in the Supreme Court on 12 April 2017.
pursuant to N.C. G.S. § 7A-30(2) from the decision of a
divided panel of the Court of Appeals, __ N.C.App. __, 790
S.E.2d 349 (2016), reversing an order denying defendant's
motion for appropriate relief entered on 15 January 2015 by
Judge Donald W. Stephens in Superior Court, Wake County, and
remanding the case for entry of an order granting
defendant's motion for appropriate relief and vacating
his prior conviction.
H. Stein, Attorney General, by Joseph L. Hyde, Assistant
Attorney General, for the State-appellant.
Prisoner Legal Services, Inc., by Reid Cater, for
appeal we consider whether this Court has jurisdiction to
decide an appeal taken from a divided decision of the Court
of Appeals pursuant to N.C. G.S. § 7A-30(2) arising from
a trial court's ruling granting or denying a motion for
appropriate relief (MAR) and whether the Court of Appeals
erred by reversing the trial court's decision that
defendant received effective assistance of appellate counsel.
The Court of Appeals concluded that the State presented
insufficient evidence to show that defendant committed the
underlying offense and further concluded that, if
defendant's appellate counsel had raised the sufficiency
of the evidence issue in the previous appeal, defendant's
conviction would have been reversed. We hold that this Court
has jurisdiction to hear this matter and conclude that the
record should be further developed before a reviewing court
can adequately address the ineffective assistance of counsel
claim. Accordingly, we reverse and remand the decision of the
Court of Appeals.
April 2012, Paris Jujuan Todd (defendant) was indicted for
robbery with a dangerous weapon and conspiracy to commit the
same offense. After a trial beginning on 12 June 2012,
defendant was convicted of robbery with a dangerous weapon.
Defendant appealed that conviction to the Court of Appeals,
arguing that the trial court erred by denying his motion to
continue and that he received ineffective assistance of trial
counsel. See State v. Todd, 229 N.C.App. 197, 749
S.E.2d 113 2013 WL 4460143 (2013) (unpublished) (Todd
I). The Court of Appeals disagreed with defendant and
held that the trial court did not err in denying
defendant's motion to continue and that defendant did not
receive ineffective assistance of trial counsel.
Todd, 2013 WL 4460143, at *5.
October 2014, defendant filed a motion for appropriate relief
(MAR) in the trial court, arguing that the evidence was
insufficient to support his conviction and that his appellate
counsel was ineffective for failing to raise this claim on
appeal. On 15 January 2015, the trial court, without
conducting an evidentiary hearing on defendant's
ineffective assistance of counsel claim, entered an order
denying defendant's MAR. The trial court found that
"[a] review of all the matters of record, including the
opinion of the North Carolina Court of Appeals . . . clearly
demonstrates that the evidence was sufficient to support the
jury verdict and appellate counsel rendered effective
assistance to Defendant in his appeal." Defendant filed
a petition for writ of certiorari to the Court of Appeals
seeking review of the trial court's order denying his
MAR, which the Court of Appeals allowed on 27 March 2015.
argued to the Court of Appeals that in the first appeal his
appellate counsel performed below an objective standard of
reasonableness by failing to argue that the evidence was
insufficient to support defendant's conviction. A divided
panel of the Court of Appeals held that defendant received
ineffective assistance of appellate counsel in his first
appeal and concluded that defendant likely would have been
successful had his counsel raised the sufficiency of the
evidence issue in his first appeal. State v. Todd,
__ N.C.App. __, ___, 790 S.E.2d 349, 364 (2016) (Todd
II). More specifically, after concluding that, "the
State presented insufficient evidence that defendant
committed the underlying offense, " the majority held
that the trial court erred in denying defendant's MAR.
Id. at___, 790 S.E.2d at 364. Accordingly, the Court
of Appeals reversed the trial court's order and remanded
the case to the trial court with instructions to grant
defendant's MAR and vacate his conviction. Id.
at___, 790 S.E.2d at 364.
according to the dissent, defendant failed to show that
appellate counsel's performance was deficient.
Id. at___, 790 S.E.2d at 365 (Tyson, J.,
dissenting). The dissent noted that "[e]ffective
appellate advocates winnow out weaker arguments and focus on
those more likely to prevail on appeal." Id.
at___, 790 S.E.2d at 367 (citing Jones v. Barnes,
463 U.S. 745, 751, 103 S.Ct. 3308, 3312 (1983)). Because
"[t]his accepted discretionary process lies within the
professional judgment of appellate counsel, "
id. at___, 790 S.E.2d at 367, the dissent concluded
that defendant could not show that his appellate counsel was
deficient in not raising a sufficiency of the evidence
argument in the first appeal, id. at___, 790 S.E.2d
at 368. The State gave timely notice of appeal based upon the
threshold matter, we must consider whether this Court has
jurisdiction to decide this appeal. Generally N.C. G.S §
7A-30(2) provides an automatic right of appeal to this Court
based on a dissent at the Court of Appeals. N.C. G.S. §
7A-30(2) (2015). But, that automatic right of appeal is
limited by N.C. G.S. § 7A-28, which states that
"[d]ecisions of the Court of Appeals upon review of
motions for appropriate relief listed in G.S. 15A-1415(b) are
final and not subject to further review in the Supreme Court
by appeal, motion, certification, writ, or otherwise."
Id., § 7A-28(a) (2015). We acknowledge that the
plain language of N.C. G.S. § 7A-28 precludes this
Court's review of a case in which there is a dissent in
the Court of Appeals when the case involves review of a
motion for appropriate relief; however, we maintain the
authority granted to us by the state constitution and
recognize that "it is beyond question that a statute
cannot restrict this Court's constitutional authority
under Article IV, Section 12, Clause 1 of the Constitution of
North Carolina to exercise 'jurisdiction to review upon
appeal any decision of the courts below.' "
State v. Ellis, 361 N.C. 200, 205, 639 S.E.2d 425,
428 (2007) (quoting N.C. Const. art. IV, § 12).
"This Court will not hesitate to exercise its rarely
used general supervisory authority when necessary to promote
the expeditious administration of justice." State v.
Stanley, 288 N.C. 19, 26, 215 S.E.2d 589, 594 (1975)
(citations omitted). Thus, we exercise the supervisory
authority granted by Article IV, Section 12 of the North
Carolina Constitution to decide this matter.
determined that we have jurisdiction to hear this matter, we
next consider whether defendant received ineffective
assistance of appellate counsel. Before this Court, the State
argues that defendant's appellate counsel apparently made
a strategic decision not to challenge the sufficiency of the
evidence. Because the lower courts did not determine whether
there was a strategic reason for defendant's appellate
counsel to refrain from addressing the sufficiency of the
evidence supporting defendant's conviction, we reverse
and remand the decision of the Court of Appeals.
defendant's right to counsel, as guaranteed by the Sixth
Amendment to the United States Constitution, includes the
right to effective assistance of counsel. State v.
Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247-48
(1985) (citing McMann v. Richardson, 397 U.S. 759,
771 & n.14, 90 S.Ct. 1441, 1449 & n. 14 (1970)). When
challenging a conviction on the basis that counsel was
ineffective, a defendant must show that counsel's conduct
"fell below an objective standard of
reasonableness." Strickland v. Washington, 466
U.S. 668, 688, 104 S.Ct. 2052, 2064 (1984); see also
Braswell, 312 N.C. at 561-62, 324 S.E.2d at 248. In
Strickland the United States Supreme Court set forth
a two-pronged test for determining whether a defendant has
received ineffective assistance of counsel. 466 U.S. at 687,
104 S.Ct. at 2064. Strickland requires that a
defendant first establish that counsel's performance was
deficient. Id. at 687, 104 S.Ct. at 2064. This first
prong requires a showing that "counsel made errors so
serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth
Amendment." Id. at 687, 104 S.Ct. at 2064.
Second, a defendant must demonstrate that the deficient
performance prejudiced the defense, which requires a showing
that "counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is
reliable." Id. at 687, 104 S.Ct. at 2064. Thus,
both deficient performance and prejudice are required for a
successful ineffective assistance of counsel claim.
case defendant's claim stems from appellate counsel's
decision not to argue in his first appeal that the evidence
was insufficient to support defendant's conviction.
Defendant contends that he would have won his appeal had this
dispositive issue been raised. Conversely, the State argues
that defendant's appellate counsel ...