At defendant’s trial for armed robbery and possession of a firearm by a felon, the trial court instructed the jury on the theory of acting in concert, among other theories. Appellate counsel argued that the jury was presented with multiple theories of guilt, one of which was erroneous, and that the error had a probable impact on the jury’s finding that the defendant was guilty. This was the appropriate argument and employed the correct standard of review.
We reverse the Court of Appeals’ decision, which upheld the superior court’s grant of defendant’s motion for appropriate relief, based on a claim of ineffective assistance by appellate counsel.
In support of his motion for appropriate, defendant argued that appellate counsel was ineffective because he failed to argue State v. Pakulski, 319 N.C. 562, 356 S.E.2d 319 (1987). In Pakulski, the trial court instructed the jury on the felony-murder rule based on two predicate felonies, only one of which was legally supported by the evidence.
The entirety of the discussion relevant to this issue is contained in a single, short section that reads, in relevant part, that “where the trial judge has submitted the case to the jury on alternative theories, one of which is determined to be erroneous and the other properly submitted, and we cannot discern from the record the theory upon which the jury relied, this Court will not assume that the jury based its verdict on the theory for which it received a proper instruction. Instead, we resolve the ambiguity in favor of the defendant.”
Although we failed to explicitly state it in our opinion, it appears that we applied the harmless error standard of review in Pakulski. Subsequent decisions have made clear that the Pakulski rule applies when the issue is properly preserved on appeal. In State v. Malachi, 371 N.C. 719, 821 S.E.2d 407 (2018), we referred to Pakulski as a harmless error case, and we made clear that Pakulski did not create a rule of per se reversible error in all cases involving disjunctive jury instructions.
Unpreserved issues related to jury instructions are reviewed under a plain error standard, while preserved issues are reviewed under a harmless error standard.
Here, defendant did not object at trial to the trial court’s jury instructions. The issue, therefore, was not properly preserved for appeal and could be reviewed only for plain error. Because the standard of review applied in Pakulski applies only to preserved issues, it would have had little precedential value in the instant case, and appellate counsel’s failure to cite it was not objectively unreasonable.
Appellate counsel argued that the jury was presented with multiple theories of guilt, one of which was erroneous, and that the error had a probable impact on the jury’s finding that the defendant was guilty. This was the appropriate argument and employed the correct standard of review.
Defendant failed to prove that his appellate counsel’s conduct fell below an objective standard of reasonableness. We reverse the decision of the Court of Appeals to the contrary.
(Ervin, J.) I am not persuaded that the doctrine of acting in concert is not available in cases in which a defendant is charged with possession of a firearm by a felon. Furthermore, I trust that the majority’s statement that “we make no determination as to whether the trial court erred by instructing the jury on the acting in concert theory of guilt for the possession of a firearm by a felon charge” will not be understood to cast doubt upon the potential applicability of the doctrine of acting in concert to cases in which a defendant is charged with possession of a firearm by a felon and will be understood to be doing nothing more than expressing the court’s decision to refrain from deciding whether the acting in concert doctrine has any application in this case as a matter of fact.
(Earls, J.) Regardless of the appropriate standard of review, defendant’s appellate counsel provided ineffective assistance by failing to properly identify the error in the jury instruction. As the Court of Appeals noted, if counsel had appropriately framed the argument, the Court of Appeals would have reached a different result.
The record contains no evidence that this mistake resulted from reasoned judgment or that it was a strategic decision. As a result, defendant received ineffective assistance of appellate counsel, and there is no basis for this court to overturn the decisions to the contrary by both the trial court and the Court of Appeals.
The majority also incorrectly identifies Pakulski’s standard of review. In reality, Pakulski applied the plain error standard of review, and Pakulski is applicable to this case.
State v. Collington (Lawyers Weekly No. 010-113-20, 46 pp.) (Cheri Beasley, C.J.) (Sam Ervin, J., joined by Paul Newby, J., concurring) (Anita Earls, J., joined by Mark Davis, J., dissenting) Appealed from the Superior Court in Transylvania County (Mark Powell, J.) On discretionary review from the Court of Appeals. Teresa Postell for the state; Christopher Heaney for defendant. N.C. S. Ct.