The presumption of prejudice recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), applies regardless of whether the defendant has signed an appeal waiver. Defendant Garza signed two plea agreements arising from charges brought by the State of Idaho. Each agreement included a provision stating that Garza waived his right to appeal. The trial court accepted the agreements and sentenced Garza. Shortly thereafter Garza told his trial counsel that he wanted to appeal. Although Garza continuously reminded his attorney of this directive, counsel did not file a notice of appeal informing Garza that appeal was problematic because of the waiver. About four months after sentencing Garza sought post-conviction relief in state court, alleging that trial counsel provided ineffective assistance by failing to file notices of appeal despite his requests. The trial court denied relief, and this ruling was affirmed by the state appellate courts. The U.S. Supreme Court granted certiorari to resolve a split of authority on this issue.

            As a general rule, a defendant claiming ineffective assistance of counsel must prove that counsel’s representation fell below an objective standard of reasonableness and that prejudice occurred. In certain circumstances however prejudice is presumed, such as where the defendant is denied counsel at a critical stage or where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing. Additionally, in Flores-Ortega, 528 U.S. 470 (2000), the Court held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice is presumed. The question presented in this case was: whether that rule applies even when the defendant has, in the course of pleading guilty, signed an “appeal waiver”—that is, an agreement forgoing certain, but not all, possible appellate claims. The Court held that it does.

            The Court first determined that Garza’s lawyer provided deficient performance: “Where, as here, a defendant has expressly requested an appeal, counsel performs deficiently by disregarding the defendant’s instructions.” Turning to the crux of the case, the Court held that the Flores-Ortega presumption of prejudice applied despite the appeal waiver. The Court reasoned that because there is no dispute that Garza wished to appeal, a direct application of that case resolves this one. It held: When counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal, with no need for a further showing of the merit of his claim, regardless of whether an appeal waiver was signed.

By wrongly advising the defendant that a guilty plea to a drug charge would not result in deportation, counsel rendered ineffective assistance of counsel (IAC) in connection with the defendant’s plea. After he was charged with possessing ecstasy with intent to distribute, the defendant feared that a criminal conviction might affect his status as a lawful permanent resident. His attorney assured him that the Government would not deport him if he pleaded guilty. As a result the defendant, who had no real defense to the charge, accepted a plea that carried a lesser prison sentence than he would have faced at trial. The defendant’s attorney was wrong: The conviction meant that the defendant was subject to mandatory deportation. Before the Court, the Government conceded that the defendant received objectively unreasonable representation when counsel assured him that he would not be deported if he pleaded guilty. The question before the Court was whether the defendant could show prejudice as a result. The Court noted that when an IAC claim involves a claim of attorney error during the course of a legal proceeding—for example, that counsel failed to raise an objection at trial or to present an argument on appeal—a defendant raising such a claim can demonstrate prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. This case, however was different. The Court explained:

             But in this case counsel’s “deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” When a defendant alleges his counsel’s deficient performance led him to accept a guilty plea rather than go to trial, we do not ask whether, had he gone to trial, the result of that trial “would have been different” than the result of the plea bargain. That is because, while we ordinarily “apply a strong presumption of reliability to judicial proceedings,” “we cannot accord” any such presumption “to judicial proceedings that never took place.”

            We instead consider whether the defendant was prejudiced by the “denial of the entire judicial proceeding . . . to which he had a right.” As we held in Hill v. Lockhart, when a defendant claims that his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (citations omitted).

The Court rejected the dissent’s argument that the defendant must also show that he would have been better off going to trial. It conceded “[t]hat is true when the defendant’s decision about going to trial turns on his prospects of success and those are affected by the attorney’s error—for instance, where a defendant alleges that his lawyer should have but did not seek to suppress an improperly obtained confession.” The Court found that the error at issue was different. Here, the defendant “knew, correctly, that his prospects of acquittal at trial were grim, and his attorney’s error had nothing to do with that. The error was instead one that affected [the defendant’s] understanding of the consequences of pleading guilty.” And here, the defendant argues that he never would have accepted a guilty plea had he known that he would be deported as a result; the defendant insists he would have gambled on trial, risking more jail time for whatever small chance there might be of an acquittal that would let him remain in the United States. Considering this claim, the Court rejected the Government’s request for a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial. Instead it held: “In the unusual circumstances of this case, we conclude that [the defendant] has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.” 

In this Texas capital murder case, the defendant’s Sixth Amendment right to effective assistance of counsel was violated when his lawyer introduced evidence from a psychologist that the defendant was statistically more likely to act violently because he is black. A Texas jury convicted the defendant of capital murder. Under state law, the jury could impose a death sentence only if it found that the defendant was likely to commit acts of violence in the future. The defendant’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that the defendant probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that the defendant was statistically more likely to act violently because he is black. The jury sentenced the defendant to death. With respect to first prong of the Strickland attorney error standard, the Court held that counsel’s performance fell outside the bounds of competent representation. Counsel knew that the expert’s report reflected the view that the defendant’s race disproportionately predisposed him to violent conduct; he also knew that the principal point of dispute during the trial’s penalty phase was whether the defendant was likely to act violently in the future. Counsel nevertheless called the expert to the stand and specifically elicited testimony about the connection between the defendant’s race and the likelihood of future violence. Additionally counsel put into evidence the expert’s report stating that the defendant’s race, “Black,” suggested an “[i]ncreased probability” as to future dangerousness. This report “said, in effect, that the color of [the defendant’s] skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race.” The Court went on to hold that the second prong of the Strickland test—prejudice--also was satisfied, finding that it was reasonably probable that the proceeding would have ended differently had counsel rendered competent representation. It noted that the evidence at issue was “potent” and “appealed to a powerful racial stereotype—that of black men as ‘violence prone.’” The expert’s opinion “coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing.” The court concluded: “the effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race.” This effect was heightened because the witness took the stand as a medical expert, “bearing the court’s imprimatur.” The Court rejected the notion that any mention of race was de minimis, concluding “Some toxins can be deadly in small doses.” [This case also addresses a number of procedural issues that apply in federal court; because they are not relevant to state court proceedings they are not summarized here.]

Defense counsel in a capital case rendered deficient performance when he made an “inexcusable mistake of law” causing him to employ an expert “that he himself deemed inadequate.” Counsel believed that he could only obtain $1,000 for expert assistance when in fact he could have sought court approval for “any expenses reasonably incurred.” The Court clarified:

We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.

Slip Op. at 12 (citation omitted). The court remanded for a determination of whether counsel’s deficient performance was prejudicial.

The Court held that defense counsel rendered ineffective assistance by advising a defendant to reject a plea offer and it specified the appropriate remedy for the constitutional violation. The defendant was charged with assault with intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, misdemeanor possession of marijuana, and being a habitual offender. The prosecution twice offered to dismiss two of the charges and to recommend a sentence of 51-85 months for the other two, in exchange for a guilty plea. The defendant rejected both offers, allegedly after his attorney convinced him that the prosecution would be unable to establish intent to murder. On the first day of trial the prosecution offered a significantly less favorable plea deal, which the defendant rejected. The defendant was convicted on all counts and received a mandatory minimum sentence of 185-360 months’ imprisonment. He then challenged the conviction, arguing that his attorney’s advice to reject the plea constituted ineffective assistance.

On appeal the parties agreed that counsel rendered deficient performance when he advised the defendant to reject the plea offer. Thus, the only issue before the Court was how to apply Strickland’s prejudice prong. The court held that when ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the later trial

a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

            The Court then addressed the issue of the appropriate remedy, noting that the injury suffered by defendants who decline a plea offer as a result of ineffectiveness and then receive a greater sentence at a trial can come in at least one of two forms. Sometimes, the Court explained, the sole advantage a defendant would have received under the plea is a lesser sentence. In this situation, the trial court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he or she would have accepted the plea. “If the showing is made,” the Court elaborated, “the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.” In some situations, however, the Court noted “resentencing alone will not be full redress for the constitutional injury,” such as when an offer was for a guilty plea to a less serious crime than the one the defendant ends up getting convicted for at trial, or if a mandatory sentence limits a judge’s sentencing discretion. In these situations, the Court explained, “the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.” The Court noted that when implementing a remedy in both situations, the trial court must weigh various factors. Although it determined that the “boundaries of proper discretion need not be defined here” the Court noted two relevant considerations:

First, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions.  Second, it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made.  The time continuum makes it difficult to restore the defendant and the prosecution to the precise positions they occupied prior to the rejection of the plea offer, but that baseline can be consulted in finding a remedy that does not require the prosecution to incur the expense of conducting a new trial.

Applying the relevant test to the case at hand, the Court found that the defendant met Strickland’s two-part test for ineffective assistance. The fact of deficient performance had been conceded and the defendant showed that but for counsel’s deficient performance there is a reasonable probability that both he and the trial court would have accepted the guilty plea. Additionally, as a result of not accepting the plea and being convicted at trial, respondent received a minimum sentence 3½ times greater than he would have received under the plea. The Court found that the correct remedy is to order the State to reoffer the plea agreement. It continued: “Presuming [the defendant] accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed.”

The Court reversed the Ninth Circuit, which had held that the state court unreasonably applied existing law when rejecting the defendant’s claim that his counsel was deficient by failing to present expert testimony on serology, pathology, and blood spatter patterns; the defendant had asserted that this testimony would have confirmed his version of how the events in question occurred. The Court concluded that it was at least arguable that a reasonable attorney could decide to forgo inquiry into the blood evidence under the circumstances, which included, among other things, the fact that counsel had reason to question the truth of the defendant’s version of the events. The Court also rejected the Ninth Circuit’s conclusion that counsel was deficient because he had not expected the prosecution to offer expert testimony and therefore was unable to offer expert testimony of his own in response. The Court concluded that although counsel was mistaken in thinking the prosecution would not present forensic testimony, the prosecution itself did not expect to make that presentation and had made no preparations for doing so on the eve of trial. For this reason alone, the Court concluded, it is at least debatable whether counsel’s error was so fundamental as to call the fairness of the trial into doubt. Finally, the Court concluded that it would not have been unreasonable for the state court to conclude that the defendant failed to establish prejudice. Justice Kagan did not participate in the consideration or decision of the case.

After the defendant was sentenced to death in state court, a state post-conviction court found that the defendant’s lawyer conducted a constitutionally inadequate penalty phase investigation that failed to uncover evidence of the defendant’s significant mental and psychological impairments. However, the state court found itself unable to assess whether counsel’s conduct prejudiced the defendant; because counsel presented some mitigating evidence, the state court concluded that it could not speculate as to the effect of the new evidence. It thus denied the defendant’s claim of ineffective assistance. The United State Supreme Court held that although the state court articulated the correct prejudice standard (whether there was a reasonable likelihood that the outcome of the trial would have been different if counsel had done more investigation), it failed to properly apply that standard. First, the state court put undue reliance on the assumed reasonableness of counsel’s mitigation theory, given that counsel conducted a constitutionally unreasonable mitigation investigation and that the defendant still might have been prejudiced by counsel’s failures even if his theory was reasonable. More fundamentally, the Court continued, in assessing prejudice, the state court failed to consider the totality of mitigation evidence (both that adduced at trial and the newly uncovered evidence). The prejudice inquiry, the Court explained, requires the state court to speculate as to the effect of the new evidence. A proper prejudice inquiry, it explained, requires the court to consider the newly discovered evidence along with that introduced at trial and assess whether there is a significant probability that the defendant would have received a different sentence after a constitutionally sufficient mitigation investigation.

The state court’s conclusion that the defendant’s counsel made a strategic decision not to pursue or present evidence of his mental deficiencies was not an unreasonable determination of the facts. The Court did not reach the question of whether the strategic decision itself was a reasonable exercise of professional judgment under Strickland.

A capital defendant’s trial counsel’s conduct fell below an objective standard of reasonableness when counsel failed to investigate and present mitigating evidence, including evidence of the defendant’s mental health, family background, and military service. The state court’s holding that the defendant was not prejudiced by counsel’s deficient representation was unreasonable. To establish prejudice, the defendant need not show that counsel’s deficient conduct more likely than not altered the outcome; the defendant need only establish a probability sufficient to undermine the confidence in the outcome, as he did in this case.

Although restatements of professional conduct, such as ABA Guidelines, can be useful guides to whether an attorney’s conduct was reasonable, they are relevant only when they describe the professional norms prevailing at the time that the representation occurred. In this case, the lower court erred by applying 2003 ABA standards to a trial that occurred eighteen years earlier. Moreover, the lower court erred by treating the ABA Guidelines “as inexorable commands with which all capital defense counsel must comply.” Such standards are merely guides to what is reasonable; they do not define reasonableness. The Court went on to reject the defendant’s arguments that counsel was ineffective under prevailing norms; the defendant had argued that his lawyers began their mitigation investigation too late and that the scope of their mitigation investigation was unreasonable. The Court held that even if the defendant’s counsel had performed deficiently, the defendant suffered no prejudice.

In this Stokes County case, the defendant was an undocumented Mexican citizen living in North Carolina. In 2010, he was charged with felony drug offenses and pled guilty. Defense counsel advised the defendant that there “may” be immigration consequences as a result. In 2017, he was arrested by immigration authorities and filed a motion for appropriate relief (“MAR”), alleging ineffective assistance of plea counsel under Padilla v. Kentucky, 559 U.S. 356 (2010) (holding that when immigration consequences stemming from a criminal conviction are clear, defense counsel must correctly advise the defendant of those consequences as a matter of effective assistance of counsel). The defendant argued that his drug conviction clearly made him ineligible for cancellation of removal proceedings, subject to mandatory detention, and permanently inadmissible to the United States under federal law. He asserted that he would have not pled guilty but for the erroneous advice of counsel.

The trial court initially denied the MAR without hearing. The Court of Appeals granted certiorari and unanimously reversed, directing the trial court to conduct a hearing and determine whether the defendant’s plea was knowing and voluntary and whether the defendant received ineffective assistance of counsel. On remand, the trial court again denied the MAR following an evidentiary hearing. It determined that while trial counsel’s advice was objectively unreasonable, the defendant (as a person eligible for deportation with or without a criminal conviction) could not demonstrate prejudice. The trial court did not address whether the plea was knowing and voluntary. The defendant again sought appellate review, and the Court of Appeals again reversed.

Regarding deportability based on the drug conviction, the relevant federal statute (8 U.S.C. § 1227(a)(2)(B)(i)) did not apply to the defendant. That statute covers people lawfully admitted into the county who are convicted of a drug crime, and the defendant was never lawfully admitted. As such, there could be no deficient performance by trial counsel in failing to advise on the impact of this statute, and the trial court correctly determined that the defendant could not show prejudice.

The defendant also pointed to the federal statute imposing mandatory detention for aliens convicted of a drug offense (U.S.C. § 1226(c)(1)(A)) as basis for the ineffective assistance claim. That argument was not raised on appeal and was deemed abandoned.

 However, the federal statute rendering one convicted of a drug offense ineligible for cancellation of removal (U.S.C. § 1229b(b)(1)) may have applied to the defendant. The matter was remanded to the trial court for it to consider the potential availability of cancellation of removal for the defendant. If the defendant can demonstrate that he would have qualified for cancellation of removal absent the conviction, then the application of that statute was “truly clear,” and trial counsel would have had a duty to correctly advise on its operation. If the trial court finds that such deficient performance occurred, it would then need to determine prejudice by analyzing whether the defendant would have refused to plead guilty and gone to trial but for the erroneous advice.

The drug conviction also clearly made the defendant permanently inadmissible to the county under 8 U.S.C. § 1182(a)(2)(A)(i)(II), and trial counsel’s failure to advise on this point was deficient. On remand, the trial court was instructed to consider prejudice by examining the impact of this erroneous advice on the defendant’s decision to plead guilty.

(2) The earlier remand by the Court of Appeals had directed the trial court to consider both whether the defendant’s plea was knowing and voluntary, and whether the defendant received ineffective assistance of counsel. The trial court failed to consider the voluntariness of the plea and was again directed to make findings and resolve that claim on remand.

In this Moore County case, the defendant was convicted of first-degree rape and sex offense, crime against nature, possession of firearm by felon, communicating threats and various assaults stemming from attacks on his estranged then-wife. On appeal, the defendant argued that the trial court plainly erred by permitting multiple witnesses for the State to refer to the woman as the “victim,” that his trial counsel was ineffective for failing to object to those references, and that the trial court plainly erred by using “victim” to describe the woman in its jury instructions.

(1) A total of eight witnesses for the State used the term “victim” in reference to the woman, five of whom were law enforcement officers and four of whom were expert witnesses. The defendant contended this amounted to improper vouching for the accuser’s credibility and argued the trial court should have intervened ex mero motu. The court found that the defendant could not show prejudice and therefore could not establish plain error. “…[T]he strength of the State’s evidence against defendant . . . outweighed any potential subliminal effect of the witnesses’ occasional references to [the woman] as the victim.” Slip. op. at 13.

(2) For the same reasons, the defendant’s ineffective assistance of counsel claim failed. The defendant could not demonstrate a reasonable possibility of a different result at trial had his counsel objected to the uses of the word “victim” and therefore could not establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984). 

(3) According to the defendant, the trial court’s use of the word “victim” in its jury instruction violated the statutory mandate against expression of judicial opinion. Rejecting this argument, the court observed:

Our Supreme Court has consistently rejected a defendant’s attempt to couch the trial court’s use of the term “victim” in its jury instructions as an improper expression of judicial opinion in violation of N.C.G.S. §§ 15A-1222 and 1232. . . Likewise, our Supreme Court has rejected arguments that the trial court’s use of the term “victim” in its charge to the jury amounts to plain error . . . Id. at 17.

Any constitutional challenge to the jury instructions on this point was not raised in the trial court and therefore waived on appeal. The convictions were thus unanimously affirmed.

The defendant was convicted by a jury of two counts of statutory sexual offense with a child by an adult and one count of first-degree kidnapping based on his repeated sexual assaults of his seven-year-old niece. The trial court sentenced the defendant to prison and ordered him to enroll in satellite-based monitoring (SBM) for life. (1) Based on the defendant’s failure to file a written notice of appeal as required by Rule 3 of the Rules of Appellate Procedure, the court of appeals concluded that it lacked jurisdiction to hear his SBM appeal. The defendant also failed to argue in the trial court that SBM was an unconstitutional search under the Fourth Amendment. The court of appeals declined grant his petition for writ of certiorari and, in the absence of evidence of a manifest injustice, to invoke Appellate Rule 2 to address his unpreserved constitutional argument. (2) A pediatrician that the State tendered as an expert testified without objection that children don’t tend to make up stories about sexual abuse, and that the victim “gave excellent detail” and that her story was “very consistent.” The court of appeals found no error, noting that while it would be improper for an expert witness to opine based on an interview with a victim as to whether the child had been sexually abused, statements regarding the child’s consistency in recounting the alleged abuse are nevertheless admissible. (3) The court rejected the defendant’s argument that witnesses’ repeated use of the words “disclose” and “disclosure” to describe what the victim told them in private amounted to impermissible vouching. Citing State v. Betts, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019), and declining to follow unpublished State v. Jamison, ___ N.C. App. ___, 821 S.E.2d 665 (2018) (unpublished), the court agreed that nothing about the term “disclose” conveys believability or credibility. (4) Some statements admitted by a marriage and family therapist who treated the victim were improper vouching. Her general statement about “this incident that happened” was not improper, but her statement that the victim would need therapy “because of the sexual abuse that she experienced” and “I believe [the victim]” were improper as an opinion of the victim’s veracity. However, in the absence of an objection at trial and in light of the substantial evidence against the defendant (medical evidence and testimony from corroborating witnesses), the court concluded that the admission of the improper evidence did not rise to the level of plain error warranting a new trial. (5) Finally, defense counsel’s failure to object to the improper vouching evidence was not ineffective assistance of counsel where there was no reasonable probability that the errors prejudiced the defendant.

The court per curiam affirmed an unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 813 S.E.2d 478 (2018) holding that the trial court erred by denying the defendant’s motion for appropriate relief (MAR) alleging ineffective assistance of appellate counsel with respect to admission of 404(b) evidence of the defendant’s prior sexual acts. The Court of Appeals concluded that the defendant made a sufficient showing of both deficient performance by appellate counsel and actual prejudice. The defendant was charged with statutory sexual offense, sex offense by a substitute parent, indecent liberties with a minor, and sexual battery. The defendant filed two motions in limine to preclude testimony of Melissa and Tony (the defendant’s adult niece and nephew) regarding sexual encounters with the defendant that allegedly occurred while the defendant was a teenager. The trial court denied the defendant’s motions and allowed the witnesses to testify under Rule 404(b). Without any contemporaneous objection by defense counsel, the witnesses testified at trial. The defendant was found guilty and was sentenced to prison. Appellate counsel argued that the trial court erred by admitting testimony by Melissa and Tony. However counsel’s brief ignored the fact that trial counsel failed to object to the testimony when it was offered and did not seek plain error review. After reviewing the brief, a member of the Office of Appellate Defender contacted appellate counsel by email and suggested that he either file a substitute brief requesting plain error review or submit a reply brief explaining how the issue had, in fact, been preserved. Appellate counsel responded stating, in part, that it was not necessary to allege plain error. Subsequently the Court of Appeals held that the defendant failed to preserve the issue for review because trial counsel failed to object to the 404(b) evidence at trial. It further stated that it would not review an appeal for plain error where that issue had not been alleged. The defendant subsequently filed a MAR arguing that appellate counsel’s failure to assert plain error deprived him of his right to effective assistance of appellate counsel. At a hearing on the MAR, appellate counsel acknowledged that his representation was deficient. The trial court however denied the MAR, finding that appellate counsel’s performance did not prejudice the defendant because even if appellate counsel had argued plain error, there was no reasonable probability that the Court of Appeals would have found plain error and reversed the conviction. The defendant filed a petition for writ of certiorari seeking review of the MAR order. The Court of Appeals reversed. It began by considering whether the 404(b) evidence was properly admitted at trial as proof of common plan or scheme. It concluded that assuming arguendo that the acts described were sufficiently similar to the instances alleged by the child victim, the temporal proximity requirement of the 404(b) analysis was not met. Each of the acts in question occurred over 20 years before the first incident described by the child victim in this case. Additionally, there was no evidence of recurring sexual acts, nor did the State establish that the defendant’s lack of access to children explained the lack of allegations of sexual contact between the defendant and minors during the intervening decades. The court went on to reject the State’s alternative argument that the trial court properly admitted the evidence to establish the defendant’s motive. In this respect, the court concluded: “Testimony suggesting that a defendant committed a sexual act with a minor in the past is simply not enough by itself to warrant the admission of such evidence under the ‘motive’ prong of Rule 404(b).”

            Having found that the trial court erred by admitting the 404(b) evidence, the court found that the defendant met his burden of showing a reasonable probability that, had the issue been properly raised on appeal, the Court of Appeals would have found plain error and reversed the conviction. Specifically, the court evaluated the evidence in conjunction with the jury’s assessment of the victim’s credibility and the weaknesses in the State’s case, as discussed in the court’s opinion.

            Finally, the court determined that appellate counsel performed below an objective standard of reasonableness, satisfying the first prong of the Strickland ineffective assistance of counsel analysis. The court noted, in part, that appellate counsel ignored the fact that trial counsel had failed to object to the evidence at trial, meaning that the issue was not properly preserved for appeal. Although a request for the court of appeals to conduct plain error review was the only recourse available under the circumstances, appellate counsel failed to invoke the plain error doctrine in his appellate brief. This issue was immediately flagged by a member of the Office of Appellate Defender.

The court reversed the trial court’s order granting the defendant’s motion for reconsideration and motion for appropriate relief (MAR), holding that the requirement that counsel advise the defendant of the immigration consequences of a plea agreement established by Padilla does not apply retroactively. The defendant pled no contest to a drug charge in 1997. In 2015 the defendant asserted a MAR claim under Padilla v. Kentucky, 559 U.S. 356 (2010), that he was not informed of the impact his conviction would have on his immigration status, particularly the risk of deportation. The trial court initially denied the MAR but subsequently granted a motion to reconsider and entered an order granting the MAR. Reversing, the court noted that it had previously decided, in State v. Alshaif, 219 N.C. App. 162 (2012), that Padilla does not apply retroactively.

(1) Addressing the merits of the defendant’s Strickland ineffective assistance of counsel claim in this direct appeal in a capital case, the court rejected the defendant’s argument that he received ineffective assistance of counsel when his lawyers disclosed to law enforcement where to look for the five-year-old child victim. Because the trial court heard evidence and made findings on this issue in a pretrial motion, the court determined that no further investigation was required and it could address the merits of the claim on direct appeal. After the defendant was charged with kidnapping, he engaged the services of attorney Rogers, who immediately associated with attorney Brewer to assist in the matter. When Rogers and Brewer undertook representation of the defendant on 13 November, the victim had been missing since the morning of 10 November and a massive search was underway, in hope that the child would be found alive. The defendant admitted to police that he had taken the victim to a hotel. Hotel cameras and witnesses confirmed this admission. By 12 November, law enforcement agencies and volunteers were searching the area around Highway 87, where the defendant’s cell phone data had placed him. Rogers had conversations with law enforcement and was aware of the evidence against the defendant and of the defendant’s admission to taking the victim to the hotel. Rogers was also aware of the defendant’s three felony convictions, which constituted aggravating circumstances that could be used at a capital sentencing proceeding. Rogers and Brewer met with the defendant and discussed the fact that the child had not been found and the possibility that capital charges could be forthcoming. The defendant denied hurting or killing the victim. Rogers asked the defendant if he had any information about the victim’s location, and the defendant told Rogers and Brewer that he did. Rogers and Brewer discussed the death penalty with the defendant, and the defendant agreed that it would be in his best interest to offer information that might be helpful as to the victim’s location. Rogers explained that providing this information could be helpful with respect to a possible plea agreement or with respect to mitigating circumstances and could avoid a sentence of death. The defendant agreed with Rogers and Brewer that they would tell law enforcement where to search for the victim, without specifically stating the defendant’s name or that he was the source of the information. According to Rogers, he was trying to give the defendant the best advice to save the defendant’s life, and the defendant understood the situation and agreed with the strategy. On 14 and 15 November Brewer told law enforcement where to look for the victim. On 16 November, the victim’s body was found in the specified area.

On appeal, the defendant argued that his lawyers’ conduct was deficient because they gave the State incriminating evidence against him without seeking any benefit or protection for the defendant in return. He asserted that his attorneys’ conduct was objectively unreasonable because they had a duty to seek or secure a benefit for him in exchange for the disclosure. The court disagreed. The court determined that to the extent counsel has a duty to seek a benefit in exchange for disclosing information, here the lawyers did so. The purpose of the disclosure was to show that the defendant could demonstrate cooperation and remorse, which would benefit the defendant in the form of achieving a plea agreement for a life sentence or as to mitigating circumstances and ultimately to avoid the death penalty. In fact, the State made a plea offer of life in prison, which the defendant rejected, and he later refused to present mitigating evidence at trial. Despite his agreement at the time of the disclosure, the defendant argued on appeal that a plea agreement for life in prison to avoid the death penalty was not a reasonable objective that could justify the disclosure of incriminating evidence at that stage because his attorneys were aware that he denied causing the victim harm and because, according to the defendant, “everything turned” on his innocence defense. The court found this contention difficult to square with the record, in light of the fact that defense counsel also were aware that the defendant had in essence confessed to kidnapping the child in the middle of the night and taking her to a remote hotel where he was the last and only person seen with her. Moreover, they knew he had information on her remote location, though he was unwilling to disclose how he acquired that information. They knew that this information directed law enforcement to search a more specific area in the vicinity in which an extensive search tracking the defendant’s cell phone data was already underway, suggesting an incriminating discovery would be imminent. Thus, while the disclosure certainly would be incriminating to the defendant and could lead to additional incriminating evidence against him, the disclosure must be viewed in light of the already heavily incriminating evidence against the defendant, and the likelihood that further incriminating evidence would be forthcoming.

The defendant further argued that his lawyers should have pushed harder for better concessions for him. Recognizing that in many situations it may make strategic sense for counsel to negotiate the best possible agreement before disclosing potentially incriminating information, the court noted that that is not necessarily true in situations such as this one, where time was a substantial factor. Had law enforcement located the victim’s body before the defendant’s disclosure, the opportunity to obtain any benefit in return for the information would have been irrevocably lost. Additionally, given that the defendant denied causing the victim harm, there was a possibility that the victim was still alive. In the end, the court disagreed with the defendant that his attorneys acted unreasonably by targeting a plea agreement for life imprisonment and avoiding the death penalty in exchange for making the disclosure. “[U]nder the unique and difficult circumstances here--with the already heavily incriminating evidence against defendant, as well as the apparent likelihood that the discovery of further incriminating evidence could be imminent” and the presumption of reasonableness of counsels’ conduct, the court held that the lawyers’ decision to disclose potentially incriminating information with the sought-after goal of avoiding imposition of the death penalty did not fall below an objective standard of reasonableness.

The court determined that it need not resolve the more difficult question of whether defense counsel erred by not first securing or attempting to secure a plea agreement for life in prison before making the disclosure. It explained: “we need not answer this question because, given that we have held that a plea agreement for life in prison and avoidance of the death penalty was a reasonable disposition in these circumstances, defendant cannot establish any prejudice when the State did offer defendant a plea agreement for life in prison.”

(2) The court rejected the defendant’s argument that his attorneys were deficient by failing to conduct an adequate investigation before disclosing to the police where to search for the victim, finding that the defendant’s assertions were not supported by the record. For example, the defendant argued that lawyer Rogers failed to look at any formal discovery materials before making the disclosure, yet Rogers testified that at that early stage of the case there was no discovery file to examine. Considering the defendant’s other assertions, the court found that the defendant was unable to identify anything Roger’s allegedly inadequate investigation failed to uncover and which would have had any effect on the reasonableness of his lawyers’ strategic decision to make the disclosure. Nor, the court noted, does the defendant suggest what other avenues the lawyers should have pursued.

(3) The court rejected the defendant’s assertion that his lawyers erroneously advised him that they would shield his identity as the source of the information but that their method of disclosure revealed him as the source. The defendant’s argument was premised on the fact that his agreement with his lawyers was conditioned on their implicit promise that they would prevent the disclosure from being attributed to the defendant, even by inference. The court found that this assertion was not supported by the record, noting that the entire purpose of the disclosure, to which the defendant agreed, was that it be attributable to the defendant to show cooperation. The court found that the fact that the defendant and his lawyers agreed not to explicitly name the defendant as the source of the disclosure cannot be read as an implicit understanding that his lawyers would shield him as the source but rather must be read in the context of their conversation, in which the defendant told his lawyers that he had information about the victim’s location but did not explain how he had acquired that information. The method of disclosure allowed an immediate inference of cooperation but avoided any inadvertent admission of guilt. The court explained:

Certainly, that the information came from defendant’s attorneys allowed an inference that defendant was the source, which, while demonstrating immediate cooperation on the part of defendant, was also potentially incriminating as it suggested an inference of guilt. But this trade-off goes to the heart of the agreed upon strategy—the mounting evidence against defendant was already highly incriminating, and providing this information to the police that could potentially be further incriminating was a strategic decision made to avoid imposition of the death penalty.

(4) The court rejected the defendant’s argument that by disclosing the location of the victim to the police without first securing any benefit in return, his lawyers were essentially working for the police and that the situation resulted in a complete breakdown of the adversarial process resulting in a denial of counsel. The court declined to consider this issue as a denial of counsel claim, finding that the defendant’s challenge is more properly brought as a Strickland attorney error claim, which the court had already rejected.

In this Robeson County case, defendant appealed his conviction for driving while impaired (DWI), arguing error in denying his motion to dismiss and ineffective assistance of counsel. The Court of Appeals dismissed defendant’s argument regarding the motion to dismiss, and found no ineffective assistance of counsel.  

In April of 2019, a trooper from the State Highway Patrol arrested defendant after responding to a collision. The trooper observed signs of intoxication and administered field sobriety tests, determining defendant showed signs of intoxication. During the trial at superior court, defendant moved to dismiss the DWI charge for insufficient evidence prior to putting on evidence, but did not renew his motion to dismiss at the close of all evidence. 

The Court of Appeals first established that under Rule of Appellate Procedure 10(a)(3), defendant’s failure to renew his motion after putting on evidence waived his argument regarding denial of the motion to dismiss. The court dismissed that portion of defendant’s appeal, and moved to the ineffective assistance of counsel claim, which was predicated on defense counsel failing to renew the motion to dismiss. 

To show ineffective assistance of counsel, defendant had to satisfy the two-part test from Strickland v. Washington, 466 U.S. 668 (1984), showing deficient performance and that the deficient performance prejudiced defendant. Here, the court explained that “to prevail on an ineffective assistance of counsel claim in which the defendant argues that his counsel failed to renew his motion to dismiss, the defendant must show that there is a reasonable probability that the trial court would have allowed the renewed motion.” Slip Op. at 7. The court did not find that in the current case, as “when viewing the evidence in the light most favorable to the State, there was substantial evidence that Defendant was driving while impaired.” Id. at 9. 

The defendant was indicted for stalking, violating a domestic violence protective order, and making a false report to law enforcement. The state gave notice of two statutory aggravating factors under G.S. 15A-1340.16(d)(5) (disrupting enforcement of laws) and 1340.16(d)(15) (taking advantage of position of trust), and notice that the state would seek to prove the existence of an additional prior record level point under G.S. 15A-1340.14(b)(7) (defendant was on probation at the time of the offense) for sentencing purposes. The state filed superseding indictments alleging additional offenses, and the defendant was ultimately convicted at trial of one count of perjury and one count of violating a DVPO. At sentencing, the state asked to proceed only on an “aggravating factor” for the defendant being on probation at the time of the offense, and defense counsel admitted that the defendant was on probation. The trial judge found it as an aggravating factor under the catch-all provision in G.S. 15A-1340.16(d)(20) for “any other aggravating factor reasonably related to the purposes of sentencing” and entered an aggravated judgment.

On appeal, the defendant argued he received ineffective assistance of counsel based on his attorney’s failure to object to the aggravating factor, and the appellate court agreed. To pursue one of the enumerated aggravating factors listed in G.S. 15A-1340.16(d), the state must give notice of its intent, but the factor does not have to be pleaded in the indictment. However, aggravating factors under the catch-all provision in section (d)(20) must be “included in an indictment or other charging instrument.” G.S. 15A-1340.16(a4). Defense counsel erred by failing to object to the factor used at sentencing since it was not alleged in any of the indictments, and the defendant suffered prejudice because he otherwise could not have received an aggravated sentence. Even if the state had offered the factor as originally indicated in its notice to add 1 point to defendant’s prior record under G.S. 15A-1340.14(b)(7), it would not have changed his record level and therefore did not expose him to a higher sentence. The appellate court vacated the judgment and remanded for resentencing.

Judge Tyson concurred with the majority opinion, but wrote separately because he also would have found that the trial court erred by accepting a stipulation from defense counsel, instead of addressing the defendant personally to ensure that it was a knowing and voluntary waiver of his right to have the factor proved beyond a reasonable doubt.

Defendant was convicted in December 2016 of trafficking in opium or heroin and related offenses He appealed, arguing that the trial court erred by failing to instruct the jury that possession pursuant to a valid prescription was a defense to trafficking by possession. The Court of Appeals in State v. Lane, 257 N.C. App. 262 (2017) (unpublished), held the trial court did not commit plain error because defendant could not show that he was prejudiced by the lack of such an instruction. The defendant subsequently filed a motion for relief alleging ineffective assistance of counsel claim based on his trial counsel’s failure to request a jury instruction on the definition of “unlawful” in the context of trafficking by possession or an instruction that possession pursuant to a valid prescription was a defense to trafficking in possession.

The trial court denied relief, concluding that because the defendant was not prejudiced under the plain error standard, his ineffective assistance of counsel claim must also fail. The defendant sought certiorari review, which the Court of Appeals granted.

(1) The Court of Appeals held that the plain error standard and ineffective assistance of counsel test are not so similar that a finding of no plain error precludes a finding of ineffective assistance of counsel. Noting that neither the Court of Appeals nor the North Carolina Supreme Court has thoroughly examined and compared the two standards, the Court of Appeals took the opportunity to do so in Lane II.

Prejudice under plain error requires that the trial court’s error have had a probable impact on the jury’s finding of guilt. The plain error rule requires a defendant to show that the error in question tilted the scales and caused the jury to convict the defendant.

In contrast, prejudice under the ineffective assistance of counsel test requires a showing of reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Under the reasonable probability standard, a defendant does not have to show that counsel’s deficient conduct more likely than not altered the outcome in the case. The defendant does need to demonstrate, however, that at least one juror would have struck a different balance. While under the reasonable probability standard the likelihood of a different result must be substantial, not just conceivable, it is something less than that required under plain error.

There are other significant differences between the standards. Plain error is applied to trial court errors. Ineffective assistance of counsel applies to counsel errors and takes into account the objective reasonableness of counsel’s performance. Plain error relief requires there be settled precedent at the time of appellate review; the ineffective assistance standard considers available authority at the time of the allegedly deficient representation and may require that counsel raise material issues even absent decisive precedent.

Thus, the court concluded that when deficient performance by counsel creates a fundamentally unfair trial whose results are unreliable, an ineffective assistance of counsel claim will be successful despite the absence of plain error.

(2) Under the facts of the case, the Court of Appeals determined that trial counsel’s failure to request that the jury be instructed on the definition of “unlawful” and on the defense of possession pursuant to a valid prescription did not undermine confidence in the result and did not create a reasonable probability that the result of the proceeding would have been different.

The defendant, a lawful permanent resident, was charged with various drug offenses and pled guilty under Alford to the charges of possession of heroin and maintaining a vehicle or dwelling, for which the trial judge imposed a two-year suspended sentence. About one year into his sentence, the defendant was seized by Immigration and Customs Enforcement (ICE) and placed into detention and removal proceedings. He filed a motion for appropriate relief (MAR), arguing that had he known the plea would affect his immigration status and result in deportation, he would not have taken it. The trial judge denied the MAR. The Court of Appeals granted certiorari and ordered the trial judge to review whether the defendant’s Alford plea was induced by misadvice of counsel and whether the misadvice resulted in prejudice. The trial judge again denied the MAR. He found that the defendant had been advised that he might be deported if he pled guilty and that he should speak to an immigration attorney. The Court of Appeals granted certiorari a second time. Relying on Padilla v. Kentucky, 559 U.S. 356 (2010), and State v. Nkiam, 243 N.C. App. 777 (2015), the Court recognized that it is not sufficient for an attorney to advise a client that there is a risk of deportation where, as here, deportation is presumptively mandatory. The Court stated: “Waffling language suggesting a mere possibility of deportation does not adequately inform the client of the risk before him or her, and does not permit a defendant to make a reasoned and informed decision.” The Court remanded the case to the trial judge to determine prejudice—that is, whether there is a reasonable probability that but for counsel’s ineffective assistance, the result of the proceeding would have been different. The Court specifically directed the trial court to consider the impact of other charges against the defendant. The Court recognized that a defendant cannot show a different outcome, as required by the prejudice standard, if deportation would still result from other charges. The Court found the record insufficient on this issue. The defendant had a prior drug paraphernalia conviction, but that offense does not render him presumptively deportable, and other pending charges, but the record did not contain findings as to whether any other convictions made the defendant deportable.

In this assault case tried as a bench trial, the court rejected the defendant’s argument that he received ineffective assistance of counsel (IAC) when his lawyer failed to assert and argue self-defense. The defendant filed a MAR with his direct appeal, asserting the IAC claim. Finding that it could resolve the issue on direct appeal, the court considered the IAC claim on the merits. The defendant argued that counsel did not give pretrial notice of his intention to present a defense of self-defense and that he failed to mention self-defense in his opening statement, failed to ask the court at the close of the evidence to consider self-defense, and failed to argue self-defense in closing argument. However evidence of self-defense was admitted at trial and the defendant did not argue or allege that he had additional evidence of self-defense that he could have presented at trial or that he was prevented from presenting any evidence supporting his defense. In light of the evidence presented, the issue of self-defense was obvious. Although opening and closing arguments by both the State and the defendant were very brief, this is not unusual in a bench trial. Additionally, counsel did refer to self-defense in his closing argument. The court reasoned:

Defendant argues that his counsel’s failure to give notice of his defense of self-defense prior to trial somehow eliminated the trial court’s ability or authority to consider this defense, but he cites no authority for this assertion. Bench trials differ from jury trials since there are no jury instructions and no verdict sheet to show exactly what the trial court considered, but we also presume that the trial court knows and follows the applicable law unless an appellant shows otherwise

The court continued, noting that if the case had involved a jury trial and counsel had failed to request a jury instruction on self-defense, that could likely be IAC, “since we could not presume the jury knows the law of self-defense.” Similarly, if the case involved a jury trial and the State objected to evidence of self-defense and the trial court had sustained this objection because counsel failed to give proper notice of the defense, that might be IAC. But here, from the evidence and arguments at this bench trial, the defendant’s claim of self-defense was “obvious, and [the] defendant has not shown any indication the trial judge failed to consider that defense.” The court concluded: “Defendant has offered no evidence that the trial court did not consider self-defense during its evaluation, so he has not shown a ‘reasonable probability’ that the ‘result of the proceeding would have been different’ if his counsel had given notice prior to trial of his intent to present a defense of self-defense.”

On an appeal from an adverse ruling on the defendant’s motion for appropriate relief (MAR) in this murder case, the court held that because the defendant’s attorney made an objectively reasonable determination that the defendant’s uncle would qualify as his “guardian” under G.S. 7B-2101(b) and therefore did not seek suppression of the defendant’s statements on grounds of a violation of that statute, counsel did not provide ineffective assistance. When he was 13 year old, the defendant a signed statement, during an interrogation, that he “shot the lady as she was sleeping on the couch in the head.” The defendant’s uncle, with whom the defendant had been living, was present during the interrogation. Two weeks later, the trial court sua sponte entered an order appointing the director of the County Department of Social Services as guardian of the person for the defendant pursuant to G.S. 7B-2001. The district court found that “the juvenile appeared in court with no parent, guardian or custodian but he lived with an uncle who did not have legal custody of him” and “[t]hat the mother of the juvenile resides in El Salvador and the father of the juvenile is nowhere to be found and based on information and belief lives in El Salvador.” The defendant was prosecuted as an adult for murder. The defendant unsuccessfully moved to suppress his statement and was convicted. He filed a MAR arguing that his lawyer rendered ineffective assistance by failing to challenge the admission of his confession on grounds that his uncle was not his “parent, guardian, custodian, or attorney[,]” and therefore that his rights under G.S. 7B-2101(b) were violated as no appropriate adult was present during his custodial interrogation. The trial court denied the MAR and it came before the court of appeals. Noting that the statute does not define the term “guardian,” the court viewed state Supreme Court law as establishing that guardianship requires a relationship “established by legal process.” The requirement of “legal process” means that the individual’s authority is “established in a court proceeding.” But, the court concluded, it need not precisely determine what the high court meant by “legal process,” because at a minimum the statute “requires authority gained through some legal proceeding.” Here, the defendant’s uncle did not obtain legal authority over the defendant pursuant to any legal proceeding. Thus, there was a violation of the statute when the defendant was interrogated with only his uncle present. However, to establish ineffective assistance, the defendant must establish that his counsel’s conduct fell below an objective standard of reasonableness. Here, the trial court found--based on the lawyer’s actions and in the absence of any expert or opinion testimony that his performance fell below an objective standard of reasonableness--that defense counsel appropriately researched the issue and acted accordingly. Although the defendant’s counsel made a legal error, it was not an objectively unreasonable one. In the course of its holding, the court noted that expert evidence “is not necessarily required for every claim of [ineffective assistance of counsel],” though “some evidence from practicing attorneys as to the standards of practice is often helpful, particularly in cases such as this where the issue is the interpretation of case law rather than a more blatant error such as a failure to prepare for a hearing at all.” Because the court held the counsel’s conduct did not fall below an objective standard of reasonableness, it did not address the prejudice prong of the ineffective assistance of counsel claim.

(1) In this drug case, the court rejected the defendant’s argument that she received ineffective assistance of counsel when defense counsel elicited damaging testimony from a law enforcement officer that a witness was “honest.” Declining to address whether counsel’s conduct constituted deficient performance, the court concluded that the ineffective assistance of counsel claim failed on the prejudice prong: there was no reasonable probability that in the absence of trial counsel’s alleged errors the results of the proceeding would have been different. 

(2) The defendant did not receive ineffective assistance of counsel when counsel failed to object to a law enforcement officer’s testimony that he felt that the defendant should be charged because she was as guilty as her husband. The court noted that because law enforcement officers may not express an opinion that they believe a defendant to be guilty, admission of the statement was error. However, the defendant failed to show prejudice and thus her ineffective assistance of counsel claim failed.

The court rejected the defendant’s argument that trial counsel was deficient by failing to give notice to the State of the defendant’s intention to offer an alibi witness. The defendant had argued that trial counsel’s failure was a violation of the discovery rules and resulted in the trial court declining to give an alibi jury instruction. The court found however that the trial court’s decision declining to give an alibi instruction was not due to ineffective assistance but rather to the trial court’s error. A defendant only is required to give notice of an alibi witness after being ordered to do so by the trial court. Here, no such order was entered. Therefore, counsel was not deficient in failing to disclose the defendant’s intent to offer an alibi witness. The court went on to conclude that even if it were to find that counsel’s performance was deficient, the defendant failed to show prejudice. Although the trial court declined to give an instruction on alibi, the alibi evidence--the defendant’s own testimony that he was elsewhere with his girlfriend at the time of the offense--was heard and considered by the jury. 

(1) Counsel did not render ineffective assistance by failing to object to a witness’s expert testimony. The expert testified that the fire was intentionally set with the use of an accelerant. The defendant’s trial defense did not challenge this issue but rather focused on whether the State had proved that the defendant was the perpetrator. In light of this, counsel made a reasonable, strategic decision not to object to the witness’s testimony. (2) Counsel did not render ineffective assistance by failing to renew a motion to dismiss at the close of all of the evidence. The defendant could not show prejudice where such a motion, had it been made, would have been denied.

In this sex offense case, the court rejected the defendant’s argument that he received ineffective assistance of counsel when counsel failed to object to 404(b) evidence that was properly admitted.

In this murder case, trial counsel did not render ineffective assistance by failing to produce evidence, as promised in counsel’s opening statement to the jury, that the shooting in question was justified or done in self-defense. After the trial court conducted a Harbison inquiry, defense counsel admitted to the jury that the defendant had a gun and shot the victim but argued that the evidence would show that the shooting was justified. The concession regarding the shooting did not pertain to a hotly disputed factual matter given that video surveillance footage of the events left no question as to whether the defendant shot the victim. The trial court’s Harbison inquiry was comprehensive, revealing that the defendant knowingly and voluntarily consented to counsel’s concession. The court also rejected the defendant’s argument that making unfulfilled promises to the jury in an opening statement constitutes per se ineffective assistance of counsel. And it found that because counsel elicited evidence supporting a defense of justification, counsel did not fail to fulfill a promise made in his opening statement. The court stated: “Defense counsel promised and delivered evidence, but it was for the jury to determine whether to believe that evidence.”

Without addressing the deficient performance prong of the Strickland test, the court held that the defendant did not receive ineffective assistance of counsel where he was not prejudiced by counsel’s conduct. The defendant had complained of counsel’s failure to object to a law enforcement officer’s testimony about the victim’s demeanor and counsel’s failure to object to the striking of a defense witness’s testimony.

Considering the defendant’s ineffective assistance of counsel claim on appeal the court rejected his contention that counsel was ineffective by eliciting hearsay evidence that conflicted with his claim of self-defense, concluding that the evidence did not contradict this defense. It also rejected his contention that counsel was ineffective by failing to object to evidence that the defendant sold drugs on a prior occasion, concluding that even if this constituted deficient representation, there was no reasonable possibility that the error affected the outcome of the case. Finally, the court rejected the defendant’s contention that counsel was ineffective by failing to move to dismiss the charges at the close of the evidence, concluding that given the evidence there was no likelihood that the trial court would have granted the motion. 

Counsel was ineffective by failing move to suppress evidence obtained by a “patently unconstitutional seizure.” The State conceded that the evidence was obtained illegally but argued that counsel’s failure to move to suppress could have been the result of trial strategy. The court rejected this argument, noting in part trial counsel’s affidavit stating that he had no strategic reason for his failure. Trial counsel’s conduct fell below an objective standard of reasonableness and the defendant suffered prejudice as a result.

Counsel rendered ineffective assistance by failing to file what would have been a meritorious motion to suppress.

Although counsel provided deficient performance in this sexual assault case, the defendant was not prejudiced by this conduct and thus the defendant’s claim of ineffective assistance of counsel must fail. The defendant argued that counsel was ineffective when he asked the defendant on direct examination if he had “ever done such a thing before,” despite knowing that other sexual offense charges were pending against the defendant. When the defendant responded in the negative, this opened the door to the State calling another witness to testify about the defendant’s alleged sexual abuse of her. Counsel’s performance fell below an objective standard of reasonableness because there was no strategic benefit in opening the door to this testimony. However, because the evidence about the other pending charges did not likely affect the verdict, no prejudice resulted.

In a child sexual assault case, defense counsel’s failure to move to strike testimony of a forensic interviewer that the fact that a young child had extensive sexual knowledge suggested that “something happened,” did not constitute deficient performance.