State v. Gordon, ___ N.C. App. ___, 2021-NCCOA-273 (Jun. 15, 2021)

In this sex offense and indecent liberties case where the defendant was ordered to enroll in lifetime SBM, the trial court did not plainly err with respect to an Allen charge, the defendant did not preserve his argument related to SBM, and the defendant received statutory ineffective assistance of counsel during the SBM proceedings.  Approximately one hour after beginning deliberations, the jury sent a question to the court asking for clarification as to whether they must have unanimous agreement to render a guilty verdict and whether a lack of unanimity would require that they return a not guilty verdict.  In response and without objection from either party, the trial court responded to the jury’s question with instructions derived from G.S. 15A-1235(a).  The court of appeals rejected the defendant’s argument that the trial court plainly erred by omitting instructions from G.S. 15A-1235(b), explaining that the jury’s question asked for clarification on the issue of unanimity and did not clearly indicate that the jury was deadlocked, in disagreement, or at an impasse.  As such, the trial court did not err by reciting the unanimity instructions in G.S. 15A-1235(a) without providing the additional instructions in subsection (b).

As to SBM, the court first found that the defendant failed to preserve a Fourth Amendment challenge to the lifetime SBM order by failing to make a constitutional objection during the sentencing proceeding where SBM was addressed, and further declined to invoke Rule 2 to reach the issue.  The court went on to agree with the defendant’s alternative argument that he received statutory ineffective assistance of counsel under G.S. 7A-451(a)(18).  Likening the case to State v. Spinks, ___ N.C. App. ___, 2021-NCCOA-218 (2021), the court found that counsel was ineffective by failing to object to SBM enrollment or file a notice of appeal from the SBM order where the State offered no evidence of the reasonableness of lifetime SBM.

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