State v. Chavez, 270 N.C. App. 748 (Apr. 7, 2020)

This Mecklenburg County case involved charges of attempted first-degree murder, conspiracy to commit first-degree murder, and assault with a deadly weapon with intent to kill inflicting serious injury. The defendant and two other men (one of whom was unidentified) entered the victim’s home and attacked him with a machete and hammer. The victim’s girlfriend escaped with an infant and called police. The defendant and his named co-conspirator apprehended the girlfriend outside of the home, where the defendant instructed the other man to kill her. He refused, and the defendant fled; the other man stayed with the woman until police arrived (and became the named co-conspirator in the indictment). The defendant was convicted of all charges at trial and sentenced to a minimum term of 336 months.

The defendant failed to preserve his challenge to the sufficiency of the evidence supporting the conspiracy charge. At the motion to dismiss, defense counsel conceded that the state had sufficient evidence for conspiracy. The court declined to invoke Rule 2 of the Appellate Rules of Procedure to reach the issue, finding the case did not present the type of “exceptional circumstances” justifying Rule 2 review. The defendant maintained in the alternative that his trial counsel’s failure to move for dismissal constituted ineffective assistance of counsel (“IAC”). IAC claims are typically reviewed via a motion for appropriate relief, where facts may be developed at an evidentiary hearing. Here, though, the cold record was sufficient for the court to determine the IAC claim. “An attorney’s failure to move to dismiss a charge is not ineffective assistance of counsel when the evidence is sufficient to defeat the motion.” Slip op. at 6. The conspiracy charge here was amply supported by the evidence—it showed three men attacked the victim in the victims in the victims’ bedroom and that the attack was “simultaneous [and] coordinated.” This was substantial evidence of an agreement between the attackers to murder the victim, and the motion to dismiss was properly denied. The defendant thus could not demonstrate prejudice for an IAC claim, and the claim was rejected.