in the Court of Appeals February 13, 2019
by defendant from judgment entered 22 August 2016 by Judge
Richard S. Gottlieb in Forsyth County No. 15 CRS 51537
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Adren L. Harris, for the State.
P. Lattimore for defendant-appellant.
Thurman McAllister ("Defendant") appeals by
petition for writ of certiorari from a judgment entered after
a jury's conviction of one count of habitual misdemeanor
assault. We find no error.
met the victim, Stephanie Leonard, at a drug treatment
facility group session in Winston-Salem. Soon after they met,
Defendant moved into Ms. Leonard's apartment.
evening of 16 February 2015, Defendant and Ms. Leonard
jointly consumed a large bottle of wine at a table inside Ms.
Leonard's apartment. Around 9:00 p.m., they decided to
walk to a nearby BP gas station to purchase cigarettes.
Before arriving at the BP gas station, Ms. Leonard decided
she wanted more wine and the pair began walking towards
point, Defendant realized Ms. Leonard had not disclosed to
him that she had money. Ms. Leonard testified that Defendant
hit her in the face and knocked her to the ground, causing
her to lose her wallet in the fall. Ms. Leonard got up and
began to walk back towards the BP station. Defendant
continued to strike her in the face. A cashier at the BP
heard the struggle and saw Defendant "jerk" Ms.
Leonard around outside of the store. The cashier called the
police. Winston-Salem police responded to the call, but did
not find Defendant or Ms. Leonard. An officer recovered Ms.
Leonard's wallet and identification card at the scene.
couple eventually returned to Ms. Leonard's apartment.
Ms. Leonard testified that her face was bleeding and
Defendant continued to hit her and drag her around the
apartment. During the struggle, as Ms. Leonard struck at
Defendant, her fingers entered his mouth and his fingers
entered hers. Ms. Leonard testified that she bit
Defendant's fingers and he bit her fingers back. At some
point during the altercation, Ms. Leonard got into the
bathtub. Defendant washed blood off of her body and splashed
the blood-water mixture onto the walls.
Leonard went into her bedroom. Defendant attempted to force
Ms. Leonard to perform fellatio. Defendant and Ms. Leonard
then engaged in sexual intercourse and both fell asleep.
next day, 17 February, Winston-Salem police arrived at the BP
station to meet Ms. Leonard and investigate the assault.
Officer P.M. Felske testified he observed Ms. Leonard's
"cut lip and swollen lip and that it appeared that she
had been assaulted." Law enforcement officers also
entered and examined Ms. Leonard's apartment. Officer
Christopher Ingram observed and photographed Ms.
Leonard's injuries and the blood stains the officers had
observed in the apartment, on the floor of the bathroom and
walls of the bathtub.
J.A. Henry collected a security video recorded at the BP
station on 16 February and observed Defendant present in the
area of that same BP on the evening of 17 February. Defendant
agreed to go to the police department to speak with officers
about an unrelated incident. At the police station, Defendant
agreed to discuss the incident between himself and Ms.
Leonard. Defendant purportedly admitted he had pushed Ms.
Leonard and engaged in other physical contact.
was indicted for habitual misdemeanor assault and charges of
second-degree rape, second-degree sex offense, and assault by
August 2016, the jury returned verdicts finding Defendant
guilty of assault on a female, the underlying felony for
habitual misdemeanor assault, and not guilty of all the other
offenses. Defendant admitted to the predicate misdemeanor
assault convictions for habitual misdemeanor assault. The
trial court entered judgment sentencing Defendant to a term
of 15 to 27 months imprisonment for habitual misdemeanor
failed to file a notice of appeal. On 19 July 2017, Defendant
filed a pro se "Motion to Modify and Terminate
Sentence for Ineffective Assistance of Counsel." The
trial court treated Defendant's motion as a motion for
appropriate relief ("MAR") and denied the motion
without an evidentiary hearing.
filed a petition for writ of certiorari with this Court on 11
August 2017. By order entered 29 August 2017, this Court
allowed the petition "for the purpose of reviewing the
judgment entered . . . on 22 August 2016."
October 2018, Defendant filed an appellate brief, and at the
same time filed a second petition for writ of certiorari
seeking review of the trial court's 27 July 2017 order
denying the MAR. The second petition was referred to this
panel for consideration.
Court reviews Defendant's criminal conviction by writ of
certiorari granted on 29 August 2017 pursuant to N.C. Gen.
Stat. § 15A-1422(c)(3) (2017).
asserts his counsel conceded his guilt to the offense of
habitual misdemeanor assault on a female which constitutes a
per se denial of his constitutional right to
effective assistance of counsel.
Standard of Review
appeal, this Court reviews whether a defendant was denied
effective assistance of counsel de novo."
State v. Wilson, 236 N.C.App. 472, 475, 762 S.E.2d
894, 896 (2014).
State v. Harbison
State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d
504, 507 (1985), our Supreme Court held that where
"counsel admits his client's guilt without first
obtaining the client's consent, the client's rights
to a fair trial and to put the State to the burden of proof
are completely swept away." The Court stated the
practical effect is the same as if defense "counsel had
entered a plea of guilty without the client's
Supreme Court in Harbison requires a defendant's
consent to be on the record to allow his counsel's
concession of defendant's guilt of one or more of the
offenses for which he is charged. An "ineffective
assistance of counsel, per se in violation of the Sixth
Amendment, [is] established in every criminal case in which
the defendant's counsel admits the defendant's guilt
to the jury without the defendant's consent."
Id. at 180, 337 S.E.2d at 507-08.
argues his trial counsel admitted or conceded his guilt on
the misdemeanor charge of assault on a female without his
consent and asserts he is entitled to a new trial. The State
argues that no Harbison violation occurred because
counsel did not expressly concede Defendant's guilt to a
charged crime or only admitted one element of a charged
facts and statements of the present case fall squarely within
the rationale of the precedents cited by the State from the
Supreme Court of North Carolina and our Court, where
Defendant's counsel may have admitted an element of the
offense, but he did not expressly concede the crime charged
or all other elements of the charged crime.
State v. Gainey
State v. Gainey, 355 N.C. 73, 93, 558 S.E.2d 463,
476 (2002), our Supreme Court rejected the defendant's
assignment of error asserting his counsel's argument
violated Harbison. The Court recognized that
"defense counsel never conceded that defendant was
guilty of any crime." Id. Counsel merely noted
defendant's involvement in the events surrounding the
death of the victim, and argued that "if he's guilty
of anything, he's guilty of accessory after the fact.
He's guilty of possession of a stolen vehicle."
Id. (defendant was charged with murder, kidnapping,
and robbery). The Court noted the defendant had "taken
defense counsel's statements out of context to form the
basis of his claim, and . . . fail[ed] to note the consistent
theory of the defense that defendant was not guilty."
Id. The defendant's Harbison objections
were overruled. Id.
State v. Fisher
State v. Fisher, 318 N.C. 512, 350 S.E.2d 334
(1986), the defendant was charged with and tried for
first-degree murder. His counsel argued:
His Honor is going to submit to you a verdict form-Madam
Clerk, do we have it drawn up yet? Thank you. In which its
going to say, Ladies and Gentlemen of the Jury, Do you find
the defendant guilty of murder in the first degree and then
down below that it's going to say Do you find him guilty
of second degree. Second degree is the unlawful killing of a
human being with no premeditation and no deliberation but
with malice, illwill. You heard Johnny testify, there was
malice there and then another possible verdict is going to
say Do you find him guilty of voluntary manslaughter.
Voluntary manslaughter is the killing of a human being
without malice and without premeditation. It's a killing.
And it also has not guilty, remember that too. I asked you
about that and it's not a not guilty as in some trial I
wasn't there, I don't know a darn thing about it, I