in the Court of Appeals 7 February 2018.
by the State from order entered 3 April 2017 by Judge Mark E.
Powell in Transylvania County 12 CRS 52047, 13 CRS 463
Attorney General Joshua H. Stein, by Assistant Attorney
General Teresa M. Postell, for the State.
Carolina Prisoner Legal Services, Inc., by Christopher J.
Heaney, for defendant-appellee.
State appeals from the trial court's order granting
defendant Jeffrey Tryon Collington's Motion for
Appropriate Relief for ineffective assistance of counsel. For
the reasons explained herein, we affirm.
present appeal arises from defendant's initial appeal to
this Court ("Collington I") in which we
issued an opinion dismissing defendant's challenge to his
conviction of possession of a firearm by a felon. As
explained in Collington I, the underlying facts of
the case are as follows:
. . . Christopher Hoskins ("Mr. Hoskins") testified
for the State at trial as follows: Mr. Hoskins went to the
recording studio ("the studio") of Dade Sapp
("Mr. Sapp") to "hang out" on the evening
of 1 October 2012. Shortly after he arrived, two men -
identified by Mr. Hoskins as Defendant and Clarence
Featherstone [("Defendant's brother")]- entered
the studio, passed by Mr. Sapp, and demanded to speak with
someone named "Tony." Defendant asked Mr. Hoskins
if he was "Tony" and pointed
a gun ("the gun") at Mr. H[o]skins when he said
he was not "Tony." A struggle for the gun ensued.
According to Mr. Hoskins, both Defendant and [Defendant's
brother] beat him up, went through his pockets, removed
approximately $900.00 in cash that Mr. Hoskins had won in
video poker earlier in the day, and then left the studio. At
trial, Mr. Hoskins also identified the gun that reportedly
was wielded by Defendant as belonging to Mr. Sapp.
testified that he and [his brother] did go to the studio on
the evening of 1 October 2012. However, Defendant maintained
that they went to the studio for [Defendant's brother] to
purchase a large quantity of oxycodone from Mr. Hoskins.
According to Defendant,
Sapp set up the drug deal by calling Mr. Hoskins on the
cellphone and asking him to come to the studio. Hoskins said
. . . he would be there in about three minutes.
When Mr. Hoskins came into the studio he was wearing a hoody.
You could not see his face. He walked straight back past us
and made a left in the side booth which was a soundproof
booth used for a studio, and Sapp walked in behind him.
During that time Mr. Hoskins had gave Mr. Sapp the pills to
come give [my brother]. When Mr. Sapp gave [my brother] the
pills, [my brother] started whispering to him that the money
was short. Mr. Sapp said, "Don't worry about it, he
can't count anyways." Mr. Sapp went and gave Mr.
Hoskins his money.
And at that time I believe Mr. Sapp actually told Mr. Hoskins
that we had shorted him. Mr. Hoskins came out of the side
booth demanding the rest of his money. When he started
demanding the rest of his money, he got in between me and [my
brother]. And at that point in time he started pointing his
fingers in my face, and I hit him with a closed fist. And we
started fighting. When we started fighting, [my brother]
jumped into the fight and we started beating . . . Mr.
Hoskins until Mr. Sapp ran out of the building, because Mr.
Hoskins had told him to go get a gun.
testified he never had possession of a gun, let alone Mr.
Sapp's gun, during the altercation.
Defendant also testified that he and [his brother] met Mr.
Sapp in a McDonald's parking lot later in the evening of
1 October 2012, where [Defendant's brother] gave Mr. Sapp
a "cut" of the oxycodone pills acquired from Mr.
Hoskins. Defendant further testified that Mr. Sapp also gave
the gun to [Defendant's brother] and asked him to
hold onto it because Mr. Sapp "was scared due to the
fact" that, during an investigation into the incident at
the studio that evening, "he had gave the detectives and
Mr. Hoskins a story about how he couldn't locate his
gun." Defendant testified he did not know what [his
brother] did with the gun afterwards.
Defendant was indicted for conspiracy to commit robbery with
a dangerous weapon, robbery with a dangerous weapon,
possession of a firearm by a felon, and being an habitual
felon. Defendant's indictment for possession of a firearm
by a felon stated only that, on the evening of 1 October
2012, Defendant "did have in his control a black
handgun, which is a firearm" and that Defendant
"has previously been convicted of a felony."
However, at trial, and without objection by Defendant, the
trial court instructed the jury, in part, as follows:
For a person to be guilty of a crime it is not necessary that
he personally do all of the acts necessary to constitute the
crime. If two or more persons join in a common purpose to
commit the crime of robbery with a dangerous weapon and/or
possession of a firearm by a felon, each of them, if
actually or constructively present, is not only guilty of
that crime if the other person commits the crime but also
guilty of any other crime committed by the other in pursuance
of the common purpose to commit robbery with a dangerous
weapon and/or possession of a firearm by a felon, or
as a natural or probable consequence thereof.
If you find from the evidence beyond a reasonable doubt that
on or about the alleged date Defendant acting either by
himself or acting together with [Defendant's brother]
with a common purpose to commit the crime of robbery with a
dangerous weapon and/or possession of a firearm by a
felon, each of them if actually or constructively
present, is guilty of robbery with a dangerous weapon and/or
possession of a firearm by felon.
State v. Collington, 2015 N.C.App. LEXIS 534 *1-7,
disc. review denied, 368 N.C. 357, 776 S.E.2d 855
(2015) (alterations omitted).
jury found defendant not guilty of conspiracy or robbery with
a dangerous weapon, but did find him guilty of possession of
a firearm by a felon. However, the verdict sheet did not
indicate whether the jury convicted defendant of possession
of a firearm by a felon under the theory of actual possession
of the firearm by defendant or under the theory of acting in
concert with his brother to possess the firearm.
appealed his conviction of possession of a firearm by a felon
to this Court, arguing "that the trial court committed
plain error by providing the jury with an instruction on
acting in concert with respect to the charge of possession of
a firearm by a felon." Id. at *7. Defendant
specifically argued "that this instruction impermissibly
allowed the jury to convict Defendant of possession of a
firearm by a felon based on [his brother]-also a convicted
felon-reportedly receiving the gun from Mr. Sapp in a
McDonald's parking lot on the evening of 1 October
Collington I, this Court held that, "even
assuming arguendo that the trial court erred by
instructing the jury on an acting in concert theory[, ]"
"Defendant has not established plain error[.]"
Id. at *8. Based on the victim's testimony at
trial and the fact that "both Defendant and [the victim]
testified that they engaged in a physical altercation[,
]" "[t]he jury reasonably could have believed that
Defendant was in possession of Mr. Sapp's gun at that
time." Id. at *9. This Court continued:
Finally, Defendant has not presented this Court with any
arguments under State v. Pakulski, 319 N.C. 562,
574, 356 S.E.2d 319, 326 (1987), which held that a trial
court commits plain error when it instructs a jury on
disjunctive theories of a crime, where one of the theories is
improper, and "we cannot discern from the record the
theory upon which the jury relied." "It is not the
role of the appellate courts to create an appeal for an
appellant." Viar v. N.C. Dep't of Transp.,
359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). Therefore,
Defendant has not met his "burden" of establishing
that the trial court committed plain error in the present
case. See [State v.] Lawrence, 365
N.C. [506, ] 516, 723 S.E.2d [326, ] 333 [(2012)].
Id. at *9-10 (alterations omitted).
filed a Motion for Appropriate Relief in the Transylvania
County Superior Court, seeking a new trial on the grounds
that he received ineffective assistance of appellate counsel
in that "appellate counsel failed to raise the argument
on appeal that plain error was committed because the trial
court instructed the jury on disjunctive theories of a crime,
one of which was improper, and the record does not show upon
which theory the jury relied."
Honorable Mark E. Powell denied defendant's Motion for
Appropriate Relief. Judge Powell reasoned:
Taking into consideration that the Court of Appeals found
that no plain error was established in the trial of the
Defendant, even assuming that an acting in concert
instruction was improper, the undersigned judge finds that no
actual prejudice has been shown by the failure of the
Defendant's appellate counsel to argue Pakulski,
and that ...