State v. HymanÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-398-2
Filed: 18 December 2018
Bertie County, No. 01 CRS 54023
STATE OF NORTH CAROLINA
v.
TERRENCE LOWELL HYMAN
Appeal by defendant from order entered 12 May 2015 by Judge Cy A. Grant,
Sr. in Bertie County Superior Court. Originally heard in the Court of Appeals 5
October 2016. By opinion issued 21 February 2017, a divided panel of this Court, ___
N.C. App. ___, 797 S.E.2d 308 (2017), reversed the superior court’s order denying
defendant’s motion for appropriate relief based upon a merits-review of the
exculpatory-witness component of his ineffective assistance of trial counsel claim and,
therefore, declined to consider his remaining challenges to the trial court’s denial of
the dual-representation-conflict components of his ineffective assistance of counsel
claims. By opinion issued 17 August 2018, our Supreme Court, ___ N.C. ___, 817
S.E.2d 157 (2018), affirmed in part and reversed in part, and remanded to this Court
with instructions to consider those remaining challenges.
Attorney General Joshua H. Stein, by Assistant Attorney General Mary Carla
Babb and Nicholaos G. Vlahos, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
C. Woomer-Deters, for defendant.
ELMORE, Judge.
STATE V. HYMAN
Opinion of the Court
Previously, a divided panel of this Court, ___ N.C. App. ___, 797 S.E.2d 308(2017) (Hyman III), held that the exculpatory-witness component of defendants’
ineffective assistance of trial counsel claim was not procedurally barred from
appellate review and that “defendant is entitled to relief under Strickland on [that
component of his] claim” and, therefore, reversed the trial court’s order denying
defendant’s motion for appropriate relief (“MAR”). Id. at ___, 797 S.E.2d at 322. The
majority thus declined to “address [defendant’s] remaining arguments,” id., which
included his challenges to the trial court’s denial of his MAR as to the dual-
representation-conflict components of his ineffective assistance of counsel claims, id.
at ___, 797 S.E.2d at 316. The dissenting judge opined that the exculpatory-witness
claim had been procedurally defaulted by N.C. Gen. Stat. § 15A-1419(a)(3) but,
nonetheless, that because defendant failed to satisfy his burden of establishing any
claim to support granting his MAR, he would affirm the trial court’s order. Id. at ___,
797 S.E.2d at 323–24 (Dillon, J., dissenting).
On 17 August 2018, our Supreme Court affirmed in part our decision in Hyman
III—that is, “defendant’s [exculpatory-witness] ineffective assistance of counsel claim
[was] not procedurally barred pursuant to N.C.G.S. § 15A-1419(a)(3)”—reversed in
part our decision—that is, “to overturn the trial court’s order denying defendant’s
[MAR]” based upon a merits-review of the exculpatory-witness component of his
ineffective assistance of trial counsel claim—and remanded “for consideration of
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remaining challenges to the trial court’s order denying defendant’s [MAR].” State v.
Hyman, ___ N.C. ___, ___, 817 S.E.2d 157, 173 (2018).
Defendant’s remaining challenges, which were neither addressed by our Court
in Hyman III nor our Supreme Court in its later decision, concerned the trial court’s
denial of his MAR as to his claims he received (1) ineffective assistance of trial counsel
because his attorney had a dual-representation conflict arising from her prior
representation of one of the State’s primary witnesses against him, and (2) ineffective
assistance of counsel at the evidentiary remand hearing ordered to develop that claim
in State v. Hyman, 172 N.C. App. 173, 616 S.E.2d 28, 2005 WL 1804345 (2005)
(unpublished) (Hyman I). Specifically, defendant argued the trial court improperly
concluded he was procedurally barred from reasserting as grounds to support his
MAR the dual-representation-conflict component of his ineffective assistance of trial
counsel claim because his remand attorney himself had a dual-representation conflict
arising from his prior representation of a co-defendant also charged with the victim’s
murder. Additionally, defendant argued that, to the extent the dual-representation
remand counsel conflict claim had been procedurally barred under N.C. Gen. Stat. §
15A-1419(a)(3) by his failure to raise it on direct appeal in State v. Hyman, 182 N.C.
App. 529, 642 S.E.2d 548, 2007 WL 968753 (2007) (unpublished) (Hyman II), he
received ineffective assistance of appellate counsel.
I. Background
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The trial facts and procedural history of this case are discussed more fully in
our prior opinions, Hyman I, Hyman II, Hyman III, and in our Supreme Court’s
subsequent opinion, Hyman, ___ N.C. at ___–___, 817 S.E.2d at 157–67. We discuss
only that relevant to provide basic context and to adjudicate the remanded issues.
In September 2003, a jury found defendant guilty of first-degree murder for
the 6 May 2001 shooting death of Ernest Bennett, and the trial court sentenced him
to life in prison without parole. Defendant appealed, arguing the trial court erred by
failing to conduct a hearing and inquire into a potential dual-representation trial
counsel conflict when it became apparent that his first-chair defense counsel, Teresa
Smallwood, “previously represented [one of the State’s primary witnesses, Derrick]
Speller in an unrelated case.” Hyman I, at *4. On 2 August 2005, we issued our
decision in Hyman I, in part remanding to the superior court for an evidentiary
hearing on the Smallwood dual-representation-conflict claim “to determine if the
actual conflict adversely affected [Smallwood’s] performance[.]” Id. at *6 (quoting
State v. James, 111 N.C. App. 785, 791, 433 S.E.2d 755, 759 (1993)).
That remand hearing occurred on 3 October and 2 November 2005. The trial
court appointed A. Jackson Warmack to represent defendant. Warmack had
previously represented Telly Swain, a co-defendant also charged with Bennett’s
murder. Warmack advised the trial court before the remand hearing that there might
be a potential conflict with his later representation of defendant, but Warmack
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explained that he had previously contacted the North Carolina State Bar and
determined no actual conflict would exist given the limited scope of the remand
hearing. After defendant confirmed to the trial court he did not object to Warmack’s
representation, Warmack proceeded as defendant’s counsel at the remand hearing.
After the remand hearing, the trial court entered an order concluding
“Smallwood’s representation of defendant was not adversely affected by her prior
representation of Speller.” Hyman II, at *2. Defendant appealed, arguing
“Smallwood’s actual conflict of interest adversely affected her representation of him.”
Id. On 3 April 2007, this Court issued its decision in Hyman II, directly addressing
and rejecting the Smallwood dual-representation-conflict component of defendant’s
ineffective assistance of trial counsel claim, and holding that defendant “failed to
show the trial court erred when it found and concluded Smallwood’s representation
of him was not adversely affected by her previous representation of Speller.” Id. at
*6. The Hyman II panel thus affirmed the trial court’s remand order. Id.
In July 2013, defendant filed an MAR in the superior court, asserting “his right
to effective, conflict-free trial counsel was violated” and, “[t]o the extent this claim is
in any way procedurally barred, . . . his right to effective, conflict-free counsel was
violated on remand and/or ineffective assistance of appellate counsel.” Relevant to
defendant’s remaining challenges presented on remand, he argued he received
ineffective assistance of (1) trial counsel based upon Smallwood’s dual-representation
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Opinion of the Court
conflict “between her duties to her former client, the State’s witness [Speller], and
her duties to defendant”; (2) remand counsel based upon Warmack’s dual-
representation conflict “from having previously represented [co-defendant] Swain”;
and (3) appellate counsel to the extent his failure to raise Warmack’s dual-
representation conflict on appeal in Hyman II procedurally defaulted that claim. The
trial court granted defendant’s request for an evidentiary MAR hearing.
After that evidentiary hearing, the trial court entered an order on 12 May 2015
denying defendant’s MAR. In its order, the trial court concluded defendant was
procedurally barred from (1) reasserting Smallwood’s dual-representation conflict as
grounds to support his MAR because this Court in Hyman II previously addressed
and rejected that claim, see N.C. Gen. Stat. § 15A-1419(a)(2); and (2) raising
Warmack’s dual-representation conflict because defendant failed to raise it on appeal
in Hyman II, see N.C. Gen. Stat. § 15A-1419(a)(3). Alternatively, the trial court
concluded (3) the Warmack dual-representation remand counsel conflict claim was
meritless because (a) defendant waived Warmack’s potential conflict at the remand
hearing; (b) defendant failed to establish Warmack had an actual conflict when
representing him at the remand hearing; and (c) even if an actual conflict existed,
defendant failed to establish it adversely affected Warmack’s representation of him
at the remand hearing. The trial court also concluded (4) to the extent defendant was
procedurally barred from raising Warmack’s dual-representation conflict because his
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Opinion of the Court
appellate counsel did not raise it on appeal in Hyman II, he did not receive ineffective
assistance of appellate counsel because the underlying claim was meritless.
II. Issues Presented on Remand
Defendant’s remaining challenges presented on remand concerned the
propriety of the trial court’s denial of his MAR as to the Smallwood dual-
representation-conflict component of his ineffective assistance of trial counsel claim.
He argued he was “not procedurally barred from asserting Smallwood’s dual
representation conflict” because “Warmack provided ineffective assistance of counsel
at the remand hearing.” Specifically, defendant challenged the trial court’s
conclusions that (1) the Smallwood dual-representation trial counsel conflict claim
was rejected by this Court in Hyman II; (2) the findings in its 2005 remand order as
to the timing of Smallwood’s representations of Speller and defendant were binding
at the 2013 evidentiary MAR hearing; (3) defendant “properly waived Warmack’s
conflict” at the 2005 remand hearing; (4) “any claim regarding Warmack’s conflict is
procedurally barred because appellate counsel did not raise it in Hyman II”; (5)
“Warmack provided effective representation” at the 2005 remand hearing; and (6)
“[defendant] would not have suffered prejudice even if his appellate counsel had
argued Warmack’s conflict in Hyman II because the conflict claim is meritless.”
Because these challenges concern three related but independent ineffective
assistance of counsel claims, we reorganize our discussion accordingly.
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Opinion of the Court
III. Analysis
A. Review Standard
“[A]ppellate courts review trial court orders deciding motions for appropriate
relief ‘to determine whether the findings of fact are supported by evidence, whether
the findings of fact support the conclusions of law, and whether the conclusions of law
support the order entered by the trial court.’ ” Hyman, ___ N.C. at ___, 817 S.E.2d at
169 (other internal quotation marks omitted) (quoting State v. Frogge, 359 N.C. 228,
240, 607 S.E.2d 627, 634 (2005)). But where, as here, “no exceptions are taken to
findings of fact made in a ruling on a motion for appropriate relief, such findings are
presumed to be supported by competent evidence and are binding on appeal.” Id.(brackets omitted) (quoting State v. Mbacke, 365 N.C. 403, 406, 721 S.E.2d 218, 220
(2012)). Legal conclusions “are fully reviewable.” Id. (citing State v. Bush, 307 N.C.
152, 168, 297 S.E.2d 563, 573 (1982)).
B. Smallwood Dual-Representation Trial Counsel Conflict Claim
Defendant argues the trial court erred by concluding he was procedurally
barred from reasserting in his MAR the Smallwood dual-representation-conflict
component of his ineffective assistance of trial counsel claim. We disagree.
An MAR is properly denied when “[t]he ground or issue underlying the motion
was previously determined on the merits upon an appeal from the judgment or upon
a previous motion or proceeding in the courts of this State[.] . . .” N.C. Gen. Stat. §
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Opinion of the Court
15A-1419(a)(2) (2017). Because this Court on direct appeal in Hyman II addressed
the merits and rejected the Smallwood dual-representation-conflict claim, Hyman II,
at *5–6, the trial court properly concluded that component of defendant’s ineffective
assistance of trial counsel claim had been defaulted under N.C. Gen. Stat. § 15A-
1419(a)(2)’s procedural bar on successive postconviction relief challenges. We thus
overrule defendant’s first two challenges to the trial court’s conclusions.
C. Warmack Dual-Representation Remand Counsel Conflict Claim
Nonetheless, defendant essentially argues any procedural default of the
Smallwood dual-representation-conflict claim should be excused because he received
ineffective assistance of counsel at the evidentiary remand hearing ordered on that
claim. He argues Warmack provided him ineffective assistance of remand counsel
because Warmack himself had a dual-representation conflict arising from having
previously represented co-defendant Swain. We disagree.
1. Procedural Bars
As an initial matter, defendant argues the trial court erred by concluding the
Warmack dual-representation-conflict claim was barred under N.C. Gen. Stat. § 15A-
1419(a)(3) because he failed to raise it on appeal in Hyman II. To the extent we agree
this claim was procedurally barred on that basis, defendant argues he received
ineffective assistance of appellate counsel because his attorney failed to raise it on
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Opinion of the Court
appeal in Hyman II. Defendant also argues the trial court erred by concluding he
waived Warmack’s potential conflict at the remand hearing.
An MAR is properly denied if “[u]pon a previous appeal the defendant was in
a position to adequately raise the ground or issue underlying the present motion but
did not do so.” N.C. Gen. Stat. § 15A-1419(a)(3) (2017). This procedural bar “ ‘is not
a general rule that any claim not brought on direct appeal is forfeited on state
collateral review’ and requires the reviewing court, instead, ‘to determine whether
the particular claim at issue could have been brought on direct review.’ ” Hyman, ___
N.C. at ___, 817 S.E.2d at 170 (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d
500, 525 (2001)). Rather, “to be subject to the procedural default specified in N.C.G.S.
§ 15A-1419(a)(3), the direct appeal record must have contained sufficient information
to permit the reviewing court to make all the factual and legal determinations
necessary to allow a proper resolution of the claim in question.” Id.
Here, although the direct appeal record in Hyman II contained the 2005
remand hearing transcript disclosing Warmack’s potential conflict, see West v. G. D.
Reddick, Inc., 302 N.C. 201, 202–03, 274 S.E.2d 221, 223 (1981) (“[A] court may take
judicial notice of its own records in another interrelated proceeding where the parties
are the same, the issues are the same and the interrelated case is referred to in the
case under consideration.” (citations omitted)), the only information on that potential
conflict was reflected in the following relevant exchange:
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Opinion of the Court
THE COURT: . . . I discussed this matter with the
prosecution . . . and we decided in the best interest of all
that [defendant] have a new attorney appointed to
represent him at this hearing and I decided to appoint Mr.
Warmack . . . .
Do you have any objection to handling this case, Mr.
Warmack?
MR. WARMACK: No, sir, Your Honor. I think for
the record, after I received the phone call last week since I
did have some other involvement in the case I contacted the
State bar and determined there would be no conflict there.
And then I talked to [defendant] this morning or just a few
minutes ago and came in and explained the situation and
told him that if he had any problems with it this would be
the time.
THE COURT: Do you have any objection to Mr.
Warmack representing you, [defendant]?
THE DEFENDANT: No.
THE COURT: All right, very well. I’m going to
appoint Mr. Warmack to represent [defendant] at [the
remand] hearing.
(Emphasis added.) No other information in the 2005 remand hearing transcript
explained the nature or extent of Warmack’s potential conflict, which was later
developed at the 2013 evidentiary MAR hearing.
Thus, we conclude that “defendant was not in a position to adequately raise
[this] ineffective assistance of counsel claim asserted in his [MAR] on direct appeal”
in Hyman II. Hyman, ___ N.C. at ___, 817 S.E.2d at 170. Accordingly, the trial court
erred by concluding defendant was procedurally barred by N.C. Gen. Stat. § 15A-
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Opinion of the Court
1419(a)(3) from raising Warmack’s dual-representation conflict as grounds to support
his MAR. Because counsel’s failure to raise this claim on appeal in Hyman II did not
operate as a procedural bar, we overrule defendant’s related claim that he received
ineffective assistance of appellate counsel on that basis. Additionally, because the
above exchange was insufficient to establish defendant knowingly, intelligently, and
voluntarily waived Warmack’s potential conflict at the remand hearing, we hold the
trial court erred by concluding otherwise. See, e.g., State v. Choudhry, 365 N.C. 215,
223, 717 S.E.2d 348, 354 (2011) (“[A] trial court may not rely solely on representations
of counsel to find that a defendant understands the nature of a conflict[.] . . .”).
Accordingly, we agree with defendant’s third and fourth challenges to the trial
court’s conclusions that he either waived or was procedurally barred from raising
Warmack’s dual-representation conflict, which renders irrelevant defendant’s sixth
challenge to the conclusion as to his ineffective assistance of appellate counsel claim.
We turn now to the merits of defendant’s fifth challenge to the trial court’s
conclusions—that is, Warmack provided him effective assistance of counsel at the
remand hearing on the Smallwood dual-representation-conflict component of his
ineffective assistance of trial counsel claim.
2. Merits
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Opinion of the Court
Defendant argues the trial court erred by concluding Warmack provided him
effective assistance of counsel at the remand hearing because Warmack had a dual-
representation conflict arising from his prior representation of Swain. We disagree.
“ ‘A defendant who seeks relief by motion for appropriate relief must show the
existence of the asserted grounds for relief,’ with ‘the moving party ha[ving] the
burden of proving by a preponderance of the evidence every fact essential to support
the motion[.]’ ” Hyman, ___ N.C. at ___, 817 S.E.2d at 172 (quoting N.C. Gen. Stat. §
15A-1420(c)(6) (2017), and then id. § 15A-1420(c)(5) (2017)). “When issues involving
successive or simultaneous representation of clients in related matters have arisen
before this Court, we have applied the Sullivan analysis rather than the Strickland
framework to resolve resulting claims of ineffective assistance of counsel.” State v.
Phillips, 365 N.C. 103, 120–21, 711 S.E.2d 122, 137 (2011) (citations omitted). To
obtain relief under Sullivan, “a defendant who raised no objection at trial must
demonstrate that an actual conflict of interest adversely affected his lawyer’s
performance.” State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996) (quoting
Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L.Ed.2d 333, 346–47
(1980); other citation omitted).
Here, the trial court issued the following relevant findings and conclusions
concerning the Warmack dual-representation-conflict claim:
2. Prior to the 2005 remand hearing, Defendant’s attorney,
Mr. Warmack, informed the undersigned that he had made
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Defendant aware of a potential conflict of interest. Mr.
Warmack also informed the undersigned that given he had
some other involvement in the case, he had contacted the
North Carolina State Bar, and based upon his conversation
with the North Carolina State Bar, he determined there
would be no conflict. The undersigned asked Defendant
whether he had any objection to Mr. Warmack
representing him, and Defendant responded in the
negative.
3. . . . [O]n May 16, 2001, Mr. Warmack was appointed to
represent Telly Swain, who like Defendant was charged
with the first-degree murder of Bennett. . . . In Swain’s
case, Mr. Warmack filed . . . an Enmund-Tison motion. . . .
Mr. Warmack noted that he had information indicating
Swain was not the person who shot Bennett. . . . Mr.
Warmack argued in the Enmund-Tison motion that
Defendant, not Swain, shot Bennett.
4. . . . [I]n connection with the first-degree murder charge,
Swain pled guilty to felony riot and assault inflicting
serious bodily injury on June 2, 2003. Swain’s plea
agreement specified that he was to give truthful testimony
if called to testify against any of his codefendants. As such,
Swain’s judgment was continued until prayed for by the
State. Mr. Warmack testified at the MAR evidentiary
hearing that he encouraged Swain to give a statement to
law enforcement. Swain did so and, therein, identified
Defendant as the person who shot Bennett. However, Mr.
Warmack did not expect the State to call Swain as a
witness, given his criminal record. Mr. Warmack
specifically testified that he thought the State calling
Swain was at best a “remote possibility” that would happen
only if the State’s case fell apart. Swain did not testify at
Defendant’s trial. The Superior Court, Bertie County,
entered judgment against Swain on October 6, 2003[.] . . .
5. At the MAR evidentiary hearing, Mr. Warmack testified
that on September 30, 2005, District Attorney Asbell asked
him if he would represent Defendant in a matter that had
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Opinion of the Court
been remanded by the North Carolina Court of Appeals as
to an evidentiary issue concerning Ms. Smallwood’s
representation of Defendant. Mr. Warmack expressed
concern to District Attorney Asbell about representing
Defendant, given that he had previously represented one of
his codefendants, Swain. Mr. Warmack called the North
Carolina State Bar and explained to personnel at the Bar
that District Attorney Asbell wanted him to represent
Defendant at an evidentiary hearing for the purpose of
resolving the very specific issue for which the Court of
Appeals remanded the case. According to Mr. Warmack,
the North Carolina State Bar informed him that as long as
the remand hearing was limited to what he articulated the
issue to be, there did not appear to be a conflict.
6. Mr. Warmack testified at the MAR evidentiary hearing
that it was his understanding from the Court of Appeals’
opinion [in Hyman I] that there was no evidence in the
record regarding Ms. Smallwood’s prior representation of
Speller. Nor was there information as to whether or not
that representation affected Ms. Smallwood’s
representation of Defendant. As such, Mr. Warmack
believed that the scope of the remand hearing was limited
to a determination of whether an actual conflict of interest
adversely affected Ms. Smallwood’s representation of
Defendant. It was Mr. Warmack’s belief that if he was to
present evidence beyond what he understood the limited
scope of the remand hearing to be, including probing the
substance of Ms. Smallwood’s alleged conversation with
Speller, he would have had a conflict based upon his prior
representation of Swain.
....
9. Mr. Warmack testified that nothing about his
representation of Defendant at the remand hearing had
anything to do with Swain and that he would not have
conducted the remand hearing any differently if he had not
previously represented Swain.
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Opinion of the Court
....
6. . . . Defendant has not presented any evidence at the
MAR evidentiary hearing to establish that Mr. Warmack
was engaged in an actual conflict of interest when
representing Defendant at the remand hearing which
adversely affected Mr. Warmack’s representation. Any
competing interests between Mr. Warmack’s former client,
Swain, and his client at the remand hearing, Defendant,
were minimal, given the limited scope of the remand
hearing. Moreover, the conflict of interest was only a
potential one, given that Swain was at best a potential
witness at any retrial. This is true, particularly
considering Swain did not testify at Defendant’s original
trial. Also, it is notable that Mr. Warmack was of the
opinion that the State would not have called Swain at
Defendant’s trial because of his criminal record.
7. Even assuming an actual conflict existed, there was no
adverse effect on counsel’s representation. Defendant
presented no evidence that Mr. Warmack’s representation
of Defendant was in any way influenced by his prior
representation of Swain. Mr. Warmack’s understanding of
the remand hearing was that it had a very limited scope.
The attorney conformed his performance in consideration
of that scope, not in consideration of the interests of his
former client. In fact, Mr. Warmack testified at the MAR
evidentiary hearing that he would not have conducted the
remand hearing any differently if he had not previously
represented Swain.
We conclude the trial court’s unchallenged findings supported its conclusion
that defendant failed to establish he received ineffective assistance of remand counsel
arising from Warmack’s alleged dual-representation conflict. Particularly, the trial
court’s binding findings—that “Defendant presented no evidence that Mr. Warmack’s
representation of Defendant was in any way influenced by his prior representation of
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Opinion of the Court
Swain” and that Warmack “conformed his performance in consideration of [his
understanding of the very limited] scope [of the remand hearing], not in consideration
of the interests of his former client[,]” Swain—supported its conclusion that, even if
Warmack had an actual dual-representation conflict, defendant failed to satisfy his
burden of establishing that conflict “adversely affected [Warmack’s] performance.”
Bruton, 344 N.C. at 391, 474 S.E.2d at 343 (quoting Sullivan, 446 U.S. at 348, 100 S.
Ct. at 1718, 64 L. Ed. 2d at 346–47). We therefore overrule defendant’s fifth challenge
to the trial court’s conclusions concerning the merits of the Warmack dual-
representation-conflict claim. Accordingly, the trial court properly denied
defendant’s MAR on the asserted ground that Warmack provided him ineffective
assistance of counsel at the remand hearing on the Smallwood dual-representation-
conflict component of his ineffective assistance of trial counsel claim because
Warmack himself had a dual-representation conflict.
IV. Conclusion
Defendant’s remaining challenges to the trial court’s denial of his MAR, which
were remanded for our consideration, concerned only the dual-representation-conflict
components of his ineffective assistance of counsel claims. Because this Court on
direct appeal in Hyman II addressed the merits of and rejected the Smallwood dual-
representation-conflict component of defendant’s ineffective assistance of trial
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counsel claim, the trial court properly concluded defendant was procedurally barred
by N.C. Gen. Stat. § 15A-1419(a)(2) from reasserting that claim to support his MAR.
Because the appellate record in Hyman II had not been sufficiently developed
for defendant to adequately raise the Warmack dual-representation remand counsel
conflict claim, the trial court improperly concluded defendant was procedurally
barred by N.C. Gen. Stat. § 15A-1419(a)(3) from raising that claim to support his
MAR. Accordingly, we overrule defendant’s related argument that he received
ineffective assistance of appellate counsel based upon his attorney’s failure to raise
that claim on appeal in Hyman II. However, because the trial court’s unchallenged
findings supported its conclusion that defendant failed to satisfy his burden of
establishing Warmack’s prior representation of Swain adversely affected his
representation of defendant at the remand hearing, the trial court properly denied
defendant’s MAR on that basis.
In summary, because the trial court properly concluded N.C. Gen. Stat. § 15A-
1419(a)(2)’s procedural bar defaulted the Smallwood dual-representation-conflict
component of defendant’s ineffective assistance of trial counsel claim, and its findings
supported its conclusion that defendant failed to establish he received ineffective
assistance of remand counsel based upon Warmack’s alleged dual-representation
conflict, the trial court properly denied defendant’s MAR as to the dual-
representation-conflict components of his ineffective assistance of counsel claims.
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Opinion of the Court
Therefore, after our “consideration of defendant’s remaining challenges to the trial
court’s order denying his [MAR],” Hyman, ___ N.C. at ___, 817 S.E.2d at 159, we
affirm the trial court’s order.
AFFIRMED.
Judges HUNTER, JR. and DILLON concur.
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