State v. Hyman, ___ N.C. App. ___, 823 S.E.2d 146 (Dec. 18, 2018)

(1) On remand from the state Supreme Court, the court rejected the defendant’s argument that the trial court erred by concluding that he was procedurally barred from reasserting in his MAR a dual representation conflict of interest ineffective assistance of counsel claim with respect to attorney Smallwood. Because this court on direct appeal addressed the merits and rejected this claim, the trial court properly concluded that it was procedurally defaulted under G.S. 15A-1419(a)(2) (claim previously determined on the merits).

(2) The court then turned to the defendant’s claim that he received ineffective assistance of counsel from attorney Warmack at the evidentiary remand hearing because Warmack had a dual representation conflict arising from having previously represented codefendant Swain. The court held that the trial court erred by finding that this claim was procedurally barred under G.S. 15A-1419(a)(3) (failure to raise on appeal), reasoning that the defendant was not in a position to adequately raise the claim on direct appeal. The court further found that the record was insufficient to establish that the defendant knowingly, intelligently, and voluntarily waived Warmack’s potential conflict and that the trial court erred by concluding otherwise.