IN THE SUPREME COURT OF NORTH CAROLINA

No. 188A19

Filed 28 February 2020

STATE OF NORTH CAROLINA

v.

JEFFERY MARTAEZ SIMPKINS

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of 

the Court of Appeals, 826 S.E.2d 845 (N.C. Ct. App. 2019), vacating a judgment 

entered on 8 June 2017 by Judge Andrew Heath in Superior Court, Stanly County. 

Heard in the Supreme Court on 10 December 2019. 

Joshua H. Stein, Attorney General, by Alexandra M. Hightower, Assistant 

Attorney General, for the State.

Kimberly P. Hoppin, for defendant-appellee.

EARLS, Justice.

On 4 July 2016, Jeffery Martaez Simpkins was arrested and charged with 

offenses related to his failure to maintain a valid driver’s license. He was first tried 

in the district court of Stanly County, where he was convicted and sentenced to a 30-

day suspended period of confinement with 18 months of supervised probation to 

include 24 hours of community service. He appealed to the Stanly County Superior 

Court, where he was tried before a jury without counsel and convicted. He was

sentenced to two years of supervised probation with two consecutive active terms of 
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Opinion of the Court

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15 days to be served on weekends and holidays, and with two consecutive 60-day 

suspended sentences of incarceration. Simpkins appealed to the Court of Appeals. 

On appeal, he argued that the trial court failed to satisfy the requirements of N.C.G.S. 

§ 15A-1242 (2019)1 before allowing Simpkins to proceed pro se. In a divided opinion, 

the Court of Appeals majority agreed. The State conceded that Simpkins had not 

received the required colloquy before waiving counsel and the court concluded that 

Simpkins had not forfeited his right to counsel, which would have negated the need 

for the colloquy. State v. Simpkins, 826 S.E.2d 845, 845 (N.C. Ct. App. 2019). We 

affirm. The Court of Appeals was correct in holding that Simpkins did not forfeit his 

right to counsel and that the trial court was therefore required to ensure that 

Simpkins’s waiver of counsel was knowing, intelligent, and voluntary. 

Background

On 4 July 2016, Simpkins was arrested during a traffic stop after a local police 

officer ran his license plate and discovered that Simpkins had a suspended license 

 

1 The statute provides that:

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:

(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.
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and an arrest warrant. Simpkins appeared in Stanly County District Court on 16 

August 2016. At some point during the proceedings in district court, the court noted 

on an unsigned waiver of counsel form that Simpkins refused to respond to the court’s 

inquiry. The record also contains a waiver of counsel form, signed by the trial judge, 

with a handwritten note indicating that Simpkins refused to sign the form.2 He was 

tried without counsel and convicted of resisting a public officer, failing to carry a 

registration card, and driving on a revoked license. 

Simpkins then appealed to the Stanly County Superior Court for a new trial. 

There, Simpkins was charged with (1) failure to carry a registration card, (2) resisting 

a public officer, (3) driving with a revoked license, and (4) failure to exhibit or 

surrender a driver’s license. The proceedings began at 9:41 a.m. on 7 June 2017. 

Simpkins appeared without counsel and, following a brief exchange during which 

Simpkins objected to the court’s jurisdiction, the trial court examined him regarding

his desire to waive his right to an attorney. During the examination, Simpkins stated 

that he “would like counsel that’s not paid for by the State of North Carolina.” The 

trial court interpreted this as a request to hire his own counsel, and the State objected 

 

2 Assuming that Mr. Simpkins waived his right to counsel in the district court, any 

waiver would no longer have been effective in the superior court proceedings. In addition to 

the long period of time between the two proceedings, Mr. Simpkins was charged with 

different crimes in superior court. See State v. Anderson, 215 N.C. App. 169, 171, 721 S.E.2d 

233, 235 (2011), aff’d per curiam 365 N.C. 466, 722 S.E.2d 509 (2012) (defendant’s district 

court waiver of counsel insufficient to constitute waiver for superior court trial where record 

does not demonstrate defendant was informed of the superior court charges at time of district 

court waiver). In any case, the only question before us is whether Simpkins forfeited, rather 

than waived, his right to counsel.
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“unless he can obtain counsel in the next 15 minutes.” The trial court called in 

standby counsel, found that Simpkins had waived his right to an attorney, and 

appointed standby counsel to assist Simpkins in his defense. At 10:00 a.m., the court 

allowed Simpkins and standby counsel to review the case together. From the 

beginning of the trial until the time the court determined that Simpkins had waived 

his right to an attorney and would proceed pro se, fewer than twenty minutes had 

passed. 

As jury selection was beginning, standby counsel requested a bench conference 

and the court permitted the parties to discuss the possibility of a plea arrangement. 

The parties returned at 11:04 a.m., and the State reported that they were unable to 

reach a plea agreement. The trial court then asked Simpkins if he wished to continue 

with standby counsel, and Simpkins responded that he would waive his rights to 

standby counsel. The proceedings moved forward from that point with the jury 

returning at 11:10 a.m. Simpkins was ultimately convicted of failure to exhibit or 

surrender a license and of resisting a public officer. He was found not responsible for 

failure to carry a registration card. The charge for driving with a revoked license was 

dismissed before the jury was instructed on the law. 

On appeal, Simpkins argued principally that the trial court erred by not 

thoroughly inquiring into his decision to proceed pro se. Simpkins, 826 S.E.2d at 846. 

The inquiry is required both by statute and by the state and federal constitutions to 

ensure that a defendant’s waiver of the right to counsel is knowing, intelligent, and 
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voluntary. See, e.g., State v. Moore, 362 N.C. 319, 322, 661 S.E.2d 722, 724 (2008)

(stating requirement and quoting N.C.G.S. § 15A-1242). The State argued that the 

inquiry was not required because Simpkins forfeited, rather than waived, his right to 

counsel. Simpkins, 826 S.E.2d at 846. The Court of Appeals applied its own 

precedent, which had previously held that a defendant may lose the right to be 

represented by counsel through voluntary waiver or through forfeiture. Id. 

Comparing the facts below to prior cases in which the court had found forfeiture, the 

majority determined that Simpkins did not “engage[] in such serious misconduct as 

to warrant forfeiture of the right to counsel.” Id. at 852 (quoting State v. Blakeney, 

245 N.C. App. 452, 468, 782 S.E.2d 88, 98 (2016)) (alteration in original). The State 

appealed to this Court on the basis of the dissent, which concluded the opposite.

Standard of Review

The right to counsel in a criminal proceeding is protected by both the federal 

and state constitutions. See U.S. Const. amend. VI; N.C. Const. art. I, §§ 19, 23. Our 

review is de novo in cases implicating constitutional rights. See, e.g., State v. Diaz, 

372 N.C. 493, 498, 831 S.E.2d 532, 536 (2019). Accordingly, we review de novo a trial 

court’s determination that a defendant has either waived or forfeited the right to 

counsel. Cf. Moore, 362 N.C. at 321–26, 661 S.E.2d at 724–27 (reviewing de novo

whether defendant was appropriately allowed to proceed without counsel after trial 
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court found waiver of right to counsel); State v. Thomas, 331 N.C. 671, 673–78, 417 

S.E.2d 473, 475–78 (1992) (same).

3 

Analysis

“A cardinal principle of the criminal law is that the sixth amendment to the 

United States Constitution requires that in a serious criminal prosecution the 

accused shall have the right to have the assistance of counsel for his defense.” State 

v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981) (citations omitted). Even 

so, a criminal defendant may choose to forgo representation and “conduct his own 

defense.” Id. at 337, 279 S.E.2d at 798. In such a case, the waiver “must be 

knowingly, intelligently, and voluntarily made.” Moore, 362 N.C. at 326, 661 S.E.2d 

at 726 (quoting Thomas, 331 N.C. at 674, 417 S.E.2d at 476). 

In the case below, the trial court determined that Simpkins had waived, rather 

than forfeited, counsel. When a defendant seeks to waive counsel and proceed pro se, 

the trial court must satisfy the requirements of N.C.G.S. § 15A-1242. See State v. 

Pruitt, 322 N.C. 600, 603, 369 S.E.2d 590, 592 (1988); see also Moore, 362 N.C. at 326, 

661 S.E.2d at 727 (referencing “the ‘thorough inquiry’ mandated by N.C.G.S. § 15A-

 

3 We note that the trial court below did not conclude that Simpkins forfeited his right 

to counsel. If it had, and had made findings of fact supporting that conclusion, then those 

findings would be entitled to deference. See, e.g., State v. Bowditch, 364 N.C. 335, 340, 700 

S.E.2d 1, 5 (2010). However, in this case the trial court did not make any findings of fact 

before concluding that Mr. Simpkins had waived his right to counsel. Finally, acceptance of 

our dissenting colleague’s argument concerning the degree of deference to which a trial 

judge’s forfeiture determinations should be afforded would effectively insulate those decisions 

from any meaningful appellate review.
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1242 to ensure the defendant’s decision to represent himself was knowingly, 

intelligently, and voluntarily made”). Given the significant importance of an 

accused’s right to counsel, a defendant must “clearly and unequivocally” express a 

desire to proceed pro se before we will deem the right to be waived. Thomas, 331 N.C. 

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

S.E.2d 165, 173 (1979)). Upon receiving this clear request, the trial court is required 

to ensure that the waiver is knowing, intelligent, and voluntary. Id. at 674, 417 

S.E.2d at 476. The court does so by fulfilling the mandates of N.C.G.S. § 15A-1242, 

which requires the court to conduct a “thorough inquiry” and to be satisfied that (1) 

the defendant was clearly advised of the right to counsel, including the right to 

assignment of counsel; (2) the defendant “[u]nderstands and appreciates the 

consequences” of proceeding without counsel; and (3) the defendant understands 

what is happening in the proceeding as well as “the range of permissible 

punishments.” N.C.G.S. § 15A-1242. The transcript in this case demonstrates that 

the trial court did not fully comply with the statutory mandate and the State concedes 

as much. Simpkins, 826 S.E.2d at 846. Therefore, because an effective waiver did 
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not occur, the Court of Appeals in this case decided a further issue, namely whether 

Mr. Simpkins, by his behavior, forfeited his right to counsel. Id. at 851.4 

The dissent briefly states and then completely ignores the fact that the trial 

court found Mr. Simpkins had waived his right to counsel. In fact, the dissent states 

that the waiver requirements are “inapplicable here.” However, in order to find that 

Simpkins waived his right to counsel, the trial court needed to conduct the inquiry 

required by N.C.G.S. § 15A-1242. The only reason this case is before us is that the 

State argues, contrary to the finding of the trial court, that Mr. Simpkins actually 

forfeited, rather than waived, his right to counsel. The decision in this case does not 

threaten the trial court’s “discretion to ensure that legal proceedings are respected by 

all.” Nor does it prevent the trial court from “provid[ing] orderly and just proceedings 

for all.” Instead, it does two things. First, it reinforces the longstanding principle 

that a waiver of the right to counsel must be knowing, intelligent, and voluntary. 

Second, it provides trial courts with an additional avenue to ensure the orderly 

administration of justice,5 which is to find forfeiture where it is impossible to fulfill 

the mandate of N.C.G.S. § 15A-1242. 

 

4 Because forfeiture is the issue presented to us by this case, we do not address (1) 

whether the trial court was correct that Simpkins waived his right to counsel; (2) whether 

“waiver by conduct” is a method by which a defendant may appropriately be required to 

proceed pro se, see Blakeney, 245 N.C. App. at 464–65, 782 S.E.2d at 96 (discussing waiver 

by conduct); or (3) whether a trial court, upon finding that a defendant has waived through 

conduct the right to counsel’s assistance, must still satisfy the requirements of N.C.G.S. 

§ 15A-1242.

5 Justice, of course, also requires honoring the right to the effective assistance of 

counsel.
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Forfeiture of the right to counsel

We have never previously held that a criminal defendant in North Carolina 

can forfeit the right to counsel. However, the Court of Appeals has recognized, in 

addition to waiver of counsel, that “a defendant who engages in serious misconduct 

may forfeit his constitutional rights to counsel.” State v. Forte, 817 S.E.2d 764, 774 

(N.C. Ct. App. 2018) (citing Blakeney, 245 N.C. App. at 460, 782 S.E.2d at 93). That 

court has noted that forfeiture is generally “restricted to situations involving 

egregious conduct by a defendant.” Blakeney, 245 N.C. App. at 461, 782 S.E.2d at 94. 

We agree and hold that, in situations evincing egregious misconduct by a defendant, 

a defendant may forfeit the right to counsel. 

The purpose of the right to counsel “is to assure that in any criminal 

prosecution, the accused shall not be left to his own devices in facing the prosecutorial 

forces of organized society.” Moran v. Burbine, 475 U.S. 412, 430, 106 S. Ct. 1135, 

1146 (1986) (cleaned up). It guarantees “that a defendant has the assistance 

necessary to justify reliance on the outcome of the proceeding.” Strickland v. 

Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984). It “safeguard[s] the 

fairness of the trial and the integrity of the factfinding process.” Brewer v. Williams, 

430 U.S. 387, 426, 97 S. Ct. 1232, 1253 (1977) (Burger, C.J., dissenting). 

Unfortunately, in rare circumstances a defendant’s actions frustrate the purpose of 

the right to counsel itself and prevent the trial court from moving the case forward. 

In such circumstances, a defendant may be deemed to have forfeited the right to 
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counsel because, by his or her own actions, the defendant has totally frustrated that 

right. If one purpose of the right to counsel is to “justify reliance on the outcome of 

the proceeding,” Strickland, 466 U.S. at 692, 104 S. Ct. at 2067, then totally 

frustrating the ability of the trial court to reach an outcome thwarts the purpose of 

the right to counsel.

The Court of Appeals previously found forfeiture in State v. Montgomery, 138 

N.C. App. 521, 530 S.E.2d 66 (2000). There, the court considered whether a defendant 

had been denied his right to counsel where the trial court failed to conduct the Section 

15A-1242 inquiry and defendant was tried with standby counsel. Montgomery, 138 

N.C. App. at 522–23, 530 S.E.2d at 67–68. The defendant in that case received 

appointed counsel on 7 January 1997. Id. at 522, 530 S.E.2d at 67. After switching 

counsel three times, the defendant appeared on his initially scheduled trial date, 16 

February 1998, insisting that his then-current counsel be allowed to withdraw 

because “defendant no longer wished to be represented by him.” Id. Over multiple 

pre-trial appearances it became clear that the defendant had refused to allow 

witnesses to meet with defense counsel; the defendant repeatedly disrupted the 

proceedings with profanity, receiving multiple findings of contempt; and the 

defendant assaulted his attorney in court. Id. at 522–53, 530 S.E.2d at 67–68. The 

court permitted counsel to withdraw and found that the defendant had waived his 

right to appointed counsel. Id. at 523, 530 S.E.2d at 68. When the defendant finally 

came on for trial on 6 April 1998, a month and a half after his original trial date, the 
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trial court permitted an appointed attorney to serve as standby counsel and 

defendant represented himself. Id. These facts demonstrate forfeiture of the right to 

counsel because the defendant’s actions totally undermine the purposes of the right 

itself by making representation impossible and seeking to prevent a trial from 

happening at all.

In State v. Brown, the Court of Appeals considered whether the trial court 

erred in permitting the defendant to proceed pro se. Brown, 239 N.C. App. 510, 510, 

768 S.E.2d 896, 897 (2015). There, the defendant “refus[ed] to answer whether he 

wanted assistance of counsel at three separate pretrial hearings” and “repeatedly and 

vigorously objected to the trial court’s authority to proceed.” Id. at 519, 768 S.E.2d 

at 901. Of particular importance to the question of forfeiture, it appears from the 

court’s opinion that the defendant refused to participate in the proceedings and 

utilized the hiring and firing of counsel to delay the trial. See id. at 513–16, 768 

S.E.2d at 898–900 (detailing defendant’s refusal to give a clear answer as to desire 

for counsel and refusal to engage in waiver inquiry upon persistent inquiry by the 

court); id. at 516–517, 768 S.E.2d at 900 (detailing delay of nearly one month caused 

by defendant’s attempts to dismiss counsel). By refusing to make an election as to 

whether to proceed with counsel and by using the appointment and firing of counsel 

to delay the proceedings, the defendant in Brown completely frustrated his own right 

to assistance, warranting a finding of forfeiture. 
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In State v. Joiner, the defendant instructed his counsel to withdraw and then 

offered “evasive and bizarre answers” when the trial court conducted a hearing to 

investigate the defendant’s desire to represent himself. Joiner, 237 N.C. App. 513,

514–15, 767 S.E.2d 557, 558–59 (2014). In a subsequent hearing on the same issue, 

the defendant “refused to answer questions and declared that the trial court had no 

authority to conduct the trial.” Id. at 515, 767 S.E.2d at 559. While the trial court 

attempted to conduct the inquiry required by N.C.G.S. § 15A-1242, the defendant 

refused to participate by refusing to acknowledge understanding, answering in 

contradictory ways, refusing to answer at all, yelling obscenities and being “otherwise 

extremely disruptive.” Id. The trial court found that the defendant was “refus[ing] 

to engage appropriately simply as a means of delaying the proceedings.” Id. While 

it is not relevant to the question of forfeiture, having occurred after the alleged 

deprivation of the right to counsel,

6 the defendant later threatened to “punch the 

judge in the ‘f***ing face,’ ” he “refused to leave his cell on the second day of trial,” he 

“threatened to stab an officer,” and, for good measure, “defecated and smeared his 

feces on the cell walls” in addition to various other “extremely disruptive and 

belligerent” activity. Id. at 515–16, 767 S.E.2d at 559. Prior to this extremely 

disruptive behavior, the defendant had been evaluated to determine his competence 

 

6 See Moore, 362 N.C. at 326, 661 S.E.2d at 726 (holding information learned by court 

after waiver of right to counsel irrelevant to question of whether defendant’s sixth 

amendment right violated). 
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to participate in a criminal proceeding and was found competent to stand trial. Id. 

at 514–15, 767 S.E.2d at 558. 

If a defendant 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, then a trial court may appropriately determine that the defendant is 

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

In that circumstance, the defendant’s obstructionist actions completely undermine 

the purposes of the right to counsel. If the defendant’s actions also prevent the trial 

court from fulfilling the mandate of N.C.G.S. § 15A-1242, the defendant has forfeited 

his or her right to counsel and the trial court is not required to abide by the statute’s 

directive to engage in a colloquy regarding a knowing waiver.

Serious obstruction7 of the proceedings is not the only way in which a 

defendant may forfeit the right to counsel. Other courts have held that a defendant 

who assaults his or her attorney, thereby making the representation itself physically 

dangerous, forfeits the right to counsel. See, e.g., United States v. Leggett, 162 F.3d 

237, 240 (3d Cir. 1998) (finding of forfeiture where defendant “lunged at his attorney 

 

7 The Court of Appeals has previously stated that “[a]ny willful actions on the part of 

the defendant that result in the absence of defense counsel [constitute] a forfeiture of the 

right to counsel.” State v. Quick, 179 N.C. App. 647, 650, 634 S.E.2d 915, 917 (2006). This

statement is unsupported. Quick cites the Court of Appeals decision in Montgomery, which 

states nothing of the sort. Montgomery, 138 N.C. App. at 524, 530 S.E.2d at 69. Further, it 

is far too broad a statement to be consistent with the constitutional guarantee of the right to 

counsel and the law of this state. 
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and punched him in the head” and then “straddled him and began to choke, scratch 

and spit on him”); Gilchrist v. O'Keefe, 260 F.3d 87, 90 (2d Cir. 2001) (reviewing 

habeas claim where New York state court found forfeiture appropriate when

defendant “punched [counsel] in the ear and ruptured his eardrum”);8 cf. State v. 

Holmes, 302 S.W.3d 831, 847–48 (Tenn. 2010) (after review of cases from many 

jurisdictions, concluding that defendant had not forfeited right to counsel where 

defendant pushed his finger at counsel and knocked counsel’s glasses askew). In such 

a circumstance the trial court has permitted counsel to withdraw without appointing 

new counsel who would be subject to physical harm. Obviously, a defendant who 

intentionally seriously assaults their attorney has undermined the right to counsel.

Here, we agree with the Court of Appeals majority that Simpkins did not 

“engage in such serious misconduct as to warrant forfeiture of the right to counsel.” 

Simpkins, 826 S.E.2d at 852. The dissent urges a holding that Simpkins forfeited his 

 

8 Then-Judge Sotomayor, writing for the panel in Gilchrist, provided the following 

warning: 

Although, of course, under no circumstances do we condone a 

defendant’s use of violence against his attorney, had this been a 

direct appeal from a federal conviction we might well have 

agreed with petitioner that the constitutional interests protected 

by the right to counsel prohibit a finding that a defendant 

forfeits that right based on a single incident, where there were 

no warnings that a loss of counsel could result from such 

misbehavior, where there was no evidence that such action was 

taken to manipulate the court or delay proceedings, and where 

it was possible that other measures short of outright denial of 

counsel could have been taken to protect the safety of counsel. 

260 F.3d at 89 (Sotomayor, J.).
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right to counsel because, in the dissent’s view, “it is clear that defendant would not 

accept the court’s authority.” However, the record belies that claim. Mr. Simpkins 

appeared for the first time in Superior Court at 9:41 a.m. on 7 June 2017. By 10:00 

a.m., the trial court had determined Simpkins had waived his right to an attorney 

and the court appointed standby counsel to assist Simpkins in his defense. In that 

twenty minutes, Simpkins made an untimely objection, stating that there was “no 

proof of jurisdiction,” asked questions of the court out of turn, stated, in response to 

the court’s inquiry, that he “would like counsel that’s not paid for by the State of 

North Carolina,” asked four more questions of the court out of turn, and continued to 

speak out of turn and argue with the court. However, the transcript of the 

proceedings reflects that, when the court instructed Simpkins to stop asking 

questions, he did so. When the court asked Simpkins whether he wished to proceed 

with or without an attorney, he responded, for the most part, appropriately, first 

requesting “counsel that’s not paid for by the State of North Carolina” and later 

acquiescing when the court suggested he be appointed standby counsel. Throughout 

the proceedings, including up to the point that he was required to proceed pro se,

nothing in the record suggests that Simpkins was rude or disrespectful to the trial 

court. Simpkins’s conduct, while probably highly frustrating, was not so egregious 

that it frustrated the purposes of the right to counsel itself. As a result, his conduct9

 

9 The dissent, urging that we should find forfeiture, points to conduct which occurred 

both before Mr. Simpkins came on for trial and after Mr. Simpkins was denied the right to 
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did not amount to “such serious misconduct as to warrant forfeiture of the right to 

counsel.” See Blakeney, 245 N.C. App. at 468, 782 S.E.2d at 98. 

The State urges us to find that Simpkins forfeited his right to counsel largely 

based on the frivolous legal arguments about jurisdiction that Simpkins put forward 

throughout the proceeding. However, the State provides us with no reason to hold 

that a pro se defendant can be held to have forfeited the right to counsel because the 

defendant makes frivolous legal arguments. After all, a large part of the reason 

defendants have a right to counsel is to prevent them from making frivolous legal 

arguments. See, e.g., Burbine, 475 U.S. at 430, 106 S. Ct. at 1146 (stating that right 

to counsel assures the accused is “not left to his own devices”). We reject the State’s 

invitation to hold that a defendant, having been required to proceed without the 

assistance of counsel without the necessary advisories,

10 forfeits the right to counsel 

because he suffers the very injury the right is intended to prevent. 

Further, the State argues that Simpkins forfeited his right to counsel because 

he failed to employ counsel before appearing for trial. However, the record evidence 

does not establish that Simpkins consistently refused to retain counsel in an attempt 

to delay the proceedings. “We are not here dealing with a situation where the record 

 

counsel. It is the Superior Court proceedings, and what happened there, which are presented 

to us for review. As to conduct occurring after Mr. Simpkins proceeded without counsel, the 

question before us is whether Mr. Simpkins forfeited his right to counsel. It seems curiously 

perverse to rule, as the dissent suggests, that a defendant can be deemed to have forfeited 

his right to counsel based on conduct occurring after the defendant is denied counsel.

10 See N.C.G.S. § 15A-1242.
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shows that a criminal defendant, capable of employing counsel, has attempted to 

prevent his trial by refusing to employ counsel and also refusing to waive counsel and 

respond to the inquiry required by N.C.G.S. § 15A-1242.” State v. Bullock, 316 N.C. 

180, 186, 340 S.E.2d 106, 109 (1986). Instead, the record reflects that Simpkins 

engaged with the trial court throughout, coherently responding to the court’s 

questions and ultimately agreeing to accept standby counsel. Further, on this record 

we simply cannot conclude that the failure to retain counsel was an attempt to delay 

the proceedings, and certainly not an attempt so egregious as to justify forfeiture of 

the right to counsel. The record is silent on whether Simpkins made any efforts to 

employ counsel. Here, where it appears that any question as to counsel was disposed 

of on the first day Simpkins was called to trial in Superior Court, there is simply no 

evidence of delay rising to the level of obstruction that would support a finding of 

forfeiture. 

The State also argues that Simpkins was generally uncooperative and 

“intended to frustrate the orderly workings of the court.” As we noted previously, 

defendant’s behavior was probably very frustrating, and may have been intended to 

be frustrating. The trial court exhibited the utmost patience and should be 

commended for the even-handedness with which it conducted the proceedings. 

However, absent egregious conduct by the defendant, a defendant must be advised of 

the right to counsel, the consequences of proceeding without counsel, and “the nature 

of the charges and proceedings and the range of permissible punishments” before the 
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defendant can proceed without counsel. N.C.G.S. § 15A-1242. Thus, where, as here, 

the defendant’s behavior was not so egregious as to prevent the court from 

proceeding, or to create a danger of any kind, forfeiture of the constitutional right to 

counsel has not occurred. The full inquiry required by statute should have taken 

place to determine if the defendant was knowingly waiving his right to counsel. The 

trial court should have engaged in the required colloquy prior to appointing standby 

counsel and permitting Simpkins to proceed pro se. See State v. Dunlap, 318 N.C. 

384, 389, 348 S.E.2d 801, 805 (1986) (stating that standby counsel is not “a 

satisfactory substitute for the right to counsel in the absence of a knowing and 

voluntary waiver”). 

Conclusion

A trial court may find that a criminal defendant has forfeited the right to 

counsel. In such a case, the court is not required to follow the requirements of 

N.C.G.S. § 15A-1242, which the court would otherwise be required to do before 

permitting a defendant to proceed pro se. 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 and prevents the 

trial court from complying with N.C.G.S. § 15A-1242. Such conduct is not apparent 

here, where the record reflects that the defendant was allowed to proceed without 

counsel within twenty minutes of the start of the proceeding, was generally 

cooperative with the court’s requests, participated in the proceedings, and did not 
STATE V. SIMPKINS

Opinion of the Court

-19-

utilize the right to counsel as a means of preventing the trial from moving forward. 

Because of the violation of his right to counsel under the Sixth Amendment to the 

U.S. Constitution and Article I, Sections 19 and 23 of the North Carolina

Constitution, the defendant is entitled to a new trial.

AFFIRMED.
Justice NEWBY dissenting.

This case implicates the trial court’s authority over the courtroom and its 

responsibility to maintain the dignity and legitimacy of trial court proceedings. A 

criminal defendant has a constitutional right to counsel; however, that right may be 

lost. Here defendant continually refused to acknowledge the authority of the court to 

manage the case proceedings or the authority of the State to pursue defendant’s 

criminal prosecution for misdemeanor crimes. By continually refusing to answer the 

trial court’s questions and posing his own questions to the court, defendant 

demonstrated his unwillingness to accept the judicial process, forfeiting his right to 

an attorney. Nonetheless, the majority finds facts from a cold record to reverse the 

trial court’s determination. The majority’s decision undermines the trial court’s 

fundamental authority over the courtroom. I respectfully dissent. 

In July 2016, Officer Trent Middlebrook ran defendant’s license plate through 

his database and discovered that defendant, who owned the vehicle, had a suspended 

driver’s license and a pending warrant for his arrest. When Officer Middlebrook 

stopped defendant’s vehicle and asked for his license and registration, defendant 

refused to provide the documents, continuously questioned the officer’s authority, and 

behaved uncooperatively and belligerently. Officer Middlebrook then arrested 

defendant. 
STATE V. SIMPKINS

Newby, J., dissenting

-2-

Defendant was initially tried in district court for, inter alia, resisting a public 

officer and failing to carry a registration card. While there is no transcript of those 

proceedings, the record contains an unsigned, undated “Waiver of Counsel” form with 

the following handwritten notation: “Refused to respond to . . . inquiry by the Court 

and mark as refusal at this point.” The record also contains a Waiver of Counsel form 

dated 16 August 2016, signed by the district court, which includes a handwritten 

notation stating, “Defendant refused to sign waiver of counsel upon request by the 

Court.” On that date, the district court found defendant guilty of resisting a public 

officer and failing to carry a registration card. The district court judgment sheet again 

twice notes that defendant had waived counsel. 

Defendant appealed to superior court. On 6 March 2017, defendant moved to 

dismiss the case, asserting that the court lacked jurisdiction to conduct the 

proceedings. (This motion was denied at defendant’s superior court trial.) Three 

months later, on 5 June 2017, defendant appeared before the court for a pre-trial 

hearing. On 7 June 2017, defendant’s case came for trial in superior court. From the 

outset, defendant continued to object to the proceeding on jurisdictional grounds:

[Defendant]: Objection, sir. I did not enter any pleas. 

Do I need to stand?

The Court: What is the basis of your objection?

[Defendant]: There is no proof of jurisdiction here. 

There hasn’t been since last year. I’ve been coming here 

over a year, and there’s no evidence of anything besides the 

allegation.
STATE V. SIMPKINS

Newby, J., dissenting

-3-

The Court: Well, sir, evidence is put on at the trial. 

So there is no evidence at this point.

[Defendant]: So how can you force someone here 

without evidence, sir?

The Court: You’ve been charged with a crime. And 

this is your day in court, your opportunity to be heard.

[Defendant]: Who’s the injured party, sir?

The Court: Sir, it is not consistent with judicial 

proceedings for you to ask questions of the Judge. It’s the 

Judge that will ask questions of you.

[Defendant]: Can I ask questions of the prosecution 

then?

The Court: Not at this time. Thank you, sir.

Defendant then contended that, though he had been coming to the court since 

August of 2016, he had never been advised of “anything,” including his right to 

counsel. The trial court stated:

I see that in the Court’s file there are waiver of counsel 

forms with notations that you refused to respond when you 

were notified of your right to an attorney, and so you were 

marked down as having waived an attorney.

You are charged with violations that could subject 

you to periods of incarceration. And so I would like to 

advise you that it is your right to have an attorney and if 

you cannot afford an attorney, the State can provide one 

for you. If you would like to apply for court-appointed 

counsel, we’ll have you fill out an affidavit. If you wish to 

retain your own, you certainly have that opportunity as 

well.
STATE V. SIMPKINS

Newby, J., dissenting

-4-

Defendant then requested counsel “not paid for by the plaintiff” and questioned 

the court as to why there was no plaintiff in his case. The State objected, contending 

that defendant had time to retain private counsel because the matter had been 

pending for nearly a year and that defendant had been advised of his right to obtain 

an attorney on two to three occasions. Defendant then indicated that he would like to 

be appointed standby counsel, but thereafter three times questioned whether standby 

counsel would be licensed by the State of North Carolina, implying that if counsel 

were so licensed, counsel would be unfit to assist him. Defendant again questioned 

the court, inquiring to which court he should appeal if he did not “get the right 

judgment.” When the trial court responded that it could not give legal advice from the 

bench, defendant asked, “How is that legal advice, sir?”

After the trial court identified a potential standby counsel, the following 

exchange occurred:

[Defendant]: Do I have the right to be informed of 

the cause of nature of these proceedings?

The Court: You are—you have been charged with 

some crimes. We are here for a trial in your cases. We are 

going through preliminary matters at this time. 

Specifically, we are addressing your right to an attorney. 

You’ve indicated that you would like to represent yourself 

but that you’d like standby.

[Defendant]: No, sir. I did not say I want to represent 

myself. I did not. I asked for standby counsel just to assist 

me with what I have to ask you.

The Court: So let me inform you of the difference 
STATE V. SIMPKINS

Newby, J., dissenting

-5-

between standby counsel and retaining an attorney. If you 

wish to have an attorney appointed to represent you, you 

can ask for that.

[Defendant]: Uh-huh.

The Court: If you wish to represent yourself, you can 

proceed without the assistance of a standby attorney or 

with the assistance of a standby attorney. If you proceed 

with the assistance of a standby attorney—if you decide 

that later in the proceedings you wish to have the 

assistance of counsel, the standby attorney can step in for 

you on your behalf.

[Defendant]: Okay. You never answered my 

question.

The Court: Sir, this is—this is going to be your 

second and final warning. You’re speaking out of order. You 

are free to make motions to the Court. You are not free to 

challenge the Court with extraneous statements. If you 

wish to address the Court, you need to make a motion by 

standing up and making a motion. This is the final warning 

you’re going to get.

[Defendant]: What does extraneous mean?

The Court: Sir, I – I can’t explain vocabulary to you.

The trial court then found that, “based on the prior proceedings, the waiver of 

counsel form, dated August 16, which indicates that defendant refused to sign a 

waiver of counsel upon request by the Court, signed by Judge Tucker,” defendant had 

waived his right to counsel. The trial court then appointed standby counsel for 

defendant. 
STATE V. SIMPKINS

Newby, J., dissenting

-6-

As the preliminary trial matters proceeded, defendant continued to question 

the court about various matters. Defendant then stated that he had been trying to 

enter a negotiated plea but wanted “evidence of jurisdiction.” After conferring with 

standby counsel and deciding he did not want to enter a negotiated plea, defendant 

waived his right to, and released, standby counsel. 

Throughout his trial, defendant repeatedly questioned the law enforcement 

witness about the State’s authority and questioned the court about its authority. At 

the end of the trial, the jury convicted defendant of resisting a public officer and 

failing to exhibit/surrender his license. 

Reviewed as a whole, it is clear that defendant would not accept the court’s 

authority or the legitimacy of the court proceedings. He continued to pose questions 

to, and refused to answer questions from, multiple trial courts. Only the trial courts 

could evaluate defendant’s tone of voice, emotions, body language, and other nonverbal communication cues accompanying his words to assess his sincerity in 

continuously refusing to answer the courts’ questions. The trial court could truly 

understand defendant’s actions to know when to protect the court proceedings from 

undue disruption and delay. Defendant’s refusal to acknowledge the trial court’s 

authority here and his repeated failure to respond to the various trial courts’ inquiries 

disrupted the trial process and resulted in the forfeiture of his right to counsel. 
STATE V. SIMPKINS

Newby, J., dissenting

-7-

While a criminal defendant’s right to be represented by counsel is wellestablished, State v. Bullock, 316 N.C. 180, 185, 340 S.E.2d 106, 108 (1986), a 

defendant may relinquish the right to counsel in certain situations, State v. 

Montgomery, 138 N.C. App. 521, 524, 530 S.E.2d 66, 68–69 (2000).1 One way a 

defendant may relinquish his right to be represented by counsel is through forfeiture. 

State v. Quick, 179 N.C. App. 647, 649–50, 634 S.E.2d 915, 917 (2006). A defendant 

may forfeit his right to counsel “when [he or she] engages in . . . serious misconduct.” 

State v. Blakeney, 245 N.C. App. 452, 460, 782 S.E.2d 88, 93 (2016). Courts have 

recognized forfeiture by misconduct when a defendant (1) engages in “flagrant or 

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

“offensive or abusive behavior, such as threatening counsel, cursing, spitting, or 

disrupting proceedings in court;” or (3) “refus[es] to acknowledge the trial court’s 

 

1 Though inapplicable here, one way a defendant may relinquish his right to counsel 

is by waiving this right. State v. Thomas, 331 N.C. 671, 673–74, 417 S.E.2d 473, 475–76 

(1992). If a defendant chooses to waive his right to counsel, the trial court “must determine 

whether the defendant knowingly, intelligently, and voluntarily waives the right.” Id. at 674, 

417 S.E.2d at 476. If a defendant chooses to waive his right to counsel, the trial court may 

determine whether defendant’s waiver is knowingly, intelligently, and voluntarily made by 

asking whether the defendant (1) “[h]as 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) 

“[u]nderstands and appreciates the consequences of this decision;” and (3) “[c]omprehends 

the nature of the charges and proceedings and the range of permissible punishments.” 

N.C.G.S. § 15A-1242 (2019). Waiver by express oral or written consent, however, cannot be 

the only method of relinquishing one’s right to counsel. Having only one method of 

relinquishing one’s right to counsel would halt proceedings where a defendant refuses to 

answer the trial court’s inquiries despite its diligent effort to obtain specific responses from 

the defendant.
STATE V. SIMPKINS

Newby, J., dissenting

-8-

jurisdiction or participate in the judicial process, or insist[s] on nonsensical and 

nonexistent legal ‘rights.’ ” Id. at 461–62, 782 S.E.2d at 94. 

Though a defendant’s right to representation is well-established, a trial court 

has a “legitimate interest in guarding against manipulation and delay” in its 

proceedings. United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995). “The trial 

court understands courtroom dynamics in ways that cannot be gleaned from the cold 

transcript . . . .” See United States v. Birchette, 908 F.3d 50, 58 (4th Cir. 2018) 

(discussing the trial court’s discretion in the context of juror interviews), cert. denied, 

140 S. Ct. 162, 205 L. Ed. 2d 51 (2019). Thus, as this Court has noted in numerous 

contexts, some decisions are best made by the trial court. See, e.g., State v. Taylor, 

362 N.C. 514, 527–28, 669 S.E.2d 239, 254 (2008) (noting that trial courts have the 

ability to observe a prosecutor’s demeanor and questioning of prospective jurors 

firsthand before ruling on a Batson challenge); State v. Hill, 347 N.C. 275, 297, 493 

S.E.2d 264, 276 (1997) (noting that a trial court “is in the best position to determine 

whether the degree of influence on the jury was irreparable” in order to determine 

whether a mistrial is warranted); State v. Wilson, 322 N.C. 117, 127, 367 S.E.2d 589, 

595 (1988) (stating that the trial court is in the best position to determine whether to 

sequester because only the trial court can “determine the climate surrounding a trial 

and it is [the trial court that] is in the best position to determine if a shield is 

necessary to protect jurors, and thus the defendant, from extraneous influences”). 

Because of the institutional advantage afforded to trial courts, such as the ability to 
STATE V. SIMPKINS

Newby, J., dissenting

-9-

observe a defendant’s behavior, evaluate his tone of voice, and assess the sincerity of 

his conduct, trial courts should be allowed the authority to maintain reasonable 

control over their courtrooms. 

Though not binding on this Court, the decision of the Court of Appeals in 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), is instructive. There the defendant refused to respond to the trial 

court’s inquiry as to whether defendant wished to waive his right to counsel. Id. at

512–13, 710 S.E.2d at 285. At a second hearing, the defendant again refused to 

answer the trial court and instead challenged the court’s jurisdiction. Id. at 513, 710 

S.E.2d at 285. The Court of Appeals determined that the defendant’s refusal to 

answer and his contradictory statements were insufficient to waive defendant’s right 

to counsel. Id. at 517, 710 S.E.2d at 287. Nonetheless, the court noted that defendant 

refused to “respond to the court’s inquiry regarding whether he wanted an attorney,” 

refused to respond to the trial court’s inquiry at a later hearing, and “continued to 

challenge the court’s jurisdiction.” Id. at 518–19, 710 S.E.2d at 288. The Court of 

Appeals thus concluded that the defendant, through his conduct, had forfeited his 

right to counsel. Id. at 519, 710 S.E.2d at 288–89.

Similar to Leyshon, defendant’s continuous behavior here shows that he 

forfeited his right to counsel. At each stage of the proceeding, defendant has shown 

his unwillingness to acknowledge the authority of various trial courts in conducting 

their respective proceedings. When Officer Middlebrook initially stopped defendant, 
STATE V. SIMPKINS

Newby, J., dissenting

-10-

defendant refused to comply with the officer’s requests, and he continuously 

questioned the authority of the officer. Though there is no transcript of the district 

court proceedings, there are two notations in the record that defendant waived 

counsel because of his refusal to respond to the district court’s inquiries. Once 

defendant’s case came for trial in superior court, defendant expressed his 

unwillingness to participate in the proceedings by continuously questioning that 

court’s authority. The superior court attempted to determine whether defendant was 

waiving his right to counsel. Instead of answering the superior court’s inquiry, 

however, defendant questioned the court, said he would like standby counsel but then 

questioned standby counsel’s licensure, asked the trial court how to appeal his case, 

and asked to be informed “of the cause of the nature of these proceedings.” Notably, 

defendant expressly waived his right to standby counsel shortly after standby 

counsel’s appointment.

Moreover, despite defendant’s desire to have an attorney “not paid for by the 

plaintiff,” defendant failed to retain an attorney in the more than eight months 

between the district court and superior court proceedings. Defendant had attended a 

hearing earlier in the week and knew at a minimum that he would need to be in Court 

on 7 June 2017. This instance was not defendant’s first interaction with the legal 

system; defendant had four prior distinct encounters with the legal system resulting 

in convictions in North Carolina between 2014 and 2016. Additionally, defendant had 

three prior convictions in South Carolina. Here defendant had already been tried in 
STATE V. SIMPKINS

Newby, J., dissenting

-11-

district court for resisting a public officer and failing to carry a registration card.

Given defendant’s repeated refusal to participate in the trial court proceedings below, 

and in light of the misdemeanor charges for which defendant was tried, the trial court 

could appropriately determine that defendant’s conduct was intended to disrupt the 

court’s legitimate processes.

While “[a]n appellate court reviews conclusions of law pertaining to a 

constitutional matter de novo,” State v. Bowditch, 364 N.C. 335, 340, 700 S.E.2d 1, 5 

(2010) (citing State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008)), each 

case presents unique facts which must be assessed by the trial court. An appellate 

court does not find facts; the authority to find facts resides with the trial court which 

has face-to-face interaction with the parties. Here the majority assumes itself to be 

the finder of fact, views a cold written record without having been present for any of 

the trial court proceedings, and finds that there is no suggestion that defendant was 

“rude or disrespectful” during the proceedings. Only trial courts can observe a 

defendant’s demeanor and interpret the non-verbal communication cues 

accompanying his words, which might not seem rude or disrespectful from a written 

transcript in a cold record on appeal. In simply reading the record, appellate courts 

lack the necessary context accompanying a defendant’s words and thus are not 

designated as finders of fact. Employing the proper standard of review in this case 

and looking at defendant’s conduct as a whole, the trial court’s determination that 

defendant should proceed without an attorney is supported by competent evidence in 
STATE V. SIMPKINS

Newby, J., dissenting

-12-

the record.2 The trial court was in the best position to make such a determination 

given defendant’s continual refusal to recognize the legitimacy of the legal process 

throughout multiple stages in the court proceedings. 

Trial courts have a “legitimate interest in guarding against manipulation and 

delay.” Goldberg, 67 F.3d at 1098. Given this legitimate interest, a trial court must 

be afforded discretion to ensure that legal proceedings are respected by all, which in 

turn enables the court to provide orderly and just proceedings for all. Because 

defendant forfeited his right to counsel by his own conduct, I respectfully dissent. 

Justice MORGAN joins in this dissenting opinion.

 

2 While the trial court concluded that defendant “waived” his right to counsel, the 

record here shows, as the State argued, that defendant actually forfeited his right to counsel.