Attorneys – Attorneys’ Fees – Notice and an Opportunity to Be Heard – Colloquy with Defendant

The trial court erred by failing to provide defendant with notice and an opportunity to be heard on the issue of attorneys‘ fees.

We vacated and remanded the civil judgment for further proceedings on the issue of attorneys’ fees.

Defendant appealed from a civil judgment against him for the attorneys’ fees incurred by his court-appointed counsel. On appeal, defendant argued that the trial court erred by failing to provide him with notice and an opportunity to be heard on the issue of attorneys’ fees.

Defendant was incarcerated at Piedmont Correctional Institute in Salisbury, North Carolina, for an unrelated offense. In 2018, defendant was involved in a physical altercation with a detention officer at the facility, leading to defendant’s indictment for assault on a detention employee inflicting physical injury. Following a trial, defendant was found guilty upon a jury’s verdict of assault on a detention employee inflicting physical injury. Pursuant to the jury’s verdict, defendant pleaded guilty to having attained habitual felon status. Shortly thereafter, during sentencing, defense counsel raised the issue of attorneys’ fees with the court, without invoking the words “attorneys’ fees.” Pursuant to the jury’s guilty verdict and defendant’s guilty plea to having attained habitual felon status, the court sentenced defendant to 40 to 60 months in the custody of the North Carolina Division of Adult Correction and entered a civil judgment against defendant for attorneys’ fees.

On appeal, defendant argued the court “erred by entering a civil judgment for attorney’s fees against [defendant] without providing him with notice and an opportunity to be heard.” We agreed. Our caselaw instructs that the trial court ask defendants—personally, not through counsel— whether they wish to be heard on the issue of attorneys’ fees. The court did not engage in a colloquy directly with defendant on the issue of attorneys’ fees.

We then held that there was no evidence in the record demonstrating that defendant received notice, was aware of the opportunity to be heard on the issue of attorneys’ fees and chose not to be heard. In fact, the words “attorneys’ fees” were never invoked until the trial court entered the civil judgment for attorneys’ fees against defendant at the end of the trial.

Vacated and remanded.

State v. Anthony Rayshawn Simpson (Lawyers’ Weekly No. 011-097-24, 11 pp.) (Carolyn Thompson, J.) Appealed from Rowan County Superior Court (John O. Craig III, J.) Attorney General Joshua H. Stein, by Assistant Attorney General John Tillery, for the State; Michelle Abbott for defendant-appellant. North Carolina Court of Appeals