State v. Hoff (2025 ND 215): Functional Waiver of Counsel and the Necessity of Timely Faretta-Type Warnings

I. Introduction

In State v. Hoff, 2025 ND 215 (N.D. Dec. 18, 2025), the North Dakota Supreme Court reversed a simple assault conviction on Sixth Amendment grounds, holding that the defendant was forced to represent himself at trial without having validly waived his right to counsel.

The case addresses a recurring and difficult problem for trial courts: how to handle defendants who cycle through multiple court-appointed attorneys, clash with counsel over strategy (including potentially unethical strategies), and appear to be manipulating the process. While State v. Lewellyn, 2025 ND 98, and earlier cases recognized that such behavior can constitute a “functional equivalent” of voluntarily waiving counsel, Hoff clarifies that this functional voluntariness is not enough. A valid waiver of counsel—whether explicit or functional—still must be knowing and intelligent, and the trial court must timely advise the defendant of the dangers and disadvantages of self-representation before leaving him without appointed counsel.

The Court reverses and remands for a new trial, emphasizing that:

Hoff’s conduct constituted the functional equivalent of a voluntary waiver of counsel; but
The waiver was not shown to be knowing and intelligent because the district court failed to meaningfully explain, in a timely manner, the consequences and risks of self-representation before allowing his last appointed counsel to withdraw.

Justice Crothers authored the majority opinion, joined by Chief Justice Jensen and Justices Tufte and Bahr. Justice McEvers concurred specially, agreeing with reversal but providing a distinct emphasis on what the trial court’s error was.

II. Summary of the Opinion

A. Background and Procedural History

Kevin Michael Hoff was charged with simple assault under N.D.C.C. § 12.1‑17‑01(1)(a) for an April 2022 incident ([¶3]). Over the course of the proceedings, Hoff had four different court-appointed attorneys:

John Klein – appointed September 2023, but later substituted because Klein left the public defender’s office.
James Loraas – appointed January 2024; withdrew in July 2024 due to a breakdown in the attorney–client relationship. The court granted a continuance.
Grant Walker – appointed July 2024; withdrew after a claimed conflict of interest. Hoff did not appear at the September 5, 2024 hearing on Walker’s motion. Hoff was served with the order granting withdrawal. That order also warned that after the next appointment, Hoff would not be entitled to further reappointments and no further continuances would be granted for substitution or withdrawal of counsel ([¶3]–[¶4], [¶14]).
Steve Balaban – appointed September 6, 2024. The court stated no additional attorneys would be appointed if Balaban withdrew ([¶4]). In November 2024, Balaban moved to withdraw citing a “deterioration of the attorney/client relationship” and Hoff’s desire to pursue an “unethical defense strategy.” The motion was granted November 14, 2024; Hoff was served with the order ([¶4], [¶9]).

At a pretrial hearing on December 2, 2024—the day before trial—Hoff asked for appointed counsel. The trial court:

Recited the history of appointed counsel,
Relied on its earlier order that there would be no further appointments or continuances, and
Advised Hoff he would have to represent himself at trial if he had not retained counsel by the next day ([¶4], [¶10]).

Hoff expressly stated he did not waive his right to counsel ([¶16]), yet he proceeded pro se at trial and was convicted. He appealed, arguing that the court violated his Sixth Amendment right to counsel by forcing him to self-represent without a valid waiver.

B. Holding

The Supreme Court:

Held that Hoff’s conduct amounted to a functional equivalent of a voluntary waiver of counsel ([¶10]); but
Concluded the record did not establish that his waiver was knowingly and intelligently made, because he was never adequately and timely advised of the dangers and disadvantages of self-representation before being left without appointed counsel ([¶15]–[¶17]).

As a result, the Court reversed the conviction and remanded for proceedings consistent with its opinion ([¶18]).

III. Legal Framework and Precedents

A. The Right to Counsel and Self-Representation

The Court reiterates core principles of the right to counsel:

The Sixth Amendment and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant’s right to counsel at all critical stages of the prosecution ([¶5], citing State v. Lewellyn, 2025 ND 98, ¶ 8, 21 N.W.3d 108; State v. Pulkrabek, 2022 ND 157, ¶ 14, 978 N.W.2d 659).
Trial is such a critical stage—counsel’s absence can “derogate from the accused’s right to a fair trial” ([¶5], quoting Pulkrabek).
A defendant also has a constitutional right to self-representation, but only if the waiver of counsel is voluntary, knowing, and intelligent (citing Faretta v. California, 422 U.S. 806, 835 (1975), and State v. Janachovsky, 2025 ND 30, ¶ 8, 17 N.W.3d 531).

The Supreme Court reviews alleged denial of the right to counsel de novo—it independently reviews the record rather than deferring to the trial court ([¶5]).

B. Waiver of Counsel: Two-Step Test

Following Lewellyn, the Court applies a two-step analysis ([¶6]):

Voluntary waiver: Did the defendant voluntarily indicate a desire to forego counsel, either unequivocally or through conduct that is the functional equivalent of such a statement?
Knowing and intelligent waiver: Did the defendant understand the nature of the right and the dangers and disadvantages of self-representation so that his choice was made with “eyes open”? ([¶11], quoting Janachovsky and Faretta).

The Court stresses that conduct can functionally equal waiver, but functional waiver still must be knowing and intelligent.

C. Key Precedents and Their Influence

1. State v. Lewellyn, 2025 ND 98

In Lewellyn, the defendant went through six court‑appointed attorneys, three of whom withdrew for reasons unrelated to the defendant, and others due to breakdowns in the attorney–client relationship ([¶8]). Importantly:

The trial court warned Lewellyn that the next appointed attorney would be his last.
When the final attorney (Glass) sought to withdraw, the court again warned that no substitute counsel would be provided.
Lewellyn made it “abundantly clear” he did not want that attorney and that he would represent himself if no substitute counsel was appointed ([¶8]).

This Court concluded Lewellyn’s conduct provided a functional equivalent of a voluntary waiver of the right to counsel ([¶8], ¶ 14).

In Hoff, the majority follows the Lewellyn approach on voluntariness but finds a different outcome on the knowing and intelligent prong because Hoff was not properly warned about self-representation before being left without counsel.

2. State v. Yost, 2014 ND 209, 855 N.W.2d 829

Yost is invoked both for:

The proposition that courts are not required to endlessly appoint new counsel for “capricious and difficult” defendants ([¶5], quoting Yost, ¶ 10), and
The principle that a waiver is not knowing and intelligent if the defendant is not warned that continued requests for new counsel could be deemed a functional waiver and is not given a meaningful choice between existing counsel and self-representation ([¶13], quoting Yost, ¶ 21).

In Yost, this Court held the waiver invalid because the court:

“was not warned of the danger that his continued requests for new court-appointed counsel could be deemed the functional equivalent of a voluntary waiver of his right to counsel. He was not given the choice of having [appointed counsel] or representing himself.” ([¶13], quoting Yost, ¶ 21).

Hoff aligns closely with Yost on the knowledge component, finding a similar failure to adequately warn Hoff of the implications of self-representation at a critical point.

3. State v. Janachovsky, 2025 ND 30, 17 N.W.3d 531

In Janachovsky, the district court explicitly warned the defendant about the dangers and disadvantages of self-representation, including that:

He would be held to the same standards as a practicing attorney; and
The court inquired whether he could meet those standards, to which he replied, “All right” ([¶12]).

This Court held that:

His conduct constituted a functional waiver; and
The waiver was knowing and intelligent because of the explicit warnings and his response ([¶12]).

Hoff uses Janachovsky as a positive model of what a court should do when a defendant is trending toward self-representation.

4. State v. Benter, 2022 ND 101, 974 N.W.2d 403

In Benter, the defendant’s second attorney withdrew, and the court warned that a breakdown with a third attorney could be deemed a functional waiver. After the third attorney withdrew, the court:

Asked Benter if he wanted to represent himself or wanted an attorney,
He replied, “if I have to I will. Like I said, I’ll do what I have to do,” and
The court found a knowing and intelligent waiver, which this Court affirmed ([¶12]).

Benter is cited for two major propositions:

No rigid script is required: “A specific colloquy about the dangers and disadvantages of self-representation is not required” ([¶11], quoting Benter and Poitra); and
But on-record clarity is strongly preferred: trial courts should eliminate ambiguity by making an explicit on-the-record finding of unequivocal, knowing, and intelligent waiver ([¶11]).

In Hoff, the majority adopts Benter’s flexible approach, but concludes that here the record falls below even that flexible standard.

5. State v. Poitra, 1998 ND 88, 578 N.W.2d 121

Poitra is the source for the admonition—repeated in Benter and now in Hoff—that while no set colloquy is mandated, courts should:

“eliminate any ambiguity about functional waivers by making a specific on-the-record determination that the defendant unequivocally, knowingly, and intelligently waived the right to counsel.” ([¶11], quoting Benter and Poitra).

6. City of Fargo v. Habiger, 2004 ND 127, 682 N.W.2d 300; State v. Dvorak, 2000 ND 6, 604 N.W.2d 445; Iowa v. Tovar, 541 U.S. 77 (2004)

These cases appear in Justice McEvers’s concurrence and relate to how “intelligent” waiver is defined and proved:

Habiger describes an intelligent waiver as one where the defendant “knows what he is doing and his choice is made with eyes open” (quoting Tovar) ([¶22]).
Habiger and Dvorak are cited to show that a specific formulaic colloquy is not required; nor is an exhaustive recitation of all consequences ([¶22]).

Justice McEvers relies on this line to argue that the warnings given to Hoff, combined with his prior court experience, might have sufficed for a knowing and intelligent waiver—if only the district court had made a clear, on-record finding.

7. Faretta v. California, 422 U.S. 806 (1975)

Faretta is the U.S. Supreme Court case recognizing a defendant’s constitutional right to self-representation, but only if:

The waiver of counsel is made “knowingly and intelligently,” and
The defendant is made aware of the “dangers and disadvantages” of self-representation ([¶11]).

The majority invokes “Faretta colloquy” as shorthand for this type of warning ([¶15]).

IV. The Court’s Legal Reasoning in Hoff

A. Voluntary Waiver via Functional Equivalence

The Court first addresses whether Hoff’s waiver was voluntary. He never verbally or in writing stated a desire to waive counsel; in fact, he repeatedly insisted he did not waive his right to counsel ([¶7], [¶16]). However, under Lewellyn and Yost, voluntary waiver can be inferred from conduct.

The Court notes that conduct amounting to functional waiver includes:

“continued requests for new court-appointed counsel after the trial court clearly denied an initial request,” or
“a manipulative pattern of obstructing the legal process” ([¶7], citing Lewellyn and Yost).

Applied to Hoff:

One attorney (Klein) left for reasons unrelated to Hoff, but subsequently:
Loraas withdrew for “breakdown in the attorney–client relationship” ([¶9]);
Walker withdrew for conflict of interest after Hoff failed to appear at the hearing ([¶3], [¶9]);
Balaban withdrew due to “deterioration” of the relationship and Hoff’s insistence on an “unethical defense strategy” ([¶9]).

Additionally, the district court had warned in writing after Walker’s withdrawal that:

“After reappointment on this motion, the Defendant will not be entitled to any further reappointments. If there is a withdrawal of appointed counsel, Defendant will be required to retain counsel if he would like to be represented. The trial set for 9/25/24 shall be reset. No further continuances will be granted for substitution or withdrawal of counsel.” ([¶3], [¶14]).

In light of:

Repeated breakdowns attributable, at least in part, to Hoff’s conduct and demands; and
The court’s written warning that the next counsel would be the last and no more continuances would be granted,

the Court concludes:

“On these facts and de novo standard of review, we conclude the consistent breakdowns in Hoff’s attorney-client relationships and his request to pursue an unethical trial strategy constituted a functional equivalent of a voluntary waiver of the right to counsel.” ([¶10]).

Thus, step one (voluntariness) is satisfied.

B. Knowing and Intelligent Waiver – The Crucial Defect

The second step asks whether Hoff’s waiver was knowing and intelligent.

The Court cites Janachovsky’s articulation ([¶11]):

“[A] waiver is knowingly and intelligently made when the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances—even though the defendant may not know the specific detailed consequences of invoking it. For a defendant to knowingly and intelligently waive the right to counsel and opt to proceed pro se, the defendant must be aware of the dangers and disadvantages of self-representation so the record establishes the defendant knows the choice is made with eyes open.” ([¶11], clean citations omitted).

The majority then compares Hoff’s case with Janachovsky, Benter, and Yost:

In Janachovsky, there was an explicit, on-the-record explanation of the “dangers and disadvantages” of self-representation, and the defendant acknowledged he would be held to attorney standards ([¶12]).
In Benter, the court described the risk that further breakdowns could be treated as functional waiver and directly asked the defendant if he wanted counsel or to represent himself ([¶12]).
In Yost, no adequate warning was given that repeated insistence on new counsel could lead to self-representation, and the defendant wasn’t given a meaningful choice; thus, the waiver was not knowing and intelligent ([¶13]).

For Hoff, the record showed:

He was not present at the hearing when Walker withdrew ([¶14]).
He received only a written order announcing that, after the next appointment, no further counsel would be provided and no continuances would be granted ([¶14]).
He received Balaban’s withdrawal order but was never orally warned of the implications of self-representation BEFORE that withdrawal was allowed ([¶15]).
The first real-time discussion of waiver occurred at the pretrial conference, one day before trial, when the court told him he must represent himself if he did not retain counsel; Hoff explicitly said he did not waive his right to an attorney ([¶16]).

The Court emphasizes two timing and content defects:

Lack of timely warning before the last appointed counsel was permitted to withdraw:

“Prior to allowing Balaban to withdraw, the district court should have informed Hoff of the implications of self-representation. This would have allowed Hoff to decide whether to continue working with Balaban, retain an attorney, or to proceed with self-representation.” ([¶17]).
Lack of substantive explanation of the dangers and difficulties of self-representation:

“To properly waive his right to counsel Hoff needed to be advised of the dangers and difficulties of self-representation. Although Hoff’s behavior constituted a functional equivalent of a waiver of his right to counsel, the lack of a timely warning about the implications of self-representation prevented the court from finding Hoff’s waiver was knowingly and intelligently made.” ([¶17]).

The majority underscores this defect by stating:

“The lack of a Faretta colloquy prevented Hoff from being able to knowingly and intelligently waive his right to counsel.” ([¶15]).

Note that earlier the Court reaffirmed that a specific scripted colloquy is not strictly required ([¶11]); what is required is that, in the totality of the circumstances, the defendant is made aware of the dangers and disadvantages of self-representation and has a fair opportunity to choose.

On this record, the Court concludes the waiver was not knowing and intelligent, and therefore the Sixth Amendment was violated.

C. Remedy

Because Hoff’s trial proceeded without a valid waiver of counsel, the Court reverses and remands:

“The record does not establish Hoff’s waiver of his Sixth Amendment right to counsel was knowingly and intelligently made. The case is reversed and remanded for proceedings consistent with this decision.” ([¶18]).

This reflects the general principle that denial of the right to counsel at trial is a fundamental error warranting a new trial.

V. The Concurring Special Opinion (Justice McEvers)

A. Agreement with the Majority’s Result

Justice McEvers:

Joins the majority in Sections I and II (background and voluntariness analysis), and
Specially concurs in the result in Sections III and IV ([¶20]).

She agrees that:

Hoff’s conduct could support a finding of voluntary (functional) waiver; and
Reversal is appropriate.

B. Focus on Lack of On-Record Finding Rather Than Lack of Advisement

Justice McEvers highlights an interaction that the majority does not emphasize: at the hearing where Hoff’s second attorney (Loraas) moved to withdraw, the trial court warned Hoff that:

He was not entitled to counsel of his choice; and
He would be required to move forward with his next attorney.

Hoff responded:

“I understand and have complied with that completely, Your Honor.” ([¶21]).

She also notes the September 5, 2024 order warning that:

After the next reappointment, Hoff would not be entitled to further appointments,
He would have to retain counsel if he wanted representation, and
No continuances would be granted ([¶21]).

Drawing on Habiger, Dvorak, and Tovar, Justice McEvers stresses there is no “prescribed formula” and argues that, considering Hoff’s:

Multiple postconviction filings (including at least one pro se) following a life-without-parole murder conviction ([¶22]); and
Self-representation in a contested divorce that went to trial and appeal ([¶22]),

the warnings in the record may be sufficient to show he knew what he was doing.

In her view:

“Because there is no prescribed formula for establishing when a defendant has knowingly and intelligently waived his right to counsel, and considering Hoff’s familiarity with the court system, I submit that the court’s multiple warnings that no further counsel would be appointed was adequate.” ([¶22]).

Nonetheless, she concurs in reversal because:

“the district court did not make such [waiver] finding. The court should have made a finding on the record that Hoff unequivocally, knowingly, and intelligently waived his right to counsel.… In my view, it is the lack of a finding, not the lack of a proper advisement of the risks of Hoff representing himself, that was the error by the court.” ([¶23]).

Thus, the concurrence shifts the emphasis from the adequacy of advisements to the absence of a clear, on-the-record waiver finding.

VI. Simplifying Complex Legal Concepts

A. Sixth Amendment Right to Counsel

The Sixth Amendment guarantees that a person charged with a crime has the right to an attorney at key (“critical”) stages of the prosecution, including trial. This right ensures that defendants can understand proceedings, challenge the State’s evidence, and present a defense.

B. Critical Stage

A “critical stage” is a point in the prosecution at which the defendant’s substantial rights can be affected—examples include:

Arraignment,
Plea hearings,
Trial,
Sentencing.

If counsel is absent at a critical stage without a valid waiver, the fairness of the process is compromised.

C. Waiver of Counsel and “Functional Equivalent”

A defendant can give up (waive) the right to counsel:

Expressly: by clearly stating (in writing or orally) that he chooses to represent himself.
Functionally: by conduct that in effect leaves no reasonable alternative but self-representation—such as persistently firing attorneys, refusing to cooperate, or demanding unethical strategies after being warned that no more counsel will be appointed.

A “functional equivalent” of waiver is legal shorthand for behavior that, even without specific words, shows the defendant is effectively turning down the offer of competent appointed counsel.

D. Knowing and Intelligent Waiver; “Eyes Open” Standard

A waiver is “knowing and intelligent” if the defendant:

Understands that he has a right to counsel and what counsel does; and
Understands that by representing himself, he faces serious disadvantages (e.g., lack of legal training, procedural traps, rules of evidence, sentencing exposure).

Courts often say the defendant’s choice must be made with “eyes open”—he does not need to know every technical detail, but he must appreciate the general risks and gravity of proceeding alone.

E. Faretta Colloquy

A “Faretta colloquy” (from Faretta v. California) is a set of questions and explanations the judge gives before allowing a defendant to represent himself, covering topics such as:

The nature of the charges and possible penalties,
The right to counsel (and to appointed counsel if indigent),
The disadvantages of self-representation, and
The fact that the defendant will be held to the same rules as a lawyer.

North Dakota decisions, including Benter and now Hoff, clarify that there is no mandated script, but some form of on-the-record advisement fulfilling these purposes is strongly recommended.

F. De Novo Review

“De novo” review means the appellate court looks at the issue afresh, without deferring to the trial court’s conclusions. For constitutional rights like the right to counsel, the Supreme Court independently evaluates whether there was a valid waiver.

G. “Unethical Defense Strategy”

When counsel describes a proposed strategy as “unethical,” it typically means the defendant wants the attorney to:

Present false evidence,
Make arguments contrary to the law or facts, or
Violate professional rules (e.g., by suborning perjury).

Counsel cannot obey such instructions, and the resulting breakdown in the relationship may justify withdrawal. However, even when the defendant’s demands cause such breakdowns, the court must still ensure that any waiver of counsel is constitutionally sound.

VII. Impact and Significance of State v. Hoff

A. Clarifying the Interplay Between Functional Waiver and Faretta Warnings

Hoff sharpens North Dakota law in a subtle but important way:

It reaffirms that defendants can forfeit appointed counsel by conduct—multiple breakdowns, manipulative tactics, or insistence on unethical strategies may constitute a functional voluntary waiver.
But it emphasizes that even such a functional waiver is invalid unless the record shows the defendant knew and understood the consequences of proceeding without counsel.

In practice, this means that:

Trial courts cannot rely solely on written orders or general warnings that “no more counsel will be appointed.”
There must be a timely, direct conversation with the defendant explaining the implications of self-representation—ideally before allowing the last appointed counsel to withdraw.

B. Guidance to Trial Courts: Best Practices After Hoff

While Hoff does not impose a rigid script, it strongly suggests a practical protocol when a defendant is cycling through appointed counsel:

Early warning: Inform the defendant (on the record) that:
- He is not entitled to counsel of his choice,
- Only a limited number of substitutions will be allowed, and
- Further breakdowns may result in self-representation.
Before allowing withdrawal of “last” appointed counsel:
- Bring the defendant before the court if possible.
- Explain, in plain language, the dangers and difficulties of self-representation (Faretta-type warnings).
- Ensure he understands that no new appointed counsel will be provided.
- Give him a meaningful choice: continue with existing counsel (even if not ideal) or knowingly elect self-representation (or retain private counsel).
Make explicit findings:
- Ask clear questions to establish voluntariness and understanding.
- State on the record that the defendant unequivocally, knowingly, and intelligently waived the right to counsel (the point Justice McEvers stresses).

Failure to follow these steps risks reversal, as in Hoff.

C. Effect on Defendants and Defense Strategy

For defendants:

Hoff protects even difficult or manipulative defendants from being pushed into self-representation by a combination of frustration and paperwork alone.
But it also makes clear that repeated sabotage of the attorney–client relationship can be treated as a voluntary relinquishment of the right to appointed counsel if the defendant is properly warned.

For defense counsel:

The case underscores the importance of clearly documenting and articulating breakdowns or ethical conflicts when moving to withdraw.
It also emphasizes the necessity of the court directly addressing the defendant when a motion to withdraw will leave him without further appointed counsel.

D. Doctrinal Tension and Future Litigation

Hoff reveals a subtle tension between:

The majority’s emphasis on timely advisement of dangers and disadvantages, and
Justice McEvers’s emphasis on the sufficiency of general warnings and the necessity of an explicit waiver finding.

Future appeals are likely to raise questions such as:

How detailed must warnings be for a waiver to be “knowing and intelligent” when the defendant is experienced with courts?
To what extent can written orders and prior litigation history substitute for live, in-court explanation?
Is the failure to give a robust Faretta-type warning structural error in every case, or subject to harmless-error review if the defendant appears savvy?

Trial courts in North Dakota are likely to respond by erring on the side of more thorough, on-the-record Faretta-type colloquies and explicit waiver findings to avoid reversal.

VIII. Conclusion

State v. Hoff provides an important refinement of North Dakota’s law governing waiver of counsel in difficult cases involving multiple withdrawn attorneys and alleged manipulation by the defendant.

The decision establishes that:

A defendant’s conduct—such as repeated breakdowns with counsel and demands for unethical strategies—can amount to a functional equivalent of a voluntary waiver of the right to counsel.
However, a valid waiver also requires that the defendant knowingly and intelligently relinquish the right, which demands timely and adequate explanation of the dangers and disadvantages of self-representation.
Trial courts should, particularly before allowing the final appointed counsel to withdraw when no replacement will be appointed, conduct a Faretta-type colloquy and make a clear, on-the-record finding that the defendant has unequivocally, knowingly, and intelligently chosen self-representation.

By reversing Hoff’s conviction and remanding for a new trial, the North Dakota Supreme Court affirms that even defendants who test the patience of the system retain core constitutional protections. At the same time, it furnishes practical guidance to trial courts on how to balance the obligation to avoid endless reappointments of counsel with the equally fundamental duty to safeguard the Sixth Amendment right to counsel at trial.