State v. Baskins

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1327
Filed: 7 August 2018
Guilford County, No. 14 CRS 88609
STATE OF NORTH CAROLINA
v.
GREGORY CHARLES BASKINS, Defendant.
Appeal by defendant from order entered 29 August 2017 by Judge Stuart
Albright in Guilford County Superior Court. Heard in the Court of Appeals 16 May
2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
Hyde, for the State.
N.C. Prisoner Legal Services, Inc., by Laura E. A. Altman and Reid Cater, for
defendant-appellant.
ZACHARY, Judge.
Defendant Gregory Charles Baskins appeals from the trial court’s order
denying his Motion for Appropriate Relief. We reverse.
Background
Defendant was charged with conspiracy to traffic in heroin, trafficking by
possession of 28 grams or more of heroin, and trafficking by transportation of 28
grams or more of heroin. Defendant filed a Motion to Suppress the evidence on the
grounds that the initial seizure that resulted in the inculpatory search was unlawful.
STATE V. BASKINS
Opinion of the Court
The trial court denied Defendant’s Motion to Suppress, which this Court affirmed in
State v. Baskins, No. COA15-1137, 2016 N.C. App. LEXIS 465 (“Baskins I”).
Defendant thereafter filed a Motion for Appropriate Relief arguing that he received
ineffective assistance of appellate counsel in Baskins I. The trial court denied
Defendant’s Motion for Appropriate Relief. Defendant appeals.
I. The Seizure
The evidence presented at the hearing on Defendant’s Motion to Suppress
tended to show that, on 6 October 2014, Defendant and his traveling companion
Tomekia Bone arrived in Greensboro from New York at 6:30 a.m. on the China Bus.
At the time of Defendant’s arrival, Detective M.R. McPhatter of the Greensboro Police
Department was conducting surveillance of the China Bus stop as part of an
interdiction team. Detective McPhatter was surveilling the China Bus stop because
he “was aware the China Bus was a known method for individuals to transport
narcotics because, among other reasons, there was little screening of passengers or
their baggage.”
Detective McPhatter observed Defendant and Ms. Bone exit the China Bus
carrying small bags. According to Detective McPhatter, he “was aware that
individuals who transport narcotics often travel on short, up and back trips to New
York and, therefore, travel with only small bags.”
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While Detective McPhatter watched, Defendant and Ms. Bone went inside the
Shell station where Detective McPhatter was parked in an unmarked vehicle.
Defendant exited the Shell station after a few minutes and looked toward Detective
McPhatter’s vehicle. “Defendant then gestured at the vehicle as if to [wave] it off and
walked back to the door of the Shell station.” Detective McPhatter was not sure
whether Defendant was trying to determine whether the unmarked vehicle was his
ride, or whether Defendant was trying to determine if a police officer was inside the
car. Detective McPhatter radioed the other officers on the interdiction team
concerning the occurrence. Shortly thereafter, a Buick pulled into the Shell station
and picked up Defendant and Ms. Bone.
Detective McPhatter testified that he ran the Buick’s registration on the laptop
in his vehicle and learned that the Buick had an expired registration and an
inspection violation. However, Detective McPhatter feared that his identity may have
been compromised, so he relayed that information to the other detectives and asked
them to follow the Buick.
Detective M.P. O’Hal began following the Buick. Detective O’Hal also ran the
Buick’s tag information and testified that he learned the Buick had an expired
registration and an inspection violation. Detective O’Hal testified that at that point
he made the decision to stop the Buick. Detective O’Hal approached the vehicle and
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Opinion of the Court
began conversing with the driver. During that time, Detective O’Hal noticed that
Defendant and Ms. Bone appeared very anxious and were sweating heavily.
Detective O’Hal asked the driver for his permission to search the vehicle. The
driver consented and the detectives discovered heroin.
II. Motion to Suppress
At the hearing on Defendant’s Motion to Suppress, the focus was on the
validity of the initial stop of the Buick. At issue was the fact that when the State
introduced the DMV information upon which the detectives relied when making the
decision to stop the Buick, the DMV information revealed that the Buick’s
registration was still valid. While technically expired, the DMV printout indicated
that the registration was still valid through 15 October 2014:
PLT STATUS: EXPIRED
ISSUE DT: 09262013 VALID THROUGH 10152014
Indeed, the driver was operating the Buick during the fifteen-day grace period within
which the vehicle could be lawfully operated pursuant to N.C. Gen. Stat. § 20-66.1.
Detective O’Hal testified that he knew there was a fifteen-day grace period following
expiration of a vehicle’s registration during which the expired registration remained
valid. However, Detective O’Hal explained that he stopped reading the DMV printout
when he read that the registration was expired, and therefore he did not learn that
it was still valid.
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Opinion of the Court
Further, while Detective O’Hal testified that he had also stopped the Buick for
an inspection violation, the DMV printout contained no information concerning the
status of the Buick’s inspection.
Nevertheless, in its order denying Defendant’s Motion to Suppress, the trial
court found that the detectives “ran the license tag information for the Red Buick . .
. and . . . determined that the car had an expired registration and an inspection
violation[,]” and that “[t]he stop was initiated because of the expired registration and
the inspection violation.” The trial court then denied Defendant’s Motion to Suppress
based upon the following pertinent conclusions of law:
1. The . . . registration on the Buick had expired at the
time of the stop. North Carolina General Statutes gives
officers the authority to issue a citation where probabl[e]
cause exists to believe there has been a violation of Chapt.
20 of the General Statutes. N.C.G.S. § 15A-302. Where
probable cause exists that a Chapt. 20 violation exists, an
officer may stop the vehicle to issue a violation or a
warning.
2. The officers had probabl[e] cause to stop the Buick
based on the information received from the DMV search
that the vehicle’s registration had expired and that an
inspection violation had occurred. If the officers were
mistaken as to whether or not a Chapt. 20 violation existed
at the time of the stop, such was a reasonable mistake of
law that did not render the stop invalid. Heien v. North
Carolina, ___ U.S. ___, 135 S. Ct. 530 (2014).
3. Considering the totality of the circumstances, Det.
O’Hal had reasonable suspicion that criminal activity
related to narcotics was afoot when he stopped the Buick,
based on the information received from Det. Mc[Ph]atter
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Opinion of the Court
and his own experience with the circumstances[.]”
Defendant thereafter entered an Alford plea1 to all charges but preserved his
right to appeal the denial of his Motion to Suppress.
III. Baskins I
While the trial court concluded that the initial seizure of the Buick was
justified based on (1) the Buick’s inspection violation, (2) the Buick’s expired
registration, and (3) Detective O’Hal’s “reasonable suspicion that criminal activity
related to narcotics was afoot[,]” Defendant’s counsel on appeal in Baskins I
challenged only the latter two justifications. Appellate counsel did not challenge any
of the trial court’s findings of fact. In particular, appellate counsel did not challenge
the trial court’s findings of fact that the detectives learned of the inspection violation
when they ran the Buick’s tag information. Thus, despite Defendant’s arguments
challenging the lack of reasonable suspicion and the reasonableness of the mistake
concerning the Buick’s registration status, this Court concluded that, “[b]ecause
Defendant did not challenge the trial court’s findings of fact, we must disagree.”
Baskins I, 2016 N.C. App. LEXIS 465, at *7. We explained:
As the State correctly points out, Defendant “does not
challenge the trial court’s findings as to the inspection
violation.” In fact, Defendant does not specifically
challenge any of the trial court’s findings of fact, and
Defendant does not address the alleged inspection violation
in his brief to this Court. In response to the State’s brief,
1 Named after North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970), a defendant is
said to have entered an Alford plea when the defendant pleads guilty without an admission of guilt.
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Opinion of the Court
Defendant filed a reply brief in which he argues that there
was no evidence presented at the suppression hearing
indicating that Detective O’Hal could have known the
inspection was expired. Though Defendant’s argument in
his reply brief might have merit, Defendant cannot use a
reply brief to introduce new arguments on appeal. State v.
Dinan, 233 N.C. App. 694, 698, 757 S.E.2d 481, 485, disc.
review denied, 367 N.C. 522, 762 S.E.2d 203 (2014) (citation
omitted) (“[A] reply brief is not an avenue to correct the
deficiencies contained in the original brief. See N.C.R. App.
P. 28(b)(6)[.]”). Further, even in his reply brief, Defendant
failed to challenge the following findings of fact:
5. Det. McPhatter ran the registration for the
. . . Buick on the laptop in his vehicle and
learned that the Buick had an expired
registration and an inspection violation. He
communicated this information to other,
assisting detectives and, because he was
concerned that his identity had been
compromised, he asked other detectives to
follow the . . . Buick so he could stay back a
distance.
...
8. Det. O’Hal also ran the license tag
information for the . . . Buick relayed by Det.
McPhatter and also determined that the
[Buick] had an expired registration and an
inspection violation.
...
10. The stop was initiated because of the
expired registration and the inspection
violation.
Because Defendant does not challenge these findings of
fact, they are binding on appeal. White, 232 N.C. App. at
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Opinion of the Court
301, 753 S.E.2d at 701.
Driving a vehicle without the required up-to-date
inspection is an infraction in North Carolina. N.C. Gen.
Sat. § 20-183.8(a)(1) (2015). “A law enforcement officer
who has probable cause to believe a person has committed
an infraction may detain the person for a reasonable period
in order to issue and serve him a citation.” N.C. Gen. Stat.
§ 15A-1113(b) (2015). Based upon the trial court’s
unchallenged findings of fact, Detective O’Hal determined
that the Buick was being operated with an expired
inspection, and Detective O’Hal initiated the stop of the
Buick, in part, on that basis. These findings of fact are
sufficient to support the trial court’s conclusion that
Detective O’Hal “had [probable] cause to stop the Buick
based on the information received from the DMV search
that an inspection violation had occurred.” This argument
is without merit.
Baskins I, 2016 N.C. App. LEXIS 465, at *7-10 (alterations omitted) (footnote
omitted). Accordingly, without having to address Defendant’s subsequent
arguments, this Court affirmed “the denial of Defendant’s motion to suppress based
solely upon the trial court’s [unchallenged] determination that an inspection violation
justified the initial stop of the Buick.” Id. at *10.
IV. Motion for Appropriate Relief
According to Defendant, “[t]here was no evidence to support the finding of fact
that the officer was aware of an inspection violation at the time of the stop.”
Defendant therefore filed a Motion for Appropriate Relief with the trial court on 5
June 2017 in which he alleged that he “received ineffective assistance of counsel” in
Baskins I “when appellate counsel failed to challenge the trial court’s findings of fact
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Opinion of the Court
in its order denying his Motion to Suppress.” In support of this contention, Defendant
noted that appellate counsel did challenge the findings of fact concerning the
inspection violation in her reply brief “upon reading the State’s response brief, which
relied on the inspection violation as the basis for the stop.” Defendant also attached
as an exhibit the affidavit of appellate counsel in which she averred that
I did not make a strategic decision not to challenge the
findings of fact related to the DMV printout in the
appellate brief. I did not raise this issue because I did not
notice it when I reviewed the record. If I had noticed this
issue before filing the brief, I would have raised it at the
appropriate time.
Defendant argued that had his appellate counsel “properly challenged the trial
court’s findings of fact,” this Court “would have reversed the trial court’s denial of the
motion [to suppress] and vacated [Defendant’s] convictions because the officer did not
have a reasonable suspicion for the traffic stop.” Accordingly, based on the facts
already in the record, Defendant asked the trial court to adjudicate his Motion for
Appropriate Relief for ineffective assistance of counsel “on the merits of the
pleadings” and attachments, or in the alternative, to “order the State to file a response
and schedule a hearing for the purpose of taking evidence and hearing the arguments
of counsel[.]”
The trial court concluded by order entered 29 August 2017 that Defendant’s
Motion for Appropriate Relief on the grounds of ineffective assistance of counsel could
“be resolved without an evidentiary hearing” and that it “present[ed] only legal
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Opinion of the Court
issues[.]” The trial court determined that Defendant’s Motion for Appropriate Relief
ultimately asked the trial court to “reverse the order denying the Defendant’s Motion
to Suppress . . . and vacate Defendant’s convictions.” To that point, the trial court
cited “the well established rule in North Carolina . . . that one Superior Court judge .
. . may not modify, overrule, or change the judgment of another Superior Court judge
previously made in the same action.” N.C. Nat’l Bank v. Va. Carolina Builders, 307
N.C. 563, 566, 299 S.E.2d 629, 631 (1983) (alteration omitted) (citation omitted). The
trial court regarded Defendant’s Motion for Appropriate Relief as “asking th[e] Court
. . . to overrule another Superior Court judge,” and therefore concluded that
Defendant’s Motion for Appropriate Relief for ineffective assistance of appellate
counsel was “meritless and should be denied.”
Defendant filed a Petition for Writ of Certiorari asking this Court to review the
trial court’s order denying his Motion for Appropriate Relief. This Court allowed
Defendant’s Petition for Writ of Certiorari by order entered 9 October 2017.
Discussion
Defendant argues (1) that the trial court erred in denying his Motion for
Appropriate Relief based on the incorrect conclusion that it did not have the authority
to do otherwise, and (2) that the trial court erred in denying his Motion for
Appropriate Relief because Defendant made a proper showing of ineffective
assistance of appellate counsel. We agree.
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Opinion of the Court
I. Ineffective Assistance of Appellate Counsel
The right to counsel guaranteed by 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)). The Fourteenth Amendment further requires that
defendants be afforded effective assistance of appellate counsel. Evitts v. Lucey, 469
U.S. 387, 396, 83 L. Ed. 2d 821, 830 (1985); Smith v. Robbins, 528 U.S. 259, 279, 145
L. Ed. 2d 756, 776 (2000).
The burden is on the defendant to demonstrate that he received ineffective
assistance of counsel “so . . . as to require reversal of [the defendant’s] 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 a claim
for ineffective assistance of counsel:
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.
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Opinion of the Court
Id. (emphasis omitted); accord Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (adopting
the test laid out in Strickland). “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.” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693.
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).
II. Superior Court Judge’s Authority on a Motion for Appropriate Relief
In his Motion for Appropriate Relief, Defendant argued that his
appellate counsel fell below an objective standard of
professional reasonableness by failing to challenge the trial
court’s findings of fact in its order denying the motion to
suppress, which resulted from her failure to identify the
issue in her review of the record. [Defendant] was
prejudiced by this error. There was no competent evidence
that the officers had reasonable suspicion to believe that a
traffic law was being broken at the time of the stop. If
appellate counsel had raised this issue by challenging the
findings of fact in [Defendant’s] case the Court of Appeals
would have reversed the order denying the Motion to
Suppress and vacated [Defendant’s] convictions.
Nevertheless, the trial court denied Defendant’s Motion for Appropriate Relief on the
grounds that the ineffective assistance of counsel analysis would require the trial
court to overrule the earlier superior court judge’s order denying Defendant’s Motion
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Opinion of the Court
to Suppress. The trial court concluded that because it did not have the authority to
do so, Defendant’s Motion for Appropriate Relief must be denied.
The rule that “one superior court judge may not reconsider an order entered by
another superior court judge,” State v. Woolridge, 357 N.C. 544, 545, 592 S.E.2d 191,
191 (2003), is premised upon the fact that “[t]he power of one judge of the superior
court is equal to and coordinate with that of another[.]” Michigan Nat’l Bank v.
Hanner, 268 N.C. 668, 670, 151 S.E.2d 579, 580 (1966). “[I]t is well established in
our jurisprudence that . . . ordinarily one judge may not modify, overrule, or change
the judgment of another Superior Court judge previously made in the same action.”
Woolridge, 357 N.C. at 549, 592 S.E.2d at 194 (citation and quotation marks omitted).
However, this rule is generally inapplicable where a judge is tasked with deciding the
merits of a defendant’s motion for appropriate relief.
Pursuant to N.C. Gen. Stat. § 15A-1415(a) and (b), a defendant may file a
motion for appropriate relief at any time after the verdict on the grounds that “[t]he
conviction was obtained in violation of the Constitution of the United States or the
Constitution of North Carolina.” N.C. Gen. Stat. § 15A-1415(b)(3) (2017). Because
effective assistance of appellate counsel is guaranteed by the Due Process Clause of
the Constitution, Evitts, 469 U.S. at 396, 83 L. Ed. 2d at 830, a defendant may
“allege[] ineffective assistance of . . . appellate counsel as a ground for the illegality
of his conviction” under N.C. Gen. Stat. § 15A-1415(b)(3). N.C. Gen. Stat. § 15A-
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Opinion of the Court
1415(e) (2017). N.C. Gen. Stat. § 15A-1413 specifically provides that such motions
are to be heard and determined by any superior court judge “empowered to act in
criminal matters[.]” N.C. Gen. Stat. § 15A-1413(a) (2017). Our Supreme Court has
likewise made clear that it is the duty of the trial judge—when faced with a motion
for appropriate relief based on a claim of ineffective assistance of appellate counsel—
to “fully address” whether the “defendant’s appellate counsel’s performance was
deficient,” and if so, “whether counsel’s performance prejudiced [the] defendant.”
State v. Todd, 369 N.C. 707, 712, 799 S.E.2d 834, 838 (2017). Such a situation
presents the superior court judge with the task of determining a new issue that has
yet to be decided. Cf. Va. Carolina Builders, 307 N.C. at 567, 299 S.E.2d at 631.
As explained in subsection ii below, while the prejudice prong of an ineffective
assistance of appellate counsel claim may implicate prior orders at the trial level,
such implications are ancillary to the underlying claim of ineffective assistance of
counsel. Indeed, N.C. Gen. Stat. § 15A-1415 explicitly authorizes such collateral
action by a superior court judge. E.g., N.C. Gen. Stat. § 15A-1415 (official
commentary) (“The Motion for appropriate relief . . . is a device which may be used
for any additional matters which relate to the original case[,]” such as “the question
of whether or not . . . probation has been unlawfully revoked.”). Not only are superior
court judges statutorily authorized to do so, but superior court judges routinely
perform such collateral reviews upon a defendant’s motion for appropriate relief, with
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Opinion of the Court
the sanction of our appellate courts. This is the case even though such a review may
implicate an earlier superior court judge’s actions or determinations. See, e.g., Vester
v. Stephenson, 465 F. Supp. 868, 870 (E.D.N.C. 1978) (allowing the petitioner to
proceed with his claims, including ineffective assistance of counsel, noting that,
among other things, “collateral attacks [are] proper under Section 1415”); State v.
Spruiell, ___ N.C. App. ___, ___, 798 S.E.2d 802, 806 (2017) (“In the MAR order, the
trial court concluded that, under the factual circumstances of [the] [d]efendant’s case,
it was improper for the trial court to instruct the jury on felony murder.”); State v.
Wilkerson, 232 N.C. App. 482, 491, 753 S.E.2d 829, 836 (2014) (“[T]he trial court
clearly had jurisdiction to reach the merits of [the] [d]efendant’s challenge to Judge
Gore’s original judgments pursuant to N.C. Gen. Stat. § 15A-1415(b)(4) and (b)(8).”);
Edmondson v. State, 33 N.C. App. 746, 749, 236 S.E.2d 397, 399 (1977), overruled on
other grounds, State v. Dickens, 299 N.C. 76, 84, 261 S.E.2d 183, 188 (1980)
(answering in the negative the question of “whether an adjudication by a trial judge
that a plea of guilty is voluntarily made bars a criminal defendant from collaterally
attacking that plea in a post conviction hearing”).
Accordingly, the superior court judge in the instant case acted under a
misapprehension of the law when he denied Defendant’s Motion for Appropriate
Relief on the grounds that it would impermissibly require him to “overrule another
Superior Court judge[.]”
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Opinion of the Court
III. Merits of Defendant’s Motion for Appropriate Relief
The State argues that “[e]ven assuming the trial court erred in its rationale, it
did not err by ultimately denying Defendant’s MAR” because “Defendant failed to
show ineffective assistance of appellate counsel.” On the other hand, Defendant
argues that he made a proper showing of ineffective assistance of appellate counsel,
and that the trial court was required to grant his Motion for Appropriate Relief. Thus,
Defendant maintains that the “MAR court’s order must be reversed[,]” and that
“[t]his Court should vacate [his] convictions since he was denied effective assistance
of appellate counsel.” We agree with Defendant.
In the instant case, Defendant properly asserted his claim of ineffective
assistance of appellate counsel through a motion for appropriate relief in the trial
court. See State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001), cert.
denied, 356 N.C. 623, 575 S.E.2d 758 (2002) (“In general, claims of ineffective
assistance of counsel should be considered through motions for appropriate relief and
not on direct appeal.”). The order denying Defendant’s Motion for Appropriate Relief
is devoid of findings relating to any deficiency in appellate counsel’s performance,
possibly as a result of the trial court’s conclusion that it could not overrule the prior
judge. Nevertheless, it is appropriate for an appellate court to reach the merits of a
claim of ineffective assistance of appellate counsel on direct review “when the cold
record reveals that no further investigation is required, i.e., claims that may be
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Opinion of the Court
developed and argued without such ancillary procedures as the appointment of
investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d
500, 524 (2001) (citing State v. Blakeney, 352 N.C. 287, 308-09, 531 S.E.2d 799, 815-
16 (2000) and State v. House, 340 N.C. 187, 196-97, 456 S.E.2d 292, 297 (1995)).
Here, we agree with the trial court that Defendant’s Motion for Appropriate
Relief on the grounds of ineffective assistance of counsel “may be resolved without an
evidentiary hearing.” For the reasons explained below, we are able to “discern from
the record before us whether” appellate counsel’s performance was deficient in
Baskins I and whether Defendant was prejudiced thereby. State v. Edgar, 242 N.C.
App. 624, 632, 777 S.E.2d 766, 771 (2015). We therefore proceed to the parties’
arguments on the merits of Defendant’s ineffective assistance of counsel claim.2
i. Deficient Performance
In order to establish the first prong of an ineffective assistance of counsel claim,
the defendant must show “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
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
2 We also note the particular appropriateness of an appellate court ruling on the merits of an
ineffective assistance of appellate counsel claim, as that inquiry now necessitates an analysis of
whether there is a reasonable probability that the defendant ultimately “ ‘would have prevailed on his
appeal but for his counsel’s unreasonable failure to raise an issue.’ ” Spruiell, ___ N.C. App. at ___,
798 S.E.2d at 805 (quoting United States v. Rangel, 781 F.3d 736, 745 (4th Cir. 2015)).
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Opinion of the Court
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) (citation omitted), as 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). “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable[.]” Id. at 690, 80 L. Ed. 2d at 695. Nevertheless, a defendant may
be able to overcome this presumption of sound trial strategy and successfully
establish “that his counsel was objectively unreasonable in failing to find arguable
issues[.]” Robbins, 528 U.S. at 285, 145 L. Ed. 2d at 780 (internal citation omitted);
see Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d at 695 (“[S]trategic choices made
after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.”). “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.
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Opinion of the Court
Here, Defendant argues that his appellate counsel’s performance in Baskins I
was deficient in failing to challenge the trial court’s findings of fact regarding the
detectives’ knowledge of the Buick’s inspection status at the time of the initial stop.
The State argues that “[s]ince the trial court’s findings were supported by competent
evidence, appellate counsel did not render deficient performance by failing to
challenge the findings.” (emphasis added).
Contrary to the State’s position, the record before this Court reveals that
appellate counsel’s failure to challenge the trial court’s findings of fact regarding the
inspection violation was not a reasonable strategic decision based on the argument’s
lack of merit. Todd, 369 N.C. at 712, 799 S.E.2d at 838. As the trial court denied
Defendant’s Motion to Suppress on the basis that the initial stop of the Buick was
justified on three independent grounds, appellate counsel was tasked with reviewing
the sufficiency—both legal and evidentiary—for each of those grounds. See Murray,
477 U.S. at 536, 91 L. Ed. 2d at 445. However, appellate counsel apparently realized
that she had failed to do so upon reading the State’s brief, wherein the State noted
the inspection violation as an additional justification for the stop. Appellate counsel
thereafter submitted a reply brief in which she, for the first time, challenged the
evidentiary support for the trial court’s findings of fact concerning the inspection
violation. That appellate counsel subsequently raised the argument in her reply brief
demonstrates that the initial omission was an oversight rather than a reasoned
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judgment. Moreover, while not controlling, appellate counsel’s subjective explanation
is relevant to the determination of whether her performance was objectively deficient.
On record before us is an affidavit submitted by appellate counsel in Baskins I, which
directly contradicts the State’s position that appellate counsel made a strategic
decision not to challenge the trial court’s findings of fact. The affidavit provides that
“[a]fter reviewing the State’s response to my brief, which relied on the inspection
status as the basis for the stop, I realized that I had missed this issue in my initial
review of the record.” The affidavit further provides that “I knew from my training
and experience as an appellate attorney that a reply brief cannot be used to make
new arguments on appeal.”
Accordingly, the record sufficiently demonstrates that appellate counsel did
not make a “reasonable professional judgment[]” when she neglected to challenge the
trial court’s findings of fact concerning the inspection status. Strickland, 466 U.S. at
691, 80 L. Ed. 2d at 695. Defendant has thus satisfied the first prong of his ineffective
assistance of counsel claim.
ii. Prejudice
Nonetheless, as our Supreme Court has explained, “[t]he fact that 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,
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Opinion of the Court
324 S.E.2d at 248 (citation omitted). In other words, a defendant must not only
demonstrate 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. “ ‘To show
prejudice in the context of appellate representation, a [defendant] must establish a
reasonable probability he would have prevailed on his appeal but for his counsel’s
unreasonable failure to raise an issue.’ ” Spruiell, ___ N.C. App. at ___, 798 S.E.2d
at 805 (quoting Rangel, 781 F.3d at 745 (internal quotation marks omitted)). “[F]or
purposes of establishing prejudice, a ‘reasonable probability’ . . . simply means ‘a
probability sufficient to undermine confidence in the outcome’ of the appeal.” State
v. Collington, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, 2018 N.C. App. LEXIS 397,
at *29 (quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698).
In the instant case, Defendant argues that he has set out a proper showing of
prejudice because “[i]f appellate counsel had argued that the findings of fact were not
supported by competent evidence, [this Court] would have reversed the denial of the
Motion to Suppress and vacated his convictions.” On the other hand, the State argues
that even “[h]ad appellate counsel challenged the findings regarding the [vehicle’s]
inspection status” in Baskins I, “this Court would have been bound to reject the
argument because Detective O’Hal’s testimony supported the findings.” Moreover,
the State argues that Defendant was not prejudiced by appellate counsel’s failure to
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Opinion of the Court
challenge the trial court’s findings of fact because the trial court’s ultimate
“conclusion—upholding the traffic stop—was legally correct.”
We address each of the trial court’s three justifications for the stop of the Buick
in turn as they become relevant to the prejudice analysis.
1. Inspection Violation
When reviewing a trial court’s order granting or denying a motion to suppress,
this Court “is strictly limited to determining whether the trial judge’s underlying
findings of fact are supported by competent evidence, . . . and whether those factual
findings in turn support the judge’s ultimate conclusions of law.” State v. Cooke, 306
N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Findings of fact will be binding on an
appellate court so long as they are supported by competent evidence. Id.
In the present case, had appellate counsel in Baskins I challenged the trial
court’s relevant findings of fact, there is a reasonable probability that this Court
would have concluded that the trial court’s finding that “[t]he stop was initiated
because of . . . the inspection violation” was not supported by competent evidence and
thus could not support the trial court’s conclusion of the stop’s validity.
The State’s Exhibit 1 was a printout of the DMV request for the Buick, which
the detective testified was “the same information that [was] available to [him] when
[he] ran the plate” on the Buick. However, the DMV printout contained no
information concerning the Buick’s inspection status, and the detectives did not claim
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Opinion of the Court
any other source for their alleged knowledge of the Buick’s inspection violation. In
light of the actual DMV information that was presented, the detectives could not have
known that the Buick’s inspection was expired at the time Detective O’Hal decided
to stop the Buick. Moreover, even if the trial court had noted the discrepancy between
the detectives’ testimony and the DMV information presented, the trial court
concluded as a matter of law that “[t]he officers had probabl[e] cause to stop the
[vehicle] based on the information received from the DMV search . . . that an
inspection violation had occurred.” (emphasis added). Because the DMV information
presented at the hearing contained no information concerning an inspection violation,
we agree with Defendant that there exists a reasonable probability that this Court
would have found the findings regarding the inspection to be unsupported by
competent evidence had appellate counsel challenged them in Baskins I. See, e.g.,
State v. Fisher, 141 N.C. App. 448, 454, 539 S.E.2d 677, 682 (2000) (“We recognize
that contradictions and inconsistencies rarely render a court’s factual findings
erroneous. However, the testimony presented at the suppression hearing . . .
contained material inconsistencies in the State’s own evidence, not simply
contradictions between the State’s evidence and defendant’s evidence.”).
Given the reasonable probability that the inspection status would not have
been found to support the validity of the stop in Baskins I, this Court would have next
proceeded to an examination of Defendant’s arguments pertaining to the two
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Opinion of the Court
additional grounds upon which the trial court based its denial of Defendant’s Motion
to Supress. See Dixon v. Dixon, 67 N.C. App. 73, 77, 312 S.E.2d 669, 672 (1984).
2. Reasonable Mistake of Fact
On appeal from the trial court’s denial of Defendant’s Motion to Suppress in
Baskins I, appellate counsel argued that “the trial court erred in ruling that police
lawfully stopped the car in which [Defendant] was riding because a mistaken belief
of fact that a traffic violation occurred is objectively unreasonable and cannot justify
a warrantless seizure.” We conclude that there is a reasonable probability this Court
would have agreed with this argument had it been addressed in Baskins I.
“[T]o conduct an investigatory warrantless stop and detention of an individual,
a police officer must have reasonable suspicion, grounded in articulable and objective
facts, that the individual is engaged in criminal activity.” State v. Hudgins, 195 N.C.
App. 430, 433, 672 S.E.2d 717, 719 (2009) (citation omitted). “[T]he reasonable
suspicion standard requires that the stop be based on specific and articulable facts .
. . as viewed through the eyes of a reasonable, cautious officer, guided by his
experience and training.” State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643, 645
(2008) (alteration omitted) (citation and quotation marks omitted). Indeed, “the
ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Riley v.
California, ___ U.S. ___, ___, 189 L. Ed. 2d 430, 439 (2014) (citation omitted).
Nevertheless, “[t]o be reasonable is not to be perfect[.]” Heien v. North Carolina, ___
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Opinion of the Court
U.S. ___, ___, 190 L. Ed. 2d 475, 482 (2014). The Fourth Amendment therefore
“allows for some mistakes on the part of government officials, giving them ‘fair leeway
for enforcing the law in the community’s protection.’ ” Id. (quoting Brinegar v. United
States, 338 U.S. 160, 176, 93 L. Ed. 1879, 1891 (1949)). That some leeway is provided,
however, does not afford law enforcement officials the unfettered liberty to be
inaccurate. “The Fourth Amendment tolerates only reasonable mistakes, and those
mistakes—whether of fact or law—must be objectively reasonable.” Id. at ___, 190 L.
Ed. 2d at 486.
Here, the detectives contended that they also stopped the Buick for having an
expired registration even though the registration was, in fact, still valid.
Nevertheless, the trial court concluded that even “[i]f the officers were mistaken as
to whether or not a Chapt. 20 violation existed at the time of the stop, such was a
reasonable mistake of law that did not render the stop invalid” under the Fourth
Amendment. Our duty in the instant case is simply to determine whether there is a
reasonable probability that this Court would have disagreed with this conclusion of
law had it been addressed in Baskins I.
Initially, we note that the case at bar does not involve a mistake of law. The
detective testified that he was aware that the North Carolina statute provides a
fifteen-day grace period following the date of a vehicle’s registration expiration during
which the vehicle may be lawfully operated, and that “to the best of [his] knowledge,”
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Opinion of the Court
“it was in fact lawful for [Defendant’s] vehicle to be operated” on the date of the stop.
N.C. Gen. Stat. § 20-66(g) (2017). The detective’s belief that the Buick was being
operated without a valid registration was thus a mistake of fact rather than of law.
In addition, not only did the detective testify that he knew there was a fifteen-
day grace period following expiration of a vehicle’s registration, but the DMV
information upon which the detective relied at the time of the stop explicitly provided
that the Buick’s registration was “VALID THRU: 10152014.” Nevertheless, the
detective testified that his oversight regarding the vehicle’s lawful status was due to
the fact that “We’re not going to scroll down to check a date being valid or not valid.”
That the detectives stopped the Buick for a registration violation despite having
intentionally neglected to read the very sentence in which the relevant expiration
date appeared renders questionable the reasonableness of any resultant mistake that
ensued. See State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439 (2008) (“This
Court requires that the stop be based on specific and articulable facts . . . as viewed
through the eyes of a reasonable, cautious officer, guided by his experience and
training.”) (alterations omitted) (citation and quotation marks omitted). This is also
not a case in which the factual assessment regarding the Buick’s registration status
was required to be made “on the fly.” Heien, ___ U.S. at ___, 190 L. Ed. 2d at 486.
Rather, the detective accessed the DMV information while he was following the Buick
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Opinion of the Court
as it was obeying the speed limit, at 7:00 a.m., in an area with “not a lot of vehicles
on the road,” and with the active assistance of at least four additional officers.
Thus, in the present case the detectives had an admittedly accurate
understanding of the law, which was coupled with information that was readily
available to them indicating that the Buick’s registration was still valid. Under these
circumstances, we conclude that there is a reasonable probability that this Court
would have determined that the facts do not constitute the sort of objectively
reasonable mistake of fact tolerable under the Fourth Amendment, and therefore
these facts could not serve as a justification for the stop.
3. Reasonable Suspicion
Finally, had appellate counsel challenged the trial court’s findings of fact in
Baskins I, this Court would have been required to address Defendant’s argument that
“the trial court erred in concluding that reasonable suspicion existed to stop the car
in which [Defendant] was a passenger . . . to conduct a narcotics investigation when
police lacked individualized reasonable suspicion and acted on the same hunch they
applied to everyone who arrived in Greensboro on the China Bus.” We conclude that
there is a reasonable probability that this Court would have found this argument
meritorious in Baskins I.
As explained supra, “[a]n investigatory stop must be justified by ‘a reasonable
suspicion, based on objective facts, that the individual is involved in criminal activity.’
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Opinion of the Court
” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (quoting Brown v.
Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979)). Whether an officer had a
reasonable suspicion to stop a vehicle for investigatory purposes must be considered
in light of the totality of the circumstances. Id. (citation omitted). “The stop must be
based on specific and articulable facts, as well as the rational inferences from those
facts, as viewed through the eyes of a reasonable, cautious officer, guided by his
experience and training.” Id. (citing Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d
889, 906 (1968), and State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779
(1979)). The justification must be objective rather than subjective. Id. at 442, 446
S.E.2d at 70 (citing United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)).
The officer “must be able to articulate something more than an inchoate and
unparticularized suspicion or ‘hunch.’ ” Sokolow, 490 U.S. at 7, 104 L. Ed. 2d at 10
(citation and quotation marks omitted).
Here, we note that the trial court’s findings of fact in its denial of Defendant’s
Motion to Suppress provided only that “[t]he stop was initiated because of the expired
registration and the inspection violation.” Moreover, the conclusion that the
detectives “had reasonable suspicion that criminal activity related to narcotics was
afoot” was based solely on the facts (1) that the detectives observed Defendant and
Ms. Bone exit the China Bus carrying small bags at the “same bus stop that a lot of
heroin is being transported from New York to the Greensboro area[;]” and (2) that
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Opinion of the Court
while waiting for his ride at the adjacent gas station, Defendant briefly looked toward
Detective McPhatter’s unmarked vehicle and “shooed [his vehicle] off[,]” at which
point Defendant’s ride—the Buick—pulled into the parking lot.
The facts of this case bear a marked likeness to those presented in the United
States Supreme Court case Reid v. Georgia, in which
[t]he appellate court’s conclusion . . . that the DEA agent
reasonably suspected the petitioner of wrongdoing rested
on the fact that the petitioner appeared to the agent to fit
the so-called “drug courier profile,” a somewhat informal
compilation of characteristics believed to be typical of
persons unlawfully carrying narcotics. Specifically, the
court thought it relevant that (1) the petitioner had arrived
from Fort Lauderdale, which the agent testified is a
principal place of origin of cocaine sold elsewhere in the
country, (2) the petitioner arrived early in the morning,
when law enforcement activity is diminished, (3) he and his
companion appeared to the agent to be trying to conceal the
fact that they were traveling together, and (4) they
apparently had no luggage other than their shoulder bags.
448 U.S. 438, 440-41, 65 L. Ed. 2d 890, 894 (1980). From these facts, the Supreme
Court concluded
that the agent could not, as a matter of law, have
reasonably suspected the petitioner of criminal activity on
the basis of these observed circumstances. Of the evidence
relied on, only the fact that the petitioner preceded another
person and occasionally looked backward at him as they
proceeded through the concourse relates to their particular
conduct. The other circumstances describe a very large
category of presumably innocent travelers, who would be
subject to virtually random seizures were the Court to
conclude that as little foundation as there was in this case
could justify a seizure.
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Opinion of the Court
Id. at 441, 65 L. Ed. 2d at 894.
In the instant case, the detectives’ inference of criminal activity from
Defendant waving off Detective McPhatter’s unmarked vehicle at the gas station
“was more an inchoate and unparticularized suspicion or ‘hunch,’ than a fair
inference in the light of [their] experience[.]” Id. And, even when viewed through the
officers’ experience that “persons that get on this bus line could possibly be trafficking
in narcotics[,]” the fact that an individual—entirely unknown to officers—is seen
carrying “just some small, little luggage bags” while returning on the China Bus from
a weekend trip to New York is far “too slender a reed to support the seizure in this
case.” Id.
Accordingly, had appellate counsel challenged the findings of fact in Baskins I,
we conclude that there is a reasonable probability that this Court would have
determined that the trial court also erred in denying Defendant’s Motion to Suppress
on the grounds that the detective “had reasonable suspicion that criminal activity
related to narcotics was afoot when he stopped the Buick.”
***
Despite the trial court’s reluctance to reach the merits of Defendant’s Motion
for Appropriate Relief on the grounds of ineffective assistance of appellate counsel,
we are able to conclude from the cold record developed on appeal that the trial court
erred in denying Defendant’s Motion for Appropriate Relief. Had appellate counsel
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Opinion of the Court
challenged the trial court’s findings of fact regarding the Buick’s inspection status in
its order denying Defendant’s Motion to Suppress, there is a reasonable probability
that this Court would have concluded that those findings of fact were not supported
by competent evidence. This Court would have then proceeded to the two arguments
that Defendant did raise in Baskins I. Given the merit of those two arguments, we
conclude that there is a reasonable probability that had appellate counsel challenged
the trial court’s findings of fact concerning the inspection violation, Defendant would
have been successful in his appeal in Baskins I. Accordingly, the trial court erred
when it denied Defendant’s Motion for Appropriate Relief on the grounds of
ineffective assistance of appellate counsel.
Conclusion
For the reasons explained herein, the trial court’s order denying Defendant’s
Motion for Appropriate Relief is reversed and this matter is remanded for entry of an
order granting Defendant’s Motion for Appropriate Relief and vacating his
convictions.
REVERSED AND REMANDED FOR NEW TRIAL.
Judges ELMORE and HUNTER, JR. concur.
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