State v. Collington , 259 N.C. App. 127 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-726
Filed: 17 April 2018
Transylvania County, 12 CRS 52047, 13 CRS 463
STATE OF NORTH CAROLINA
v.
JEFFREY TRYON COLLINGTON, Defendant.
Appeal by the State from order entered 3 April 2017 by Judge Mark E. Powell
in Transylvania County Superior Court. Heard in the Court of Appeals 7 February
2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Teresa M.
Postell, for the State.
North Carolina Prisoner Legal Services, Inc., by Christopher J. Heaney, for
defendant-appellee.
ZACHARY, Judge.
The State appeals from the trial court’s order granting defendant Jeffrey Tryon
Collington’s Motion for Appropriate Relief for ineffective assistance of counsel. For
the reasons explained herein, we affirm.
Background
The present appeal arises from defendant’s initial appeal to this Court
(“Collington I”) in which we issued an opinion dismissing defendant’s challenge to his
STATE V. COLLINGTON
Opinion of the Court
conviction of possession of a firearm by a felon. As explained in Collington I, the
underlying facts of the case are as follows:
. . . Christopher Hoskins (“Mr. Hoskins”) testified for the
State at trial as follows: Mr. Hoskins went to the recording
studio (“the studio”) of Dade Sapp (“Mr. Sapp”) to "hang
out" on the evening of 1 October 2012. Shortly after he
arrived, two men — identified by Mr. Hoskins as
Defendant and Clarence Featherstone [(“Defendant’s
brother”)]— entered the studio, passed by Mr. Sapp, and
demanded to speak with someone named “Tony.”
Defendant asked Mr. Hoskins if he was “Tony” and
pointed a gun (“the gun”) at Mr. H[o]skins when he said
he was not “Tony.” A struggle for the gun ensued.
According to Mr. Hoskins, both Defendant and
[Defendant’s brother] beat him up, went through his
pockets, removed approximately $900.00 in cash that Mr.
Hoskins had won in video poker earlier in the day, and then
left the studio. At trial, Mr. Hoskins also identified the gun
that reportedly was wielded by Defendant as belonging to
Mr. Sapp.
Defendant testified that he and [his brother] did go
to the studio on the evening of 1 October 2012. However,
Defendant maintained that they went to the studio for
[Defendant’s brother] to purchase a large quantity of
oxycodone from Mr. Hoskins. According to Defendant,
Sapp set up the drug deal by calling Mr.
Hoskins on the cellphone and asking him to
come to the studio. Hoskins said . . . he would
be there in about three minutes.
When Mr. Hoskins came into the studio he
was wearing a hoody. You could not see his
face. He walked straight back past us and
made a left in the side booth which was a
soundproof booth used for a studio, and Sapp
walked in behind him.
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During that time Mr. Hoskins had gave Mr.
Sapp the pills to come give [my brother].
When Mr. Sapp gave [my brother] the pills,
[my brother] started whispering to him that
the money was short. Mr. Sapp said, “Don't
worry about it, he can't count anyways.” Mr.
Sapp went and gave Mr. Hoskins his money.
And at that time I believe Mr. Sapp actually
told Mr. Hoskins that we had shorted him.
Mr. Hoskins came out of the side booth
demanding the rest of his money. When he
started demanding the rest of his money, he
got in between me and [my brother]. And at
that point in time he started pointing his
fingers in my face, and I hit him with a closed
fist. And we started fighting. When we started
fighting, [my brother] jumped into the fight
and we started beating . . . Mr. Hoskins until
Mr. Sapp ran out of the building, because Mr.
Hoskins had told him to go get a gun.
Defendant testified he never had possession of a gun, let
alone Mr. Sapp’s gun, during the altercation.
Defendant also testified that he and [his brother]
met Mr. Sapp in a McDonald’s parking lot later in the
evening of 1 October 2012, where [Defendant’s brother]
gave Mr. Sapp a “cut” of the oxycodone pills acquired from
Mr. Hoskins. Defendant further testified that Mr. Sapp
also gave the gun to [Defendant’s brother] and asked him
to hold onto it because Mr. Sapp “was scared due to the
fact” that, during an investigation into the incident at the
studio that evening, “he had gave the detectives and Mr.
Hoskins a story about how he couldn't locate his gun.”
Defendant testified he did not know what [his brother] did
with the gun afterwards.
Defendant was indicted for conspiracy to commit
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Opinion of the Court
robbery with a dangerous weapon, robbery with a
dangerous weapon, possession of a firearm by a felon, and
being an habitual felon. Defendant's indictment for
possession of a firearm by a felon stated only that, on the
evening of 1 October 2012, Defendant “did have in his
control a black handgun, which is a firearm” and that
Defendant “has previously been convicted of a felony.”
However, at trial, and without objection by Defendant, the
trial court instructed the jury, in part, as follows:
For a person to be guilty of a crime it is not
necessary that he personally do all of the acts
necessary to constitute the crime. If two or
more persons join in a common purpose to
commit the crime of robbery with a dangerous
weapon and/or possession of a firearm by a
felon, each of them, if actually or
constructively present, is not only guilty of
that crime if the other person commits the
crime but also guilty of any other crime
committed by the other in pursuance of the
common purpose to commit robbery with a
dangerous weapon and/or possession of a
firearm by a felon, or as a natural or probable
consequence thereof.
If you find from the evidence beyond a
reasonable doubt that on or about the alleged
date Defendant acting either by himself or
acting together with [Defendant’s brother]
with a common purpose to commit the crime
of robbery with a dangerous weapon and/or
possession of a firearm by a felon, each of them
if actually or constructively present, is guilty
of robbery with a dangerous weapon and/or
possession of a firearm by felon.
(emphasis added).
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Opinion of the Court
State v. Collington, 2015 N.C. App. LEXIS 534 *1-7, disc. review denied, 368 N.C.
357, 776 S.E.2d 855 (2015) (alterations omitted).
The jury found defendant not guilty of conspiracy or robbery with a dangerous
weapon, but did find him guilty of possession of a firearm by a felon. However, the
verdict sheet did not indicate whether the jury convicted defendant of possession of a
firearm by a felon under the theory of actual possession of the firearm by defendant
or under the theory of acting in concert with his brother to possess the firearm.
Defendant appealed his conviction of possession of a firearm by a felon to this
Court, arguing “that the trial court committed plain error by providing the jury with
an instruction on acting in concert with respect to the charge of possession of a
firearm by a felon.” Id. at *7. Defendant specifically argued “that this instruction
impermissibly allowed the jury to convict Defendant of possession of a firearm by a
felon based on [his brother]—also a convicted felon—reportedly receiving the gun
from Mr. Sapp in a McDonald’s parking lot on the evening of 1 October 2012.” Id.
In Collington I, this Court held that, “even assuming arguendo that the trial
court erred by instructing the jury on an acting in concert theory[,]” “Defendant has
not established plain error[.]” Id. at *8. Based on the victim’s testimony at trial and
the fact that “both Defendant and [the victim] testified that they engaged in a
physical altercation[,]” “[t]he jury reasonably could have believed that Defendant was
in possession of Mr. Sapp’s gun at that time.” Id. at *9. This Court continued:
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Opinion of the Court
Finally, Defendant has not presented this Court with any
arguments under State v. Pakulski, 319 N.C. 562, 574, 356
S.E.2d 319, 326 (1987), which held that a trial court
commits plain error when it instructs a jury on disjunctive
theories of a crime, where one of the theories is improper,
and “we cannot discern from the record the theory upon
which the jury relied.” “It is not the role of the appellate
courts to create an appeal for an appellant.” Viar v. N.C.
Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361
(2005). Therefore, Defendant has not met his “burden” of
establishing that the trial court committed plain error in
the present case. See [State v.] Lawrence, 365 N.C. [506,]
516, 723 S.E.2d [326,] 333 [(2012)].
Id. at *9-10 (alterations omitted).
Defendant filed a Motion for Appropriate Relief in the Transylvania County
Superior Court, seeking a new trial on the grounds that he received ineffective
assistance of appellate counsel in that “appellate counsel failed to raise the argument
on appeal that plain error was committed because the trial court instructed the jury
on disjunctive theories of a crime, one of which was improper, and the record does not
show upon which theory the jury relied.”
The Honorable Mark E. Powell denied defendant’s Motion for Appropriate
Relief. Judge Powell reasoned:
Taking into consideration that the Court of Appeals found
that no plain error was established in the trial of the
Defendant, even assuming that an acting in concert
instruction was improper, the undersigned judge finds that
no actual prejudice has been shown by the failure of the
Defendant’s appellate counsel to argue Pakulski, and that
failure now to consider said argument will not result in a
fundamental miscarriage of justice.
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Opinion of the Court
Defendant petitioned for issuance of a writ of certiorari in this Court seeking
review of the trial court’s denial of his Motion for Appropriate Relief. On 29 December
2016, this Court granted defendant’s petition for writ of certiorari and entered the
following order:
It appearing that the trial court utilized the incorrect legal
standard in assessing defendant’s ineffective assistance of
appellate counsel claim, see State v. Simpson, 176 N.C.
App. 719, 627 S.E.2d 271 (2006), and it further appearing
that this Court’s decision in [Collington I] did not hold that
defendant’s claim of plain error was meritless irrespective
of whether his appellate counsel raised any arguments
under [Pakulski], the order of Judge [Powell] is hereby
vacated and the matter remanded for the trial court to
enter an appropriate dispositional order pursuant to N.C.
Gen. Stat. [§] 15A-1420(c)(7) (2015).
Upon remand, Judge Powell concluded that defendant received ineffective
assistance of appellate counsel and granted defendant’s Motion for Appropriate
Relief, vacated defendant’s conviction, and ordered a new trial. The trial court made
the following conclusions of law:
...
(4) A reasonable attorney would have been aware of
Pakulski, its application to Defendant’s case, and the
remedy of a new trial that it would provide.
(5) Appellate counsel’s performance fell below an objective
standard of professional reasonableness. While appellate
counsel did argue that the instruction on acting in concert
was invalid, he did not complete the argument by arguing
that because disjunctive jury instructions were given, one
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Opinion of the Court
of which was improper, and there was no finding as to the
jury’s chosen theory, there was plain error under Pakulski
and Defendant is entitled to a new trial.
(6) But for appellate counsel’s error, there is a reasonable
probability that the Court of Appeals would have found
plain error and granted Defendant a new trial.
(7) Defendant received ineffective assistance of counsel in
violation of the Sixth Amendment.
The State filed its Petition for Writ of Certiorari and Petition for a Writ of
Supersedeas and Motion for Temporary Stay in this Court, which we allowed.
Standard of Review
On review from a trial court’s ruling on a Motion for Appropriate Relief, the
trial court’s findings of fact “are binding if they are supported by any competent
evidence[.]” State v. Pait, 81 N.C. App. 286, 288, 343 S.E.2d 573, 575 (1986) (citing
State v. Stevens, 305 N.C. 712, 291 S.E.2d 585 (1982)). “[T]he trial court’s ruling on
facts so supported may be disturbed only when there has been a manifest abuse of
discretion . . . or when it is based on an error of law.” Id. at 288-89, 343 S.E.2d at 575(citations omitted).
Discussion
The State argues that the trial court’s conclusion that defendant received
ineffective assistance of appellate counsel was based on an error of law. The State
maintains that “[a]lthough defendant has altered his argument in that he now cites
to Pakulski . . . rather than to Lawrence . . . for the argument that there was plain
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Opinion of the Court
error in the instruction of acting in concert, the result is the same; he is not entitled
to relief and there is no plain error.” Accordingly, the State argues that the trial court
erred in granting defendant’s Motion for Appropriate Relief and ordering a new trial.
In assessing the propriety of the trial court’s grant of defendant’s Motion for
Appropriate Relief for ineffective assistance of counsel, we first find it necessary to
examine the law at the center of the present dispute.
I. State v. Pakulski
A.
Where a defendant alleges on appeal that the trial court erred in some respect
during his trial, but did not make the appropriate objection at trial, the defendant is
limited to a plain error review of the issue. State v. Odom, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983). “Generally speaking, the [plain error] rule provides that a
criminal defendant is entitled to a new trial if the defendant demonstrates that the
jury probably would have returned a different verdict had the error not occurred.”
State v. Lawrence, 365 N.C. 506, 507, 723 S.E.2d 326, 327 (2012) (emphasis added)
(citing State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)). “[P]lain error
review . . . is normally limited to instructional and evidentiary error.” Id. at 516, 723
S.E.2d at 333 (citing State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002),
cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003)).
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Opinion of the Court
To be entitled to a new trial under plain error review, the defendant must
establish
that a fundamental error occurred at trial. To show that an
error was fundamental, a defendant must establish
prejudice—that, after examination of the entire record, the
error had a probable impact on the jury’s finding that the
defendant was guilty. Moreover, because plain error is to
be applied cautiously and only in the exceptional case, the
error will often be one that seriously affects the fairness,
integrity or public reputation of judicial proceedings.
Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (citations, quotation marks, and
brackets omitted). In the context of improper jury instructions, the plain error
analysis typically involves an examination of the evidence to determine whether the
jury would have probably returned a different verdict had it been instructed properly.
See e.g., id. at 519, 723 S.E.2d at 334-35. Where there was overwhelming evidence
presented at trial to support the defendant’s conviction despite the improper jury
instruction, plain error is unlikely to be established and the defendant will not be
entitled to a new trial. See e.g., id. at 516, 723 S.E.2d at 333 (citing United States v.
Cotton, 535 U.S. 625, 152 L. Ed. 2d 860 (2002)).
In State v. Pakulski, our Supreme Court established the proper application of
the plain error standard of review where the jury received an improper alternative
jury instruction:
Where the trial judge has submitted the case to the jury on
alternative theories, one of which is determined to be
erroneous and the other properly submitted, and we cannot
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Opinion of the Court
discern from the record the theory upon which the jury
relied, this Court will not assume that the jury based its
verdict on the theory for which it received a proper
instruction. Instead, we resolve the ambiguity in favor of
the defendant.
State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987) (citation omitted)
(emphasis added). In such a case, plain error will be found because “we must assume
the jury based its verdict on the theory for which it received an improper instruction.”
State v. Petersilie, 334 N.C. 169, 193, 432 S.E.2d 832, 846 (1993) (citations omitted);
see also State v. Martinez, ___ N.C. App. ___, ___, 801 S.E.2d 356, 360 (2017).
Pakulski does not, however, stand for the proposition that a new trial is
mandated any time an improper alternative instruction is given. Plain error requires
that the defendant establish that the instructional error “had a probable impact on
the jury’s finding that the defendant was guilty.” Lawrence, 365 N.C. at 518, 723
S.E.2d at 333 (citation and quotation marks omitted). If one of the alternative
theories of conviction submitted to the jury is proper but the other improper, and the
verdict sheet does not indicate the theory upon which the jury relied, it may still be
apparent from the record upon which instruction the jury relied. If it is apparent from
the record that the jury did not convict the defendant based upon the improper
instruction, it would contravene the purpose of the plain error rule for the reviewing
court to nevertheless assume that the jury relied upon the improper instruction and
mandate a new trial. See Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203,
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212 (1977) (“It is the rare case in which an improper instruction will justify reversal
of a criminal conviction when no objection has been made in the trial court.”);
Lawrence, 365 N.C. at 517, 723 S.E.2d at 333 (“The adoption of the ‘plain error’ rule
does not mean that every failure to give a proper instruction mandates reversal
regardless of the defendant’s failure to object at trial.”). Plain error review in the
context of improper disjunctive jury instructions will in large part turn on an analysis
of the probability that the jury relied upon the improper instruction as opposed to the
proper instruction.
In certain circumstances, it may be clear that the jury did not rely upon the
improper instruction. For instance, if there was ample evidence presented at trial to
support the proper alternative theory of conviction, and the State presented no
evidence at trial that would have supported the improper alternative theory, then the
reviewing court may find it probable that the jury relied upon the proper instruction
rather than the improper instruction that was wholly unsupported by the evidence
at trial. See e.g., State v. Boyd, 222 N.C. App. 160, 170-73, 730 S.E.2d 193, 199-201
(2012) (Judge Stroud dissenting), reversed, 366 N.C. 548, 742 S.E.2d 798 (2013)
(reversing for the reasons stated in Judge Stroud’s dissent); Martinez, ___ N.C. App.
at ___, 801 S.E.2d at 360. In such a case, the reviewing court need not assume that
the jury relied upon the improper instruction and order a new trial. Martinez, ___
N.C. App. at ___, 801 S.E.2d at 361 (“[A] reviewing court is to determine whether a
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Opinion of the Court
disjunctive jury instruction constituted reversible error, without being required in
every case to assume that the jury relied on the inappropriate theory.”). Instead, the
reviewing court may apply the usual plain error standard of review to determine
whether the evidence at trial was sufficient to support a conviction under the proper
instruction. See Lawrence, 365 N.C. at 516, 723 S.E.2d at 333 (“The [plain error]
standard . . . is unlikely to be satisfied, however, when evidence of the defendant’s
guilt is overwhelming.”); Martinez, ___ N.C. App. at ___, 801 S.E.2d at 361 (“[Rather
than] assuming that the jury relied on the [improper] theory . . . , [the Court] cited
the overwhelming evidence supporting the other kidnapping theories . . . to conclude
that the defendant failed to show that, absent the error, the jury would have returned
a different verdict.”) (discussing State v. Boyd, 222 N.C. App. 160, 173, 730 S.E.2d
193, 201 (2013)) (citation, quotation marks, and alteration omitted).
In contrast, there may occasionally arise the uncommon case in which the
verdict sheet fails to reveal whether the jury relied upon the proper instruction or the
improper instruction, and the reviewing court cannot discern from the evidence in
the record upon which of the two theories the jury relied. Pakulski, 319 N.C. at 574,
356 S.E.2d at 326. Where one of the alternative instructions was improper and the
State presented substantial evidence that would support a finding of guilt under
either the improper or the proper instruction, it would “seriously affect the fairness,
integrity or public reputation of” the appellate process for the court to assume that
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the jury premised its verdict on the proper instruction. Odom, 307 N.C. at 660, 300
S.E.2d at 378. Rather, such a case falls precisely within the category of “ ‘rare case[s]
in which an improper instruction will justify reversal of a criminal conviction[.]’ ” Id.
at 661, 300 S.E.2d at 378 (quoting Henderson, 431 U.S. at 154, 52 L. Ed. 2d at 212).
Accordingly, Pakulski and the consequent cases provide that the tie must be broken
in the defendant’s favor, with the result that the defendant’s conviction is vacated
and a new trial is ordered.
B.
In the instant case, the trial court instructed the jury on alternative theories
under which the jury could find defendant guilty of possession of a firearm by a felon.
The first was that he could be guilty by a showing of actual or constructive possession
of the firearm. This instruction was correct. State v. Young, 190 N.C. App. 458, 460,
660 S.E.2d 574, 576 (2008). The trial court also instructed the jury that it could find
defendant guilty if he acted in concert with his brother in the commission of the crime
of possession of a firearm by his brother, a convicted felon. Defendant argued that
this instruction was improper in Collington I.
It is impossible to determine from the record upon which of the two alternative
instructions the jury relied in finding defendant guilty of possession of a firearm by a
felon. Under the first alternative, defendant could be found guilty if the jury believed
him to have been in actual or constructive possession of the firearm while being a
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Opinion of the Court
convicted felon. There was conflicting evidence on this issue at trial. Hoskins testified
that defendant held a gun to his head, but defendant testified that the altercation
arose only after Hoskins confronted defendant and his brother for having shorted
Hoskins in the drug deal. According to defendant, it was then that Hoskins and
defendant began fighting. Defendant testified that:
Sapp had set the whole deal up, and he had tried to cross
us all up. He had taken warrants out on us for robbing his
studio, when he had set up this whole ordeal . . . He told
the cops that we came in and robbed his studio. But that’s
not what happened. He set up a drug deal and got half of
the pills that were purchased, or at least somewhere near.
. . I did admit that I got in a physical altercation after he
tried to retaliate for the rest of the money. I do admit that.
Although defendant testified that at no point did he have a firearm during this
encounter, Hoskins’s testimony to the contrary would have been sufficient to justify
defendant’s conviction under the first alternative theory of actual or constructive
possession.
The evidence presented at trial was also sufficient to support a finding of guilt
under the alternative theory of acting in concert. At the close of the evidence, the
jury was instructed that:
[i]f you find from the evidence beyond a reasonable doubt
that . . . defendant . . . acting together [with his brother]
with a common purpose to commit the crime of . . .
possession of a firearm by a felon, each of them if actually
or constructively present, is guilty of . . . possession of a
firearm by a felon.
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Defendant testified that he never had possession of a firearm. Rather, defendant
testified that:
[l]ater that night . . . Sapp did meet me and my brother . . .
and handed him a Glock pistol to hold for him, because he
said he was scared due to the fact he had gave the
detectives and [Hoskins] a story about he couldn’t locate
his gun. But [Hoskins] knew he had the gun, and so did the
cops.
Given that evidence was admitted that Sapp handed defendant’s brother the gun in
front of defendant, and that defendant’s brother was also a convicted felon, this
admission would have been sufficient for the jury to find defendant guilty of
possession of a firearm by a felon under a theory of acting in concert, and not under
a theory of actual or constructive possession.
The presence of conflicting evidence at trial sufficient to support either of the
alternative instructions, along with the jury’s verdict in favor of defendant on the
related charges, would have rendered this Court unable to determine under which of
the two theories defendant was convicted. Therefore, under Pakulski, if this Court in
Collington I were to have determined that the instruction for the crime of possession
of a firearm by a felon under the theory of acting in concert was improper, then
defendant would have been entitled to a new trial.
However, on appeal, defendant’s appellate counsel did not cite Pakulski or
other consequent cases, or argue that because it could not be determined from the
record whether the jury relied upon the improper or the proper instruction, plain
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error was established. Rather, appellate counsel proceeded to discount the evidence
that would have supported the proper instruction on actual or constructive
possession.
Where a defendant’s appellate counsel fails to raise an argument on appeal,
that argument is deemed abandoned, as “[i]t is not the job of this Court to make [a]
[d]efendant’s argument for him.” State v. Joiner, 237 N.C. App. 513, 522, 767 S.E.2d
557, 563 (2014) (citing Viar v. North Carolina Dep’t of Transp., 359 N.C. 400, 402, 610
S.E.2d 360, 361 (2005) (“It is not the role of the appellate courts, however, to create
an appeal for an appellant.”)). This is the case even where the omitted argument may
be dispositive of the defendant’s appeal. Accordingly, in Collington I, this Court was
left to determine whether “[t]he jury reasonably could have believed that Defendant
was in [actual or constructive] possession of” a gun from the evidence presented,
regardless of the impropriety of the acting in concert instruction. Collington, 2015
N.C. App. LEXIS at *9. Because we so concluded, we dismissed defendant’s appeal.
II. Defendant’s Motion for Appropriate Relief
In the case at bar, because defendant’s appellate counsel neglected to raise the
Pakulski case, which may have otherwise entitled defendant to a new trial, defendant
sought to obtain a new trial by filing a Motion for Appropriate Relief in the trial court
arguing that he received ineffective assistance of appellate counsel. The trial court
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agreed that defendant had received ineffective assistance in his appeal in Collington
I and vacated defendant’s conviction.
The State argues on appeal that the trial court erred in finding that defendant
received ineffective assistance of appellate counsel despite appellate counsel’s failure
to argue the holding in Pakulski. We disagree, and affirm the trial court’s conclusion
that appellate counsel’s omission constituted ineffective assistance of counsel and
that defendant is therefore entitled to a new trial.
Ineffective Assistance of Counsel
The right to counsel under Article I, Section 23 of the North Carolina
Constitution and the Sixth Amendment to the United States Constitution “includes
the right to the effective assistance of counsel.” State v. Braswell, 312 N.C. 553, 561,
324 S.E.2d 241, 247 (1985) (citing McMann v. Richardson, 397 U.S. 759, 771, 25 L.
Ed. 2d 763, 773 (1970)). This includes the right to effective assistance of appellate
counsel. Evitts v. Lucey, 469 U.S. 387, 83 L. Ed. 2d 821 (1985); See e.g., Smith v.
Robbins, 528 U.S. 259, 285, 145 L. Ed. 2d 756, 764 (2000).
The burden is on the defendant to demonstrate that he received ineffective
assistance of counsel “so . . . as to require reversal of [his] conviction[.]” Strickland v.
Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). In order to satisfy that
burden, the defendant must establish both of the elements of the analysis of a claim
of ineffective assistance of counsel:
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First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.
Id.; Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (adopting the test laid out in
Strickland for purposes of the North Carolina Constitution). “Unless a defendant
makes both showings, it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the result unreliable.” Id. The
same standard applies to claims of ineffective assistance of appellate counsel. State
v. Simpson, 176 N.C. App. 719, 722, 627 S.E.2d 271, 275, disc. review denied, 360 N.C.
653, 637 S.E.2d 191 (2006) (citing Robbins, 528 U.S. at 285, 145 L. Ed. 2d at 780).
The analysis of claims of ineffective assistance of counsel is guided by the
underlying purpose of the requirement that defendants receive effective assistance of
counsel, that is, “to ensure a fair trial[.]” Strickland, 466 U.S. at 686, 80 L. Ed. 2d at
692. “The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result,” Id. at 686, 80 L.
Ed. 2d at 692-93, or for purposes of appellate counsel, that the appeal cannot be relied
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upon as having produced a just result. Robbins, 528 U.S. at 285-86, 145 L. Ed. 2d at
780.
i. Deficient Performance
The State argues that the trial court erred in finding that defendant received
ineffective assistance of appellate counsel because defendant failed to establish the
first prong of ineffectiveness claims, i.e., that his appellate counsel’s performance was
in fact deficient. According to the State, not only has it never been held that it is
improper to instruct the jury on acting in concert for the crime of possession of a
firearm by a felon, but that even if there were such legal precedent, such a mistake
on the part of appellate counsel was reasonable.
The State’s argument on this point is misplaced. The question is not whether
appellate counsel’s performance was deficient for failing to argue that the acting in
concert instruction was improper. In fact, appellate counsel made that argument. The
question is whether appellate counsel’s performance was deficient for failing to
support the argument that defendant was entitled to a new trial because of the
improper instruction.
To show “that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment[,]” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at
693, a defendant must establish “that his counsel’s conduct fell below an objective
standard of reasonableness.” Braswell, 312 N.C. at 561-62, 324 S.E.2d at 248 (citing
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Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693). In the appellate context, a claim of
ineffective assistance of counsel requires a showing that the appellate representation
did not fall “within the range of competence demanded of attorneys in [appellate]
cases.” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693 (citation and quotation marks
omitted).
Generally, “the decision not to press [a] claim on appeal [is not] an error of such
magnitude that it render[s] counsel’s performance constitutionally deficient under
the test of Strickland[.]” Smith v. Murray, 477 U.S. 527, 535, 91 L. Ed. 2d 434, 445
(1986). There is a presumption that “the challenged action might be considered sound
trial strategy.” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 695 (citation and quotation
marks omitted). Nevertheless, the defendant may be able to establish “that his
counsel was objectively unreasonable in failing to find arguable issues[,]” and in
failing to raise, relevant supporting legal authority on appeal. See Robbins, 528 U.S.
at 285, 145 L. Ed. 2d at 780 (internal citation omitted). “The proper measure of
attorney performance remains simply reasonableness under prevailing professional
norms.” Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694.
We note that the instant case does not raise an issue of trial strategy. Appellate
counsel’s omission of the arguments under the Pakulski line of cases was not the
result of a “conscious[] elect[ion] not to pursue that claim before [this] Court.”
Murray, 477 U.S. at 534, 91 L. Ed. 2d at 444. As explained supra, in the absence of
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citation to the principles set forth under the Pakulski cases, appellate counsel had
the exceptional task of establishing that absent the improper instruction, the jury
probably would have acquitted defendant, despite the fact that the evidence
presented at trial was sufficient to support a finding of guilt under the proper
instruction. Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. However, had appellate
counsel proffered the arguments under Pakulski, defendant would have secured a
new trial upon simply demonstrating that the acting in concert instruction was given
in error—plain error would be shown irrespective of the evidence admitted at trial in
support of defendant’s actual or constructive possession of a firearm.
The task at hand is to examine appellate counsel’s “duty to bring to bear such
skill and knowledge as will render the [appeal] a reliable adversarial testing process.”
Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694 (citation omitted). Under the
prevailing professional norms, we conclude that appellate counsel “was objectively
unreasonable in failing to find” and raise the key legal principle that may have
secured a new trial for defendant. Robbins, 528 U.S. at 285, 145 L. Ed. 2d at 780.
The record reveals that Pakulski has been cited in over fifty cases since 1987.
Further, not only did appellate counsel fail to cite Pakulski or one of the many cases
reiterating the principles enumerated therein1, but appellate counsel failed to raise
1 Among others, these cases include State v. Belton, 318 N.C. 141, 347 S.E.2d 755 (1986); State
v. Lynch, 327 N.C. 210, 393 S.E.2d 811 (1990); State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992); State
v. Petersilie, 334 N.C. 169, 432 S.E.2d 832 (1993) (citing Williams v. North Carolina, 317 U.S. 287, 87
L. Ed. 279 (1942)).
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the applicable doctrine governing improper alternative jury instructions. Appellate
counsel simply argued that the theory of acting in concert is inapplicable to the crime
of possession of a firearm by a felon, without proffering any supporting authority as
to why such an error would require a new trial. Not only would effective assistance of
counsel in this case require citation to either Pakulski or its related principles, but
attorneys are on notice through well-settled case law that an argument not supported
by authority is deemed abandoned. See e.g., State v. Lloyd, 354 N.C. 76, 87, 552
S.E.2d 596, 607 (2001).
Moreover, this is not a case where the implications of the omitted case law were
uncertain at the time of defendant’s appeal. See e.g., Simpson, 176 N.C. App. at 723,
627 S.E.2d at 275 (“In light of the number of arguably reasonable jurists rejecting the
notion that Apprendi and Ring had any effect on non-capital sentencing prior to
Blakely, we hold that it was well within reason for Defendant’s appellate counsel not
to pursue this issue on appeal.”). Appellate counsel’s lack of professional diligence in
uncovering the readily-available—and outcome determinative—legal principles
enunciated in the Pakulski line of cases was so unreasonable as to constitute
ineffective assistance of counsel. Such attorney diligence is needed in order “to justify
the law’s presumption that counsel will fulfill the role in the adversary process that
the [Sixth] Amendment envisions.” Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693.
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Accordingly, the trial court did not err when it concluded that the performance
of defendant’s appellate counsel was deficient, and that defendant had satisfied the
first prong of the analysis of defendant’s claim that he received ineffective assistance
of counsel.
ii. Prejudice
The State also argues that the trial court erred in concluding that defendant
made a proper showing of prejudice so as to establish that he received ineffective
assistance of appellate counsel. The State maintains that even if appellate counsel
had cited Pakulski for the proposition that plain error had been established, this
Court would have nevertheless been required to affirm defendant’s conviction due to
the evidence in support of the alternative instruction on actual or constructive
possession. However, for the reasons explained in Section I, this argument is
unpersuasive. Pakulski stands for the proposition that plain error is satisfied where
an improper disjunctive jury instruction was given and the reviewing court is wholly
unable to determine whether the jury rested its verdict upon the improper or the
proper instruction. The appropriate inquiry is whether defendant was prejudiced by
his appellate counsel’s failure to argue plain error under the Pakulski principles.
To prevail on a claim of ineffective assistance of counsel, the defendant must
show not only that his counsel’s performance was deficient, but also that he was
prejudiced thereby. Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696. “The fact that
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Opinion of the Court
counsel made an error, or even an unreasonable error, does not warrant reversal of a
conviction unless there is a reasonable probability that, but for counsel’s errors, there
would have been a different result in the proceedings.” Braswell, 312 N.C. at 563,
324 S.E.2d at 248 (citation omitted). This analysis must be guided by the underlying
purpose of the right to effective assistance of counsel, i.e., “to ensure that a defendant
has the assistance necessary to justify reliance on the outcome of the proceeding.”
Strickland, 466 U.S. at 691-92, 80 L. Ed. 2d at 696 (emphasis added). “The result of
a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even
if the errors of counsel cannot be shown by a preponderance of the evidence to have
determined the outcome.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698. Thus, for
purposes of establishing prejudice, a “reasonable probability” that there would have
been a different result simply means “a probability sufficient to undermine confidence
in the outcome” of the appeal. Id.In the instant case, we agree with the trial court that defendant made a proper
showing of prejudice. Reliance on the outcome in Collington I is sufficiently
undermined by the fact that, due to counsel’s errors, defendant was denied the
opportunity to have his case decided on the merits. Cf. Evitts, 469 U.S. at 395, 83 L.
Ed. 2d at 829 (“Because the right to counsel is so fundamental to a fair [appeal], the
Constitution cannot tolerate [appeals] in which counsel, though present in name, is
unable to assist the defendant to obtain a fair decision on the merits.”). If appellate
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Opinion of the Court
counsel had argued that plain error was established pursuant to Pakulski, this Court
would not have disposed of defendant’s appeal on the grounds that there was
sufficient evidence to support a conviction under the actual or constructive possession
theory of guilt, for which the jury received an instruction. Instead, this Court would
have, under the direction of Pakulski, been required to examine the underlying merits
of defendant’s appeal in the first instance; that is, whether the jury instruction on
acting in concert was in fact improper. Moreover, given the persuasiveness of
defendant’s argument that acting in concert is not an appropriate theory upon which
to base a conviction of possession of a firearm by a felon, there is a reasonable
probability that, had appellate counsel cited Pakulski, this Court would have
concluded that defendant was entitled to a new trial.
Accordingly, we conclude that defendant received ineffective assistance of
appellate counsel, and affirm the trial court’s order granting defendant’s Motion for
Appropriate Relief.
Conclusion
For the reasons explained herein, the trial court’s order granting defendant’s
Motion for Appropriate Relief is
AFFIRMED.
Judges CALABRIA and ARROWOOD concur.
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