State v. Foreman, 270 N.C. App. 784, 842 S.E.2d 184 (Apr. 7, 2020)

This Pitt County case involved charges of attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”) and felony breaking or entering. Before trial, the defendant signed a document allowing his attorney to argue that he was guilty of assault with a deadly weapon inflicting serious injury (“AWDWISI”). This “Harbison acknowledgement” stated that the defendant understood his right to plead not guilty and have all issues in his case tried; that the defendant understood he was not required to concede guilt as to any offense; that he voluntarily admitted guilt to the assault while understanding the consequences of that admission; and that he authorized his attorney to argue his guilt of that offense to the jury. The trial court conducted a colloquy with the defendant where the defendant orally reaffirmed the terms of the document. At trial, defense counsel argued that the defendant was guilty of AWDWISI but lacked the intent to kill necessary to support the first-degree attempted murder (or AWDWIKISI). The jury convicted on all counts and the defendant appealed. He argued that his admission of guilt to the assault was not knowing or voluntary and that he therefore received ineffective assistance of counsel. He also claimed the trial court’s Harbison colloquy was deficient.

(1) Under State v. Harbison, 315 N.C. 175 (1985), it is per se ineffective assistance of counsel for defense counsel to admit a defendant’s guilt to an offense without the defendant’s consent. The defendant argued that his admission to the assault was effectively an admission to attempted murder. AWDWISI and attempted first-degree murder have different elements and AWDWISI is not a lesser-included offense of attempted first-degree murder. Thus, the admission to AWDWISI did not admit guilt to attempted murder. Further, the defendant knowingly and voluntarily admitted guilt to that assault, and his attorney never conceded guilt to attempted murder. The defendant therefore could not demonstrate ineffective assistance of counsel.

(2) Before accepting an admission of guilt at trial, the record should reflect the defendant’s knowing and informed consent to the admission. Here, it did:

The record demonstrates that Defendant fully understood that trial counsel was going to concede guilt to AWDWISI, and the Defendant expressly consented to the concession. Further, Defendant specifically acknowledged that he understood the consequences of such admission. Id. at 11.

Thus, the trial court’s Harbison colloquy with the defendant was proper. In addition to his appeal, the defendant filed a motion for appropriate relief (“MAR”) in the appellate division. Denying that motion, the court found that no Harbison violation occurred and that the defendant could not therefore show the existence of a ground for relief under the MAR statute. The convictions were thus unanimously affirmed.