IN THE SUPREME COURT OF NORTH CAROLINA
No. 91A25
Filed 14 August 2026
STATE OF NORTH CAROLINA
v.
DALLAS JEROME MCGIRT
On discretionary review pursuant to N.C.G.S. § 7A-31 of a divided decision of
the Court of Appeals, 298 N.C. App. 223 (2025), vacating judgments entered on 1
June 2023 by Judge G. Bryan Collins in Superior Court, Wake County and remanding
for a new trial. Heard in the Supreme Court on 18 February 2026.
Jeff Jackson, Attorney General, by Elizabeth B. Jenkins, Special Deputy
Attorney General, for the State-appellant.
Mary McCullers Reece for defendant-appellee.
EARLS, Justice.
In this case, we consider whether the Court of Appeals erred in concluding that
defendant, Dallas Jerome McGirt, did not knowingly, intelligently, and voluntarily
waive his right to counsel. After cycling through five court-appointed attorneys over
the course of approximately fifty months, Mr. McGirt twice filed handwritten
documents captioned “Waiver of Counsel”—the first of which expressly stated his
desire to “go Pro Se and have Court Appointed Counsel on stand-by.” The trial court
conducted a colloquy with Mr. McGirt in open court and found that he had waived
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Opinion of the Court
counsel. The Court of Appeals reversed and granted a new trial. For the reasons
stated, we reverse the decision of the Court of Appeals.
I. Background
On 8 April 2019, defendant Dallas Jerome McGirt was indicted for six counts
of statutory sexual offense with a child and ten counts of indecent liberties with a
child. On 12 March 2019, the trial court found Mr. McGirt to be indigent and ordered
that he be represented by counsel from the Wake County Public Defender’s office.
Two months later, the assigned counsel moved to withdraw because the Public
Defender’s office had represented the mother of a victim, a probable witness at trial,
during the time of the alleged incidents. On 14 May 2019, the Honorable Paul
Ridgeway found that the conflict existed and allowed counsel to withdraw. The trial
court then appointed Mr. James Wilson to represent Mr. McGirt. On 18 November
2019, after Mr. Wilson left private practice to join the Attorney General’s Office, the
Honorable Rebecca Holt allowed his former firm to withdraw and ordered that
counsel outside the Public Defender’s office be appointed.
In November 2019, the court appointed Ms. Cindy Popkin-Bradley. On 3 May
2021, Ms. Popkin-Bradley moved to withdraw, stating that for “personal reasons” she
“cannot be effective in defending Mr. McGirt.” The Superior Court released Ms.
Popkin-Bradley that same day and ordered the Public Defender to appoint substitute
counsel, noting conflicts with multiple attorneys and directing that outside counsel
be appointed.
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Ms. Margaret Lumsden was appointed as Mr. McGirt’s fourth attorney in May
2021. On 19 April 2022, Mr. McGirt filed a handwritten motion expressing
dissatisfaction with Ms. Lumsden’s representation, including that she had refused to
meet his objectives and had misrepresented to him that she was on vacation. He
asked the trial court to “dismiss” her from his case. On 22 April 2022, Judge Ridgeway
entered an order citing N.C.G.S. § 7A-457 and directing that there be an in-person
colloquy in open court before the court granted the request to dismiss court-appointed
counsel.
On 16 May 2022, Mr. McGirt filed a handwritten document captioned “Waiver
of Counsel.” In it Mr. McGirt cited N.C.G.S. § 7A-457 and asked to “go Pro Se and
have Court Appointed Counsel on stand-by.” On 3 June 2022, Judge Holt entered an
order allowing Ms. Lumsden to withdraw and directing the Public Defender’s Office
to appoint outside counsel.
Mr. Charles Christopher was appointed as Mr. McGirt’s fifth attorney. On 22
August 2022, defendant wrote to Judge Ridgeway stating that Mr. Christopher had
not come to see him about his case and expressing his desire to “fire my attorney Mr.
Charles Christopher.” On 2 December 2022, Mr. McGirt filed with the court a letter
he had written to Mr. Christopher setting forth counsel’s failure to communicate with
him.
On 4 April 2023, Mr. McGirt filed a second handwritten document captioned
“Waiver of Counsel” listing reasons for his dissatisfaction with his current and
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previous counsel. Mr. Christopher filed a motion to withdraw.
On 4 May 2023, three weeks before the matter was set for trial, counsel’s
motion to withdraw came on for hearing. Mr. McGirt addressed the court, stating that
he had filed the waiver of counsel “on March 29th” and that he had “been waiting for
a response ever since.” The trial court acknowledged the filing and noted that Mr.
Christopher was Mr. McGirt’s fifth attorney.
When the trial court asked defendant about the “waiver of counsel” he had
filed, Mr. McGirt responded, “Yeah, that’s what I—I filed it just to get him off my
case.” The trial court allowed counsel’s motion to withdraw. The court then stated,
“[w]e need to consider if you have effectively waived your right to the assistance of
court-appointed counsel anyway and that you need to represent yourself or if we need
to appoint standby counsel to assist you with this case.” When asked what he was
asking the court to do, Mr. McGirt responded by criticizing the performance of his
prior counsel, stating, “I’ve been held almost 50 months, and it doesn’t make sense,”
and recounting specific complaints about his third attorney’s failure to request
discovery. At no point during the hearing did Mr. McGirt request the appointment of
a sixth attorney.
The State requested that the trial court appoint standby counsel and allow the
trial to proceed. The trial court then conducted a colloquy, confirming that Mr. McGirt
was able to hear and understand the proceedings, that he could read and write, that
he understood his right to plead not guilty, that he had not recently consumed
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intoxicating substances, that he understood the right to be represented by counsel,
and that he was aware of the elements of the offenses charged against him. On the
question of sentencing, the trial court confirmed that Mr. McGirt recognized “the
possibility of . . . 25 years minimum” for each of the six statutory sex offense charges,
to which Mr. McGirt responded, “I’m very well aware, Your Honor.” The trial court
did not separately address the sentencing range for the ten Class F felony charges or
the maximum sentence of life without parole for the B1 felonies. Mr. McGirt was fiftythree years old at the time.
The trial court concluded that Mr. McGirt had waived his right to the
assistance of counsel and then assigned standby counsel. The court’s order dated 4
May 2023 stated: “DEFENSE MOTION TO WITHDRAW IS ALLOWED.
DEFENDANT WAIVES COUNSEL AND THE PUBLIC DEFENDERS OFFICE IS
TO APPOINT STAND BY COUNSEL.”
On 18 May 2023, Mr. McGirt was brought to court to receive discovery
materials, and the trial court ordered that he have access to the law library to prepare
for trial. On 22 May 2023, Mr. McGirt appeared before Judge Rozier and requested
the appointment of counsel. Judge Rozier denied the request, finding that Mr. McGirt
had previously waived his right to court-appointed counsel but noted that standby
counsel, Mr. Liles, remained available and that Mr. McGirt was free to hire a private
attorney.
On 30 May 2023, the day the matter came on for trial, the State filed a motion
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to have standby counsel, rather than Mr. McGirt, examine the prosecuting witnesses.
Mr. McGirt did not object, and the trial court allowed the motion. At trial, standby
counsel questioned the prosecuting witnesses, and Mr. McGirt otherwise represented
himself. The jury convicted Mr. McGirt of four counts of statutory sex offense with a
child and ten counts of indecent liberties with a child. The trial court sentenced Mr.
McGirt to minimum sentences totaling seventy-five years.
Mr. McGirt gave notice of appeal in open court. On 19 March 2025, the Court
of Appeals vacated the convictions and remanded for a new trial, holding that Mr.
McGirt had neither waived nor forfeited his right to counsel. State v. McGirt, 298
N.C. App. 223, 240 (2025).
II. Analysis
A. Standard of Review
The right to counsel in a criminal proceeding is protected by both the United
States and North Carolina Constitutions. U.S. Const. amend. VI; N.C. Const. art. I,
§§ 19, 23. A criminal defendant also has the right to waive counsel and proceed pro
se. State v. Fenner, 387 N.C. 330, 334–35 (2025). This Court reviews de novo a trial
court’s determination that a defendant has waived the right to counsel. State v.
Simpkins, 373 N.C. 530, 533 (2020).
B. Applicable Law
A defendant may voluntarily relinquish the right to counsel by way of waiver.
Section 15A-1242 of the North Carolina General Statutes provides that “[a] defendant
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may be permitted at his election to proceed in the trial of his case without the
assistance of counsel.” N.C.G.S. § 15A-1242 (2025). For a waiver to be constitutionally
valid, the defendant must “clearly and unequivocally” express a desire to proceed pro
se, and the trial court must ensure that the waiver is knowing, intelligent, and
voluntary. State v. Thomas, 331 N.C. 671, 673–74 (1992). The trial court satisfies this
obligation by conducting the “thorough inquiry” mandated by section 15A-1242,
which requires the court to be satisfied that the defendant has been advised of the
right to counsel, understands and appreciates the consequences of proceeding without
counsel, and comprehends the nature of the charges and the range of permissible
punishments. Id. at 674.
Critically, the statute requires only that the defendant make an “election” to
proceed without counsel—it does not prescribe a particular form or magic words
through which that election must be communicated. See id. at 674–76. A defendant’s
clear and unequivocal expression of the desire to proceed pro se may be assessed in
light of the totality of the circumstances, including written filings, in-court
statements, and the defendant’s overall course of conduct. See State v. Atwell, 383
N.C. 437, 447 (2022).
As the Court of Appeals has noted, “[a] written waiver is important evidence
to show a defendant wishes to act as [his] own attorney.” State v. Jenkins, 273 N.C.
App. 145, 151 (2020). Although a written waiver legitimately creates a presumption
that the defendant’s waiver of counsel was knowing, intelligent and voluntary, it is
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not a substitute for the requirements of N.C.G.S. § 15A-1242. Id.; see also State v.
Kinlock, 152 N.C. App. 84, 89–90 (2002), aff’d per curiam, 357 N.C. 48 (2003) (noting
that when a defendant executes a written waiver, it is presumed that the waiver of
counsel was knowing, intelligent and voluntary “unless the rest of the record
indicates otherwise” (cleaned up)). While providing for a written waiver, our statutes
also clearly state that “[a]ny waiver of counsel shall be effective only if the court finds
of record that at the time of waiver the indigent person acted with full awareness of
his rights and of the consequences of the waiver.” N.C.G.S. § 7A-457(a) (2025).
C. Mr. McGirt Clearly and Unequivocally Expressed the Desire to Proceed
Pro Se
Viewing the record as a whole, the evidence establishes that Mr. McGirt clearly
and unequivocally expressed his desire to waive counsel and proceed pro se. That
expression was not confined to a single moment but was the culmination of a
sustained course of conduct spanning approximately fifty months and five appointed
attorneys—a course of conduct that, particularly in its final stages, left no doubt as
to Mr. McGirt’s intentions. This course of conduct was then confirmed in the court’s
colloquy with Mr. McGirt at the hearing on 4 May 2023.
Mr. McGirt’s first three attorneys were released for reasons not attributable to
his conduct: his first counsel withdrew due to a conflict within the Public Defender’s
office; his second left private practice; and his third withdrew for personal reasons.
We do not rely on these changes of counsel as evidence of waiver. They do, however,
form the backdrop against which Mr. McGirt’s subsequent actions must be
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understood.
It is with the fourth and fifth attorneys that Mr. McGirt’s conduct shifted from
dissatisfaction with individual counsel to a clear pattern of rejecting appointed
representation altogether. After Ms. Lumsden was appointed in May 2021, Mr.
McGirt filed a handwritten motion in April 2022 seeking to “dismiss” her from his
case. On 16 May 2022, he filed a document he himself captioned “Waiver of Counsel,”
in which he cited N.C.G.S. § 7A-457 and stated that he wished to “go Pro Se and have
Court Appointed Counsel on stand-by.” This filing was not ambiguous. Mr. McGirt
invoked the statutory framework for waiver, used the term “Pro Se,” and articulated
precisely the arrangement he sought—self-representation with the assistance of
standby counsel. That is, by definition, a waiver of the right to counsel. See N.C.G.S.
§ 15A-1243 (2025) (providing for appointment of standby counsel when a defendant
elects to proceed pro se).
After Ms. Lumsden was released and Mr. Christopher was appointed as his
fifth attorney, Mr. McGirt’s dissatisfaction continued. He complained that Mr.
Christopher had not communicated with him, and in December 2022 filed a letter
detailing counsel’s failures. On 4 April 2023, Mr. McGirt filed a second document
captioned “Waiver of Counsel,” again setting forth his dissatisfaction with appointed
representation. Mr. Christopher thereafter filed his own motion to withdraw.
At the 4 May 2023 hearing, the trial court addressed both filings and Mr.
Christopher’s motion. When asked about the document he had filed, Mr. McGirt
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stated that he had filed it “just to get him off my case.” The Court of Appeals seized
upon this statement as evidence that Mr. McGirt did not intend to waive counsel. We
disagree. This single statement must be read in context—not in isolation. When the
trial court asked Mr. McGirt what he was asking the court to do, he did not request
new counsel. Instead, he complained at length about the inadequacies of his previous
attorneys. He did not, at any point during the hearing, ask the trial court to appoint
a sixth attorney. He had already twice filed documents he himself titled “Waiver of
Counsel”—the first of which expressly requested to “go Pro Se”—and his conduct
throughout the hearing was consistent with a defendant who had resolved to proceed
without appointed counsel.
We do not suggest that any single filing or statement, standing alone, would
necessarily constitute a clear and unequivocal expression of the desire to proceed pro
se. But when a defendant files two written waivers of counsel, one of which uses the
words “Pro Se” and invokes the governing statute, cycles through five appointed
attorneys, and then appears before the trial court without requesting the
appointment of a sixth, the totality of those circumstances constitutes a clear and
unequivocal expression of the election to proceed without counsel within the meaning
of section 15A-1242 and State v. Thomas, 331 N.C. 671 (1992).
D. McCrowre and Hutchins Involved Different Circumstances
Mr. McGirt relies on State v. McCrowre, 312 N.C. 478 (1984), and State v.
Hutchins, 303 N.C. 321 (1981), for the proposition that a desire to change counsel is
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not an expression of intent to waive counsel. But those cases involve very different
facts that are material to determining whether a defendant has knowingly,
intelligently, and voluntarily waived the right to appointed counsel.
In McCrowre the defendant signed a form captioned “WAIVER OF RIGHT TO
ASSIGNED COUNSEL” at arraignment, but did so only because he expected to hire
a private attorney. 312 N.C. at 479–80. When he was unable to retain private counsel
and appeared for trial without an attorney, he immediately asked the court to appoint
someone to assist him. Id. at 480. The record in McCrowre thus “clearly indicate[d]
that when [the] defendant signed the waiver of his right to assigned counsel, he did
so with the expectation of being able to privately retain counsel,” and there was “no
evidence that [the] defendant ever intended to proceed to trial without the assistance
of some counsel.” Id.
Mr. McGirt’s case presents a markedly different record. Unlike the defendant
in McCrowre, Mr. McGirt did not sign a waiver in reliance on his ability to hire private
counsel. He filed two separate handwritten documents—months apart—each titled
“Waiver of Counsel,” the first of which expressly stated his desire to “go Pro Se.” He
did not, at the 4 May 2023 hearing, ask the court to appoint a sixth attorney. And the
record reflects not a single, isolated waiver executed under a misapprehension but a
consistent course of conduct across nearly two years in which Mr. McGirt rejected
each appointed attorney in turn while simultaneously invoking the language of selfrepresentation.
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Likewise, the Hutchins principle that “[s]tatements of a desire not to be
represented by court-appointed counsel do not amount to expressions of an intention
to represent oneself,” 303 N.C. at 339, does not control here. That principle applies
where a defendant’s statements, at most, reflect dissatisfaction with particular
appointed counsel and a desire for a replacement. Mr. McGirt’s statements went
further. His 16 May 2022 filing did not merely ask for new counsel—it asked to “go
Pro Se and have Court Appointed Counsel on stand-by.” A defendant who uses the
words “Pro Se,” invokes the statutory waiver framework, and requests the specific
arrangement contemplated by section 15A-1243 for defendants who elect selfrepresentation has done more than express dissatisfaction with a particular lawyer.
Mr. McGirt has expressed the desire to proceed without counsel.
E. The Trial Court’s Colloquy Satisfied N.C.G.S. § 15A-1242 Under Fenner
Mr. McGirt additionally argues that, even if he expressed the desire to proceed
pro se, the trial court’s colloquy was constitutionally deficient because the court failed
to apprise him of the full range of permissible punishments for all charges. In this
case, the trial court’s colloquy substantially complied with the statutory requirement
and substantiates Mr. McGirt’s two written waivers of counsel.
At the 4 May 2023 hearing, the trial court confirmed that Mr. McGirt could
hear and understand the proceedings, that he could read and write, that he had not
consumed any intoxicating substances, that he understood his right to counsel, and
that he understood the right to plead not guilty. The court then informed Mr. McGirt
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that each of his six B1 felony charges carried a minimum sentence of twenty-five
years. Mr. McGirt responded, “I’m very well aware, Your Honor.” The trial court did
not separately address the sentencing range for the ten Class F felony charges of
indecent liberties with a child, each carrying a potential sentence of ten to fifty-nine
months, and the court’s phrasing—“not life”—may have understated the maximum
for the B1 felonies, which in fact carried a maximum penalty of life without parole.
N.C.G.S. §§ 14-27.28(b), 15A-1340.17 (2025).
This Court recently addressed a materially similar situation in State v. Fenner,
387 N.C. 330 (2025). In Fenner the trial court erroneously informed the defendant
that he faced between 75 and 175 years in prison, when in fact he could have received
multiple life sentences. Id. at 331. This Court concluded that “[i]f the trial court
miscalculates the range of permissible punishments during the statutory colloquy,
but both the miscalculation and the actual range are tantamount to the remainder of
the defendant’s life, the trial court complies with the statute.” Id. at 335.
Fenner is directly on point: the same principle applies here. Mr. McGirt was
fifty-three years old at the time of his trial. Six consecutive twenty-five-year
sentences—the minimum the trial court communicated, which Mr. McGirt
acknowledged hearing and understanding—would total 150 years. Whether Mr.
McGirt understood his exposure to be 150 years or some greater figure encompassing
the Class F felonies and the possibility of life without parole, either calculation was
tantamount to more than the remainder of his life. There is no reasonable likelihood
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Opinion of the Court
that Mr. McGirt would have altered his decision to proceed pro se had the trial court
correctly informed him of the full sentencing range for all the charges he faced. Under
Fenner, the trial court’s misstatement here does not render the colloquy
constitutionally deficient.
III. Conclusion
For the foregoing reasons, we hold that the trial court correctly concluded that
Mr. McGirt had clearly and unequivocally expressed his desire to proceed pro se
through his written filings, his in-court statements, and his overall course of conduct.
Moreover, the trial court’s colloquy, though imprecise as to the range of permissible
sentences, substantially complied with N.C.G.S. § 15A-1242 because, under the
standard set forth in Fenner, the miscalculation and the actual range of possible
punishments both unequivocally amounted to more than his natural life. The Court
of Appeals erred in concluding that his waiver of appointed counsel was not knowing,
intelligent, and voluntary. Having concluded that the trial court was correct to find
that Mr. McGirt knowingly, intelligently and voluntarily waived his right to court
appointed counsel and that the court’s colloquy satisfied statutory requirements,
there is no need for us to consider whether Mr. McGirt forfeited his right to counsel
in this matter. The decision of the Court of Appeals is reversed.
REVERSED.
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Newby, C.J., concurring
Chief Justice NEWBY concurring.
I join the majority’s conclusion that defendant waived his right to counsel. I
agree also that our disposition of the case does not require us to consider whether
defendant forfeited his right to counsel. Regardless, I write separately to address
forfeiture in hopes of clarifying some lingering confusion about its relationship with
waiver. I respectfully concur.
Although waiver and forfeiture are sometimes used interchangeably in casual
parlance, the terms are not synonymous. Contrast State v. McGirt, 298 N.C. App. 223,
228, 235, 239, 913 S.E.2d 476, 480, 484, 487 (2025) (analyzing waiver, forfeiture, and
“hybrid waiver by conduct with warning”), with id. at 244, 248, 913 S.E.2d at 490,
492 (Tyson, J., dissenting) (analyzing only “waiver of counsel” and “hybrid waiver and
forfeiture” without a separate analysis for forfeiture).1 They are separate concepts
that address distinct concerns. Waiver guards the defendant’s right to dictate his own
defense. See Faretta v. California, 422 U.S. 806, 820–21, 95 S. Ct. 2525, 2533–34
(1975). Forfeiture protects the trial court’s “legitimate interest in guarding against
manipulation and delay.” State v. Simpkins, 373 N.C. 530, 549, 838 S.E.2d 439, 454
(2020) (Newby, J., dissenting) (quotation omitted). Stated another way, waiver
1 The dissent below was not alone in this misapprehension. The trial court incorrectly
described forfeiture as an “effective[ ] waive[r],” and the State’s petition for discretionary review at this Court focused exclusively on waiver—leading us to issue a special order directing the parties to brief both waiver and forfeiture.
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Newby, C.J., concurring
ensures that counsel does not control the defendant, while forfeiture ensures that the
defendant does not control the courtroom. The difference is particularly important
because forfeiture implicates an additional consideration: appellate deference to the
trial court’s “fundamental authority over the courtroom.” Id. at 542, 838 S.E.2d at
450.
I begin with waiver. The Sixth Amendment to the United States Constitution
guarantees that “[i]n all criminal prosecutions, the accused shall . . . have the
Assistance of Counsel for his defence.”2 U.S. Const. amend. VI. But the Sixth
Amendment does not mandate counsel. Faretta, 422 U.S. at 820–21, 95 S. Ct. at 2533–
34. Rather, “[i]t speaks of the assistance of counsel, and an assistant, however expert,
is still an assistant.” Id. at 820, 95 S. Ct. at 2533 (emphasis added) (internal quotation
marks omitted). The text of the Sixth Amendment accords with its original public
meaning: “[T]he notion of compulsory counsel was utterly foreign to” the Founding
generation, id. at 833, 95 S. Ct. at 2540, which believed instead “that
self-representation was a basic right of a free people,” id. at 830 n.39, 95 S. Ct. at
2538 n.39. “And whatever else may be said of those who wrote the Bill of Rights,
surely there can be no doubt that they understood the inestimable worth of free
choice.” Id. at 833–34, 95 S. Ct. at 2540.
2 Article I, Section 23 of our state constitution guards the analogous right. See N.C.
Const. art. I, § 23 (“In all criminal prosecutions, every person charged with crime has the right . . . to have counsel for defense . . . .”).
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Newby, C.J., concurring
Thus, defendants retain the ability to waive counsel and proceed pro se, should
they choose. Id. at 834, 95 S. Ct. at 2541. “[W]aiver is . . . an intentional
relinquishment or abandonment of a known right or privilege.” State v. Harvin, 382
N.C. 566, 585, 879 S.E.2d 147, 159 (2022) (quoting Johnson v. Zerbst, 304 U.S. 458,
464, 58 S. Ct. 1019, 1023 (1938)). This means that the trial court may not accept a
waiver of counsel unless the defendant “clearly and unequivocally” enters it
“knowingly, intelligently, and voluntarily.” Id. at 585, 879 S.E.2d at 160 (quoting
State v. Thomas, 331 N.C. 671, 673–74, 417 S.E.2d 473, 475–76 (1992)). Waiver owes
to choice both its justification in theory and application in practice. Axiomatically,
waiver depends on choice.
Forfeiture is different. 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.” Id. at 586, 879 S.E.2d at 160 (quoting State v.
Schumann, 257 N.C. App. 866, 879, 810 S.E.2d 379, 388 (2018)). A criminal defendant
may forfeit his right to counsel “in situations evincing egregious misconduct.” Id. at
586, 879 S.E.2d at 160 (quoting Simpkins, 373 N.C. at 535, 838 S.E.2d at 446).
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) refuses to acknowledge the trial court’s
jurisdiction or participate in the judicial process, or insists
on nonsensical and nonexistent legal “rights.”
Simpkins, 373 N.C. at 546, 838 S.E.2d at 452 (Newby, J., dissenting) (citation
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Newby, C.J., concurring
modified).
This case provides a helpful illustration. In the span of four years, defendant
cycled through five court-appointed attorneys. Although defendant’s first three
lawyers withdrew from the case due to, respectively, a conflict of interest, a job
change, and personal reasons due to which the attorney could not effectively
represent him, defendant took it upon himself to seek the dismissal of each of his final
two lawyers. He accused each of ineffectiveness and unethical behavior.
By the time defendant sought to release his fifth and final attorney, both the
trial court and State had expressed skepticism regarding his true motives. The State
put it most bluntly at the 4 May 2023 pretrial waiver hearing:
Your Honor, [defendant] is charged with six counts of
first-degree sex offense with a child, twelve counts of
taking indecent liberties with a child. There are four
separate victims involved in this case. This is the second
time that I have prepped these kids for trial. This is
literally just creating more and more trauma for . . . four
kids. The abuse started with these children when they
were as young as five years old. They are now starting to
almost get to the age where they are becoming adults. They
would like this behind them. The State would like this
behind [it]. This defendant has literally, every single time
something starts to get towards a trial, has done some kind
of thing with his attorney to get them to withdraw. We
were set for trial with [defendant’s third attorney, but
defendant] did the same kind of stuff and [that attorney]
was able to withdraw the week before trial. I just feel like
these victims are getting kind of jerked around by the
games that are being played, and I don’t think that that’s
fair.
In addition to that, this defendant has pro se filed
motions for a speedy trial. The State has every single time
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Newby, C.J., concurring
tried to get this to trial, [but defendant] has continued to
behave in ways that are making that impossible. The State
is ready to proceed on May 30th.
Still, defendant insisted that he could not proceed to trial with his fifth
attorney. For years, defendant had been mailing to the trial court handwritten
letters—stylized as self-declared “[w]aiver[s] of [c]ounsel”—expressing intent to “fire”
his lawyer and “go pro se.” At the 4 May 2023 waiver hearing, defendant told the trial
court his fifth attorney “ha[d] done nothing that [he] asked,” going so far as to imply
counsel had been working against his interests. When the trial court suggested the
fifth attorney might remain on defendant’s case as standby counsel due to his
familiarity with the matter, defendant vehemently refused: “Appoint anybody but
him. I’ll even take [the bailiff]. Anybody but [this attorney].”
And when the trial court eventually conducted the mandatory waiver colloquy,
see N.C.G.S. § 15A-1242 (2025), defendant responded with confidence:
THE COURT: . . . [Y]ou do understand that this case is
headed for trial?
THE DEFENDANT: Oh, yes.
THE COURT: . . . [F]or each of the [six] statutory sex
offenses, you recognize that there is the possibility of
life—not life, but [twenty-five] years minimum for each of
those six?
THE DEFENDANT: I’m very well aware, Your Honor.
THE COURT: Are there any—are you aware of each—the
elements in each part of the offenses against you?
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Newby, C.J., concurring
THE DEFENDANT: Yes, I am.
THE COURT: All right, sir, I'm going to find that you
have—that you have waived your right to the assistance of
counsel.
At first glance, these actions appear to show an unambiguous intent to waive
counsel. But the issue is closer than it appears. Defendant argues that he believed
“waiver of counsel” meant something akin to dismissing his current attorney and
requesting a new one. Therefore, defendant submits that he did not intend to
represent himself and—as a result—did not waive his right to counsel knowingly,
intelligently, and voluntarily. This argument finds some support in our precedents:
“Statements of a desire not to be represented by court-appointed counsel do not
amount to expressions of an intention to represent oneself.” State v. Hutchins, 303
N.C. 321, 339, 279 S.E.2d 788, 800 (1981); see also Thomas, 331 N.C. at 675, 417
S.E.2d at 476 (“[D]efendant did not ‘clearly and unequivocally’ state a desire to
proceed in propria persona. Instead, he was confused about the choices available to
him.”).
The record lends additional support to defendant’s argument. For instance,
defendant’s 16 May 2022 letter requests both “a new attorney” and that defendant be
allowed to proceed pro se. This contradiction suggests defendant may not have fully
grasped what waiver entailed, at least at the time he sent this letter. Defendant also
repeatedly confirmed to the trial court that he filed his March 2023 waiver of counsel
to “get [his new attorney] off [his] case.”
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Newby, C.J., concurring
After considering the totality of the circumstances in the record, however, I
fully agree with the majority in concluding that defendant waived his right to counsel.
But assume arguendo that defendant did not execute a valid waiver of counsel.
That determination would not end our analysis. Instead, we would consider whether
defendant forfeited his right. And here defendant’s argument would collapse
altogether.
At the forfeiture stage, problems with waiver—including the defendant’s lack
of knowledge or the inadequacy of the trial court’s colloquy—fall by the wayside.
See Harvin, 382 N.C. at 586, 879 S.E.2d at 160. The forfeiture inquiry asks whether
the defendant’s misconduct was so severe as to threaten the trial court’s ability to
exercise its “fundamental authority over the courtroom” and “provide orderly and just
proceedings for all.” Simpkins, 373 N.C. at 542, 549, 838 S.E.2d at 450, 454 (Newby,
J., dissenting). Examples include the deployment of “flagrant or extended delaying
tactics, such as repeatedly firing a series of attorneys.” Id. at 546, 838 S.E.2d at 452
(citation modified).
Defendant engaged in that sort of misbehavior in this case. He lodged baseless
accusations about several attorneys’ competence and ethics and demanded the trial
court furnish replacements for each one. The striking similarities between
defendant’s accusations call into question his sincerity. It strains credulity to believe
the trial court appointed multiple consecutive lawyers who all decided to ignore this
-21-STATE V. MCGIRT
Newby, C.J., concurring
case, lie to defendant and his family, and skip scheduled meetings.3 The timing of
defendant’s several attempts to dismiss counsel—two of which occurred less than a
month before the scheduled start of trial—casts further doubt on his claims.
An examination of the cold record in its entirety shows the trial court had
ample reason to think defendant was “attempting to obstruct the proceedings and
prevent them from coming to completion.” Id. at 538, 838 S.E.2d at 447 (majority
opinion). The trial court acted well within its discretion when it determined defendant
was not entitled to a sixth attorney. The Court of Appeals erred in holding otherwise.
That conclusion becomes especially clear when an appellate court approaches
this question with humility, keeping in mind the structural differences between
appellate and trial courts and our respective strengths and weaknesses. And this
leads me to my final point: in evaluating forfeiture, reviewing courts must remember
that “[t]he trial court understands courtroom dynamics in ways that cannot be
gleaned from the cold transcript.” Id. at 546, 838 S.E.2d at 452 (Newby, J., dissenting)
(citation modified). Unlike appellate courts, the trial court can “observe a defendant’s
behavior, evaluate his tone of voice, and assess the sincerity of his conduct . . . .” Id.
at 547, 838 S.E.2d at 452. “Thus, as this Court has noted in numerous contexts, some
decisions are best made by the trial court.” Id. at 546, 838 S.E.2d at 452 (collecting
3 In fact, defendant’s fifth attorney averred the exact opposite: “Defendant refuses to
discuss his case with this attorney or assist this attorney with his defense in any way. On [21 April 2023, for instance,] this attorney had scheduled an in person meeting with [d]efendant at the Wake County Detention Center. At that time, [d]efendant refused to meet with this attorney.” (Emphases added).
-22-STATE V. MCGIRT
Newby, C.J., concurring
cases); see also, e.g., State v. Wilson, 388 N.C. 488, 489, 920 S.E.2d 832, 835 (2025)
(explaining and applying deference in the context of Batson challenges). To pretend
otherwise is appellate arrogance.
I agree with the majority that defendant waived his right to counsel and that
this disposition makes it unnecessary to reach forfeiture. Nonetheless, I analyze
forfeiture with hopes of clarifying a frequently misunderstood area of our law. I
respectfully concur.
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