             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA19-662

                                Filed: 21 July 2020

New Hanover County, No. 17 CRS 58605

STATE OF NORTH CAROLINA

            v.

JOSHUA LEE PATTERSON


      Appeal by defendant from judgments entered 9 January 2019 by Judge James

S. Carmical in New Hanover County Superior Court. Heard in the Court of Appeals

29 April 2020.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J.
      Uicker, for the State.

      Law Office of Richard J. Costanza, P.A., by Richard J. Costanza, for defendant.


      DIETZ, Judge.


      Defendant Joshua Lee Patterson appeals his convictions for multiple charges

related to a burglary at the home of the New Hanover County District Attorney.

      Patterson was a problematic client for his court-appointed counsel. At least two

of his court-appointed attorneys withdrew because he was uncooperative—for

example, he insisted that his counsel assert frivolous claims, he raised baseless

accusations of bias by his counsel, and he made unfounded accusations that the State

monitored his confidential attorney-client communications.
                                STATE V. PATTERSON

                                  Opinion of the Court



      Ultimately, the trial court determined that Patterson forfeited his right to

counsel. Patterson challenges that forfeiture determination on appeal.

      While the appeal was pending, our Supreme Court decided its first case

concerning forfeiture of counsel. State v. Simpkins, 373 N.C. 530, 534–39, 838 S.E.2d

439, 445–48 (2020). Under Simpkins, the record on appeal does not support forfeiture.

But the parties acknowledge that there was information provided to the trial court in

off-the-record proceedings not documented in the record on appeal. Based on these

proceedings and multiple references in the trial court’s order to Patterson’s “abuse”

of his counsel, there may have been evidence before the trial court to support its

forfeiture determination under the Supreme Court’s standard announced in

Simpkins. We therefore vacate the trial court’s judgments and remand for a new

forfeiture hearing as explained in more detail below.

                          Facts and Procedural History

      In September 2017, someone broke into the home of the New Hanover County

District Attorney and stole various items, including a Visa gift card and several

electronic devices. Police later arrested Joshua Lee Patterson, who admitted to

breaking into the home, taking the missing items, and using the Visa gift card.

      Following Patterson’s arrest, the trial court appointed Andrew Nettleman as

counsel to represent him. In February 2018, Nettleman moved to withdraw, with a

notation that “Conflict has arisen” without providing further details. The trial court



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                                  Opinion of the Court



allowed the motion, finding that “good cause has been shown so as to necessitate

counsel’s withdrawal.” The court then appointed another attorney, Bill Peregroy, to

represent Patterson.

       In April 2018, Peregroy also moved to withdraw. In his motion, Peregroy

described in detail the issues he faced while representing Patterson. Patterson failed

to respond to Peregroy’s request for him to review discovery materials. Patterson also

believed his initial meeting with Peregroy was recorded by the State and insisted that

it was a “judicial discrepancy” warranting the dismissal of his case. Peregroy met

with Patterson to attempt to resolve the issue, but Patterson was “insistent upon the

Court hearing (a nonexistent) recording in support of his motion for dismissal” of the

charges and insisted Peregroy was lying to him about the existence of a recording.

Patterson vacillated between telling Peregroy that he didn’t want to speak to him and

stating that he did not want Peregroy to withdraw. Peregroy asserted that he was

“unable to collect definitive instruction from the defendant with respect to his wishes

but has informed him that a motion to dismiss cannot be brought with a good faith

basis in law or fact.”

       Peregroy attempted to contact Patterson’s mother to discuss concerns about

Patterson’s possible mental health or substance abuse issues, but Patterson’s mother

eventually declined to cooperate because Patterson told her not to speak to his




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                                  Opinion of the Court



counsel. In May 2018, the trial court allowed Peregroy’s motion to withdraw and

appointed a third attorney, Margaret Jennings, to represent Patterson.

      On 8 November 2018, Jennings, too, filed a motion to withdraw and requested

appointment of substitute counsel. The trial court held a hearing on Jennings’s

motion.

      Following an in-chambers discussion between the court and counsel that was

not recorded in the transcript or narrated in the record, Jennings told the court that

Patterson requested that she withdraw. Then, after Jennings already had filed the

motion to withdraw and sent it to Patterson, Patterson told Jennings that he wanted

her to remain on the case. Jennings explained that there have “been multiple times

that he has requested me to withdraw since being appointed in June. This kind of

happens every few weeks. And it has gotten to the point that I feel like I no longer

can be effective in representing him if I’m continually trying to defend myself.”

Jennings told the court she and Patterson “have had discussions about that yesterday

and those were civil discussions, which some of our other discussions I would describe

would not be civil discussions regarding this matter.”

      Jennings then asked the court to appoint an out-of-county attorney to

represent Patterson. The State had secured an out-of-county prosecutor because the

victim in the case was the county’s District Attorney and Jennings believed this might

address Patterson’s concerns about bias by his court-appointed counsel. Although



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                                   Opinion of the Court



Jennings assured the court that she doesn’t “have a type of relationship” with the

District Attorney that would affect her ability to represent Patterson, Jennings

explained, “I do believe it absolutely has affected [Patterson’s] perception of what I’m

doing in the case because [the District Attorney] is the victim.” Finally, Jennings

informed the court that she had difficulties because Patterson insisted she propose a

plea deal that Jennings believed was unrealistic. The State offered “60 to 84 months”

and, in response, Patterson insisted that Jennings propose “a counteroffer of time

served.”

      The State responded that Patterson’s “problems” all stem “from the

defendant’s attitude” or “eccentricities” and that “[t]here comes a time to start having

a conversation about forfeiture of his right to counsel by his own actions of abuse.”

The State asserted that “[a]ll three of these lawyers would characterize or have

characterized their communications with [Patterson] as abusive, argumentative,

angry, and conspiratorial.”

      The trial court then addressed Patterson directly. Patterson explained that he

initially asked Jennings to withdraw, but “[s]ince then I’ve called [and] asked her not

to.” Patterson went on to briefly describe his issues with Peregroy.

      After hearing from Patterson, the trial court announced that it would grant

Jennings’s motion to withdraw and find that Patterson had forfeited his right to

counsel:



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                                   Opinion of the Court



             Ms. Jennings indicates that apparently there’s an
             argumentative and perhaps abusive relationship. The
             Court has also heard, and it has been indicated in this
             hearing as well as discussions between the Court and
             counsel that the prior attorneys’ relationship with Mr.
             Patterson also was abusive and argumentative.
             Apparently, Mr. Patterson dislikes the plea offer which has
             been tendered by a nondistrict, noncounty ADA in this
             matter. . . . [T]he Court finds, notes, and concludes that all
             of the difficulties in this matter at this point have to do with
             Mr. Patterson’s attitude toward counsel, that he
             continually demands more than the defense counsel has
             reasonable possibility of controlling . . . . [T]he Court sees
             that Mr. – foresees that Mr. Patterson’s attitude is not
             going to change should we appoint new counsel, whether in
             or out of county, and that Mr. Patterson has engaged in
             conduct and has an attitude such that he has forfeited his
             right to the assistance of counsel, including court-
             appointed because of his own incessant demands and
             badgering.

The court allowed Jennings’s motion to withdraw and “ordered that Mr. Patterson

has forfeited his right to counsel, including court-appointed, because of his own

attitude and actions and treatment of counsel.” The court instructed that Patterson

“should be required and allowed to proceed on a pro se basis.” The court appointed

Jennings as standby counsel.

      After addressing other procedural matters, the trial court asked Patterson, “Do

you have any further business for this court this day?” Patterson responded, “I would

like to ask you to reconsider my represent – my public defense.” The court responded,

“And the record will reflect that I have and my decision remains the same.” Patterson

responded “Okay” and “That I’m fine with.” The trial court later entered a written


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                                 STATE V. PATTERSON

                                   Opinion of the Court



order memorializing its forfeiture determination which made repeated references to

Patterson’s “abusive attitude” or “abuse of counsel.”

        On 7 January 2019, Patterson represented himself at trial and presented no

evidence in his defense. The jury convicted Patterson of all charges. After arresting

judgment on a conviction for possession of stolen goods, the trial court sentenced

Patterson to 84 to 113 months in prison for burglary and a consolidated sentence of

10 to 21 months for larceny and obtaining property by false pretenses.

        After sentencing, the trial court noted that Patterson has “rights postjudgment

so [he] might want to discuss that with [standby counsel].” Patterson did not give oral

notice of appeal and did not file a timely written notice of appeal. He later petitioned

for a writ of certiorari to permit this Court to review his arguments.

                                       Analysis

   I.      Petition for a writ of certiorari

        We first address our jurisdiction to hear this appeal. Although Patterson did

not properly notice an appeal, he has included a document with his petition,

addressed to the Clerk of Superior Court, titled “New Hanover County Detention

Facility Inmate Request Form.” On it, Patterson wrote his case number and “I am

appealing my sentencing my name is Joshua Lee Patterson. Contact me as soon as

possible.” The form was dated “1-18-18” by Patterson and filed stamped by the clerk

on 25 February 2019.



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                                   STATE V. PATTERSON

                                     Opinion of the Court



         “This Court has discretion to allow a petition for a writ of certiorari ‘to permit

review of the judgments and orders of trial tribunals when the right to prosecute an

appeal has been lost by failure to take timely action.’ N.C. R. App. P. 21(a).” State v.

Bishop, 255 N.C. App. 767, 769, 805 S.E.2d 367, 369 (2017). “[A] petition for the writ

must show merit or that error was probably committed below.” Id.

         Patterson’s inmate request form demonstrates that he intended to exercise his

right to appeal but lost that right due to failure to take timely action. Moreover, as

discussed below, he has demonstrated that he has a potentially meritorious

argument. In our discretion, we allow Patterson’s petition for a writ of certiorari to

reach to the merits of his appeal. N.C. R. App. P. 21(a)(1).

   II.      Forfeiture of right to counsel

         Patterson argues that the trial court erred by determining that he forfeited his

constitutional right to counsel. While Patterson’s appeal was pending, our Supreme

Court issued its opinion in State v. Simpkins, 373 N.C. 530, 838 S.E.2d 439 (2020).

Under Simpkins, the record on appeal does not support the trial court’s determination

that Patterson forfeited his right to counsel.

         This Court reviews a trial court determination concerning forfeiture of counsel

de novo. Id. at 533, 838 S.E.2d at 444. “Under a de novo review, the court considers

the matter anew and freely substitutes its own judgment for that of the lower

tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008).



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                                 STATE V. PATTERSON

                                  Opinion of the Court



      “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. Blakeney, 245

N.C. App. 452, 459, 782 S.E.2d 88, 93 (2016). But the law recognizes that, in certain

circumstances, a criminal defendant can forfeit this constitutional right through

“egregious misconduct.” Simpkins, 373 N.C. at 535, 838 S.E.2d at 446.

      In Simpkins, the Supreme Court acknowledged that it had “never previously

held that a criminal defendant in North Carolina can forfeit the right to counsel” but

that this Court had done so in many published decisions. Id. at 530, 838 S.E.2d at

445. The Supreme Court synthesized our precedent and announced the test to apply

in forfeiture cases: “A finding that a defendant has forfeited the right to counsel

requires egregious dilatory or abusive conduct on the part of the defendant which

undermines the purposes of the right to counsel.” Id. at 541, 838 S.E.2d at 449.

      The Court further divided this test into two distinct categories. First, forfeiture

is appropriate if the defendant’s behavior is so threatening or abusive towards

counsel that it makes “the representation itself physically dangerous.” Id. at 538, 838

S.E.2d at 447. There is no evidence in the record that suggests Patterson threatened

or physically abused his counsel and thus this analysis from Simpkins is inapplicable.

      Second, the Court held that forfeiture is permissible where “the defendant is

attempting to obstruct the proceedings and prevent them from coming to completion.”



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                                        STATE V. PATTERSON

                                          Opinion of the Court



Id. The Court offered some examples of the sort of conduct that might result in this

finding of obstruction, such as a defendant who “refuses to obtain counsel after

multiple opportunities to do so, refuses to say whether he or she wishes to proceed

with counsel, refuses to participate in the proceedings, or continually hires and fires

counsel and significantly delays the proceedings.” Id.

      Importantly, the Supreme Court rejected this Court’s precedent holding that

“willful actions on the part of the defendant that result in the absence of defense

counsel,” standing alone, can support forfeiture. Id. at 539 & n.7, 838 S.E.2d at 448

& n.7. Those willful actions amount to forfeiture only if they “obstruct the proceedings

and prevent them from coming to completion.” Id. at 538, 838 S.E.2d at 447.

      Here, the record indicates that two of Patterson’s attorneys withdrew because

of Patterson’s actions.1 The first, Peregroy, explained that he sought to withdraw

primarily because Patterson was uncooperative and insisted that his case should be

dismissed based on an unfounded belief that the State made illegal recordings of his

attorney-client communications.

      The record also shows that Patterson had some conversations with his second

counsel, Jennings, that Jennings described as “not civil.” Jennings also explained that

Patterson repeatedly changed his mind about whether or not he wanted Jennings to

continue representing him, apparently stemming from his concern that any court-



      1   A third court-appointed attorney withdrew because of a “conflict” not identified in the record.

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                                   Opinion of the Court



appointed counsel may have a favorable relationship with the District Attorney who

was the victim in his criminal case. Finally, Jennings explained that Patterson

insisted on proposing an unrealistic plea counteroffer to the State.

        Importantly, nothing in the record indicates that Patterson’s difficulty

cooperating with these two court-appointed attorneys had delayed or obstructed the

proceedings. Instead, what drove the trial court’s forfeiture determination was the

extreme difficulty of representing Patterson because of his argumentative attitude

with counsel, his conspiratorial concerns about the State monitoring his

communications, and his unfounded belief that his counsel was biased against him.

It was, in effect, a determination that once Patterson forced two court-appointed

attorneys to withdraw because of his own actions, he could not get any more bites at

the apple. But that reasoning—which, to be fair, this Court had endorsed in earlier

cases—was expressly rejected by the Supreme Court in Simpkins. Id. at 539 & n.7,

838 S.E.2d at 448 & n.7. Forfeiture requires egregious misconduct that obstructs or

delays the proceedings, and the record simply does not support that determination

here.

        There is another wrinkle in this case, however. Although nothing in the record

on appeal indicates that Patterson threatened or abused his counsel in a way that

would meet the Supreme Court’s criteria for forfeiture, the trial court’s order

repeatedly references Patterson’s “abusive nature” and “abuse of counsel” and the



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                                  Opinion of the Court



court explained that this conduct “is not going to change should we appoint new

counsel.”

       The parties acknowledge that there were in-chambers discussions between the

parties’ respective counsel and the trial court for which there is no record that this

Court can review. Thus, we cannot know whether the trial court relied on facts

concerning Patterson’s conduct that might show either that “the representation itself”

was “physically dangerous” or that Patterson was “attempting to obstruct the

proceedings and prevent them from coming to completion.” Id. at 538, 838 S.E.2d at

447.

       We therefore vacate Patterson’s criminal judgments and remand for further

proceedings. On remand, the trial court should conduct a new forfeiture hearing,

applying the Supreme Court’s test from Simpkins, and ensure that the parties put

into the trial record all evidence supporting the court’s determination. If the trial

court determines that, based on the record before it, its initial forfeiture

determination was appropriate, the court may enter a new forfeiture order and re-

enter the previously imposed criminal judgments. If the record does not support a

forfeiture determination under Simpkins, the court should appoint new counsel for

Patterson and proceed with a new trial if the State chooses to pursue the charges.

                                    Conclusion

       We vacate the trial court’s judgments and remand for further proceedings.



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                     Opinion of the Court



VACATED AND REMANDED.

Judges ZACHARY and MURPHY concur.




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