{ "id": 11871337, "name": "STATE OF NORTH CAROLINA v. FRED THOMAS WARE", "name_abbreviation": "State v. Ware", "decision_date": "1997-03-18", "docket_number": "No. COA96-290", "first_page": "695", "last_page": "697", "citations": [ { "type": "official", "cite": "125 N.C. App. 695" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "6 ALR4th 16", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "90 L. Ed. 2d 672", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "476 U.S. 1123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12995, 12899, 12492, 12429, 13010, 12883, 12756, 12661, 13047, 12568, 13049, 12828, 12351 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/1123-12", "/us/476/1123-01", "/us/476/1123-10", "/us/476/1123-08", "/us/476/1123-13", "/us/476/1123-11", "/us/476/1123-03", "/us/476/1123-07", "/us/476/1123-02", "/us/476/1123-06", "/us/476/1123-05", "/us/476/1123-09", "/us/476/1123-04" ] }, { "cite": "337 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "507-08" } ], "opinion_index": 0 }, { "cite": "316 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "year": 1985, "pin_cites": [ { "page": "180" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 377, "char_count": 5997, "ocr_confidence": 0.74, "pagerank": { "raw": 7.959041990783363e-08, "percentile": 0.4629240932579467 }, "sha256": "78a2e5a7b58405c937cef387622dfc1361d5f2d0f662463ad1e5a4fbc060ef40", "simhash": "1:2e4c81ea3726db5c", "word_count": 933 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and MARTIN, John C., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FRED THOMAS WARE" ], "opinions": [ { "text": "EAGLES, Judge.\nThe sole issue raised by defendant here on appeal is whether he was afforded effective assistance of counsel at trial. Defendant argues that he was not afforded effective assistance of counsel because his counsel conceded, contrary to defendant\u2019s own trial testimony, that defendant must be guilty of two lesser included charges. The following statements by defense counsel form the primary basis of defendant\u2019s objection:\nThese sexual acts were happening between them, and when he was restraining her \u2014 I\u2019ll admit it, she was restrained against her will.... She certainly did not consent....\nWe recognize that \u201cineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which defendant\u2019s counsel admits the defendant\u2019s guilt without the defendant\u2019s consent.\u201d State v. Harbison, 316 N.C. 176, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986). We cannot address defendant\u2019s assignments of error here, however, because we cannot determine from the record on appeal that these statements by defense counsel were made without defendant\u2019s consent. To properly advance these arguments, defendant must move for appropriate relief pursuant to G.S. 15A-1415 (1981 & Supp. 1995) and G.S. 15A-1420 (1977 & Supp. 1995). This motion must be accompanied by affidavits or other documentary evidence necessary to support defendant\u2019s contention that defense counsel\u2019s arguments were made without his consent. G.S. 15A-1420(b)(l). Upon the filing of a motion for appropriate relief, the trial court will determine the motion and make appropriate findings of fact.\nDismissed.\nJudges GREENE and MARTIN, John C., concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General E. Burke Haywood, for the State.", "Harrington, Ward, Gilleland & Winstead, by Eddie S. Winstead III, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FRED THOMAS WARE\nNo. COA96-290\n(Filed 18 March 1997)\nConstitutional Law \u00a7 309 (NCI4th)\u2014 ineffective assistance of counsel \u2014 concession of guilt of lesser offenses \u2014 consent by defendant \u2014 failure of record to show \u2014 question not addressed\nThe Court of Appeals could not address defendant\u2019s assignment of error that he received ineffective assistance of counsel in his trial for first-degree rape and first-degree kidnapping because, his counsel conceded, contrary to defendant\u2019s testimony, his guilt of two lesser offenses where the Court could not determine from the record on appeal whether these statements by defense counsel were made without defendant\u2019s consent. To properly advance this argument, defendant should move for appropriate relief in the trial court.\nAm Jur 2d, Appellate Review \u00a7\u00a7 497, 546, 690.\nAdequacy of defense counsel\u2019s representation of criminal client regarding argument. 6 ALR4th 16.\nAppeal by defendant from judgment and commitment entered 3 August 1995 by Judge J. Herbert Small in Lee County Superior Court. Heard in the Court of Appeals 7 January 1997.\nOn 13 March 1995, the State indicted defendant Fred T. Ware on charges of first degree rape, first degree kidnapping and as an habitual felon. After trial, the jury returned its verdict finding the defendant guilty of felonious restraint and assault on a female, and finding that the defendant is an habitual felon. The trial court entered judgment accordingly on 25 August 1995.\nAt trial, the State presented the following evidence. The alleged victim, an ex-girlfriend of defendant\u2019s, testified that on the evening of 13 March 1995 defendant met her unexpectedly in the parking lot of the K-Mart at which she works. There, defendant told her he had a gun and demanded that she drive him to an unspecified location. She testified that he ultimately directed her to a secluded location known as \u201cLeek\u2019s Place.\u201d There, after directing her to park the vehicle out of sight of the passing roadway, defendant proceeded to threaten, physically assault, and ultimately rape the victim.\nThe victim testified that defendant then directed her to drive him to his sister\u2019s house. On the way to defendant\u2019s sister\u2019s house, the victim stopped at a convenience store to use the restroom and then was stopped along the roadside by Fort Bragg military police. She testified that she did not seek help on either of these occasions because of defendant\u2019s threats.\nDefendant\u2019s testimony directly contradicted that of the alleged victim. He admitted to engaging in sexual intercourse with the victim, but contended that the intercourse was consensual and was, in fact, initiated by the alleged victim. Defendant denied ever telling the victim he had a weapon, threatening to harm her or in any way assaulting the alleged victim. In his testimony, defendant denied restraining the alleged victim in any way.\nIn his closing argument before the jury, counsel for defendant made numerous statements seeming to admit at least a measure of guilt on defendant\u2019s part. These statements were clearly made in an attempt to avoid conviction for the more serious offenses (first degree rape and kidnapping) by persuading the jury that defendant was guilty only of the lesser included charges (assault on a female and felonious restraint). The statements by defense counsel did, however, directly contradict defendant\u2019s own testimony in which he consistently maintained his innocence of any illegal restraint or sexual offense. After closing arguments were completed, the trial court instructed the jury and the jury retired to begin its deliberations. Four hours later, the jury returned with a verdict that the defendant was guilty of felonious restraint and assault on female.\nThe trial court denied defendant\u2019s motions to set aside the verdicts as inconsistent with the evidence and the State proceeded with the habitual felon indictment. As an habitual felon, the defendant was sentenced to a minimum term of one-hundred months and a maximum term of one-hundred twenty-nine months.\nDefendant appeals.\nAttorney General Michael F. Easley, by Assistant Attorney General E. Burke Haywood, for the State.\nHarrington, Ward, Gilleland & Winstead, by Eddie S. Winstead III, for defendant-appellant." }, "file_name": "0695-01", "first_page_order": 733, "last_page_order": 735 }