State v. Cholon, 284 N.C. App. 152 (Jun. 21, 2022)

In this Onslow County case, defendant appealed the denial of his motion for appropriate relief (“MAR”) due to ineffective assistance of counsel. In July of 2015, defendant went to jury trial for sexual offenses with a minor and was convicted. After the trial, defendant sent a letter to the trial court requesting a mistrial due to his counsel making an admission of guilt during closing argument. In March of 2016, defendant’s MAR was rejected by the Court of Appeals because defendant’s counsel did not expressly admit guilt or admit each element of each offense during the closing statement in question. Defendant petitioned the Supreme Court for review, which was granted in September of 2017.

The Supreme Court vacated the Court of Appeals decision on defendant’s MAR, and remanded with instructions for the trial court to hold an evidentiary hearing on defendant’s motion. The trial court held this hearing in May of 2019, received only an affidavit from defense counsel with no other evidence or testimony, and then denied defendant’s MAR.

After the trial court’s denial, defendant filed a petition for writ of certiorari with the Court of Appeals. In February of 2020, the Court of Appeals determined that the trial court’s evidentiary hearing was insufficient, vacated the trial court’s order, and remanded the case for an evidentiary hearing. The trial court held a second hearing in September of 2020, allowing testimony from defendant and his counsel, and several documentary exhibits. However, the trial court again denied the MAR on March 31, 2021. Defendant filed a second petition for writ of certiorari and the Court of Appeals granted the petition in July of 2021.

With the current opinion, the Court of Appeals considered whether defendant’s counsel made implied admissions of guilt by admitting that defendant engaged in a sexual act with the victim and that the victim was below the statutory age of consent. The defendant had denied making a statement to police admitting sexual conduct between himself and the victim, and the statement was the subject of a failed motion to suppress during the trial. However, defense counsel presented the disputed admission as truthful in the closing statement. The Court of Appeals found that this served as an implied admission of guilt under the framework of State v. Harbison, 315 N.C. 175 (1985). The court reversed and remanded to the trial court for an evidentiary hearing to determine if defendant consented to this admission of guilt in advance.