Waiver of Counsel in North Carolina

Waiver of Counsel: Legal Framework and Standard of Review

Criminal defendants have a fundamental right to the assistance of counsel under the Sixth Amendment to the U.S. Constitution and Article I of the North Carolina Constitution. A defendant also has the right to proceed without counsel and represent himself or herself, but such waiver of counsel must be made knowingly, intelligently, and voluntarily. North Carolina law requires trial courts to conduct a thorough inquiry before accepting a waiver of the right to counsel.

This inquiry is codified in N.C.G.S. § 15A-1242, which provides that a judge may allow a defendant to proceed pro se only after confirming that the defendant:

1. Understands the right to counsel: The defendant must be clearly advised of the right to assistance of counsel, including the right to appointed counsel if indigent.

2. Appreciates the consequences: The defendant must understand the consequences of the decision to proceed without a lawyer. This includes awareness of the risks and disadvantages of self-representation.

3. Comprehends the charges and punishment: The defendant must understand the nature of the charges, the proceedings, and the range of permissible punishments that can be imposed.

These safeguards ensure that a defendant’s election to waive counsel is made with full awareness of what is being given up. The trial court’s colloquy on these points should be explicit and comprehensive.

For example, the judge should inform the defendant of the maximum possible penalties and make clear that the court will not be able to assist or give legal advice during trial. A defendant’s waiver of counsel is not valid if any of the statutory elements are missing – failing to advise even one of the required points (such as the maximum punishment) renders the waiver invalid under North Carolina precedent.

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In addition, our courts have emphasized that a defendant’s desire to proceed without counsel must be communicated “clearly and unequivocally.” In other words, the defendant must unambiguously express the intention to forgo an attorney and go forward pro se. Ambiguous statements or mere frustration with current counsel do not meet this standard.

When a defendant does waive counsel, the best practice is to have the waiver in writing in addition to the oral colloquy. A written waiver form (like AOC-CR-227 in North Carolina) signed by the defendant and certified by the court is strong evidence of a knowing and voluntary waiver. However, a written form is not a substitute for the open-court inquiry required by § 15A-1242 – it is an additional safeguard. The court must still engage the defendant in conversation to ensure understanding. Indeed, any waiver of counsel is effective only if the trial court finds on the record that the defendant acted with full awareness of rights and consequences at the time of waiver (see N.C.G.S. § 7A-457(a)).

On appeal, disputes about a defendant’s waiver of counsel receive careful scrutiny. The appellate court reviews the issue de novo, meaning it considers the entire matter anew, without deferring to the trial court’s conclusions. Under de novo review, the appellate court will examine the transcript and circumstances to determine whether the waiver was valid as a matter of law. Because the right to counsel is so vital, appellate courts will not hesitate to reverse a conviction if the record does not show a valid waiver. With this legal framework and standard of review in mind, we turn to how these principles were applied in North Carolina v. McGirt (State v. McGirt), a recent decision addressing a defendant’s purported waiver (or loss) of counsel.

At Powers Law Firm, our attorneys offer experienced representation for criminal defense matters in courtrooms throughout the Charlotte metro region, including Union, Iredell, Mecklenburg, Gaston, Rowan, and Lincoln Counties. If you would like to discuss your legal matter and see if we’re able to help, please call 704-342-4357.

Applying the Waiver of Counsel Standard in McGirt

The case of State v. McGirt, No. COA24-551 (N.C. Ct. App. Mar. 19, 2025), presented a complex scenario involving a defendant who went through multiple lawyers and ultimately ended up representing himself at trial. The case involves serious charges – several counts of statutory sexual offense with a child and indecent liberties with a child. Because the defendant was indigent, the court initially appointed counsel to represent him. Over the next few years, a sequence of five different attorneys were appointed, one after the other, to handle McGirt’s defense. By 2023, all of those attorneys had either withdrawn or been replaced, for various reasons. This turnover set the stage for the dispute over whether McGirt waived or forfeited his right to counsel.

The early substitutions of counsel in McGirt’s case were not attributable to any misconduct by the defendant. The first appointed counsel (from the public defender’s office) withdrew due to a conflict of interest. The second attorney had to step aside after leaving private practice for a job that precluded continued representation. These changes happened through no fault of the defendant. The third attorney withdrew for “personal reasons” (the record did not detail those reasons, but the withdrawal was allowed by the court). It was with the fourth and fifth attorneys that McGirt began expressing serious dissatisfaction. These later conflicts ultimately led the trial court to conclude that McGirt would proceed without appointed counsel – a decision the Court of Appeals closely examined.

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McGirt became dissatisfied with his fourth attorney’s representation and expressed that he wanted his defense lawyer removed. Notably, in that motion he stated, “I would like to go pro se and have court-appointed counsel on standby.” This was an indication – at least on paper – of interest in self-representation, but it came in the context of frustration with his attorney. When the court addressed this request, it did allow appointed counsel to withdraw but did not actually permit McGirt to proceed pro se at that point. Instead, the court appointed a fifth lawyer to take over the defense. In other words, even though McGirt had flirted with the idea of self-representation, the court chose to give him another attorney rather than accept a waiver of counsel.

McGirt again voiced dissatisfaction, claiming that this fifth lawyer had not visited him or communicated adequately. He sought to have that attorney removed as well. Several months later, counsel moved to withdraw, citing an inability to work with the client – the attorney reported that McGirt refused to discuss the case or assist in his defense (at least on one documented occasion shortly before the motion). This motion to withdraw by the fifth attorney brought matters to a head. A hearing was held to address counsel’s withdrawal and the status of McGirt’s representation going forward.

At that hearing, the trial judge allowed counsel to withdraw, leaving McGirt without an active defense attorney. The critical question was what to do next. The judge remarked that it appeared they had reached a point where the defendant had, in essence, waived his right to court-appointed counsel.

The court noted the history: multiple attorneys had been unsatisfactory to McGirt, and the case had been delayed at least once previously when an attorney withdrew on the eve of trial. However, the transcript of the hearing revealed that McGirt never explicitly stated he wanted to represent himself at that time. In fact, when the judge asked what McGirt was asking for, McGirt responded by airing grievances about prior counsel (complaining about lack of communication and effort). He did not say, “I waive my right to counsel” or “I will proceed on my own now.” He primarily reiterated that he had been jailed for a long time awaiting trial and felt his lawyers had not been effective.

After hearing McGirt’s concerns, the trial judge announced a finding that McGirt had waived the right to counsel. The court decided not to appoint a sixth attorney. Instead, the court designated the withdrawing attorney to stay on in the limited role of standby counsel. Standby counsel is an attorney available to consult or step in if needed, but who does not formally represent the defendant at trial. Upon being told that lawyer would remain as standby, McGirt protested, essentially saying he would accept anyone as standby counsel except that attorney. McGirt’s desire was for a different attorney, not to be entirely without counsel. Nonetheless, the court proceeded with its decision: McGirt would represent himself with his last appointed attorney on standby. A few weeks later, McGirt again asked the court to appoint a new attorney for him, but that request was denied. The case was set for trial with the defendant appearing pro se.

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During the subsequent trial, McGirt indeed had to represent himself. Recognizing the difficulties of a pro se defendant handling a sensitive child sex offense case, the prosecution moved for standby counsel to handle the examination of certain witnesses (likely to facilitate the proceedings and possibly to avoid direct questioning of the child by the accused). The trial court granted that motion to let standby counsel perform those examinations, but otherwise McGirt was on his own in presenting his defense. The jury trial resulted in convictions on multiple counts, and McGirt was sentenced to a lengthy prison term. He then appealed, contending that the trial court committed reversible error by concluding he had waived or forfeited his right to counsel.

The North Carolina Court of Appeals, in a majority opinion by Judge Julee Flood, agreed with the defendant. Applying the waiver of counsel standards to the record, the court found that McGirt had never validly waived his right to counsel. The decision emphasized several key points. First, at no time during the critical hearing did McGirt clearly and unequivocally declare a desire to proceed without an attorney. Simply being unhappy with one’s current lawyer (even multiple times in succession) is not the same as affirmatively choosing self-representation.

The appellate court noted that McGirt repeatedly asked for new counsel throughout the case. His lone reference to going pro se with standby in his earlier motion was seen as born of frustration with counsel, and even then the court did not act on that request at the time. By the time of the hearing, McGirt’s position was essentially that he wanted a competent attorney – evidenced by his immediate request for another attorney and his objection to proceeding with his appointed standby counsel. This fell far short of the required clear expression of intent to waive counsel.

Second, the Court of Appeals opined that the trial judge did not conduct a proper § 15A-1242 colloquy to ensure a knowing and intelligent waiver. Notably, the trial court never directly asked McGirt, “Do you understand you have the right to an attorney and do you wish to waive that right and represent yourself?” There was no explicit question to the defendant confirming he truly wanted to proceed pro se. Likewise, the court did not explain to McGirt the consequences and responsibilities of self-representation at that critical juncture. The record contained no discussion of the difference between having an appointed attorney versus proceeding alone with only standby assistance. In fact, nothing indicates McGirt affirmatively accepted the idea that he was proceeding pro se – he was simply told the court’s decision. This lack of a direct engagement with the defendant is contrary to the usual requirements when a defendant waives counsel.

Third, the content of the advice given to McGirt was incomplete regarding the punishment he faced. The trial judge briefly mentioned the possibility of a 25-year minimum sentence for each sex offense count (telling McGirt that each count carried a 25-year minimum). While this is part of the picture, the court did not mention the maximum sentences or the total exposure (which, given multiple counts, was effectively life in prison). North Carolina cases have cautioned that a defendant should be informed of the maximum possible punishment, not just a partial description of the penalty. Conveying only the minimum sentence does not fully impress upon a defendant the stakes of self-representation. By contrast, in cases like North Carolina v. Moore (N.C. App. 2023), the court upheld a waiver where the trial judge had explicitly addressed the seriousness of the charge and specified that a first-degree murder conviction would result in life without parole – a clear articulation of the maximum penalty. In McGirt’s case, the information given was less comprehensive. This omission further called into question whether McGirt truly understood what he was risking by proceeding without counsel.

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In sum, the Court of Appeals concluded that McGirt had not “clearly and unequivocally” waived his right to counsel. He never expressly chose to go it alone, and the trial court failed to ensure he understood the ramifications of self-representation. Under de novo review, the appellate court held that the purported waiver was invalid. Standing on its own, that holding meant McGirt’s Sixth Amendment and state constitutional rights were violated, necessitating a new trial (since being tried without counsel when one did not validly waive counsel is structural error). But the court’s analysis did not stop there – the State had argued that even if McGirt didn’t explicitly waive his right, he might have forfeited it by his conduct. The opinion therefore turned to the alternative theories of forfeiture and “waiver by conduct” to see if the outcome could be sustained on those grounds.

Ensuring Fairness in Waiver of Counsel Decisions

The Court of Appeals decision in State v. McGirt (2025) provides a substantive clarification of how North Carolina courts should handle the waiver of counsel and related doctrines of forfeiture and waiver by conduct. The appellate court’s careful review of the record led to the conclusion that McGirt’s Sixth Amendment right to counsel was violated when he was forced to trial without a valid waiver or an extreme justification for forfeiture. This outcome reinforces the principle that a defendant will not be deemed to have surrendered the right to counsel unless the strict requirements are met or the defendant’s own misconduct leaves no other choice. The ruling serves as a reminder that trial judges must be vigilant in protecting a defendant’s rights through proper colloquies and warnings, and that they must distinguish between a defendant who truly wishes to proceed pro se and one who simply desires a different attorney. It also underscores the judiciary’s reluctance to approve forfeiture of counsel absent truly flagrant conduct.

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For the legal community, McGirt is an important addition to North Carolina’s body of law on self-representation. It harmonizes recent case law — including Simpkins, Harvin, Atwell, and Blakeney — in a scenario involving multiple attorney substitutions. The decision ultimately vacated McGirt’s convictions and ordered a new trial, sending a strong message that procedural safeguards for the right to counsel are not mere formalities but essential components of a fair trial. Going forward, lawyers and judges in North Carolina can look to McGirt as a guide for navigating waiver-of-counsel issues: the focus must remain on the defendant’s informed choice and the overall fairness of the proceedings. By adhering to the standards affirmed in this case, courts can ensure that a defendant’s decision to proceed without counsel — or a court’s decision to remove counsel — is handled with the utmost care, thereby upholding the constitutional promise of a fair trial for all defendants.

At Powers Law Firm, we offer steady, experienced guidance in criminal defense matters involving DWI, impaired driving, and serious felony charges. We represent clients in courtrooms throughout the Charlotte metro region, including Union, Iredell, Mecklenburg, Gaston, Rowan, and Lincoln Counties. To talk through your situation and explore your options, call 704-342-4357.