State v. Cholon ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-4
Filed: 7 February 2017
Onslow County, No. 051604
STATE OF NORTH CAROLINA,
v.
DEREK JACK CHOLON, Defendant.
Appeal by Defendant from judgment entered 9 July 2015 by Judge Jack W.
Jenkins in Onslow County Superior Court. Heard in the Court of Appeals 24 May
2016.
Attorney General Joshua H. Stein, by Assistant Attorney General Alexandra
Gruber, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender John F.
Carella, for Defendant-Appellant.
INMAN, Judge.
Defense counsel’s closing arguments, which admitted some elements of the
charged offenses, while maintaining Defendant’s innocence, did not constitute per se
ineffective assistance of counsel.
Derek Jack Cholon (“Defendant”) appeals the judgment entered after a jury
found him guilty of statutory sexual offense and taking indecent liberties with a child.
On appeal, Defendant contends that he received ineffective assistance of counsel.
STATE V. CHOLON
Opinion of the Court
After careful review, we hold that Defendant has failed to demonstrate reversible
error in his direct appeal.
I. Factual And Procedural History
The State’s evidence tended to show the following:
On 6 March 2013, Defendant met M.B. through Jack’d, described as “an
application where you can meet gay men and have sex.” M.B. was 15 years old at the
time; however, he indicated on his online profile that he was 18 years old, the
minimum age requirement for Jack’d. M.B. received a signal on Jack’d indicating
that Defendant wanted to speak with M.B. Defendant and M.B. exchanged messages
and nude photographs. They agreed to meet later that night in Jacksonville, North
Carolina, at a stop sign at the end of the street where M.B. lived.
Defendant arrived at the stop sign at approximately 10:30 pm. M.B. got into
the front passenger seat of Defendant’s car and instructed him to drive to a dirt road
in a wooded area located in the back of the neighborhood. Once there, Defendant
performed oral sex on M.B. and M.B. “fingered” Defendant. They remained in
Defendant’s car for twenty to thirty minutes until a Jacksonville Police Department
patrol car arrived, turned on bright “takedown lights,” and Officer Taylor Wright
approached Defendant’s car. Officer Wright, who had been patrolling the
neighborhood following a series of break-ins, had driven down the dirt road in
response to a suspicious vehicle report.
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STATE V. CHOLON
Opinion of the Court
Defendant and M.B. each initially told Officer Wright that they were just
sitting and talking. Officer Wright requested that her backup, Officer David
Livingston, question M.B. alone while she spoke with Defendant. M.B. initially told
Officer Livingston that he was 18 years old and provided a false address. However,
after Officer Livingston expressed doubt as to M.B.’s truthfulness, M.B. admitted that
he was 15 years old and provided his correct address.
Defendant told Officer Wright that “he had performed oral sex on [M.B.], and
that they were kissing.” Defendant said he believed that M.B. was 18 years old.
Officer Wright confirmed Defendant’s birth date as 16 December 1971. After
determining that Defendant had outstanding warrants, Officer Wright arrested
Defendant and transported him to the Jacksonville Police Department. At the
station, Defendant made a written statement, containing in pertinent part:
We proceeded to a secluded area and sat in the car and
talked. After about ten minutes, the police arrived. Before
the police arrived, I gave [M.B.] oral and we kissed. I
advised the police that I have screen shots of his two
profiles on my phone, and that I asked [M.B.] his age and
he said he was 18.
On 8 April 2014, Defendant was indicted on one count each of first degree
statutory sexual offense, crime against nature, and indecent liberties with a child.
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STATE V. CHOLON
Opinion of the Court
The charges1 came on for trial on 7 July 2015 in Onslow County Superior Court,
Judge Jack W. Jenkins presiding.
On the first day of trial, defense counsel filed a motion to suppress Defendant’s
alleged verbal statements to police and his subsequent written statement. In support
of the motion to suppress, counsel submitted an affidavit by Defendant stating under
oath that he did not tell Officer Wright at any time that he engaged in oral sex or
kissing with M.B. and stating that he does not remember giving an oral statement to
police, because of a medical condition that makes him prone to blackout. The trial
court denied the motion, and the oral and written statements were admitted into
evidence.
Defendant did not testify or present evidence at trial. In his closing argument
to the jury, defense counsel conceded that M.B. was a minor at the time of the sexual
encounter and that Defendant’s oral and written confessions to police were true.
Specifically, defense counsel said about M.B.: “He, apparently was, and I don’t think
otherwise, that on this occasion he was 15 years old.” In reviewing with the jury
Defendant’s statements to officers, defense counsel remarked:
What does [Defendant] say? The officer comes back there,
Officer Wright comes back there and begins to talk to him
and he tells this officer the truth; tells her what happened
between the two of them. “I gave him oral, and we were
kissing.” But now we know that there’s more than kissing
going on with [M.B.]. He gets on the stand and he admits
1 Prior to trial, the State abandoned the crime against nature charge.
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STATE V. CHOLON
Opinion of the Court
that he was massaging or using his fingers to massage
[Defendant’s] anus. So now he admits that.
...
[Defendant] did not say anything that was not truthful,
apparently except, “We were just talking.” And when the
officers persisted with the asking about what happened, he
told them the truth. He didn’t lie to them. He wrote it
down in a statement, which you read. So here he is. He’s
looking—subject to go to prison for such a long time.
The jury found Defendant guilty of both charges. He was sentenced to
concurrent prison terms of 144 to 233 months for statutory sexual offense and 10 to
21 months for taking indecent liberties with a minor. The trial court also ordered
Defendant to register as a sex offender for thirty years. Defendant gave oral notice
of appeal in open court.
One week later, Defendant submitted a pro se letter to the trial court
requesting a mistrial on the basis that his counsel “entered an admission of guilt on
my behalf without my permission during his closing statement.”
II. Ineffective Assistance of Counsel
Defendant argues that his trial counsel admitted guilt to each disputed
element of the charged offenses in closing argument without his consent, constituting
per se ineffective assistance of counsel. Because defense counsel only implicitly
conceded some—but not all—of the elements of each charge and urged jurors to find
Defendant not guilty of each charge, we hold that counsel was not per se ineffective.
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STATE V. CHOLON
Opinion of the Court
A. Standard of Review and Legal Standards for Ineffective Assistance of Counsel
Claims
“On appeal, this Court reviews whether a defendant was denied effective
assistance of counsel de novo.” State v. Wilson, 236 N.C. App. 472, 475, 762 S.E.2d
894, 896 (2014) (citation omitted).
In general, state appellate courts including this Court determine claims of
ineffective assistance of counsel following the standards established by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674
(1984). To establish ineffective assistance of counsel under Strickland, “[f]irst, the
defendant must show that counsel’s performance was deficient.” State v. Braswell,
312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). “Second, the defendant must show
that the deficient performance prejudiced the defense.” State v. Campbell, 359 N.C.
644, 690, 617 S.E.2d 1, 29 (2005) (quoting Strickland, 466 U.S. at 687, 80 L.Ed.2d at
693). However, the North Carolina Supreme Court has identified one type of
ineffective assistance of counsel that is per se prejudicial. In State v. Harbison, the
North Carolina Supreme Court held that “ineffective assistance of counsel, per se in
violation of the Sixth Amendment, has been established in every criminal case in
which the defendant’s counsel admits the defendant’s guilt to the jury without the
defendant’s consent.” 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985).
B. Analysis
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STATE V. CHOLON
Opinion of the Court
Defendant contends that he received ineffective assistance of counsel per se
when his trial counsel conceded all of the elements of the State’s case in closing
argument without Defendant’s consent, so that pursuant to Harbison, this Court
must order a new trial.
In Harbison, the defendant’s counsel maintained throughout trial that the
defendant had acted in self-defense; however, during closing arguments, defense
counsel urged the jury to convict the defendant of manslaughter rather than first-
degree murder. Id. at 177-78, 337 S.E.2d at 506. The North Carolina Supreme Court
held that counsel rendered per se ineffective assistance to the defendant, explaining:
[T]he gravity of the consequences demands that the
decision to plead guilty remain in the defendant’s hands.
When counsel admits his client’s guilt without first
obtaining the client’s consent, the client's rights to a fair
trial and to put the State to the burden of proof are
completely swept away. The practical effect is the same as
if counsel had entered a plea of guilty without the client’s
consent. Counsel in such situations denies the client’s
right to have the issue of guilt or innocence decided by a
jury.
Id. at 180, 337 S.E.2d at 507.
In a line of cases following Harbison, our appellate courts have found that “a
defendant receives ineffective assistance of counsel per se when the defendant’s
counsel concedes the defendant’s guilt to either the offense charged or a lesser-
included offense without the defendant’s consent.” State v. Holder, 218 N.C. App.
422, 424, 721 S.E.2d 365, 367 (2012) (citation omitted). But our courts have
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STATE V. CHOLON
Opinion of the Court
distinguished Harbison in cases in which defense counsel did not expressly concede
the defendant’s guilt or admitted only certain elements of the charged offense. See,
e.g., State v. Gainey, 355 N.C. 73, 92-93, 558 S.E.2d 463, 476 (2002) (holding no
Harbison violation occurred when defense counsel stated “if he’s guilty of anything,
he’s guilty of accessory after the fact,” because the statement did not amount to an
admission of murder and the defendant was not charged as an accessory); State v.
Hinson, 341 N.C. 66, 78, 459 S.E.2d 261, 268 (1995) (holding no Harbison violation
occurred when defense counsel did not concede to the jury that the defendant himself
had committed any crime); State v. Fisher, 318 N.C. 512, 532-33, 350 S.E.2d 334, 346
(1986) (holding no Harbison violation occurred when defense counsel conceded
malice—an element of first-degree murder—but did not clearly admit guilt and told
the jury it could find the defendant not guilty); State v. Wilson, 236 N.C. App. 472,
475-78, 762 S.E.2d 894, 896-97 (2014) (holding no Harbison violation occurred when
defense counsel conceded that the defendant, who was charged with attempted first
degree murder, was guilty of assault by pointing a gun, a charge not presented to the
jury); State v. Randle, 167 N.C. App. 547, 551-52, 605 S.E.2d 692, 695 (2004) (noting
that “our Supreme Court has found no Harbison violation where defense counsel did
not expressly admit the defendant’s guilt”); State v. Maniego, 163 N.C. App. 676, 684,
594 S.E.2d 242, 247 (2004) (holding that defense counsel’s opening statement placing
the defendant at the scene of the crime was not a concession of guilt under Harbison).
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STATE V. CHOLON
Opinion of the Court
Here, Defendant was charged with statutory sexual offense pursuant to N.C.
Gen. Stat. § 14-27.7A(a) (2013)2, providing for a defendant’s guilt “if the defendant
engages in vaginal intercourse or a sexual act with another person who is 13, 14, or
15 years old and the defendant is at least six years older than the person, except when
the defendant is lawfully married to the person,” and indecent liberties pursuant to
N.C. Gen. Stat. § 14-202.1(a)(2) (2013), providing for a defendant’s guilt if, “being 16
years of age or more and at least five years older than the child in question, he . . .
[w]illfully commits or attempts to commit any lewd or lascivious act upon or with the
body or any part or member of the body of any child of either sex under the age of 16
years.”
Defense counsel did not expressly concede Defendant’s guilt. See Maniego, 163
N.C. App. at 683, 594 S.E.2d at 246 (“To establish a Harbison claim, the defendant
must first show that his trial attorney has made a concession of guilt.”). Defense
counsel did not admit each element of each offense. For example, defense counsel did
not admit that Defendant was six or more years older than M.B. and did not admit
that Defendant willfully committed a lewd or lascivious act. N.C. Gen. Stat. § 14-
27.7A; N.C. Gen. Stat. § 14-202.1(a)(2). And at the close of his argument, defense
counsel asked the jury to find Defendant not guilty of the charged offenses.
2N.C. Gen. Stat. § 14-27.7A was recodified as N.C. Gen. Stat. § 14-27.25, effective 1 December
2015. 2015 N.C. Sess. Laws. ch. 181, § 7(a).
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STATE V. CHOLON
Opinion of the Court
“Admission by defense counsel of an element of a crime charged, while still
maintaining the defendant’s innocence, does not necessarily amount to a Harbison
error.” Wilson, 236 N.C. App. at 476, 762 S.E.2d at 897. Accordingly, we hold that
the principles set out in Harbison do not require a finding of per se ineffective
assistance of counsel in this case.
III. The Trial Court’s Failure to Conduct an Inquiry or Take Further
Action Following Defense Counsel’s Concessions in Closing
Argument
Defendant also contends, related to his Harbison argument, that the trial court
erred by failing to inquire into defense counsel’s concession of Defendant’s guilt.
Because we conclude that the record before us does not establish a Harbison error,
we reject this argument as well.
IV. Motion for Appropriate Relief
Defendant has filed concurrently with his direct appeal a motion for
appropriate relief contending that he received ineffective assistance of counsel.
Defendant argues that if this Court does not order a new trial, we should hold the
appeal in abeyance, order the trial court to hold an evidentiary hearing, and direct
the trial court to transmit the order to this Court so that it can rule on the motion.
The record precludes Defendant’s claim for ineffective assistance of counsel and no
additional evidence could change the outcome of his claim. We therefore deny
Defendant’s motion.
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STATE V. CHOLON
Opinion of the Court
Because this case “does not fall with the Harbison line of cases where violation
of the defendant’s Sixth Amendment rights are presumed, [Defendant’s] claim of
ineffective assistance of counsel must be analyzed using the Strickland factors.”
Fisher, 318 N.C. at 533, 350 S.E.2d at 346; see also Strickland, 346 N.C. at 460–61,
488 S.E.2d at 205. To obtain relief pursuant to Strickland, a defendant must
demonstrate not only that his counsel’s performance was deficient, but that it
prejudiced the defense. Braswell, 312 N.C. at 562, 324 S.E.2d at 248; Campbell, 359
N.C. at 690, 617 S.E.2d at 29. If defense counsel’s performance did not prejudice the
defense, we need not determine whether counsel’s performance was deficient. State
v. Phillips, 365 N.C. 103, 122, 711 S.E.2d 122, 138 (2011). “Prejudice is established
by showing ‘that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Campbell, 359 N.C. at 690, 617 S.E.2d at 29 (quoting Strickland, 466 U.S. at 687, 80
L.Ed.2d at 693). Here, the record reveals such overwhelming evidence of Defendant’s
guilt that we cannot conclude that but for defense counsel’s ineffective assistance, the
result of the trial would have been different.
This Court has explained:
In general, claims of ineffective assistance of counsel
should be considered through motions for appropriate relief
and not on direct appeal. This is so because this Court, in
reviewing the record, is without the benefit of information
provided by defendant to trial counsel, as well as
defendant’s thoughts, concerns, and demeanor, that could
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STATE V. CHOLON
Opinion of the Court
be provided in a full evidentiary hearing on a motion for
appropriate relief. However, ineffective assistance of
counsel claims are appropriately reviewed on direct appeal
when the cold record reveals that no further investigation
is required, i.e., claims that may be developed and argued
without such ancillary procedures as the appointment of
investigators or an evidentiary hearing.
State v. James, __ N.C. App. __, __, 774 S.E.2d 871, 876 (2015), aff'd, 368 N.C. 728,
782 S.E.2d 509 (2016) (internal quotation marks and citations omitted).
Here, the record is sufficient to conduct a Strickland analysis and no further
investigation is required in order to conduct a meaningful review. The record
precludes Defendant from demonstrating that, but for the alleged deficient
performance of his counsel, he would have received a different verdict.
The State presented overwhelming evidence of Defendant’s guilt as to both
charges. At trial, Officer Wright testified that shortly after the incident, Defendant
admitted that he had performed oral sex on M.B. and that they had kissed.
Defendant’s written statement, wherein he admitted that “I gave [M.B.] oral and we
kissed,” was also admitted into evidence. Testimonial evidence also established that
Defendant was born in 1971, and that M.B. was 15 years of age at the time of the
incident. M.B. testified about the sexual encounter. In a hearing outside the presence
of the jury, the trial court conducted a colloquy with Defendant regarding his right to
testify. Defendant stated that he had previously decided not to testify and that it was
still his decision not to testify.
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STATE V. CHOLON
Opinion of the Court
Defendant has not met his burden to show that, but for his counsel’s
statements in closing argument, the result of the proceeding would be any different.
Given our holding—based on careful consideration of the record—that Defendant did
not receive ineffective assistance of counsel, we deny Defendant’s motion for
appropriate relief.
V. Conclusion
For the aforementioned reasons, we hold that Defendant has failed to establish
prejudicial error.
NO ERROR.
Judges BRYANT and TYSON concur.
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