Criminal Practice — MAR – Constitutional – Ineffective Assistance Claim – Guilty Plea – Partial Recantation

Even if some of trial counsel’s decisions were questionable—not interviewing witnesses, not reviewing voice stress tests performed on the complainant, not challenging the state’s recitation of facts to clarify to the trial court that defendant was not charged on a recanted allegation of improper touching—since, at defendant’s plea hearing, the state and the trial court openly acknowledged the fact that the complainant had made attempts to recant, and since her videorecorded interview only recanted the last, and uncharged, of three alleged improper touching incidents, the MAR court could conclude that defendant had failed to establish that but for counsel’s alleged errors, defendant would not have pleaded guilty and would have insisted on going to trial. Indeed, the evidence tends to reflect that defendant admitted his own actual guilt in open court when tendering his plea and that his primary goal in accepting a scripted plea agreement was to avoid prison, which he was provided the opportunity to do through a probationary sentence.

We affirm the trial court’s denial of defendant’s motion for appropriate relief.

State v. Herr (Lawyers Weekly No. 012-299-21, 25 pp.) (Toby Hampson, J.) Appealed from Rockingham County Superior Court (Edwin Wilson, J.) Sherri Horner Lawrence for the state; Christine Mumma and Guy Loranger for defendant. 2021-NCCOA-476