeler, 202 N.C. App. 61 (2010) (not error for trial court to deny defendant’s motion to discharge counsel after defendant waived counsel, then requested appointed counsel for jury selection; court expressly told defendant he would not be permitted to discharge counsel again, and defendant tried to discharge counsel after trial began), with State v. Walters, 182 N.C. App. 285 (2007) (no waiver of right to self-representation where defendant timely asserted his right on several occasions).

An indigent defendant may withdraw a waiver and request appointed counsel, but the withdrawal must be timely. State v. Clark, 33 N.C. App. 628 (1977); State v. Atkinson, 51 N.C. App. 683 (1981). A defendant who waives appointed counsel cannot delay the trial indefinitely while attempting to hire his or her own lawyer; the defendant need only be given a “fair opportunity” to employ counsel. Sampley v. Att’y General of North Carolina, 786 F.2d 610 (4th Cir. 1986); United States v. Attar, 38 F.3d 727 (4th Cir. 1994).

Procedure for Waiving Counsel

After the defendant has been advised of the right to counsel, it must be determined: (1) whether defendant wishes to waive the right to assigned counsel (if indigent); or (2) whether defendant wishes to waive the right to employ counsel and appear pro se. See AOC-CR-227 (Waiver of Counsel). An indigent defendant’s waiver of assigned counsel does not waive the defendant’s right to the assistance of all counsel. An indigent defendant must waive both the right to assigned counsel and the right to the assistance of all counsel before the defendant may be permitted to appear pro se. Thus, a defendant’s waiver of counsel potentially touches upon three different areas:

  1. Right to Waive In-Court Representation
    An indigent defendant who is advised of the right to counsel may waive, in writing, the right to in-court representation by counsel. See G.S. 7A-457(a); 15A-603(e).
  2. Right to Waive Out-of-Court Representation
    Out-of-court representation (for example, lineup after formal charge) may be waived orally or in writing by an indigent defendant. See G.S. 7A-457(c)
  3. Right to Self-Representation
    After being advised of rights, an indigent defendant may reject an offer of appointed counsel and appear pro se. However, the constitutional right to represent oneself is not absolute. See Indiana v. Edwards, 554 U.S. 164 (2008) (state may insist upon representation by counsel for those who are competent enough to stand trial but who still suffer from severe mental illness such that they are not competent to conduct trial proceedings by themselves). For North Carolina Edwards cases, see State v. Lane, 365 N.C. 7 (2011); State v. Reid, 204 N.C. App. 122 (2010); State v. Wheeler, 202 N.C. App. 61 (2010).

The trial judge must comply with G.S. 15A-1242 before allowing a defendant, whether indigent or not, to be tried without counsel. The trial judge must question the defendant and determine whether all the criteria for waiver have been met. G.S. 15A-1242; Faretta v. California, 422 U.S. 806 (1975); State v. Thacker, 301 N.C. 348 (1980); State v. Thomas, 331 N.C. 671 (1992). The court must follow the requirements of G.S. 15A-1242 by personally questioning the defendant, rather than relying on defendant’s reading of a written waiver of counsel form. State v. Wells, 78 N.C. App. 769 (1986); State v. Bullock, 316 N.C. 180 (1986). In determining whether defendant is entitled to appear pro se, the issue is not whether defendant has the skill and training to represent himself or herself effectively. Rather, it is simply whether defendant is able to understand the consequences of waiving counsel and appearing pro se. State v. Gerald, 304 N.C. 511 (1981). See also Jeffrey B. Welty, North Carolina Capital Case Law Handbook (3d ed. 2013).

Scope and Content of Waiver Determination by the Court

Before allowing a defendant to proceed pro se, the trial judge must establish two things: (i) that the defendant “clearly and unequivocally” expressed a desire to proceed without counsel, and (ii) that the defendant “knowingly, intelligently, and voluntarily” waived the right to counsel. See State v. LeGrande, 346 N.C. 718, 723 (1997); State v. Thomas, 331 N.C. 671 (1992) (defendant who equivocated and asked for lawyer as assistant did not waive right to counsel); State v. Worrell, 190 N.C. App. 387 (2008) (trial court did not pressure or coerce defendant into accepting appointed counsel and conducted thorough inquiry before defendant voluntarily revoked waiver of counsel).

The court must determine the nature of defendant’s waiver, i.e., whether defendant only desires to waive right to assigned counsel or whether defendant wants to waive right to all counsel and appear pro se. State v. McCrowre, 312 N.C. 478 (1984). The court must then determine whether defendant’s waiver is knowing and voluntary. State v. Thacker, 301 N.C. 348 (1980).  Before permitting a defendant to proceed pro se, the trial judge must satisfy himself or herself that the defendant: has clearly been advised of the right to counsel; understands the consequences of his or her decision; and comprehends the nature of the charges and the range of possible punishments. See G.S. 15A-1242; State v. Rich, 346 N.C. 50 (1997) (recognizing these requirements); see also State v. Simpkins, 265 N.C. App. 325 (2019), aff'd, 373 N.C. 530 (2020) (court failed to make thorough inquiry to support declaring a waiver of counsel, and defendant's conduct was not egregious enough to support a finding that he had forfeited counsel); State v. Moore, 362 N.C. 319 (2008) (trial court failed to make thorough inquiry into defendant’s waiver of right to counsel; court sets out checklist of sample questions that trial courts could ask). In determining whether defendant is fully aware of rights and the consequences of the waiver, the court must consider defendant’s age, education, mental condition, familiarity with the English language, and the complexity of the crime charged. G.S. 7A-457(a).

In Moore, the N.C. Supreme Court indicated that the following sample questions would comply with the statutorily mandated “thorough inquiry”:

  • Are you able to hear and understand me?
  • Are you now under the influence of any alcoholic beverages, drugs, narcotics, or other pills?
  • How old are you?
  • Have you completed high school? College? If not, what is the last grade you completed?
  • Do you know how to read? Write?
  • Do you suffer from any mental handicap? Physical handicap?
  • Do you understand that you have a right to be represented by a lawyer?
  • Do you understand that you may request that a lawyer be appointed for you if you are unable to hire a lawyer; and one will be appointed if you cannot afford to pay for one?
  • Do you understand that, if you decide to represent yourself, you must follow the same rules of evidence and procedure that a lawyer appearing in this court must follow?
  • Do you understand that, if you decide to represent yourself, the court will not give you legal advice concerning defenses, jury instructions or other legal issues that may be raised in the trial?
  • Do you understand that I must act as an impartial judge in this case, that I will not be able to offer you legal advice, and that I must treat you just as I would treat a lawyer?
  • Do you understand that you are charged with _________________, and that if you are convicted of this [these] charge[s], you could be imprisoned for a maximum of ________ and that the minimum sentence is ________? [Add fine or restitution if necessary.]
  • With all these things in mind, do you now wish to ask me any questions about what I have just said to you?
  • Do you now waive your right to assistance of a lawyer, and voluntarily and intelligently decide to represent yourself in this case?

Capacity to Waive Counsel

The U.S. Supreme Court has previously held that there is only one standard of capacity, and that a defendant who is capable of standing trial is capable of waiving the right to counsel. See Godinez v. Moran, 509 U.S. 389 (1993). However, evidence relevant to the issue of capacity may bear on the issue of whether the defendant’s waiver of counsel is knowing, voluntary, and intelligent. Thus, a defendant who is marginally capable of standing trial, although capable of waiving the right to counsel, may still be incapable of knowingly and intelligently doing so. See State v. Thomas, 331 N.C. 671 (1992) (mentally ill defendant who made inconsistent request “to proceed pro se with assistance of counsel” did not knowingly and intelligently waive right to counsel); State v. Gerald, 304 N.C. 511 (1981) (mentally ill defendant with IQ of 65, who told judge that courtroom made him dizzy and that he wanted to get proceeding over with, did not intelligently waive right to representation).  

The U.S. Supreme Court has held that states may require representation by counsel of defendants who are capable of standing trial but who lack the mental capacity to represent themselves. See Indiana v. Edwards, 554 U.S. 164 (2008) (characterizing such defendants as falling in a “gray-area” between capacity to stand trial and mental fitness to represent themselves). After the issuance of Edwards, the North Carolina Supreme Court initially appeared to indicate that a “gray-area” defendant may not proceed without counsel in North Carolina. State v. Lane [Lane I], 362 N.C. 667 (2008) (remanding to trial court to determine whether defendant was within category of “gray-area” defendants described in Edwards and should have been permitted to represent himself); accord State v. Wray, 206 N.C. App. 354 (2010) (so construing Lane I); see also In re P.D.R., 212 N.C. App. 326 (2011) (finding in reliance on Lane I that trial court erred in failing to conduct Edwards inquiry before accepting respondent’s waiver of counsel in termination of parental rights proceeding), rev’d on other grounds, 365 N.C. 533 (2012). Under this approach, in deciding whether to allow a defendant to proceed pro se, the trial judge must determine (1) whether the defendant is capable of proceeding, (2) whether the defendant has the mental capacity to represent himself or herself, and (3) whether the defendant’s waiver is knowing and voluntary.

Subsequently, however, the N.C. Supreme Court appears to have made the second inquiry discretionary with the trial judge. Once a trial judge determines that a defendant is capable of proceeding, the judge either may allow the defendant to proceed pro se if the defendant knowingly and voluntarily waives the right to counsel, or may refuse to allow the defendant to proceed pro se if the defendant is not mentally capable of doing so. State v. Lane [Lane II], 365 N.C. 7 (2011) (setting out these options and finding that the trial court upheld the defendant’s rights by allowing him to proceed pro se after determining that his waiver of counsel was knowing and voluntary); accord State v. Nackab, 213 N.C. App. 219 (2011) (unpublished) (construing Lane II as holding that the U.S. Supreme Court’s decision in Edwards applies only if the trial court refuses to allow the defendant to proceed pro se; since trial court allowed the defendant to proceed pro se, Edwards was not applicable and the only question was whether the defendant knowingly and voluntarily waived the right to counsel). 

A “gray-area” defendant may nevertheless forfeit the right to counsel if he or she engages in conduct amounting to a forfeiture. State v. Cureton, 223 N.C. App. 274 (2012) (trial court did not err in finding defendant forfeited right to counsel where defendant engaged in serious misconduct, e.g., shouted at and insulted his attorneys and spat on and threatened to kill one of them); cf. State v. Wray, 206 N.C. App. 354, 362 (2010) (defendant’s misbehavior was the same evidence that cast doubt on his capacity to proceed and represent himself and did not amount to serious misconduct associated with forfeiture). Although the N.C. Supreme Court in Lane II declined to adopt a statewide approach to waivers of counsel by “gray-area” defendants and authorized trial judges to decide whether to conduct an Edwards inquiry in each case, as a practical matter trial judges may be inclined to conduct a full inquiry to ensure that a defendant is capable of representing himself or herself and receives a fair trial. See Cureton, 223 N.C. App. 274 (2012) (observing that although not explicitly forbidden, the cases “indicate that North Carolina courts strongly disfavor self-representation by ‘gray area’ defendants”; also observing that “it is debatable whether a “gray-area” defendant is truly competent to represent himself at trial”). 

Forfeiture of Right to Counsel 

In some circumstances, a defendant who engages in “serious misconduct” may be found to have forfeited the right to counsel and can be required to proceed without counsel even though he or she has not met the standard for waiving counsel. Misconduct which has been deemed sufficiently eggregious to constitute forfeiture of counsel occurs in two general circumstances: (1) when a defendant displays aggressive, profane, or threatening behavior, and (2) when a defendant displays conduct which constitutes a serious obstruction of the proceedings. State v. Harvin, 382 N.C. 566, 587 (2022); see also State v. Atwell, 383 N.C. 437, 449 (2002) (recognizing same categories); State v. Simpkins, 373 N.C. 530 (2020) (holding that "in 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," but holding that defendant's conduct did not rise to that level in this case); State v. Brown, 239 N.C. App. 510 (2015).

In State v. Montgomery, 138 N.C. App. 521 (2000), an indigent defendant was twice appointed counsel, and he twice dismissed his appointed attorneys and retained private counsel. He then expressed dissatisfaction with his retained attorney, stated in court that he would not cooperate with his retained attorney, and assaulted the attorney by throwing water at him. The trial judge permitted the retained attorney to withdraw but declined to appoint replacement counsel for the defendant. After a continuance for the purpose of permitting the defendant to seek different private counsel, the defendant represented himself at trial. The court of appeals held in this situation that the defendant had “forfeited,” not “waived,” his right to counsel, and the trial judge was not required to ensure that the defendant had acted “knowingly, intelligently, and voluntarily” before requiring him to proceed pro se. See also State v. Cureton, 223 N.C. App. 274 (2012) (trial court did not err in finding defendant forfeited right to counsel where defendant engaged in serious misconduct, e.g., shouted at and insulted his attorneys and spat on and threatened to kill one of them); State v. Leyshon, 211 N.C. App. 511 (2011) (defendant forfeited right to counsel where he obstructed and delayed trial proceedings, refusing to recognize court’s jurisdiction and refusing to respond to court’s inquiries about whether he wanted counsel, among other things); State v. Quick, 179 N.C. App. 647 (2006) (after waiving appointed counsel, defendant forfeited right to retained counsel by failing to retain private counsel during eight months before probation revocation hearing); Sampley v. Attorney General of North Carolina, 786 F.2d 610, 613 (4th Cir. 1986) (court did not violate defendant’s right to counsel by refusing to grant continuance to allow defendant additional time to secure counsel; court should consider whether continuance request results from “the lack of a fair opportunity to secure counsel or rather from the defendant’s unjustifiable failure to avail himself of an opportunity fairly given”).

Standby Counsel

A defendant who waives the right to counsel may be appointed standby counsel. See G.S. 15A-1243. The duties of standby counsel are to: (i) assist the defendant when called upon to do so; and (ii) bring to the judge’s attention matters favorable to the defendant that the judge should rule upon on his or her own motion. However, the "assistance" provided by standby counsel should not be allowed to devolve into a "hybrid representation" in which the defendant is partially pro se and partially represented by counsel. For more information, see the related entry on Limitations on the Right to Counsel (Section B., addressing Hybrid Representation).

Removal or Withdrawal of Counsel

  1. Defendant’s Request to Remove
    Although a defendant does not have the right to appointed counsel of his or her choice, the court must engage in an adequate inquiry into a defendant’s request for the replacement of appointed counsel. The court must appoint different counsel if continued representation by original counsel would result in ineffective assistance of counsel, involve a conflict of interest, or otherwise violate the defendant’s Sixth Amendment right to counsel. State v. Glenn, 221 N.C. App. 143 (2012) (general dissatisfaction or disagreement over trial tactics insufficient basis to appoint new counsel); State v. Hutchins, 303 N.C. 321, 335 (1981) (“In the absence of any substantial reason for the appointment of replacement counsel, an indigent defendant must accept counsel appointed by the court, unless he wishes to present his own defense.”); see also State v. Williams, 363 N.C. 689 (2009) (defendant only expressed uncertainty to trial judge about why attorney who had previously withdrawn from case had been reappointed and did not make request for substitute counsel; trial judge therefore was not required to hold hearing on removal).
  2. Defense Counsel Request to Withdraw
    Possible grounds for a defense attorney’s request to withdraw are many and varied, and are not reviewed here. See, e.g., G.S. 15A-144 (counsel may move to withdraw for good cause). Ordinarily, it will be sufficient if defense counsel indicates to the court the general basis for moving to withdraw, and it is for grounds other than to cause undue delay in the proceedings. A trial court may hold an in camera hearing if necessary to inquire further. See Holloway v. Arkansas, 435 U.S. 475, 487 & n.11 (1978); State v. Yelton, 87 N.C. App. 554, 557 (1987).
  3. Removal by the Court for Cause
    In limited circumstances—for example, because of a significant conflict of interest—a court may remove retained or appointed counsel even over the client’s objection. See Wheat v. United States, 486 U.S. 153 (1988) (court may override waiver of conflict of interest and replace counsel preferred by defendant); State v. Rogers, 219 N.C. App. 296 (2012) (court could remove defendant’s retained counsel based on serious potential for conflict of interest even if conflict never materialized).
  4. Removal at the Request of the Prosecutor
    A prosecutor may also move to disqualify counsel for the defense if there are legitimate grounds for the motion. See State v. Yelton, 87 N.C. App. 554, 556–57 (1987) (state filed motion alleging conflict of interest where one attorney represented two co-defendants – court held that “in effect, the State merely brings the conflict issue to the court's attention” and although such issues are usually raised by the defendant, “there is no reason why the State may not also raise the question before trial”).
Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume I, Chapter 12.6.