Counsel’s Unconsented-to Admission to Elements Isn’t a Harbison Error

In State v. Harbison, 315 N.C. 175 (1985), the North Carolina Supreme Court held that when defense counsel admits the defendant’s guilt to the jury without the defendant’s consent per se ineffective assistance of counsel occurs. The Harbison Court reasoned that when counsel admits guilt without consent, it is essentially the same as entering a guilty plea on the defendant’s behalf without the defendant’s consent. It concluded: “ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s consent.” Id. at 180. Back in October 2014, I wrote about a Court of Appeals case decided a month earlier—State v. Wilson, 236 N.C. App. 472 (2014)—that carved out two exceptions to the Harbison rule (that post is here). Wilson held that an unconsented-to admission to an offense that is neither charged nor is a lesser-included offense of a charged offense does not constitute a Harbison error. It also held that an unconsented-to admission to an element isn’t a Harbison error. A new Court of Appeals case—State v. Cholon—cites Wilson and reaffirms that second exception. In Cholon, the defendant was charged with statutory sexual offense and taking indecent liberties with a child. The defendant met the victim through an online service. Although the victim was 15 years old, he indicated in his online profile that he was 18. The two agreed to meet. When that meeting occurred, they engaged in [...]