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State v. McAllister

Court of Appeals of North Carolina

May 7, 2019


          Heard in the Court of Appeals February 13, 2019

          Appeal by defendant from judgment entered 22 August 2016 by Judge Richard S. Gottlieb in Forsyth County No. 15 CRS 51537 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Adren L. Harris, for the State.

          Joseph P. Lattimore for defendant-appellant.

          TYSON, JUDGE.

         Anton 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.

         I. Background

         Defendant 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.

         On the 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 another store.

         At this 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.

         The 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.

         Ms. 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.

         The 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.

         Officer 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.

         Defendant was indicted for habitual misdemeanor assault and charges of second-degree rape, second-degree sex offense, and assault by strangulation.

         On 22 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 assault.

         Defendant 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.

         Defendant 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."

         On 17 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.

         II. Jurisdiction

         This 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).

         III. Issue

         Defendant 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.

         IV. Standard of Review

         "On 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).

         V. State v. Harbison

         In 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 consent." Id.

         Our 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.

         Defendant 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 offense.

         The 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.

         A. State v. Gainey

         In 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.

         B. State v. Fisher

         In 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 ...

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