in the Court of Appeals 6 February 2017.
by defendant from judgment entered 20 May 2013 by Judge
Douglas B. Sasser and order entered 21 January 2016 by Judge
C. Winston Gilchrist in Superior Court, Lee County No.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Amy Kunstling Irene, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Anne M. Gomez, for defendant-appellant.
the denial of his motions to suppress, defendant pled guilty
to first degree murder; he appealed and also filed a motion
for appropriate relief with this Court. In 2014, this Court
allowed defendant's motion for appropriate relief,
reversed the denial of his motions to suppress, and vacated
his judgment. The State petitioned the Supreme Court for
discretionary review and ultimately that Court vacated this
Court's opinion and ordered that defendant's motion
for appropriate relief be remanded for consideration by the
trial court. On remand, the trial court denied
defendant's motion for appropriate relief. Defendant now
appeals the denial of his motion for appropriate relief. On
defendant's appeal before us, because defendant's
attorney made an objectively reasonable determination that
defendant's uncle would qualify as his "guardian[,
]" a term not defined in the applicable statutes, and
therefore did not seek suppression of defendant's
statement on that ground, he did not provide ineffective
assistance of counsel in failing to argue his rights under
North Carolina General Statute § 7B-2101(b), and his MAR
was properly denied.
during the remand, the Supreme Court specifically tolled the
time for appeal of the motion to suppress with instructions
for this Court to hear such appeal or terminate it, based
upon the determination of defendant's MAR. Because
defendant did not prevail with his MAR, we have also
addressed his arguments regarding denial of his motions to
suppress. Defendant argues he did not make a knowing and
intelligent waiver of his rights during police interrogation.
Because the trial court failed to address key considerations
in determining whether defendant made a knowing and
intelligent waiver, we remand the order denying
defendant's motion to suppress for further findings of
this appeal addresses the interrogation of defendant and his
attorney's effectiveness as counsel, we will not repeat
the factual details of defendant's first degree murder
charge and conviction but will instead focus on the
procedural background of this case which led to this appeal.
In 2007, defendant, age 13, provided a signed statement to
the Lee County Sheriff's Office stating he had "shot
the lady as she was sleeping on the couch in the head."
Defendant's uncle, with whom defendant had been living,
was present during the interrogation. On 14 August 2007 -
only two weeks after the interrogation - the trial court on
its own motion entered an order appointing the director of
the Lee County Department of Social Services as guardian of
the person for defendant pursuant to North Carolina General
Statute § 7B-2001. In the order appointing the guardian,
the district court found that "the juvenile appeared in
court with no parent, guardian or custodian but he lived with
an uncle who did not have legal custody of him" and
"[t]hat the mother of the juvenile resides in El
Salvador and the father of the juvenile is no where to be
found and based on information and belief lives in El
Salvador." In 2009, defendant was indicted for first
degree murder and was prosecuted as an adult.
there was other evidence that defendant had shot the victim,
his signed statement was the most direct evidence of
premeditation as an element of first degree murder. Prior to
his trial, defendant made separate motions to suppress his
statements based upon alleged violations of his right to
counsel and his right to remain silent and upon his claim he
had not knowingly and voluntarily waived his Miranda rights.
In December of 2012, the trial court denied defendant's
motions to suppress, and the trial court found that
defendant's uncle was present during the questioning; the
uncle was defendant's custodian; an interpreter was
provided; and neither defendant nor his uncle "indicated
any lack of understanding of what was being said" when
defendant agreed to waive his rights. In 2013, defendant pled
guilty to first degree murder but preserved his right to
challenge the denial of his motions to suppress.
2014, defendant filed a motion for appropriate relief
("MAR") with this Court arguing he had been
provided ineffective assistance of trial counsel because his
attorney did not challenge the admission of his confession
because his uncle was not his "parent, guardian,
custodian, or attorney[, ]" and therefore his rights
under North Carolina General Statute § 7B-2101(b) were
violated as no appropriate adult had been present during his
custodial interrogation. In an unpublished opinion, this
Court allowed defendant's MAR, reversed the denial of
defendant's motions to suppress, and vacated
State petitioned for discretionary review, and our Supreme
Court vacated the Court of Appeals' opinion and remanded
the case to this Court for remand to the trial court to
conduct an evidentiary hearing on the MAR; the entire Supreme
Court order reads:
This case has come before the Court by way of the State's
Petition for Discretionary Review pursuant to N.C. G.S.
Pursuant to N.C. G.S. § 15A-1418, the decision of the
Court of Appeals is vacated and this Court now ORDERS this
case remanded to the Court of Appeals for remand to the
Superior Court, Lee County, for an evidentiary hearing to
make findings of fact necessary to determine whether the
trial counsel's actions fell below an objective standard
of reasonableness, see State v. McHone, 348 N.C.
254, 499 S.E.2d 761 (1998) (remanding a motion for
appropriate relief to the trial court with instructions to
conduct an evidentiary hearing), and, if so, whether
defendant was prejudiced by any deficient performance by his
The time periods for perfecting or proceeding with the appeal
are tolled. The Superior Court, Lee County, is ordered to
transmit its order on the motion for appropriate relief
within 120 days so that the Court of Appeals may proceed with
the appeal or enter an order terminating the appeal, as
By order of the Court in Conference, this 24th day of
State v. Benitez, 368 N.C. 350');">368 N.C. 350, 777 S.E.2d 60
trial court then held an evidentiary hearing on the MAR and
entered an order with these findings of fact regarding
defendant's uncle and his attorney's knowledge and
investigation regarding his uncle's status:
1. Attorney Fred D. Webb of Sanford, North Carolina, was duly
appointed to represent the defendant upon the defendant being
charged with murder in Juvenile Court in the District Court
of Lee County and continued to represent the defendant
through the Superior Court proceedings in Lee County wherein
the defendant entered a plea agreement as is of record.
. . . .
4. Defendant's Uncle, Jeremias-Cruz, advised Mr. Webb
that the defendant was Mr. Cruz's sister's son, and
that by agreement with defendant's mother, the defendant
had lived with him ever since the defendant came to North
Carolina from El Salvador; for approximately 1½ years
before the defendant was arrested. Defendant had no parent,
custodian or guardian other than Jeremias Cruz living in the
5. Mr. Cruz provided the sole support for the defendant, had
provided the defendant with his own room in Mr. Cruz's
house, provided food for the defendant, provided clothing for
the defendant, provided medical care for the defendant,
enrolled the defendant in the Lee County school system and
had otherwise provided all the needs of a juvenile the
6. Attorney Webb had learned from the conferences with Mr.
Cruz and with the defendant that Mr. Cruz had provided all
the above referenced care for the defendant and had been
accepted as a guardian by the Lee County School system to
enroll the defendant in school.
7. Attorney Webb had obtained documentation from the Lee
County Schools and Lee County Health Department showing that
Mr. Cruz had appeared before each of these entities and been
accepted as the guardian of the defendant Juan C. Benitez.
8. Mr. Cruz considered himself to have legal custody of the
defendant since he had sole physical custody of the defendant
by agreement with his sister and Mr. Cruz had advised others
including Detective Brandon Wall on the day the defendant was
arrested before the interview of defendant, that he was the
defendant's uncle, that the defendant lived with him . .
., that he was defendant's legal guardian or custodian
and Juan had lived with him for about a year and a half and
Mr. Webb had seen this in discovery provided by the State.
9. The defendant's uncle Jeremias Cruz signed or was
listed as a parent or guardian on numerous documents some of
which are dated January 2006; those documents were obtained
and received by Attorney Webb.
. . . .
12. After learning of the evidence of the relationship of
Jeremias Cruz and the defendant, Attorney Webb had a member
of his staff, early in his representation of the defendant,
research the issue of who is a parent, guardian or custodian
under NCGS 7B-2101, and Attorney Webb reviewed the cases of
State v. Jones and State v. Oglesby as
written by the Court of Appeals.
. . . .
15. Prior to the evidentiary hearing on defendant's
Motion to Suppress Defendant's statement, Attorney Webb
read the Supreme Court of North Carolina's opinion in
State v. Oglesby.
. . . .
18. Attorney Webb, in the exercise of professional judgment,
formed the opinion that Oglesby as decided by the
Supreme Court was not inconsistent with the Court of Appeals
opinion in Jones in that the same factors were
discussed in determining if a person qualified as an approved
person under NCGS 7B-2101, those factors being whether the
person ever had custody of the juvenile, whether the juvenile
stayed with or lived with the person for a considerable
length of time, whether the person signed school paperwork,
fed and clothed the juvenile, provided medical and other
necessary care for the juvenile.
19. Based upon the case law as interpreted by Attorney Webb
and the facts of this case regarding the Uncle Jeremias Cruz
and the defendant, Attorney Webb made the decision that Uncle
Jeremias Crus would be the appropriate person under 7B-2101
and believed his interpretation of the law as it existed was
correct. Attorney Webb therefore did not identify or raise at
the suppression hearing any issues as to whether Jeremias
Cruz was the parent, custodian, or guardian of Defendant. On
direct appeal, the Court of Appeals determined that Jeremias
Cruz was not the "guardian" of the defendant.
20. Attorney Webb's file does not contain any copy of,
nor any reference to, the Court of Appeals decision in the
case of In re M.L.T.H. Given the existence of
Oglesby, counsel was not under any duty to find the
M.L.T.H. opinion or the dicta contained in
a footnote of that opinion stating that Oglesby
"imp[l]iedly" overruled Jones. The
decision in M.L.T.H. was filed in November, 2009,
and did not become final until 2010. . . .
21. . . . the evidence does not establish that Attorney Webb
read M.L.T.H. before the hearing on the motion to
suppress. The court finds as a fact that Attorney Webb was
mistaken in his belief that he had reviewed M.L.T.H.
prior to the suppression hearing. . . .
22. At the time of the suppression hearing[, ] Attorney Webb
knew that Jeremias Cruz had assumed responsibility for the
care and upbringing of the defendant. Attorney Webb conducted
a preliminary review of the cases and the law relating to the
issue of who could be a "parent, guardian or
custodian" under the applicable statute, including the
Supreme Court's decision in Oglesby. These cases
were understood by Attorney Webb, in the reasonable exercise
of his best professional judgment, to support the conclusion,
which was consistent with the realities of defendant's
actual living situation, that Jeremias Cruz was acting as
defendant's "guardian" within the meaning of
N.C. Gen. Stat. 7B-2101. . . .
. . . .
25. Attorney Webb's representation of defendant, viewed
at the time of counsel's representation, and not merely
through hindsight, was objectively reasonable.
trial court then concluded that Attorney Webb did not provide
ineffective assistance of counsel as counsel's
performance was not deficient nor was defendant prejudiced.
The trial court denied defendant's MAR; it is from this
order and the denial of defendant's motion to suppress
that defendant's appeal is now before us.
argues the trial court erred when it denied his MAR.
Defendant contends he did not receive effective assistance
from his counsel because Attorney Webb failed to challenge
his confession on the ground ...