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right to counsel

May 2, 2018

Criminal Practice – Right to Counsel – Invocation & Police Interaction – Sentencing

Defendant spoke to the police, invoked his right to counsel, spoke to the police chief, and then later waived his right to counsel again. In rejecting defendant’s motion to suppress his statements to police, the trial court failed to address defendant’s interaction with the police chief. As a result, this court cannot examine the relevant […]

Oct 5, 2017

Criminal Practice – Sixth Amendment – Right to Counsel – Untainted Substitute Asset Forfeiture Postconviction

  U.S. v. Marshall (Lawyers Weekly No. 001-182-17, 18 pp.) (Agee, J.) No. 16-4494, Sept. 25, 2017. Appeal from the U.S. District Court for the District of Maryland, at Greenbelt. (Chasanow, S.J.) 4th Cir. Holding: Where the defendant-offender’s substitute assets were forfeited to the plaintiff-government following his conviction and there is no constitutional entitlement to […]

Mar 6, 2015

Criminal Practice — Habeas Claim Alleges ‘Failure to Consult’

Gordon v. Braxton, Warden (Lawyers Weekly No. 15-01-0207, 16 pp.) (Diaz, J.) No. 13-7040, March 3, 2015; USDC at Alexandria, Va. (O’Grady, J.) 4th Cir. Holding: A defendant who pleaded guilty to carnal knowledge and soliciting production of child pornography, but who did not waive his appeal rights, exhausted his claim that his trial counsel […]

May 22, 2014

Criminal Practice – Constitutional – Right to Counsel – Re-Sentencing Hearing – Appeals – Guilty Plea

State v. Rouse (Lawyers Weekly No. 14-07-0468, 7 pp.) (Rick Elmore, J.) Appealed from Pender County Superior Court (Phyllis Gorham, J.) N.C. App. Holding: Since defendant’s plea agreement required an active sentence of at least 12 years, he was entitled to be represented by counsel at his re-sentencing hearing. We vacate the trial court’s judgments […]

Nov 16, 2012

The spit and run defense

You think you have problem clients? One defendant tried to feign mental impairment, ran off three appointed attorneys—one of whom he threatened to kill and spit in the attorney’s face—and then argued on appeal that he had been denied his right to counsel.

Apr 20, 2012

Criminal Practice – Probation Revocation – Right to Counsel – Waiver Form

State v. Ramirez Both on defendant’s waiver form and before the trial court, defendant consistently maintained that he intended to hire an attorney and did not intend to proceed pro se. The trial court seems to have been under the mistaken belief that defendant had waived his right to all counsel, as the state told the trial court that defendant had “waived counsel,” and, when direc[...]

Apr 16, 2012

Domestic Relations – Parent & Child – Termination of Parental Rights – Right to Counsel – Waiver – Guardian ad Litem’s Role

In re P.D.R. Our Court of Appeals applied G.S. § 15A-1242 to find that a trial court had abused its discretion by allowing the respondent in a termination-of-parental-rights (TPR) proceeding to waive her right to counsel. Section 15A-1242 applies in criminal proceedings and has no application in TPR proceedings.

Mar 13, 2012

Criminal Practice – Constitutional – Right to Counsel – Waiver – Knowing & Intelligent – Insufficient Showing

State v. Anderson Where our Court of Appeals held, Even though defendant executed a written waiver of counsel which was certified by the trial court, since the trial court failed to clarify the specific charges against defendant, to inform him of potential punishments, or explicitly to inform defendant that he could request court-appointed counsel, defendant has shown that the trial court[...]

Dec 16, 2011

Criminal Practice – Constitutional – Right to Counsel – Withdrawal – No Substitution

State v. Stroud The trial court concluded there were “legal grounds to require counsel to withdraw or remove defense counsel,” but the court then gave defendant only two options: either keep existing defense counsel or waive counsel and try the case without an attorney. This was a constitutional error, and the state has not shown that the error was harmless beyond a reasonable doubt. [...]

Oct 7, 2011

Criminal Practice – Constitutional – Right to Counsel – Miranda Warnings – Videotaped Interview – Transcript Only

State v. Jordan The trial court’s determination that defendant had voluntarily and intelligently waived his Miranda rights was based not only on the transcript of defendant’s police interview, but also on the videotape of the interview. Defendant failed to include the videotape in the appellate record, so we must accept the trial court’s findings of fact as binding. The trial court�[...]

Sep 2, 2011

Criminal Practice – Constitutional – Right to Counsel – Potential Conflict of Interest – Previous Representation of State’s Witness – No Prejudice

State v. Choudhry Where the trial court did not explain to defendant the limitations that defense counsel’s conflict of interest imposed on counsel’s ability to question a prosecution witness – counsel’s former client — regarding her 2003 criminal charges, we are unable to conclude that the trial court established that defendant understood the implications of counsel’s prior r[...]

Aug 19, 2011

Criminal Practice – Constitutional – Right to Counsel – Waiver of Appointed Counsel – Pro Se – No Colloquy

State v. Seymore Even though defendant signed a waiver of appointed counsel, the form did not indicate that he intended to proceed pro se; moreover, the record does not indicate that the trial court conducted the thorough inquiry required by G.S. § 15A-1242 before allowing defendant to represent himself. Defendant is entitled to a new trial.

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