              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-622

                               Filed: 16 February 2016

Union County, Nos. 11 CRS 55059, 13 CRS 2235

STATE OF NORTH CAROLINA, Plaintiff,

             v.

JONATHAN BRANDON BLAKENEY, Defendant.


      Appeal by defendant from judgment entered 18 December 2014 by Judge

Christopher W. Bragg in Union County Superior Court.           Heard in the Court of

Appeals 3 November 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Terence Friedman,
      for the State.

      Robinson Bradshaw & Hinson, P.A., by Andrew A. Kasper, for defendant-
      appellant.


      ZACHARY, Judge.


      Jonathan Blakeney (defendant) appeals from judgment entered upon a jury

verdict finding him guilty of possession of a firearm by a felon and of having attainted

the status of an habitual felon. On appeal defendant argues that the trial court erred

by requiring defendant to represent himself at trial, on the grounds that defendant

neither asked to proceed pro se nor engaged in the type of serious misconduct that

would result in an immediate forfeiture of defendant’s right to counsel without a prior

warning. After careful consideration, we agree.
                                  STATE V. BLAKENEY

                                   Opinion of the Court



                                        I. Background

      On 17 September 2011, deputies with the Union County Sheriff’s Department

were dispatched to 3921 Blakeney Road to investigate an assault reported at that

location. During the investigation, defendant was arrested and charged with

possession of a firearm by a felon. After being informed of his Miranda rights,

defendant provided law enforcement officers with a statement admitting to

possession of a firearm. On 7 November 2011, defendant was indicted for possession

of a firearm by a felon. On 30 January 2012, defendant signed a waiver of the right

to assigned counsel in three cases, including the charge of possession of a firearm by

a felon that is the subject of the present appeal.

      On 4 November 2013, more than two years after the incident giving rise to the

charge of possession of a firearm by a felon, defendant was indicted for attaining the

status of an habitual felon. On 6 November 2014, three years after the incident

underlying this appeal, the trial court entered an order striking a previously entered

order for arrest and continuing the trial of defendant’s case until 15 December 2014.

Documentation is not included in the record, but the parties agree that defendant had

failed to appear for trial in early November, 2014.

      The charges against defendant came on for trial on 15 December 2014. Prior

to trial, defendant’s counsel, Mr. Vernon Cloud, moved to withdraw as defendant’s

attorney.   Mr. Cloud stated that defendant had spoken rudely to him and that



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defendant no longer wanted him to represent defendant at the pending trial.

Defendant agreed that he did not want Mr. Cloud to represent him on the charges of

possession of a firearm by a felon and having the status of an habitual felon, but

stated that he wished to retain Mr. Cloud as his counsel on other charges then

pending against defendant. Defendant did not indicate in any way that he wished to

represent himself, but told the trial court that he intended to hire a different attorney,

specifically saying, “I’ve talked to Miles Helms. He’s willing to take my case.” In

response, the trial court told defendant that he had a right to fire his lawyer, but that

“the trial is still going.”   The trial court and defendant then had the following

discussion:

              THE COURT: . . . Mr. Blakeney, you need to understand
              something. . . . You’re not first; you’re not even second right
              now. . . . I’m going to do a motion here in a little bit with
              Mr. Principe that may or may not dispose of a case. . . . We
              may start picking a jury and that defendant may decide to
              plead guilty. Okay? And you have moved from third to
              first. Okay?

              DEFENDANT: Okay.

              THE COURT: And we might not know that until later this
              afternoon; maybe tomorrow morning. Okay? But at that
              time, when you become first on the list and I call your
              name, okay, you need to be either in this audience, okay, or
              unless you have been released and given a number where
              you can be here in an hour or so where we know that.

              DEFENDANT: Yes, sir.




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THE COURT: Typically we’ll give you that, okay? Get you
here in an hour and ready to go. And if you’re not, I’m going
to issue an order for your arrest.

DEFENDANT: If I could, Your Honor?

THE COURT: Uh huh.

DEFENDANT: Ask for a continuance. This would be my
first continuance that I have asked for in my favor.

THE COURT: Right.

DEFENDANT: Of the cases that has been continued has
been from the State.

THE COURT: Mr. Blakeney, this is a 2011 case.

DEFENDANT: Yes, sir.

THE COURT: It is 2014. All right. You’re third on the
list. May or may not get to it, but I’m not going to continue
it. It’s an old case that needs to be tried.

DEFENDANT: Okay. And I would have been ready to try
this case had not been if we could have sat down me and
my lawyer sat down with my witnesses and . . . talked
about this, this trial.

THE COURT: You still - you’re still not number one yet.
You still may not - you still may not be tried this week. . .
. But you need to be ready to go. . . . [Mr. Cloud,] you are
released in case number 11 CRS 55059; the charge of
possession of a firearm by a felon, and that is the only case
Mr. Blakeney in which you are firing Mr. Cloud. Is that
right?

DEFENDANT: Yes, sir.
                            ....



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MS. CHUNN:       There is a habitual felon as well, Your
Honor.

THE COURT: All right. So if -- and I use the word if this
case is called for trial, okay, you’re going to try Mr.
Blakeney on the possession of a firearm by a felon in 11
CRS 55059; and if he is convicted of that . . . you’re going
to seek habitual felon status against him as well from that
same jury.

MS. CHUNN: That's correct, Your Honor.

                             ...

THE COURT: Okay. All right. You understand that, Mr.
Blakeney?

DEFENDANT: Yes, sir.

THE COURT: Okay. We won’t talk about being a habitual
felon until and unless you are convicted, if you are
convicted of the underlying charge.

                             ...

THE COURT: Mr. Blakeney, I’m going to give you this one
courtesy, okay? . . . I’m going to have you give to Deputy
LaRue here your cell phone number or a number you can
be reached. You’re going to be on a one hour standby.

DEFENDANT: Okay.

THE COURT: All right. So when I give you a one hour
standby, if we call that number, it is disconnected, nobody
knows you at that number or whatever, when I call that
number, the clock starts and one hour later, if you’re not
here, I’m going to have the bailiffs call and fail you and I’m
going to issue a bond. I’m here the next six months starting
in January. I’ll know where you’re at when we call your


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             case for trial next time, okay, because it will be in the
             Union County Jail. All right?

             DEFENDANT: Yes, sir. Yes, sir.

             THE COURT: Okay. All right. So that gives you time to
             get out, go see Mr. Helms, go do whatever you need to do.
             . . . You’re third on the list, and like I said, sometimes third
             we never reach it. Sometimes third reaches tomorrow
             morning.

             DEFENDANT: Okay.

             THE COURT: Okay? All right.

             DEFENDANT: Thank you, sir.

      Two days later, on 17 December 2014, defendant’s case was called for trial, and

defendant and the trial court had the following dialog:

             THE COURT: Come on down, sir. Mr. Blakeney, when we
             spoke on Monday, I told you that you were third on the list
             and we have reached that level, all right.

             DEFENDANT: Okay.

             THE COURT: And the State is calling for trial the State of
             North Carolina versus you, Jonathan Brandon Blakeney.
             It’s case number 11 CRS 55059. It’s a charge of possession
             of a firearm by a felon. All right?

             DEFENDANT: Okay.

             THE COURT: And as I explained to you the other day,
             that’s a Class G felony, but the State is also, if you are
             convicted of that felony, I would -- it will never come in
             front of the jury, no one will ever mention to the jury the
             fact that the State is also seeking to have you found to be a
             habitual felon. Okay? We don’t talk about being a habitual


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felon until and unless the jury returns a verdict of guilty of
the felony of possession of a firearm. All right?

DEFENDANT: Okay.

THE COURT: If you’re found not guilty of possession of a
firearm by a felon, the habitual felon case goes away. If
you are found guilty of possessing a firearm by a felon, then
we have a second part of the trial with the same jury to
determine whether or not you are a habitual felon, and the
State would have to prove to the jury beyond a reasonable
doubt that you have three prior felony convictions. . . .

DEFENDANT: Okay.

THE COURT: Okay? So that’s where we’re at. You had
mentioned to me Monday that you were attempting to hire
Mr. Helms to represent you in this charge. I had released
Mr. Cloud from this one case. You had retained him in that
one case, in a bunch of cases, but had released him only in
this one case. Had you hired Mr. Helms?

DEFENDANT: No, sir, he wouldn’t -- he wouldn’t take my
case. He told me that it would be a waste of time because
he didn’t have time to even discuss my case with me.

THE COURT: Yes, sir.       All right.       You prepared to go
forward?

DEFENDANT: Yes, sir, I guess -- I mean --

THE COURT: Yes, sir.

DEFENDANT: --my hands are tied. I mean I guess so.

THE COURT: You’re going to -- you’re going to act as your
own attorney? Let me tell you how -- not -- I don’t know
how much experience you’ve had in court. We’ll call the
jury in; I’ll explain to the jury what the charges are. I’m
going to introduce everybody, introduce you to the jury, tell


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                                  Opinion of the Court



             them what the charge is, introduce Ms. Chunn as the DA
             for the State. You have entered a plea of not guilty to this
             charge. Is that correct?

      Thereafter, the trial court explains to defendant the process of jury selection,

until defendant interrupts:

             DEFENDANT: So this is still set, for the record, for the --
             . . . that I’m being tried without a lawyer?

             THE COURT: Yes, sir, that’s all on the record.

             DEFENDANT: Okay.

             THE COURT: Okay? We did that on Monday. That’s --
             every - Ms. Trout has been here every day, okay?

             DEFENDANT: Okay.

             THE COURT: Everything we do in this court is on the
             record, all right?

             DEFENDANT: Okay.

             THE COURT: And it was on the record when you released
             Mr. Cloud on Monday, all right?

             DEFENDANT: Yes, sir.

                                          ...

             THE COURT: And it was on the record that you are
             representing yourself in this matter; that I denied a
             continuance because you have waived -- previously waived
             your right to court appointed counsel and you had hired
             your own attorney. Okay?

             DEFENDANT: Okay.



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                                    Opinion of the Court



The record to that point includes no mention of the possibility that defendant would

represent himself. Thereafter, the trial proceeded and the State offered the testimony

of several witnesses. During the presentation of the State’s case, defendant was

uniformly polite and deferential to the trial court and to those in the courtroom.

Defendant did not object to any of the prosecutor’s questions or to the introduction of

any evidence, including his inculpatory statement. Defendant presented several

witnesses and also testified in a narrative form about the events of 17 September

2011; however, defendant never denied being in possession of a firearm, and

defendant’s evidence addressed issues that were legally irrelevant to the charge of

possession of a firearm by a felon.       Following the presentation of evidence and

instructions from the trial court, the jury returned a verdict finding defendant guilty

of possession of a firearm by a felon.

      During the habitual felon stage of the trial, the jury sent the trial court a note

asking whether defendant had refused representation by an attorney. The trial court

explained to the jurors that this was not a proper matter for their consideration. Out

of the presence of the jury, the trial court then expressed its opinion, for the first time

during these proceedings, that defendant’s request to hire a different attorney had

been motivated by defendant’s wish to postpone the trial. After the jury returned a

verdict finding that defendant had attained the status of an habitual felon, the trial

court conducted a sentencing hearing. The trial court found that defendant was a



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Level IV offender and was to be sentenced as an habitual felon. The court found two

mitigating factors: that defendant supported his family, and that defendant had

voluntarily appeared in court throughout the proceedings. The trial court imposed a

sentence in the mitigated range of seventy-two to ninety-six months. Defendant

appealed to this Court.

                                  II. Standard of Review

      Defendant’s sole argument on appeal is that the trial court violated defendant’s

Sixth Amendment right to counsel by requiring defendant to represent himself. “ ‘It

is well settled that de novo review is ordinarily appropriate in cases where

constitutional rights are implicated.’ ” State v. Wray, 206 N.C. App. 354, 356, 698

S.E.2d 137, 140 (2010) (quoting Piedmont Triad Reg’l Water Auth. v. Sumner Hills,

Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001)), disc. review denied, 365 N.C. 88,

706 S.E.2d 476 (2011).

                          III. Sixth Amendment Right to Counsel

      Defendant argues that the trial court violated his Sixth Amendment right to

the assistance of counsel by requiring defendant to proceed pro se, despite the fact

that defendant did not ask to represent himself, was not warned that he might have

to represent himself, and had not engaged in egregious conduct that would justify an

immediate forfeiture of his right to counsel without a warning. We agree.




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      “A criminal defendant’s right to representation by counsel in serious criminal

matters is guaranteed by the Sixth Amendment to the United States Constitution

and Article I, §§ 19, 23 of the North Carolina Constitution.” State v. Hyatt, 132 N.C.

App. 697, 702, 513 S.E.2d 90, 94 (1999) (citing Gideon v. Wainwright, 372 U.S. 335, 9

L. Ed. 2d 799, 83 S. Ct. 792 (1963)). Our appellate courts have recognized two

circumstances, however, under which a defendant may no longer have the right to be

represented by counsel.

      First, a defendant may voluntarily waive the right to be represented by counsel

and instead proceed pro se. “[W]aiver of the right to counsel and election to proceed

pro se must be expressed ‘clearly and unequivocally.’ ” State v. Thomas, 331 N.C. 671,

673-74, 417 S.E.2d 473, 475 (1992) (quoting State v. McGuire, 297 N.C. 69, 81, 254

S.E.2d 165, 173 (1979)). “Once a defendant clearly and unequivocally states that he

wants to proceed pro se, the trial court . . . must determine whether the defendant

knowingly, intelligently, and voluntarily waives the right to in-court representation

by counsel.” Thomas, 331 N.C. at 674, 417 S.E.2d at 476 (citations omitted). A trial

court’s inquiry will satisfy this constitutional requirement if conducted pursuant to

N.C.G.S. § 15A-1242. Id. (citation omitted). This statute provides:

             A defendant may be permitted at his election to proceed in
             the trial of his case without the assistance of counsel only
             after the trial judge makes thorough inquiry and is
             satisfied that the defendant:




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             (1) Has been clearly advised of his right to the assistance
             of counsel, including his right to the assignment of counsel
             when he is so entitled;
             (2) Understands and appreciates the consequences of this
             decision; and
             (3) Comprehends the nature of the charges and proceedings
             and the range of permissible punishments.

      In this case, neither defendant nor the State asserts that defendant ever asked

to represent himself at trial, and our own review of the transcript fails to reveal any

evidence that defendant indicated, must less “clearly and unequivocally” requested,

that he be permitted to proceed pro se. “The record clearly indicates that when

defendant signed the waiver of his right to assigned counsel he did so with the

expectation of being able to privately retain counsel. Before [the trial court] the

defendant stated that he wanted to . . . employ his own lawyer. There is no evidence

that defendant ever intended to proceed to trial without the assistance of some

counsel.” State v. McCrowre, 312 N.C. 478, 480, 322 S.E.2d 775, 776-77 (1984). We

conclude that the present case is not governed by appellate cases addressing a trial

court’s responsibility to ensure that a defendant who wishes to represent himself is

“knowingly, intelligently, and voluntarily” waiving his right to counsel.

      The second circumstance under which a criminal defendant may no longer

have the right to be represented by counsel occurs when a defendant engages in such

serious misconduct that he forfeits his constitutional right to counsel. Although the

right to counsel “is guaranteed by the Sixth and Fourteenth Amendments of the

United States Constitution and Article I of the North Carolina Constitution,” State v.

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                                   Opinion of the Court



Montgomery, 138 N.C. App. 521, 524, 530 S.E.2d 66, 68 (2000), in some situations a

defendant may lose this right:

             Although the loss of counsel due to defendant’s own actions
             is often referred to as a waiver of the right to counsel, a
             better term to describe this situation is forfeiture. “Unlike
             waiver, which requires a knowing and intentional
             relinquishment of a known right, forfeiture results in the
             loss of a right regardless of the defendant’s knowledge
             thereof and irrespective of whether the defendant intended
             to relinquish the right.” . . . [A] defendant who is abusive
             toward his attorney may forfeit his right to counsel.

Montgomery, 138 N.C. App. at 524-25, 530 S.E.2d at 69 (quoting United States v.

Goldberg, 67 F.3d 1092, 1100 (3d. Cir. Pa. 1995) (other quotation omitted)).

      In this case, the State argues that defendant forfeited his right to counsel,

relying primarily upon generalized language excerpted from Montgomery stating that

a forfeiture of counsel “results when the state’s interest in maintaining an orderly

trial schedule and the defendant’s negligence, indifference, or possibly purposeful

delaying tactic, combine[ ] to justify a forfeiture of defendant’s right to counsel.”

Montgomery at 524-25, 530 S.E.2d at 69 (internal quotation omitted). The State also

cites State v. Quick, 179 N.C. App. 647, 649-50, 634 S.E.2d 915, 917 (2006), in which

this Court cited Montgomery for the proposition that “[a]ny willful actions on the part

of the defendant that result in the absence of defense counsel constitutes a forfeiture

of the right to counsel.” Montgomery did not, however, include such a broad holding

or suggest that “any willful actions” resulting in the absence of defense counsel are

sufficient to constitute a forfeiture. Instead, as this Court has observed, forfeiture of

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the right to counsel has usually been restricted to situations involving egregious

conduct by a defendant:

             Although the United States Supreme Court has never
             directly addressed forfeiture of the right to counsel, the
             Court’s other holdings demonstrate reluctance to uphold
             forfeiture of a criminal defendant’s U.S. Constitutional
             rights, except in egregious circumstances. . . . Additionally,
             the federal and state courts that have addressed forfeiture
             have restricted it to instances of severe misconduct.

Wray, 206 N.C. App. at 358-59, 698 S.E.2d at 140-41 (2010) (citing Illinois v. Allen,

397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) (other citations omitted)).

      There is no bright-line definition of the degree of misconduct that would justify

forfeiture of a defendant’s right to counsel. However, our review of the published

opinions of our appellate courts indicates that, as discussed in Wray, forfeiture has

generally been limited to situations involving “severe misconduct” and specifically to

cases in which the defendant engaged in one or more of the following: (1) flagrant or

extended delaying tactics, such as repeatedly firing a series of attorneys; (2) offensive

or abusive behavior, such as threatening counsel, cursing, spitting, or disrupting

proceedings in court; or (3) refusal to acknowledge the trial court’s jurisdiction or

participate in the judicial process, or insistence on nonsensical and nonexistent legal

“rights.” The following is a list of published cases from North Carolina in which a

defendant was held to have forfeited the right to counsel, with a brief indication of

the type of behavior in which the defendant engaged:



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                     Opinion of the Court



1. State v. Montgomery, 138 N.C. App. 521, 530 S.E.2d 66
(2000): the defendant fired several lawyers, was disruptive
and used profanity in court, threw water on his attorney
while in court, and was repeatedly found in criminal
contempt.

2. State v. Quick, 179 N.C. App. 647, 634 S.E.2d 915 (2006):
the defendant in a probation revocation case waived court-
appointed counsel in order to hire private counsel, but
during an eight month period did not contact any attorney,
instead waiting until the day before trial.

3. State v. Rogers, 194 N.C. App. 131, 669 S.E.2d 77 (2008),
disc. review denied, 363 N.C. 136, 676 S.E.2d 305 (2009):
over the course of two years, the defendant fired several
attorneys, made unreasonable accusations about court
personnel, reported one of his attorneys to the State Bar,
accused another of racism, and was warned by the court
about his behavior.

4. State v. Boyd, 200 N.C. App. 97, 682 S.E.2d 463, disc.
review denied, 691 S.E.2d 414 (2009): during a period of
more than a year, the defendant refused to cooperate with
two different attorneys, repeatedly told one attorney that
the case “was not going to be tried,” was “totally
uncooperative” with counsel, demanded that each attorney
withdraw from representation, and “obstructed and
delayed” the trial proceedings.

5. State v. Leyshon, 211 N.C. App. 511, 710 S.E.2d 282,
appeal dismissed, 365 N.C. 338, 717 S.E.2d 566 (2011): for
more than a year after defendant was arraigned, he refused
to sign a waiver of counsel or state whether or not he
wanted counsel, instead arguing that the court did not
have jurisdiction and making an array of legally
nonsensical assertions about the court’s authority.

6. State v. Cureton, 223 N.C. App. 274, 734 S.E.2d 572
(2012): the defendant feigned mental illness, discharged
three different attorneys, “consistently shouted at his


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             attorneys, insulted and abused his attorneys, and at one
             point spat on his attorney and threatened to kill him.”

             7. State v. Mee, __ N.C. App. __, 756 S.E.2d 103 (2014): the
             defendant appeared before four different judges over a
             period of fourteen months, during which time he hired and
             then fired counsel twice, was represented by an assistant
             public defender, refused to state his wishes with respect to
             counsel, advanced unsupported legal theories concerning
             jurisdiction, and refused to participate in the trial.

             8. State v. Joiner, __ N.C. App. __, 767 S.E.2d 557 (2014):
             the defendant gave “evasive and often bizarre” answers to
             the court’s questions, shouted and cursed at the trial court,
             smeared feces on the holding cell wall, had to be gagged
             during trial, threatened courtroom personnel with bodily
             harm, and refused to answer simple questions.

             9. State v. Brown, __ N.C. App. __, 768 S.E.2d 896 (2015):
             like the defendants in Mee and Leyshon, this defendant
             offered only repetitive legal gibberish in response to simple
             questions about representation, and refused to recognize
             the court’s jurisdiction.

In stark contrast to the defendants discussed above, in this case:

             1. Defendant was uniformly polite and cooperative. In
             fact, the trial court found as a mitigating factor that the
             defendant returned to court as directed during the habitual
             felon phase, even after he had been found guilty of the
             underlying offense.

             2. Defendant did not deny the trial court’s jurisdiction,
             disrupt court proceedings, or behave offensively.

             3. Defendant did not hire and fire multiple attorneys, or
             repeatedly delay the trial. Although the case was three
             years old at the time of trial, the delay from September
             2011 until August 2014 resulted from the State’s failure to
             prosecute, rather than actions by defendant.


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      We conclude that defendant’s request for a continuance in order to hire a

different attorney, even if motivated by a wish to postpone his trial, was nowhere

close to the “serious misconduct” that has previously been held to constitute forfeiture

of counsel. In reaching this decision, we find it very significant that defendant was

not warned or informed that if he chose to discharge his counsel but was unable to

hire another attorney, he would then be forced to proceed pro se. Nor was defendant

warned of the consequences of such a decision. We need not decide, and express no

opinion on, the issue of whether certain conduct by a defendant might justify an

immediate forfeiture of counsel without any preliminary warning to the defendant.

On the facts of this case, however, we hold that defendant was entitled, at a

minimum, to be informed by the trial court that defendant’s failure to hire new

counsel might result in defendant’s being required to represent himself, and to be

advised of the consequences of self-representation.

      “[W]ith the exception of decisions of the United States Supreme Court, federal

appellate decisions are not binding upon either the appellate or trial courts of this

State.” State v. Adams, 132 N.C. App. 819, 820, 513 S.E.2d 588, 589 (citing State v.

McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984) (holding that appellate courts

should treat “decisions of the United States Supreme Court as binding and accord[ ]

to decisions of lower federal courts such persuasiveness as these decisions might

reasonably command”)), disc. review denied, 350 N.C. 836, 538 S.E.2d 570 (1999). In



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this regard, we find persuasive the analysis of this subject in United States v.

Goldberg, 67 F.3d 1092, 1100 (3d. Cir. Pa. 1995), a leading case on the issue of

forfeiture of counsel which has been cited in appellate decisions more than three

hundred times, including in five North Carolina cases. Goldberg describes three

categories of situations involving waiver or forfeiture of representation by counsel.

First, the Goldberg Court noted that if “a defendant requests permission to proceed

pro se, Faretta requires trial courts to ensure that the defendant is aware of the risks

of proceeding pro se as a constitutional prerequisite to a valid waiver of the right to

counsel.” Goldberg, 67 F.3d at 1099. The Court next considered forfeiture, which

“results in the loss of a right regardless of the defendant’s knowledge thereof and

irrespective of whether the defendant intended to relinquish the right.” Goldberg at

1100. The third category posited in Goldberg is similar to the present circumstances:

             Finally, there is a hybrid situation (“waiver by conduct”)
             that combines elements of waiver and forfeiture. Once a
             defendant has been warned that he will lose his attorney if
             he engages in dilatory tactics, any misconduct thereafter
             may be treated as an implied request to proceed pro se and,
             thus, as a waiver of the right to counsel. . . . Recognizing
             the difference between “forfeiture” and “waiver by conduct”
             is important. First, because of the drastic nature of the
             sanction, forfeiture would appear to require extremely
             dilatory conduct. On the other hand, a “waiver by conduct”
             could be based on conduct less severe than that sufficient
             to warrant a forfeiture. This makes sense since a “waiver
             by conduct” requires that a defendant be warned about the
             consequences of his conduct, including the risks of
             proceeding pro se. A defendant who engages in dilatory
             conduct having been warned that such conduct will be


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             treated as a request to proceed pro se cannot complain that
             a court is “forfeiting” his right to counsel.

Goldberg at 1100-1101 (emphasis added) (citations omitted). We find Goldberg’s

analysis useful in determining that, on the facts of this case, the defendant cannot be

said to have forfeited his right to counsel in the absence of any warning by the trial

court both that he might be required to represent himself and of the consequences of

this decision.

      In reaching this conclusion, we have considered the State’s arguments for a

contrary result, some of which are not consistent with the trial transcript. On appeal,

the State contends that at the outset of trial the trial court “found that Defendant

had only fired Mr. Cloud so as to attempt to delay the trial,” citing page twenty-seven

of the transcript. In fact, at the start of the trial, the trial court did not express any

opinion on defendant’s motivation for seeking to continue the case and hire a different

attorney. During the habitual felon phase, after defendant had been found guilty of

the charge, the jury was sufficiently concerned about defendant’s self-representation

to send the trial court a note asking whether defendant had refused counsel. It was

only at that point that the trial court expressed its opinion that defendant had hoped

to delay the trial by replacing one attorney with another. The State also alleges

several times in its appellate brief that the trial court made “specific findings about

Defendant’s forfeiture of his right to counsel,” maintaining that “the trial court

specifically found that Defendant’s conduct in firing his lawyer to delay the trial


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                                  STATE V. BLAKENEY

                                   Opinion of the Court



forfeited his right to private counsel, thus requiring Defendant to proceed pro se” and

urging that we “should affirm the trial court’s finding that Defendant discharged his

private counsel on the day of the trial to obstruct and delay his trial and thereby

forfeited his right to counsel[.]” However, as defendant states in his reply brief, the

“trial court never found that Mr. Blakeney forfeited his right to counsel[.] . . . Indeed,

the word “forfeit” does not appear in the transcript of the trial proceedings.”

      There is no indication in the record that the trial court ruled that defendant

forfeited the right to counsel by engaging in serious misconduct. Moreover, defendant

was not warned that he might have to represent himself, and the trial court did not

conduct the inquiry mandated by N.C. Gen. Stat. § 15A-1242, in order to ensure that

defendant understood the implications of appearing pro se. In State v. Bullock, 316

N.C. 180, 340 S.E.2d 106 (1986), our Supreme Court addressed a factual situation

similar both to the present case and to the “waiver by conduct” scenario discussed in

Goldberg. In Bullock, the defendants’ attorneys moved to withdraw shortly before

trial, due to irreconcilable differences with the defendant. A few days later, defendant

was in court and engaged in the following dialog with the trial court:

             Court: Mr. Bullock, I understand from Mr. Brown you wish
             to agree that Mr. C. C. Malone and Mr. Artis Plummer will
             no longer be your lawyers, is that correct?

             Defendant Bullock: That is so.

             Court: Now, they are employed by you, is that correct?



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                                 STATE V. BLAKENEY

                                  Opinion of the Court



             Defendant Bullock: Yes, sir.

             Court: You understand that the Court is not going to
             appoint a lawyer for you?

             Defendant Bullock: Yes, sir.

             Court: Mr. Mason, when do you expect this case to be on
             the calendar?

             Ms. Scouten: It is already set next Monday.

             Court: I am not going to continue the case.

             Defendant Bullock: Yes, sir.

             Court: It will be for trial next Monday morning. You have
             a lawyer in here to go or be here yourself ready to go
             without a lawyer. Is that the way you understand it?

             Defendant Bullock: Yes, sir.

             Court: Going to be no continuance.

             Defendant Bullock: Yes, sir.

Bullock, 316 N.C. at 182-83, 340 S.E.2d at 107. We note that in Bullock, unlike the

present case, the defendant was at least warned that he might be required to proceed

pro se. When the case was called for trial, the following dialog occurred:

             Court: Are you ready to proceed, Mr. Bullock?

             Mr. Bullock: I haven’t been -- I haven't been able to find
             counsel to represent me, Your Honor.

             Court: Well, you had a lawyer.




                                         - 21 -
                                  STATE V. BLAKENEY

                                   Opinion of the Court



             Mr. Bullock: After - after - on September the 4th to
             September the 10th, the counsels that I went to, they said
             they wouldn’t have time enough for preparation.

             Court: Well, you had a lawyer, and it was your wish to get
             rid of him. And I let you get rid of him, but I told you at the
             time, if I’m not badly mistaken, that we would be trying
             your case on this date. Do you remember that?

             Mr. Bullock: Yes, sir.

             Court: You were fully aware of that when you consider --
             consented to the withdrawal of your former lawyer.

             Mr. Bullock: (Nods affirmatively.)

             Court: All right. The case will be for trial.

Bullock at 184, 340 S.E.2d at 108. On appeal, our Supreme Court “agree[d] with the

defendant that he is entitled to a new trial because the trial judge did not comply

with N.C.G.S. § 15A-1242 before allowing the defendant to be tried without counsel”:

             The defendant consented to the withdrawal of his retained
             counsel because of irreconcilable differences but stated
             that he would employ other counsel. On the day of the
             trial, he said that he had been unable to get any attorney
             to take his case because of the inadequate preparation
             time. The trial court reminded the defendant that he had
             warned him he would try the case as scheduled. The
             defendant acquiesced to trial without counsel because he
             had no other choice. Events here do not show a voluntary
             exercise of the defendant's free will to proceed pro se.

Bullock, 316 N.C. at 185, 340 S.E.2d at 108 (citing Faretta v. California, 422 U.S. 806,

95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)). The Court in Bullock also cited State v.

McCrowre, 312 N.C. 478, 322 S.E. 2d 775 (1984), noting that in that case the court


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                                  Opinion of the Court



“held that the defendant was entitled to a new trial because the record did not show

that the defendant intended to go to trial without the assistance of counsel and

because the inquiry required by N.C.G.S. § 15A-1242 was not conducted.” Id

(emphasis added). Bullock appears to be functionally indistinguishable from the

present case as regards the trial court’s obligation to conduct the inquiry required by

N.C. Gen. Stat. § 15A-1242.

      For the reasons discussed above, we conclude that defendant neither

voluntarily waived the right to be represented by counsel, nor engaged in such serious

misconduct as to warrant forfeiture of the right to counsel without any warning by

the trial court. As a result, the trial court was required to inform defendant that if

he discharged his attorney but was unable to hire new counsel, he would then be

required to represent himself. The trial court was further obligated to conduct the

inquiry mandated by N.C. Gen. Stat. § 15A-1242, in order to ensure that defendant

understood the consequences of self-representation. The trial court’s failure to

conduct either of these inquiries or discussions with defendant resulted in a violation

of defendant’s right under the Sixth Amendment to be represented by counsel, and

requires a new trial.

      REVERSED AND REMANDED.

      Judges BRYANT concurs in the result.

      Judge CALABRIA concurs.



                                         - 23 -
