State v. Holder

721 S.E.2d 365, 218 N.C. App. 422, 2012 N.C. App. LEXIS 229
CourtCourt of Appeals of North Carolina
DecidedFebruary 7, 2012
DocketNo. COA11-919
StatusPublished
Cited by4 cases

This text of 721 S.E.2d 365 (State v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Holder, 721 S.E.2d 365, 218 N.C. App. 422, 2012 N.C. App. LEXIS 229 (N.C. Ct. App. 2012).

Opinion

McCullough, Judge.

On 25 January 2011, a jury found Terry Lee Holder (“defendant”) guilty of driving while impaired and felony fleeing to elude arrest. Defendant then pled guilty to attaining habitual felon status. On appeal, defendant argues he was deprived of his Sixth Amendment right to effective assistance of counsel at trial. We find no error.

I. Background

On the night of 20 October 2009, Deputy Randy Ackley of the Johnston County Sheriff’s Office (“Deputy Ackley”) encountered defendant on a two-lane road in Johnston County, North Carolina. Deputy Ackley observed that defendant was travelling approximately 80 miles per hour. Deputy Ackley activated his emergency lights and pursued defendant. During the pursuit, defendant operated his vehicle in excess of 100 miles per hour, drove at times without headlights, and ran stop signs. Defendant also passed a gasoline tanker truck and “cut off’ the tanker by making a sharp turn just in front of the tanker. Defendant was finally stopped when he ran over “stop sticks” deployed in front of his vehicle by another officer. The stop sticks punctured defendant’s tires, causing his vehicle to slow down and run into a ditch. Defendant was subsequently tested for alcohol use and found to have a blood alcohol level of .11. Defendant told the arresting officers that he ran from Deputy Ackley because he had been drinking and had had a bad night.

[424]*424Based on these events, defendant was charged with and indicted for driving while impaired and felony fleeing to elude arrest. Defendant was also indicted for being an habitual felon. Defendant was tried by jury on 24 January 2011, and on 25 January 2011, the jury returned unanimous verdicts finding defendant guilty of both offenses. Defendant then pled guilty to attaining habitual felon status. Defendant was sentenced to a term of 120 days’ imprisonment for the impaired driving conviction and to a minimum of 80 months’ and a maximum of 105 months’ imprisonment for the felony eluding arrest conviction and attaining habitual felon status. Defendant gave oral notice of appeal in open court at the close of the proceedings.

II. Ineffective assistance of counsel

In his only issue on appeal, defendant argues he was deprived of his Sixth Amendment right to effective assistance of counsel where his trial counsel conceded his guilt without his voluntary consent. Defendant’s argument is without merit.

Ordinarily, to prevail on a claim of ineffective assistance of counsel, the defendant bears the burden of meeting a two-part test: “a defendant must first show that his counsel’s performance was deficient and then that counsel’s deficient performance prejudiced his defense.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286. “Deficient performance may be established by showing that counsel’s representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (internal quotation marks and citations omitted).

However, our Supreme Court has determined that a defendant receives ineffective assistance of counsel per se when the defendant’s counsel concedes the defendant’s guilt to either the offense charged or a lesser-included offense without the defendant's consent. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986); see also State v. Alvarez, 168 N.C. App. 487, 501, 608 S.E.2d 371, 380 (2005). Nonetheless, our Supreme Court has noted that “ [n]either Harbison nor any subsequent case specifies a particular procedure that the trial court must invariably follow when confronted with a defendant’s concession[.]” State v. Berry, 356 N.C. 490, 514, 573 S.E.2d 132, 148 (2002). Indeed, our Supreme Court has specifically “declined to set out what constitutes an acceptable consent by a defendant in this [425]*425context.” State v. McDowell, 329 N.C. 363, 387, 407 S.E.2d 200, 213 (1991). In State v. Matthews, 358 N.C. 102, 591 S.E.2d 535 (2004), our Supreme Court stated that “[f]or us to conclude that a defendant permitted his counsel to concede his guilt to a lesser-included crime, the facts must show, at a minimum, that defendant knew his counsel [was] going to make such a concession.” Id. at 109, 591 S.E.2d at 540. And recently, this Court noted that our Supreme Court’s holdings in “Harbison and Matthews clearly indicate that the trial court must be satisfied that, prior to any admissions of guilt at trial by a defendant’s counsel, the defendant must have given knowing and informed consent, and the defendant must be aware of the potential consequences of his decision.” State v. Maready,_N.C. App._,_, 695 S.E.2d 771, 776, disc. review denied, 364 N.C. 329, 701 S.E.2d 247 (2010).

Prior to trial in the present case, defense counsel informed the trial court that at some point during the trial, he may concede defendant’s guilt to “something other” than felony fleeing to elude arrest, and the following colloquy occurred:

[DEFENSE COUNSEL]: And there may be a time during this trial, I probably need to address this now — and I don’t know at what point it may occur. It may occur sometime during opening, it certainly may occur during closing — where I concede guilt for Mr. Holder something other than felony fleeing to speed — speeding to elude arrest. And I just — you know, that’s with his consent.
[DEFENSE COUNSEL]: We talked about that, and that that is something we would need to get out. And I don’t — you know, I don’t know at this point what the instructions will be, where we’ll be at that point. I don’t know that it will come up right away, but I just wanted to put you on notice as to that.
THE COURT: Okay. Mr. Holder, sir, your attorney — and we will certainly address it for the record again when necessary— but he has indicated to this Court, that there may be times when he will concede guilt as to some portion of the offenses charge[d]. Have you discussed that with your attorney?
THE DEFENDANT: Yes.
THE COURT: I need you to answer loudly and clearly for the record, please.
[426]*426THE DEFENDANT: Yes, ma’am.
THE COURT: Okay. And, sir, is that, indeed, part of the trial strategy that you have discussed with your attorney?
THE DEFENDANT: Yes, ma’am.
THE COURT: All right, and, sir, do you understand that once there is that concession, it’s out there for the jury, though the State still has the burden of proof.

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Cite This Page — Counsel Stack

Bluebook (online)
721 S.E.2d 365, 218 N.C. App. 422, 2012 N.C. App. LEXIS 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holder-ncctapp-2012.