As pointed out to us by Assistant Appellate Defender John Carella, the North Carolina Court of Appeals’ decision in State v. Cholon, which was included in the 2017 Most Important Opinions edition, was withdrawn by the North Carolina Supreme Court.
Here’s the holding from the Cholon digest: 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.
In a Sept. 28, 2017, order, the Supreme Court allowed defendant’s petition for discretionary review “for the limited purpose of vacating the Court of Appeals’ decision and remanding to that court with instructions for further remand to the trial court to hold an evidentiary hearing on defendant’s motion for appropriated relief in light of State v. Todd, _N.C._,_,_S.E. 2d _,_ (2017) (18A14-2) (remanding for determination of whether counsel made a particular strategic decision and if so, whether such decision was reasonable), State v. Thomas, 327 N.C. 630, 630, 397 S.E. 2d 79, 80 (1990)(remanding to determine whether the ‘defendant knowingly consented to trial counsel’s concessions of guilt to the jury’), and other relevant authority.”
Mr. Carella indicated that he believes the Court of Appeals’ decision is no longer good law. He noted that the order requires the trial court to make findings as to the issue of consent and whether the decision to admit guilt was strategic, and then rule on the motion for appropriate relief Mr. Cholon filed along with his brief in the Court of Appeals.
Lawyers Weekly regrets the error and thanks Mr. Carella for setting the record straight.