State v. Patterson ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-662
Filed: 21 July 2020
New Hanover County, No. 17 CRS 58605
STATE OF NORTH CAROLINA
v.
JOSHUA LEE PATTERSON
Appeal by defendant from judgments entered 9 January 2019 by Judge James
S. Carmical in New Hanover County Superior Court. Heard in the Court of Appeals
29 April 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J.
Uicker, for the State.
Law Office of Richard J. Costanza, P.A., by Richard J. Costanza, for defendant.
DIETZ, Judge.
Defendant Joshua Lee Patterson appeals his convictions for multiple charges
related to a burglary at the home of the New Hanover County District Attorney.
Patterson was a problematic client for his court-appointed counsel. At least two
of his court-appointed attorneys withdrew because he was uncooperative—for
example, he insisted that his counsel assert frivolous claims, he raised baseless
accusations of bias by his counsel, and he made unfounded accusations that the State
monitored his confidential attorney-client communications.
STATE V. PATTERSON
Opinion of the Court
Ultimately, the trial court determined that Patterson forfeited his right to
counsel. Patterson challenges that forfeiture determination on appeal.
While the appeal was pending, our Supreme Court decided its first case
concerning forfeiture of counsel. State v. Simpkins, 373 N.C. 530, 534–39, 838 S.E.2d
439, 445–48 (2020). Under Simpkins, the record on appeal does not support forfeiture.
But the parties acknowledge that there was information provided to the trial court in
off-the-record proceedings not documented in the record on appeal. Based on these
proceedings and multiple references in the trial court’s order to Patterson’s “abuse”
of his counsel, there may have been evidence before the trial court to support its
forfeiture determination under the Supreme Court’s standard announced in
Simpkins. We therefore vacate the trial court’s judgments and remand for a new
forfeiture hearing as explained in more detail below.
Facts and Procedural History
In September 2017, someone broke into the home of the New Hanover County
District Attorney and stole various items, including a Visa gift card and several
electronic devices. Police later arrested Joshua Lee Patterson, who admitted to
breaking into the home, taking the missing items, and using the Visa gift card.
Following Patterson’s arrest, the trial court appointed Andrew Nettleman as
counsel to represent him. In February 2018, Nettleman moved to withdraw, with a
notation that “Conflict has arisen” without providing further details. The trial court
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STATE V. PATTERSON
Opinion of the Court
allowed the motion, finding that “good cause has been shown so as to necessitate
counsel’s withdrawal.” The court then appointed another attorney, Bill Peregroy, to
represent Patterson.
In April 2018, Peregroy also moved to withdraw. In his motion, Peregroy
described in detail the issues he faced while representing Patterson. Patterson failed
to respond to Peregroy’s request for him to review discovery materials. Patterson also
believed his initial meeting with Peregroy was recorded by the State and insisted that
it was a “judicial discrepancy” warranting the dismissal of his case. Peregroy met
with Patterson to attempt to resolve the issue, but Patterson was “insistent upon the
Court hearing (a nonexistent) recording in support of his motion for dismissal” of the
charges and insisted Peregroy was lying to him about the existence of a recording.
Patterson vacillated between telling Peregroy that he didn’t want to speak to him and
stating that he did not want Peregroy to withdraw. Peregroy asserted that he was
“unable to collect definitive instruction from the defendant with respect to his wishes
but has informed him that a motion to dismiss cannot be brought with a good faith
basis in law or fact.”
Peregroy attempted to contact Patterson’s mother to discuss concerns about
Patterson’s possible mental health or substance abuse issues, but Patterson’s mother
eventually declined to cooperate because Patterson told her not to speak to his
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STATE V. PATTERSON
Opinion of the Court
counsel. In May 2018, the trial court allowed Peregroy’s motion to withdraw and
appointed a third attorney, Margaret Jennings, to represent Patterson.
On 8 November 2018, Jennings, too, filed a motion to withdraw and requested
appointment of substitute counsel. The trial court held a hearing on Jennings’s
motion.
Following an in-chambers discussion between the court and counsel that was
not recorded in the transcript or narrated in the record, Jennings told the court that
Patterson requested that she withdraw. Then, after Jennings already had filed the
motion to withdraw and sent it to Patterson, Patterson told Jennings that he wanted
her to remain on the case. Jennings explained that there have “been multiple times
that he has requested me to withdraw since being appointed in June. This kind of
happens every few weeks. And it has gotten to the point that I feel like I no longer
can be effective in representing him if I’m continually trying to defend myself.”
Jennings told the court she and Patterson “have had discussions about that yesterday
and those were civil discussions, which some of our other discussions I would describe
would not be civil discussions regarding this matter.”
Jennings then asked the court to appoint an out-of-county attorney to
represent Patterson. The State had secured an out-of-county prosecutor because the
victim in the case was the county’s District Attorney and Jennings believed this might
address Patterson’s concerns about bias by his court-appointed counsel. Although
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STATE V. PATTERSON
Opinion of the Court
Jennings assured the court that she doesn’t “have a type of relationship” with the
District Attorney that would affect her ability to represent Patterson, Jennings
explained, “I do believe it absolutely has affected [Patterson’s] perception of what I’m
doing in the case because [the District Attorney] is the victim.” Finally, Jennings
informed the court that she had difficulties because Patterson insisted she propose a
plea deal that Jennings believed was unrealistic. The State offered “60 to 84 months”
and, in response, Patterson insisted that Jennings propose “a counteroffer of time
served.”
The State responded that Patterson’s “problems” all stem “from the
defendant’s attitude” or “eccentricities” and that “[t]here comes a time to start having
a conversation about forfeiture of his right to counsel by his own actions of abuse.”
The State asserted that “[a]ll three of these lawyers would characterize or have
characterized their communications with [Patterson] as abusive, argumentative,
angry, and conspiratorial.”
The trial court then addressed Patterson directly. Patterson explained that he
initially asked Jennings to withdraw, but “[s]ince then I’ve called [and] asked her not
to.” Patterson went on to briefly describe his issues with Peregroy.
After hearing from Patterson, the trial court announced that it would grant
Jennings’s motion to withdraw and find that Patterson had forfeited his right to
counsel:
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STATE V. PATTERSON
Opinion of the Court
Ms. Jennings indicates that apparently there’s an
argumentative and perhaps abusive relationship. The
Court has also heard, and it has been indicated in this
hearing as well as discussions between the Court and
counsel that the prior attorneys’ relationship with Mr.
Patterson also was abusive and argumentative.
Apparently, Mr. Patterson dislikes the plea offer which has
been tendered by a nondistrict, noncounty ADA in this
matter. . . . [T]he Court finds, notes, and concludes that all
of the difficulties in this matter at this point have to do with
Mr. Patterson’s attitude toward counsel, that he
continually demands more than the defense counsel has
reasonable possibility of controlling . . . . [T]he Court sees
that Mr. – foresees that Mr. Patterson’s attitude is not
going to change should we appoint new counsel, whether in
or out of county, and that Mr. Patterson has engaged in
conduct and has an attitude such that he has forfeited his
right to the assistance of counsel, including court-
appointed because of his own incessant demands and
badgering.
The court allowed Jennings’s motion to withdraw and “ordered that Mr. Patterson
has forfeited his right to counsel, including court-appointed, because of his own
attitude and actions and treatment of counsel.” The court instructed that Patterson
“should be required and allowed to proceed on a pro se basis.” The court appointed
Jennings as standby counsel.
After addressing other procedural matters, the trial court asked Patterson, “Do
you have any further business for this court this day?” Patterson responded, “I would
like to ask you to reconsider my represent – my public defense.” The court responded,
“And the record will reflect that I have and my decision remains the same.” Patterson
responded “Okay” and “That I’m fine with.” The trial court later entered a written
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STATE V. PATTERSON
Opinion of the Court
order memorializing its forfeiture determination which made repeated references to
Patterson’s “abusive attitude” or “abuse of counsel.”
On 7 January 2019, Patterson represented himself at trial and presented no
evidence in his defense. The jury convicted Patterson of all charges. After arresting
judgment on a conviction for possession of stolen goods, the trial court sentenced
Patterson to 84 to 113 months in prison for burglary and a consolidated sentence of
10 to 21 months for larceny and obtaining property by false pretenses.
After sentencing, the trial court noted that Patterson has “rights postjudgment
so [he] might want to discuss that with [standby counsel].” Patterson did not give oral
notice of appeal and did not file a timely written notice of appeal. He later petitioned
for a writ of certiorari to permit this Court to review his arguments.
Analysis
I. Petition for a writ of certiorari
We first address our jurisdiction to hear this appeal. Although Patterson did
not properly notice an appeal, he has included a document with his petition,
addressed to the Clerk of Superior Court, titled “New Hanover County Detention
Facility Inmate Request Form.” On it, Patterson wrote his case number and “I am
appealing my sentencing my name is Joshua Lee Patterson. Contact me as soon as
possible.” The form was dated “1-18-18” by Patterson and filed stamped by the clerk
on 25 February 2019.
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STATE V. PATTERSON
Opinion of the Court
“This Court has discretion to allow a petition for a writ of certiorari ‘to permit
review of the judgments and orders of trial tribunals when the right to prosecute an
appeal has been lost by failure to take timely action.’ N.C. R. App. P. 21(a).” State v.
Bishop, 255 N.C. App. 767, 769, 805 S.E.2d 367, 369 (2017). “[A] petition for the writ
must show merit or that error was probably committed below.” Id.
Patterson’s inmate request form demonstrates that he intended to exercise his
right to appeal but lost that right due to failure to take timely action. Moreover, as
discussed below, he has demonstrated that he has a potentially meritorious
argument. In our discretion, we allow Patterson’s petition for a writ of certiorari to
reach to the merits of his appeal. N.C. R. App. P. 21(a)(1).
II. Forfeiture of right to counsel
Patterson argues that the trial court erred by determining that he forfeited his
constitutional right to counsel. While Patterson’s appeal was pending, our Supreme
Court issued its opinion in State v. Simpkins, 373 N.C. 530, 838 S.E.2d 439 (2020).
Under Simpkins, the record on appeal does not support the trial court’s determination
that Patterson forfeited his right to counsel.
This Court reviews a trial court determination concerning forfeiture of counsel
de novo. Id. at 533, 838 S.E.2d at 444. “Under a de novo review, the court considers
the matter anew and freely substitutes its own judgment for that of the lower
tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008).
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STATE V. PATTERSON
Opinion of the Court
“A criminal defendant’s right to representation by counsel in serious criminal
matters is guaranteed by the Sixth Amendment to the United States Constitution
and Article I, §§ 19, 23 of the North Carolina Constitution.” State v. Blakeney, 245
N.C. App. 452, 459, 782 S.E.2d 88, 93 (2016). But the law recognizes that, in certain
circumstances, a criminal defendant can forfeit this constitutional right through
“egregious misconduct.” Simpkins, 373 N.C. at 535, 838 S.E.2d at 446.
In Simpkins, the Supreme Court acknowledged that it had “never previously
held that a criminal defendant in North Carolina can forfeit the right to counsel” but
that this Court had done so in many published decisions. Id. at 530, 838 S.E.2d at
445. The Supreme Court synthesized our precedent and announced the test to apply
in forfeiture cases: “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.” Id. at 541, 838 S.E.2d at 449.
The Court further divided this test into two distinct categories. First, forfeiture
is appropriate if the defendant’s behavior is so threatening or abusive towards
counsel that it makes “the representation itself physically dangerous.” Id. at 538, 838
S.E.2d at 447. There is no evidence in the record that suggests Patterson threatened
or physically abused his counsel and thus this analysis from Simpkins is inapplicable.
Second, the Court held that forfeiture is permissible where “the defendant is
attempting to obstruct the proceedings and prevent them from coming to completion.”
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STATE V. PATTERSON
Opinion of the Court
Id. The Court offered some examples of the sort of conduct that might result in this
finding of obstruction, such as a defendant who “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.” Id.
Importantly, the Supreme Court rejected this Court’s precedent holding that
“willful actions on the part of the defendant that result in the absence of defense
counsel,” standing alone, can support forfeiture. Id. at 539 & n.7, 838 S.E.2d at 448
& n.7. Those willful actions amount to forfeiture only if they “obstruct the proceedings
and prevent them from coming to completion.” Id. at 538, 838 S.E.2d at 447.
Here, the record indicates that two of Patterson’s attorneys withdrew because
of Patterson’s actions.1 The first, Peregroy, explained that he sought to withdraw
primarily because Patterson was uncooperative and insisted that his case should be
dismissed based on an unfounded belief that the State made illegal recordings of his
attorney-client communications.
The record also shows that Patterson had some conversations with his second
counsel, Jennings, that Jennings described as “not civil.” Jennings also explained that
Patterson repeatedly changed his mind about whether or not he wanted Jennings to
continue representing him, apparently stemming from his concern that any court-
1 A third court-appointed attorney withdrew because of a “conflict” not identified in the record.
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STATE V. PATTERSON
Opinion of the Court
appointed counsel may have a favorable relationship with the District Attorney who
was the victim in his criminal case. Finally, Jennings explained that Patterson
insisted on proposing an unrealistic plea counteroffer to the State.
Importantly, nothing in the record indicates that Patterson’s difficulty
cooperating with these two court-appointed attorneys had delayed or obstructed the
proceedings. Instead, what drove the trial court’s forfeiture determination was the
extreme difficulty of representing Patterson because of his argumentative attitude
with counsel, his conspiratorial concerns about the State monitoring his
communications, and his unfounded belief that his counsel was biased against him.
It was, in effect, a determination that once Patterson forced two court-appointed
attorneys to withdraw because of his own actions, he could not get any more bites at
the apple. But that reasoning—which, to be fair, this Court had endorsed in earlier
cases—was expressly rejected by the Supreme Court in Simpkins. Id. at 539 & n.7,
838 S.E.2d at 448 & n.7. Forfeiture requires egregious misconduct that obstructs or
delays the proceedings, and the record simply does not support that determination
here.
There is another wrinkle in this case, however. Although nothing in the record
on appeal indicates that Patterson threatened or abused his counsel in a way that
would meet the Supreme Court’s criteria for forfeiture, the trial court’s order
repeatedly references Patterson’s “abusive nature” and “abuse of counsel” and the
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STATE V. PATTERSON
Opinion of the Court
court explained that this conduct “is not going to change should we appoint new
counsel.”
The parties acknowledge that there were in-chambers discussions between the
parties’ respective counsel and the trial court for which there is no record that this
Court can review. Thus, we cannot know whether the trial court relied on facts
concerning Patterson’s conduct that might show either that “the representation itself”
was “physically dangerous” or that Patterson was “attempting to obstruct the
proceedings and prevent them from coming to completion.” Id. at 538, 838 S.E.2d at
447.
We therefore vacate Patterson’s criminal judgments and remand for further
proceedings. On remand, the trial court should conduct a new forfeiture hearing,
applying the Supreme Court’s test from Simpkins, and ensure that the parties put
into the trial record all evidence supporting the court’s determination. If the trial
court determines that, based on the record before it, its initial forfeiture
determination was appropriate, the court may enter a new forfeiture order and re-
enter the previously imposed criminal judgments. If the record does not support a
forfeiture determination under Simpkins, the court should appoint new counsel for
Patterson and proceed with a new trial if the State chooses to pursue the charges.
Conclusion
We vacate the trial court’s judgments and remand for further proceedings.
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STATE V. PATTERSON
Opinion of the Court
VACATED AND REMANDED.
Judges ZACHARY and MURPHY concur.
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