This opinion was withdrawn.
State v. Cholon (Lawyers Weekly No. 011-045-17, 13 pp.) (Lucy Inman, J.) Appealed from Onslow County Superior Court (Jack Jenkins, J.) N.C. App.
Holding: Even though, during closing arguments, defense counsel admitted some elements of the charges against defendant, since counsel (1) did not admit other elements and (2) urged jurors to find defendant not guilty, defendant cannot show per se ineffective assistance of counsel.
We find no error in defendant’s convictions of statutory sexual offense and taking indecent liberties with a child.
In State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), our Supreme Court held that “ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s consent.” However, admission by defense counsel of an element of a crime charged, while still maintaining the defendant’s innocence, does not necessarily amount to Harbison error.
Defense counsel admitted that the victim, while claiming to be 18 years old, was actually only 15 years old. Counsel also admitted that defendant’s statement to police – in which he admitted performing oral sex on the victim – was true. However, counsel did not admit other elements of the charges, for example, that defendant was six or more years older than the victim or that defendant willfully committed a lewd or lascivious act. Counsel also urged the jury to find defendant not guilty. The principles set out in Harbison do not require a finding of per se ineffective assistance of counsel in this case.
Finally, since the state presented overwhelming evidence of defendant’s guilt, he has failed to show that, but for the alleged deficient performance of his counsel, he would have received a different verdict.