In this Wake County Case, defendant appealed the denial of his motion for appropriate relief (MAR), arguing ineffective assistance of appellate counsel. The Court of Appeals affirmed the denial of his MAR. 

This matter has a complicated procedural history, outlined by the court in pages 2-8 of the current opinion. Defendant first came to trial for robbery in 2012. The day before trial was set to commence, the State provided a copy of fingerprints found at the scene to defense counsel, although the State had previously provided a report stating that defendant’s fingerprints were found at the scene. Defense counsel moved for a continuance, but the motion was denied. Defense counsel cross-examined the State’s fingerprint expert during trial, but did not call a fingerprint expert and did not offer any other evidence during the trial. Defendant was convicted and appealed. The matter reached the Court of Appeals for the first time with this direct appeal, where his appellate counsel argued error in denying the motion for continuance and ineffective assistance of trial counsel, but the Court of Appeals found no error.  

After defendant’s first appeal was unsuccessful, he filed a MAR for ineffective assistance of appellate counsel, arguing his counsel should have raised the issue of dismissal for lack of evidence based on State v. Irick, 291 N.C. 480 (1977), and related precedent. The reviewing court denied defendant’s MAR. The defendant appealed this denial, reaching the Court of Appeals a second time in State v. Todd, 249 N.C. App. 170 (2016), where the court reversed the MAR denial. This decision was appealed by the State, leading to the Supreme Court’s decision in State v. Todd, 369 N.C. 707 (2017), where the Court determined that the record was insufficient to evaluate the ineffective assistance of counsel claim. After the Supreme Court’s decision, the matter was remanded to the MAR court, but the court failed to act from 2017 until 2021. After finally holding a hearing in February of 2021 and receiving testimony from defendant’s appellate counsel, the MAR court determined it could not establish that counsel was unreasonable by failing to raise an Irick argument on appeal. Defendant again appealed, leading to the current case. 

The Court of Appeals took up defendant’s current appeal and applied the two-prong analysis from Strickland v. Washington, 466 U.S. 668 (1984), looking for deficient performance of counsel and prejudice from that deficiency. Turning first to performance, the court explained that the proper analysis was whether appellate counsel failed to raise a claim on appeal that was “plainly stronger” than the ones presented in the appeal at the time the appellate brief was submitted. Slip Op. at 11, quoting State v. Casey, 263 N.C. App. 510, 521 (2019). The court first determined that because the fingerprint evidence was not the sole evidence of defendant’s guilt, Irick’s rule requiring proof the fingerprint evidence was impressed at the time the crime was committed did not apply. Having established that Irick’s rule did not apply, the court shifted back to a normal sufficiency of the evidence analysis, determining that sufficient evidence in the record showed defendant as guilty, and the Irick claim (1) would have failed on appeal, and (2) was not “plainly stronger” than the arguments actually advanced by appellate counsel. Id. at 20. This determination meant that the court did not need to reach the prejudice prong of the analysis, but the court briefly noted that since sufficient evidence was in the record to show defendant’s guilt, he could not show prejudice either.