               IN THE COURT OF APPEALS OF NORTH CAROLINA
                                  No. COA16-1193

                              Filed: 21 November 2017

Gaston County, Nos. 13 CRS 59589-90

STATE OF NORTH CAROLINA

        v.

TINA STAMEY PAYNE


        Appeal by Defendant from order entered 19 May 2016 by Judge Robert T.

Sumner in Superior Court, Gaston County. Heard in the Court of Appeals 5 June

2017.


        Attorney General Joshua H. Stein, by Assistant Attorney General Kathleen N.
        Bolton, for the State.

        Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
        Grant, for Defendant.


        McGEE, Chief Judge.


        Tina Stamey Payne (“Defendant”) appeals from the trial court’s order finding

her not guilty by reason of insanity (“NGRI”) of one count of attempted first-degree

murder and one count of assault with a deadly weapon inflicting serious injury. On

appeal, Defendant asserts that she was denied her constitutional right to assistance

of counsel when her defense lawyer pursued a pretrial defense of NGRI against her

wishes.

                                   I. Background
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      Evidence presented at multiple pretrial hearings, based in part on court-

ordered psychological reports, tended to show the following: On 4 August 2013,

Defendant was at her home when she pointed a .22 caliber handgun at A.P., her

fifteen-year-old daughter, and said: “I’m sorry.” A.P. screamed for her brother and

Defendant’s twenty-eight-year-old son, R.P., ran into the room and wrestled the gun

from Defendant. During the struggle, the gun discharged twice. A.P. was hit in her

left shoulder by a bullet, and R.P. was hit in his right hand. Defendant then “went

outside with a knife and tried to get hit by a car, and then began cutting her wrists.”

Defendant was arrested that day, and indicted for attempted first-degree murder and

assault with a deadly weapon inflicting serious injury on 19 August 2013.

      The day after the incident, on 5 August 2013, a forensic nurse practitioner

conducted a psychiatric consultation with Defendant and diagnosed her as suffering

from psychosis or being psychotic at the time of the 4 August 2013 incident.

Defendant’s Counsel filed an ex parte motion on 9 September 2013, requesting the

trial court to approve funds to retain a mental health expert to examine Defendant

in order “to determine whether or not [] Defendant has any defenses based upon []

psychological, mental, emotional and personality problems.” Defendant’s counsel’s

motion was granted, and Defendant was evaluated by an expert retained by her

counsel. Defendant’s counsel filed a motion on 8 April 2014 stating that Defendant

“hereby notifies the State of [her] intention to use at trial defenses of, but not limited


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to alibi, mental infirmity, diminished capacity, self-defense, mistake of fact, insanity

and/or accident.”

                             A. Initial Capacity Hearings

      At a 6 November 2014 hearing, the trial court was informed by the State that

the defense expert had completed his mental health evaluation of Defendant. The

State requested that Defendant be committed to Central Region Hospital for

evaluation by State experts on capacity and insanity issues. Defendant’s counsel did

not object. Defendant stated: “I understand the State wants a second opinion for an

evaluation, and I agree with that, if that’s what the State feels like they need[.]”

However, she also informed the trial court: “My attorney and I do not agree on a lot

of things.   He’s made a lot of decisions without even talking to me about it.”

Defendant further stated:

             I let [my attorney] know on August the 18th of [2013] that
             I wanted to plead not guilty because it was an accident.
             [My attorney] waited until April of this year and put in a
             plea for insanity. He told me the truth was not good
             enough, it was not going to work. He thought an insanity
             plea was the best. But I know what happened because I
             was there, and my children were there. I didn’t try to
             murder anybody and I did not shoot anyone. And I know
             this and my children know this.

             ....

             I know I didn’t make a confession, I didn’t do it. I did not
             try to murder anybody and I didn’t shoot anybody. You
             don’t confess to that. I don’t know why my attorney keeps
             trying to do this insanity plea when I’ve made it clear to


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              him that it was an accident, the truth was gonna have to
              be good enough.

The trial court noted that Defendant sounded “very lucid, very rational,” but that it

had a petition that said Defendant had mental health issues and a history of

paranoia, as well as “two lawyers telling [the court] that they think that [Defendant]

need[s] to be examined by another psychiatrist,” and so the trial court granted the

State’s request to commit Defendant for further evaluation to determine her capacity

to proceed.

      Defendant’s capacity to proceed was evaluated at a 21 July 2015 hearing. At

that hearing, Defendant stated she had told her counsel she wanted a trial by jury,

but that he had not gotten back in contact with her about the matter. Based upon

the evidence presented, Defendant was again ordered to be “involuntarily committed

. . . for appropriate treatment until such time as she be rendered competent in this

matter.”

                          B. Pretrial Determination of NGRI

      Another hearing was conducted on 7 April 2016, which the State explained to

the trial court was for the following two purposes:

              Your Honor, we put this on the calendar specifically for this
              afternoon to address the defense of insanity pretrial. As
              we were reviewing the court file and all of the
              evaluations that have been done [Defendant’s counsel]
              and I discovered that there has not been a finding of
              capacity at this point. So we will need to address that
              first. And once that determination has been made then


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             move to a pretrial hearing as to the defense of insanity
             and whether or not it would apply to [Defendant’s]
             cases that are pending.

Although no written motion is included in the record, it appears Defendant’s counsel

did move, pursuant to N.C. Gen. Stat. § 15A-959(c) (2015), for a pretrial

determination by the trial court that Defendant was NGRI of the crimes charged.

During the 7 April 2016 hearing, the State, Defendant’s counsel, and Defendant

herself, agreed Defendant was competent to assist her attorney and proceed to trial.

The trial court ruled that Defendant was competent to proceed, and a hearing

pursuant to N.C.G.S. § 15A-959(c) was then conducted.

      The State requested that the trial court “move forward to address specifically

the second portion of the purpose of us being here today, which is in regard to whether

or not insanity would be a viable defense for [Defendant] . . . at trial proceedings”

pursuant to N.C.G.S. § 15A-959(c). The trial court next heard testimony concerning

Defendant’s motion for pretrial determination of insanity.        Defendant’s expert

witness testified that, in her opinion, Defendant suffered from schizophrenia at the

time of the offenses and that Defendant “understood the action of what she was doing

but not the wrongfulness of the action.” After this testimony, which constituted the

entirety of the evidence presented, Defendant asked, and was permitted, to make a

statement to the trial court.

             [DEFENDANT]: Your Honor, [my attorney] had spoke[n]
             to me when I was informed of all of my options for a plea,


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             when I was in the hospital for four months. I took
             restorative classes and that was an extensive explanation
             of the court system and process and the pleas that were
             available to me for the accusations made against me.

             [My attorney] and I discussed that. And I expressed to [my
             attorney] that I did not want him to file a motion for a
             NGRI plea, that I realized it wasn’t an option to me. But
             basically for it to be heard without hearing all of the
             evidence to be disputed and to have a proper jury hearing
             to find me guilty of the crimes I’m alleged to have
             committed. That it was an admission of guilt with an
             excuse and that I would prefer – I did not want him to give
             that plea, enter the motion for the use of that plea.

             But [my attorney] did that without my knowledge, and he
             only informed me of it on last Friday, April the 1st he
             informed me of that. And that was pretty much it. But as
             far as it being used in a trial, I have no problem with that.
             But to be used without a proper trial to dispute any
             evidence against me I feel like that would violate my rights.

             THE COURT: Okay

             [DEFENDANT]: And I’d ask that you would enter – that
             you would deny an entry of a NGRI plea today before a
             proper hearing and proper trial to establish guilt because
             it hasn’t been established I committed a crime. I haven’t
             been convicted of a crime to be found not guilty of.

             THE COURT: All right. Thank you.

      Defendant’s counsel then immediately argued that, based on the evidence

presented, the trial court should find Defendant “insane and . . . not guilty[.]” The

State agreed with the recommendation of Defendant’s counsel, but requested that the




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trial court “make this a dismissal with leave so that the State then is responsible and

aware of any future actions as it relates to [Defendant].” (emphasis added).

      Following the hearing, the trial court concluded:

             [D]efendant has a serious mental illness, schizophrenia,
             was psychotic at the time of the alleged crimes on August
             4, 2013 and due to her psychosis, was unable to understand
             the wrongfulness of her actions at the time they were
             allegedly committed.

             [D]efendant has a valid defense of insanity and the charges
             arising out of the occurrences on August 4, 2013 should be
             dismissed with leave as a matter of law.

The trial court entered an order on 19 May 2016, which ordered “the charges against

[D]efendant be dismissed with leave by the State based on the [trial court’s]

determination that under N.C.G.S. § 15A-959, [D]efendant was insane at the time

the acts for which she is charged were committed.” Defendant appeals.

                                  II. Appellate Review

      The State filed a motion to dismiss Defendant’s appeal based upon its

contention that no right of appeal exists from the order ruling that Defendant was

NGRI. Defendant acknowledges that her only potential avenue for appellate review

is for this Court to grant the petition for writ of certiorari, which she filed 25 January




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2017. We grant Defendant’s petition for writ of certiorari and deny the State’s motion

to dismiss.1 We therefore address the merits of Defendant’s appeal.

                                            III. Analysis

         In Defendant’s first argument, she contends “the trial court erred and denied

[her] constitutional right to the assistance of counsel when it allowed her lawyer to

pursue a pre-trial insanity defense against her wishes,” and requests that this Court

“vacate the trial court’s NGRI order and remand for appropriate proceedings.” We

agree.

         “This Court reviews alleged violations of constitutional rights de novo.” State

v. Jones, 220 N.C. App. 392, 394, 725 S.E.2d 415, 416 (2012) (citations omitted). As

our Supreme Court has stated:

                The right to counsel in a serious criminal prosecution is
                guaranteed by the sixth amendment to the Constitution of
                the United States. The attorney-client relationship

                    rests on principles of agency, and not guardian and
                    ward. While an attorney has implied authority to make
                    stipulations and decisions in the management or
                    prosecution of an action, such authority is usually
                    limited to matters of procedure, and, in the absence of
                    special authority, ordinarily a stipulation operating as
                    a surrender of a substantial right of the client will not
                    be upheld.

                The attorney is bound to comply with her client’s lawful

         1
         Recognizing the complicated issues concerning the appealability of the 19 May 2016 order,
we grant to the extent necessary, if at all, Defendant’s petition pursuant to the authority granted this
Court by N.C. Gen. Stat. § 7A-32(c) (2015) and Rule 2 of the North Carolina Rules of Appellate
Procedure. See State v. Ledbetter, __ N.C. App. __, 794 S.E.2d 551 (2016).

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             instructions, “and her actions are restricted to the scope of
             the authority conferred.” “No person can be compelled to
             take the advice of his attorney.”

State v. Ali, 329 N.C. 394, 403, 407 S.E.2d 183, 189 (1991) (citations omitted).

      The following statute sets forth the requirements for a trial court’s pretrial

determination finding a defendant not guilty by reason of insanity:

             Upon motion of the defendant and with the consent of the
             State the [trial] court may conduct a hearing prior to the
             trial with regard to the defense of insanity at the time of
             the offense. If the [trial] court determines that the
             defendant has a valid defense of insanity with regard to
             any criminal charge, it may dismiss that charge, with
             prejudice, upon making a finding to that effect.

N.C.G.S. § 15A-959(c) (emphasis added). Defendant argued at her hearing that she

did not consent to any motion for a pretrial determination of NGRI:

             And I’d ask that you would enter – that you would deny an
             entry of a NGRI plea today before a proper hearing and
             proper trial to establish guilt because it hasn’t been
             established I committed a crime. I haven’t been convicted
             of a crime to be found not guilty of.

Defendant also stated to the trial court: “But as far as [the defense of NGRI] being

used in a trial, I have no problem with that. But to be used without a proper trial to

dispute any evidence against me I feel like that would violate my rights.” However,

against Defendant’s express wishes, Defendant’s counsel moved for a pretrial

determination of NGRI pursuant to N.C.G.S. § 15A-959(c), the State consented, and

the trial court agreed – purportedly dismissing the charges against Defendant based



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upon its determination that she was NGRI. The trial court also entered “an order

finding that [D]efendant ha[d] been found not guilty by reason of insanity of a crime

and committ[ed her] to a Forensic Unit operated by the Department of Health and

Human Services,” until such time as Defendant should be released “in accordance

with Chapter 122C of the General Statutes.” N.C. Gen. Stat. § 15A-1321(b) (2015).

                            A. Competency to Stand Trial

      After initially being found incompetent to assist in her defense, Defendant was

found competent to proceed on 7 April 2016.                Defendant agrees that she was

competent to proceed on 7 April 2016.

      According to N.C. Gen. Stat. § 15A-1001 (2015):

             No person may be tried, convicted, sentenced, or punished
             for a crime when by reason of mental illness or defect he is
             unable to understand the nature and object of the
             proceedings against him, to comprehend his own situation
             in reference to the proceedings, or to assist in his defense in
             a rational or reasonable manner. This condition is
             hereinafter referred to as “incapacity to proceed.”

N.C.G.S. § 15A-1001(a) (emphasis added). As explained by this Court:

             “The test for capacity to stand trial is whether a defendant
             has capacity to comprehend his position, to understand the
             nature of the proceedings against him, to conduct his
             defense in a rational manner and to cooperate with his
             counsel[.]” “Evidence that a defendant suffers from mental
             illness is not dispositive on the issue of competency.” Our
             Supreme Court has noted that

                a defendant does not have to be at the highest stage of
                mental alertness to be competent to be tried. So long as


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                a defendant can confer with his or her attorney so that
                the attorney may interpose any available defenses for
                him or her, the defendant is able to assist his or her
                defense in a rational manner. It is the attorney who
                must make the subtle distinctions as to the trial.

State v. Coley, 193 N.C. App. 458, 463–64, 668 S.E.2d 46, 50 (2008) (citations omitted).

We therefore proceed with our analysis operating under the legal presumption that

Defendant was “[]able to understand the nature and object of the proceedings against

[her], to comprehend [her] own situation in reference to the proceedings, [and] to

assist in [her] defense in a rational or reasonable manner.” N.C.G.S. § 15A-1001(a).

                    B. Defendant’s Right to Choose Trial Strategy

      Although the 19 May 2016 order purports to have acquitted Defendant of the

charges filed against her, we must still determine whether Defendant’s rights were

violated when the trial court proceeded with a pretrial hearing pursuant to N.C.G.S.

§ 15A-959(c), against her express wishes, upon the motion of her counsel and the

consent of the State. Whether a competent defendant has the right to refuse to

pursue a defense of NGRI is a question of first impression in North Carolina.

                                  1. Federal Courts

      A defendant’s right to refuse a plea of NGRI has not always been decided

consistently in other jurisdictions. In one of the seminal opinions addressing this

issue, from the United States Court of Appeals for the D.C. Circuit, that Court

initially held that “a defendant may not keep the issue of insanity out of the case



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altogether. He may, if he wishes, refuse to raise the issue of insanity, but he may not,

in a proper case, prevent the court from injecting it.” Whalem v. United States, 346

F.2d 812, 818 (D.C. Cir. 1965) (citations omitted), overruled by U.S. v. Marble, 940

F.2d 1543 (D.C. Cir. 1991).           However, the D.C. Circuit eventually overruled its

decision in Whalem, in part because Congress had, post-Whalem, made NGRI an

affirmative defense in federal courts, and thereby removed the affirmative burden of

the State to prove a defendant’s mental responsibility beyond a reasonable doubt in

every trial.2 Marble, 940 F.2d at 1546. The D.C. Circuit also recognized that “[n]o

other federal court of appeals has imposed a duty upon the district court to raise the

insanity defense; indeed, only a few have even considered the issue.” Id. at 1545

(citations omitted). The Marble Court further relied upon the following reasoning

based upon two opinions of the United States Supreme Court:

                The [Supreme] Court has also held that the Sixth
                Amendment guarantees a defendant the right to conduct
                his own defense. In so doing the Court reaffirmed the
                “nearly universal conviction . . . that forcing a lawyer upon
                an unwilling defendant is contrary to his basic right to
                defend himself if he truly wants to do so.” The Court
                explained that “[t]he Sixth Amendment does not provide
                merely that a defense shall be made for the accused; it
                grants to the accused personally the right to make his
                defense.”

                The Whalem line of cases is in substantial tension with
                both Alford and Faretta insofar as it precludes a district
                court from simply deferring to the choice of a competent

        2Insanity is also an affirmative defense in North Carolina that must be asserted prior to trial.
N.C.G.S. § 15A-959(a).

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               defendant not to plead insanity, and may at times require
               the court to override that choice. Alford stands clearly for
               the proposition that a court may defer to a defendant’s
               strategic choice to accept criminal responsibility even if his
               actual culpability is neither proven nor admitted. This
               seriously undermines the Whalem rationale that the law
               does not countenance the punishment of a person whose
               crime has been proved beyond a reasonable doubt but
               whose mental responsibility (although not denied) is
               objectively in doubt.

               [T]o impose a particular defense upon an accused, in
               essence to force him to affirm that he is insane, makes not
               only appointed counsel but the defendant himself “an
               organ of the State.” “Unless the accused has acquiesced
               . . . ., the defense presented is not the defense guaranteed
               him by the Constitution, for, in a very real sense, it is not
               his defense.”

Id. at 1546 (citations omitted).            After noting “the Supreme Court’s deference,

expressed in Faretta and Alford, to a competent defendant’s strategic decisions,” id.

at 1547, the Marble Court stated that they could “no longer distinguish the decision

not to plead insanity from other aspects of a defendant’s right . . . to direct his own

defense[,]” id., and concluded: “[W]e hold that a district court must allow a competent

defendant to accept responsibility for a crime committed when he may have been

suffering from a mental disease. Insofar as they hold to the contrary, Whalem and

its progeny are overruled.” Id.3


       3 Marble has been followed in some jurisdictions, and rejected – in whole or in part – in others.
See United States v. Wattleton, 296 F.3d 1184, 1194 (11th Cir. 2002) (“we agree with [the defendant]
that whether to raise the insanity defense is a decision for the defendant and his counsel”); Petrovich
v. Leonardo, 229 F.3d 384, 386 (2d Cir. 2000) (“[t]he decision to assert an affirmative defense is akin


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                                          2. North Carolina

        The United States Supreme Court has recognized the fundamental right of a

Defendant to represent herself, without the assistance of counsel, and thereby make

all trial decisions unrestrained by the intervention of a third party:

                The Sixth Amendment does not provide merely that a
                defense shall be made for the accused; it grants to the
                accused personally the right to make h[er] defense. It is
                the accused, not counsel, who must be “informed of the
                nature and cause of the accusation,” who must be
                “confronted with the witnesses against h[er],” and who
                must be accorded “compulsory process for obtaining
                witnesses in h[er] favor.” Although not stated in the
                Amendment in so many words, the right to self-
                representation—to make one’s own defense personally—is
                thus necessarily implied by the structure of the
                Amendment. The right to defend is given directly to the
                accused; for it is [she] who suffers the consequences if the
                defense fails.

                The counsel provision supplements this design. It speaks
                of the “assistance” of counsel, and an assistant, however
                expert, is still an assistant. The language and spirit of the
                Sixth Amendment contemplate that counsel, like the other
                defense tools guaranteed by the Amendment, shall be an
                aid to a willing defendant—not an organ of the State
                interposed between an unwilling defendant and h[er] right
                to defend h[er]self personally. To thrust counsel upon the
                accused, against h[er] considered wish, thus violates the
                logic of the Amendment. In such a case, counsel is not an


to other, fundamental trial decisions, such as the decision to plead to a lesser charge or to assert a plea
of insanity”); State v. Gorthy, 145 A.3d 146, 157 (2016) (“Accordingly, if the trial court has made a
finding of competency, it should not interpose its own judgment for that of the defendant, but should
respect the defendant’s choice [to reject a defense of NGRI].”); but see People v. Laeke, 271 P.3d 1111,
1116 (Colo. 2012) (statute allowing a competent defendant’s counsel to seek NGRI over the defendant’s
objection is constitutional so long as the trial court determined that the defendant’s competence was
not sufficient to independently make the decision to abandon NGRI defense).

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             assistant, but a master; and the right to make a defense is
             stripped of the personal character upon which the
             Amendment insists.

Faretta v. California, 422 U.S. 806, 819–20, 45 L. Ed. 2d 562, 572-73 (1975) (citations

omitted).

      In North Carolina, because NGRI is an affirmative defense that must be

asserted by the defendant, it is the defendant’s decision whether to pursue NGRI, and

the State has no obligation to address the issue absent the defendant having properly

asserted the defense. N.C.G.S. § 15A-959(a); State v. McDowell, 329 N.C. 363, 375,

407 S.E.2d 200, 206–07 (1991). Relying on the Sixth Amendment, this Court has

repeatedly held:

             “Like the decision regarding how to plead, the decision
             whether to testify is a substantial right belonging to the
             defendant. While strategic decisions regarding witnesses
             to call, whether and how to conduct cross-examinations,
             . . . and what trial motions to make are ultimately the
             province of the lawyer, certain other decisions represent
             more than mere trial tactics and are for the defendant.
             These decisions include what plea to enter, whether to
             waive a jury trial and whether to testify in one’s own
             defense.”

State v. Chappelle, 193 N.C. App. 313, 332, 667 S.E.2d 327, 338 (2008) (citations

omitted) (emphasis added). Our Supreme Court has held:

             A defendant’s right to plead “not guilty” has been carefully
             guarded by the courts. When a defendant enters a plea of
             “not guilty”, he preserves two fundamental rights. First,
             he preserves the right to a fair trial as provided by the
             Sixth Amendment. Second, he preserves the right to hold


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             the government to proof beyond a reasonable doubt.

             A plea decision must be made exclusively by the defendant.
             “A plea of guilty or no contest involves the waiver of various
             fundamental rights such as the privilege against self-
             incrimination, the right of confrontation and the right to
             trial by jury.” Because of the gravity of the consequences,
             a decision to plead guilty must be made knowingly and
             voluntarily by the defendant after full appraisal of the
             consequences.

             This Court is cognizant of situations where the evidence is
             so overwhelming that a plea of guilty is the best trial
             strategy. However, the gravity of the consequences
             demands that the decision to plead guilty remain in the
             defendant’s hands. When counsel admits his client’s guilt
             without first obtaining the client’s consent, the client’s
             rights to a fair trial and to put the State to the burden of
             proof are completely swept away. The practical effect is the
             same as if counsel had entered a plea of guilty without the
             client’s consent. Counsel in such situations denies the
             client’s right to have the issue of guilt or innocence decided
             by a jury.

State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985) (citations omitted).

We recognize: “A claim of insanity is an affirmative defense to a crime and does not

require a formal inquiry as set forth in N.C.G.S. § 15A–1022, even when a defendant

decides to waive his right to plead not guilty.” McDowell, 329 N.C. at 375, 407 S.E.2d

at 206–07 (citation omitted). Nonetheless, our Supreme Court has stated: “It is

settled law in this State that when . . . the defendant interposes a plea of insanity, he

says by this plea that he did the killing, but the act is one for which he is not

responsible.” State v. Bowser, 214 N.C. 249, 254-55, 199 S.E. 31, 34 (1938) (citations



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omitted).4 More importantly, a pretrial determination of NGRI pursuant to N.C.G.S.

§ 15A-959(c) eliminates a defendant’s ability to demand the constitutional rights

associated with a trial in the same manner as does a guilty plea. The United States

Supreme Court recognized:

               A defendant who stands trial is likely to be presented with
               choices that entail relinquishment of the same rights that
               are relinquished by a defendant who pleads guilty: He will
               ordinarily have to decide whether to waive his “privilege
               against compulsory self-incrimination” by taking the
               witness stand; if the option is available, he may have to
               decide whether to waive his “right to trial by jury,” and, in
               consultation with counsel, he may have to decide whether
               to waive his “right to confront [his] accusers” by declining
               to cross-examine witnesses for the prosecution.             A
               defendant who pleads not guilty, moreover, faces still other
               strategic choices: In consultation with his attorney, he may
               be called upon to decide, among other things, whether (and
               how) to put on a defense and whether to raise one or more
               affirmative defenses. In sum, all criminal defendants—not
               merely those who plead guilty—may be required to make
               important decisions once criminal proceedings have been
               initiated. And while the decision to plead guilty is
               undeniably a profound one, it is no more complicated than
               the sum total of decisions that a defendant may be called
               upon to make during the course of a trial. (The decision to
               plead guilty is also made over a shorter period of time,
               without the distraction and burden of a trial.).

Godinez v. Moran, 509 U.S. 389, 398–99, 125 L. Ed. 2d 321, 331-32 (1993) (citations

omitted).


       4  However, a defendant is permitted to argue both factual innocence and innocence due to a
lack of capacity to have formed criminal intent simultaneously at trial. See State v. Cooper, 286 N.C.
549, 591, 213 S.E.2d 305, 332 (1975) (Sharp, C.J., dissenting), disavowed in part on other grounds by
State v. Leonard, 300 N.C. 223, 266 S.E.2d 631 (1980).

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               Nor do we think that a defendant who waives his right to
               the assistance of counsel must be more competent than a
               defendant who does not, since there is no reason to believe
               that the decision to waive counsel requires an appreciably
               higher level of mental functioning than the decision to
               waive other constitutional rights.

Id. at 399, 125 L. Ed. 2d 321 at 332.5

       Though Harbison dealt with the consequences of a defendant’s attorney

admitting defendant’s guilt to certain charges without the defendant’s consent, in

light of Godinez and other precedent, we find the following reasoning in Harbison

applicable to the present case:

               This Court is cognizant of situations where the evidence is
               so overwhelming that a plea of guilty [or NGRI] is the best
               trial strategy. However, the gravity of the consequences
               demands that the decision to plead guilty [or NGRI] remain
               in the defendant’s hands. When counsel admits his client’s
               guilt [or moves for a pretrial determination of NGRI]
               without first obtaining the client’s consent, the client’s
               rights to a fair trial and to put the State to the burden of
               proof are completely swept away. . . . . Counsel in such
               situations denies the client’s right to have the issue of guilt
               or innocence decided by a jury.

Harbison, 315 N.C. at 180, 337 S.E.2d at 507 (citation omitted).

       By ignoring Defendant’s clearly stated desire to proceed to trial rather than

moving for a pretrial verdict of NGRI pursuant to N.C.G.S. § 15A-959(c), the trial



       5  Godinez recognizes that whereas a finding of competence to stand trial establishes a
defendant’s competence to waive fundamental rights at trial and competence to make critical decisions
such as whether to raise affirmative defenses, and waiver of certain rights such as the waiver of right
to counsel or the right to trial by pleading guilty, it also requires assurances that the defendant’s
waiver is “knowing and voluntary.” Godinez, 509 U.S. at 400, 125 L. Ed. 2d at 333 (citations omitted).

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court allowed — absent Defendant’s consent and over her express objection — the

“waiver” of her fundamental rights, including the right to decide “what plea to enter,

whether to waive a jury trial and whether to testify in [her] own defense[,]” Chappelle,

193 N.C. App. at 332, 667 S.E.2d at 338 (citations omitted), as well as “the right to a

fair trial as provided by the Sixth Amendment[,] . . . the right to hold the government

to proof beyond a reasonable doubt[,] . . . [and] the right of confrontation[.]” Harbison,

315 N.C. at 180, 337 S.E.2d at 507 (citations omitted). These rights may not be denied

a competent defendant, even when the defendant’s choice to exercise them may not

be in the defendant’s best interests. In the present case, Defendant had the same

right to direct her counsel in fundamental matters, such as what plea to enter, as she

had to forego counsel altogether and represent herself, even when Defendant’s choices

were made against her counsel’s best judgment. We hold that, because the decision

of whether to plead not guilty by reason of insanity is part of the decision of “what

plea to enter,” the right to make that decision “is a substantial right belonging to the

defendant.” Chappelle, 193 N.C. App. at 332, 667 S.E.2d at 338 (emphasis added).6

Therefore, by allowing Defendant’s counsel to seek and accept a pretrial disposition

of NGRI, the trial court “deprived [Defendant] of [her] constitutional right to conduct




       6  For a thorough and thoughtful review of the issues before us, see State v. Handy, 421 N.J.
Super. 559, 25 A.3d 1140 (2011) (“Handy I”); State v. Handy, 215 N.J. 334, 73 A.3d 421 (2013) (“Handy
II”); and State v. Gorthy, 226 N.J. 516, 145 A.3d 146 (2016).


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[her] own defense.” Faretta, 422 U.S. at 836, 45 L. Ed. 2d at 582.7 We are not called

upon to determine how that right should be protected when asserted by a defendant’s

counsel at trial but, at a minimum, a defendant’s affirmative declaration that the

defendant does not wish to move for a pretrial determination of NGRI must be

respected.8

       The State argues that Defendant cannot show prejudice because she is subject

to periodic hearings, the first of which would have occurred within fifty days of her

involuntary commitment pursuant to N.C.G.S. § 15A-959(c) and N.C.G.S. § 1321(b).

See N.C. Gen. Stat. § 122C-268.1(a) (2015). However, because the trial court found

Defendant NGRI, Defendant was not only automatically involuntarily committed

pursuant to N.C.G.S. § 15A-1321(b), she was also subject for the entirety of her

commitment to the more onerous conditions specific to commitment pursuant to

N.C.G.S. § 15A-1321(b) that are not applicable to ordinary civil commitment. For

example, the burdens of proof to demonstrate that a defendant is no longer mentally

ill and dangerous are different, depending on whether the defendant was civilly




       7  See also Gorthy, 145 A.3d at 157, in which the Supreme Court of New Jersey overruled prior
opinions allowing the trial court to impose an insanity defense over a competent defendant’s informed
objections.
        8 The trial court is, of course, encouraged to conduct a more formal inquiry in the nature of

that set forth in N.C. Gen. Stat. § 15A-1022 (2015) to insure a defendant fully understands the
consequences of the defendant’s decision.


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committed or committed pursuant to NGRI. N.C. Gen. Stat. § 122C-271 (2015).9 The

differences between civil involuntary commitment and commitment pursuant to a

finding of NGRI are substantial and prejudicial to the committed individual if that

person is subject to the requirements of commitment pursuant to NGRI, even if that

person meets the requirements for civil involuntary commitment.

        As Defendant argues in her brief, because she was found competent to assist

her counsel and stand trial, she should have been allowed to weigh “(1) the risk of a

conviction and lengthy but definite prison sentence, versus; (2) the risk of an NGRI

verdict and indefinite commitment, versus; (3) the possibility of an outright acquittal,

and ultimately decide that pursuit of a jury trial was the most advantageous

strategy.” The denial of Defendant’s right to counsel advocating for her wishes, which

resulted in the denial of Defendant’s right to trial and her indefinite involuntary

commitment pursuant to N.C.G.S. § 15A-959(c) and N.C.G.S. § 1321(b), constituted

reversible error.

                                       C. Double Jeopardy

        Defendant argues that, as a result of the violation of her Sixth Amendment

rights, “the trial court’s NGRI order must be vacated.” Normally, when this Court




        9  See also, e.g., N.C. Gen. Stat. § 122C-62(b) (2015) (“[E]ach adult client who is receiving
treatment or habilitation in a 24-hour facility at all times keeps the right to: . . . . (4) Make visits
outside the custody of the facility unless: a. Commitment proceedings were initiated as the result of
the client’s being charged with a violent crime . . . and the respondent was found not guilty by reason
of insanity or incapable of proceeding[.]”).

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vacates a defendant’s judgment the proper course of action is to remand the matter

for a new trial. However, in certain circumstances, remand for a new trial is not

appropriate because retrial would violate the defendant’s double jeopardy rights. The

United States Supreme Court reviewed its double jeopardy jurisprudence in Evans v.

Michigan:

             It has been half a century since we first recognized that the
             Double Jeopardy Clause bars retrial following a court-
             decreed acquittal, even if the acquittal is “based upon an
             egregiously erroneous foundation.” Fong Foo v. United
             States, 369 U.S. 141[.] A mistaken acquittal is an acquittal
             nonetheless, and we have long held that “[a] verdict of
             acquittal . . . could not be reviewed, on error or otherwise,
             without putting [a defendant] twice in jeopardy, and
             thereby violating the Constitution.” Our cases have
             applied Fong Foo’s principle broadly. An acquittal is
             unreviewable whether a judge directs a jury to return a
             verdict of acquittal, or forgoes that formality by entering a
             judgment of acquittal herself. And an acquittal precludes
             retrial even if it is premised upon an erroneous decision to
             exclude evidence; a mistaken understanding of what
             evidence would suffice to sustain a conviction; or a
             “misconstruction of the statute” defining the requirements
             to convict. In all these circumstances, “the fact that the
             acquittal may result from erroneous evidentiary rulings or
             erroneous interpretations of governing legal principles
             affects the accuracy of that determination, but it does not
             alter its essential character.”

Evans v. Michigan, 568 U.S. 313, 318, 185 L. Ed. 2d 124, 133 (2013) (citations

omitted).

      Certain state appellate courts have treated NGRI determinations as different

than “acquittals” as understood in Evans, and determined that an erroneous NGRI


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                                     Opinion of the Court



determination does not implicate double jeopardy. See, e.g., Gorthy, 145 A.3d at 158

(reversing and remanding for a new trial on stalking charge because the defendant

was forced to present NGRI defense against her will, and she was found NGRI);

Handy II, 73 A.3d at 439 (rejecting the defendant’s argument that, because his

acquittal based upon NGRI was vacated, double jeopardy prevented the state from

trying him on the underlying charges); Handy I, 25 A.3d at 1169 (“Most importantly

for our purposes, double jeopardy did not attach in Lewis, because the judgment there

had declared the defendant not guilty by reason of insanity.”); see also, e.g., State ex

rel. Koster v. Oxenhandler, 491 S.W.3d 576, 606 (Mo. Ct. App. 2016) (“The import of

our disposition is to vacate [the petitioner’s] assertion of, and the State’s and the

underlying trial court’s acceptance of, the NGRI defense; to vacate the underlying

trial court’s July 9, 2007 order and judgment of commitment; and to return [the

petitioner] to the procedural position he was in immediately prior to July 9, 2007.”);

State v. Lewis, 188 S.W.3d 483, 490 (Mo. Ct. App. 2006) (double jeopardy does not

attach to judgment of NGRI later found invalid); State v. Kent, 515 S.W.2d 457, 460–

61 (Mo. 1974) (holding that a verdict of not guilty by reason of mental disease or defect

that is later found to be invalid does not place the defendant in jeopardy of being

found guilty).

       In Kent, the Supreme Court of Missouri stated: “We do not believe Fong Foo

. . . controls our disposition of this case because it involved an acquittal on the general



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                                   Opinion of the Court



question of guilt, and not, as here, on the basis of the defense of mental disease and

defect.” Id. at 461. The United States Supreme Court denied the petition for writ of

certiorari filed by the defendant in Kent, Ex parte Kent, 414 U.S. 1077, 38 L. Ed. 2d

484 (1973); however, three justices dissented, arguing the defendant’s double

jeopardy argument should be heard because the defendant’s “double jeopardy claim

is properly reviewable at this point since his objection to standing trial has been

rejected and petitioner has been ordered to stand trial in accordance with the

mandate of the State’s highest court.” Id. at 1078, 38 L. Ed. 2d 484 at 485.

      Whether reversal of a judgment of NGRI implicates the double jeopardy clause

has not been settled by the United States Supreme Court, and we find no North

Carolina opinion on point. However, because of the particular facts of the case before

us, we find that we do not have to answer this constitutional question broadly. State

v. Goodman, 298 N.C. 1, 20, 257 S.E.2d 569, 582 (1979) (constitutional questions will

not be decided if there is an alternative basis upon which the decision can be made).

                D. N.C.G.S. § 15A-959(c) and the Trial Court’s Order

      The language of N.C.G.S. § 15A-959(c) is discretionary, not mandatory:

             Upon motion of the defendant and with the consent of the
             State the [trial] court may conduct a hearing prior to the
             trial with regard to the defense of insanity at the time of
             the offense. If the [trial] court determines that the
             defendant has a valid defense of insanity with regard to
             any criminal charge, it may dismiss that charge, with
             prejudice, upon making a finding to that effect.



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N.C.G.S. § 15A-959(c). The trial court is not required to conduct a hearing on a

defendant’s potential defense of insanity, even upon a motion by the defendant and

consent of the State. Id. (emphasis added) (“the [trial] court may conduct a hearing

prior to the trial with regard to the defense of insanity”). Further, even if the trial

court conducts a hearing, and “determines that the defendant has a valid defense of

insanity[,]” it may still decide to deny the defendant’s motion for a pretrial

determination of NGRI. Id. (emphasis added) (“[i]f the [trial] court determines that

the defendant has a valid defense of insanity with regard to any criminal charge, it

may dismiss that charge, with prejudice, upon making a finding to that effect”).

Therefore, unlike a defendant’s right to a fair trial, a defendant has no right to either

a pretrial determination of NGRI, nor the right to have her charges dismissed even if

the trial court makes a pretrial determination of NGRI. However, the language of

N.C.G.S. § 15A-959(c) suggests that, if a trial court decides in its discretion to dismiss

a defendant’s charges based upon a pretrial finding of NGRI, it should do so with

prejudice.10 Id. (“it may dismiss that charge, with prejudice”).

       In the present case, the trial court used the following language in the decretal

portion of its 19 May 2016 order: “That the charges against [D]efendant be dismissed

with leave by the State based on the [trial c]ourt’s determination that under N.C.G.S.



       10  Because we are not required to do so in this opinion, we do not make any holding concerning
whether N.C.G.S. § 15A-959(c) might allow dismissal without prejudice in certain circumstances, or
in the discretion of the trial court.

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§ 15A-959, [D]efendant was insane at the time the acts for which she is charged were

committed.”   This language makes clear the trial court made a determination

pursuant to N.C.G.S. § 15A-959(c) that Defendant was legally “insane” at the time

she allegedly committed the crimes; however, that determination alone did not

compel the trial court to dismiss Defendant’s charges and preclude Defendant from

proceeding to trial. Id. The trial court did purport to dismiss Defendant’s charges;

however, the trial court did not dismiss Defendant’s charges “with prejudice” as

contemplated by N.C.G.S. § 15A-959(c).

      We need not, and therefore do not, decide whether the trial court had the

authority to dismiss Defendant’s charges “with leave;” however, the practical effect is

the same. The 19 May 2016 order did not constitute an “acquittal” to which jeopardy

attached. In light of the peculiar and singular nature of a pretrial NGRI hearing, and

on the facts before us, where the trial court purported to dismiss Defendant’s charges,

but with leave we hold that the order in the present case was more akin to a

“procedural dismissal” than a “substantive ruling” as contemplated by Evans, 568

U.S. at 319–20, 185 L. Ed. 2d at 134. As such, double jeopardy concerns do not

prevent this Court from granting the relief Defendant requests, which is to “vacate

the trial court’s NGRI order and remand for appropriate proceedings.” Br26

      In light of the substantial amount of time that has passed since Defendant’s

last competency hearing, upon remand the trial court shall order a new competency



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                                   Opinion of the Court



hearing. If Defendant is found not competent to stand trial, the trial court shall

proceed in accordance with Chapter 122C and other relevant sections of our General

Statutes. If, or when, Defendant is found competent to stand trial, she shall be

afforded all the constitutional rights of a competent defendant, including final

decision-making authority over what plea to enter, and whether or not to pursue the

defense of NGRI at trial, or at a pretrial hearing pursuant to N.C.G.S. § 15A-959(c).

      VACATED AND REMANDED.

      Judges TYSON and INMAN concur.




                                         - 27 -
