Criminal Practice – Plea Negotiations – Ineffective Assistance of Counsel

Defendant did not receive ineffective assistance of counsel, but the trial court erred in its conclusion of law that stated defendant’s motion to dismiss was properly denied, and the State did not meet its burden of showing the New Jersey armed robbery offense was substantially similar to the North Carolina offense of the same.

We affirmed the MAR order in part and reverse and remand in part, and we reverse and remand for re-sentencing.

Defendant appealed his convictions for possession of a firearm by felon, possession of a gun with an altered serial number, and trafficking heroin. Defendant argued the trial court erred by denying his motion for appropriate relief (MAR) because he received ineffective assistance of counsel, and his motion to suppress should have been granted; and concluding a New Jersey robbery offense was substantially similar to the North Carolina robbery offense.

First, defendant appealed the MAR, arguing he received ineffective assistance of counsel through the individual errors, or, in the alternative, the cumulative errors of his attorneys, and the trial court erred by denying the 2018 motion. Defendant argued each of the four lawyers he obtained between his arrest in 2013 and his trial in 2019 were ineffective. Defendant argued attorney Waters’ alleged misconduct in negotiating a car exchange with the police “undermined” any opportunity defendant had to pursue a lawful plea agreement. We disagreed. Defendant was not counseled to reject the plea deal and take his chances at trial. A formal plea deal had not been offered by the State. Further, Waters communicated to defendant that he did not have to pursue forfeiture but could deal with the case in another way. While this “forfeiture scheme” may have been unconventional—perhaps unreasonable—the North Carolina Bureau of Investigation determined that it was not illegal. Further, unreasonable errors alone are insufficient to show defendant received ineffective assistance of counsel. Defendant has not carried his burden of showing there was a reasonable probability that a different result would have been reached even without such possibly “unreasonable” negotiations.

Second, defendant argued attorney Wright’s failure to present Kornegay and Brown as witnesses at trial constitutes “deficient performance.” We disagreed. Defendant argued an affidavit Kornegay submitted after defendant’s conviction, stating she was not contacted by Wright and would have been willing to testify on defendant’s behalf, shows the unreasonableness of Wright’s failure to secure her testimony. Given Wright’s attempts to locate Kornegay, however, this is insufficient to rise to the level of ineffective assistance of counsel. Moreover, given defendant’s inculpatory statement and Whiteside’s testimony, defendant cannot show a reasonable probability that the outcome of his trial would have been different.

Alternatively, defendant argued that, if the above alleged errors, standing alone, do not amount to ineffective assistance of counsel, the cumulative errors of each attorney are sufficient when considered together. It is defendant’s burden, not this Court’s, to show how these errors prejudiced him, and defendant failed to do.

Defendant argued the trial court erred by failing to suppress his statement, and the MAR inappropriately relied on the denial of the 2015 motion, which did not address whether the statement should have been suppressed. To remedy this alleged error, Defendant requested this Court remand this issue to Judge Davis to address coercion “in earnest.” We remanded this issue to the trial court to adequately consider whether defendant’s 2018 motion was properly denied.

On direct appeal, defendant argued this case should be remanded for re-sentencing because the trial court failed to show defendant’s New Jersey armed robbery conviction was substantially similar to the North Carolina armed robbery statute. We agreed. There is no indication that the trial court compared the New Jersey statute against the relevant North Carolina statute. This case, therefore, must be remanded for re-sentencing to allow the trial court the opportunity to adequately consider whether the New Jersey armed robbery statute is substantially similar to the North Carolina armed robbery statute.

Affirmed in part, reversed in part, remanded.

State v. Dwayne G. Davis. J. (Lawyers’ Weekly No. 012-093-24, 21 pp.) (Julee Flood, J.) Appealed from Vance County Superior Court (Josephine K. Davis, J.) Attorney General Joshua H. Stein, by Special Deputy Attorney General Benjamin O. Zellinger, for the State; Tin Fulton Walker & Owen PLLC, by Zachary Ezor and Abraham Rubert-Schewel, for defendant-appellant. North Carolina Court of Appeals Unpublished