{ "id": 4364923, "name": "STATE OF NORTH CAROLINA v. TERRY LEE HOLDER", "name_abbreviation": "State v. Holder", "decision_date": "2012-02-07", "docket_number": "No. COA11-919", "first_page": "422", "last_page": "428", "citations": [ { "type": "official", "cite": "218 N.C. App. 422" } ], "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": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "weight": 2, "pin_cites": [ { "page": "286" }, { "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "677 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "511" } ], "opinion_index": 0 }, { "cite": "197 N.C. 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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": "315 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716847 ], "year": 1985, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0175-01" ] }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] } ], "analysis": { "cardinality": 607, "char_count": 12445, "ocr_confidence": 0.758, "pagerank": { "raw": 5.973126083369309e-08, "percentile": 0.3717307456921234 }, "sha256": "d2fad90deb8730f3b73f71428b92aae7f935417205cc504412ba393f72b077b2", "simhash": "1:8a33ceca71431df0", "word_count": 2032 }, "last_updated": "2023-07-14T20:21:59.538017+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER (Robert C.) and THIGPEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TERRY LEE HOLDER" ], "opinions": [ { "text": "McCullough, Judge.\nOn 25 January 2011, a jury found Terry Lee Holder (\u201cdefendant\u201d) guilty of driving while impaired and felony fleeing to elude arrest. Defendant then pled guilty to attaining habitual felon status. On appeal, defendant argues he was deprived of his Sixth Amendment right to effective assistance of counsel at trial. We find no error.\nI. Background\nOn the night of 20 October 2009, Deputy Randy Ackley of the Johnston County Sheriff\u2019s Office (\u201cDeputy Ackley\u201d) encountered defendant on a two-lane road in Johnston County, North Carolina. Deputy Ackley observed that defendant was travelling approximately 80 miles per hour. Deputy Ackley activated his emergency lights and pursued defendant. During the pursuit, defendant operated his vehicle in excess of 100 miles per hour, drove at times without headlights, and ran stop signs. Defendant also passed a gasoline tanker truck and \u201ccut off\u2019 the tanker by making a sharp turn just in front of the tanker. Defendant was finally stopped when he ran over \u201cstop sticks\u201d deployed in front of his vehicle by another officer. The stop sticks punctured defendant\u2019s tires, causing his vehicle to slow down and run into a ditch. Defendant was subsequently tested for alcohol use and found to have a blood alcohol level of .11. Defendant told the arresting officers that he ran from Deputy Ackley because he had been drinking and had had a bad night.\nBased on these events, defendant was charged with and indicted for driving while impaired and felony fleeing to elude arrest. Defendant was also indicted for being an habitual felon. Defendant was tried by jury on 24 January 2011, and on 25 January 2011, the jury returned unanimous verdicts finding defendant guilty of both offenses. Defendant then pled guilty to attaining habitual felon status. Defendant was sentenced to a term of 120 days\u2019 imprisonment for the impaired driving conviction and to a minimum of 80 months\u2019 and a maximum of 105 months\u2019 imprisonment for the felony eluding arrest conviction and attaining habitual felon status. Defendant gave oral notice of appeal in open court at the close of the proceedings.\nII. Ineffective assistance of counsel\nIn his only issue on appeal, defendant argues he was deprived of his Sixth Amendment right to effective assistance of counsel where his trial counsel conceded his guilt without his voluntary consent. Defendant\u2019s argument is without merit.\nOrdinarily, to prevail on a claim of ineffective assistance of counsel, the defendant bears the burden of meeting a two-part test: \u201ca defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense.\u201d State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286. \u201cDeficient performance may be established by showing that counsel\u2019s representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d Id. (internal quotation marks and citations omitted).\nHowever, our Supreme Court has determined that a defendant receives ineffective assistance of counsel per se when the defendant\u2019s counsel concedes the defendant\u2019s guilt to either the offense charged or a lesser-included offense without the defendant's consent. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986); see also State v. Alvarez, 168 N.C. App. 487, 501, 608 S.E.2d 371, 380 (2005). Nonetheless, our Supreme Court has noted that \u201c [n]either Harbison nor any subsequent case specifies a particular procedure that the trial court must invariably follow when confronted with a defendant\u2019s concession[.]\u201d State v. Berry, 356 N.C. 490, 514, 573 S.E.2d 132, 148 (2002). Indeed, our Supreme Court has specifically \u201cdeclined to set out what constitutes an acceptable consent by a defendant in this context.\u201d State v. McDowell, 329 N.C. 363, 387, 407 S.E.2d 200, 213 (1991). In State v. Matthews, 358 N.C. 102, 591 S.E.2d 535 (2004), our Supreme Court stated that \u201c[f]or us to conclude that a defendant permitted his counsel to concede his guilt to a lesser-included crime, the facts must show, at a minimum, that defendant knew his counsel [was] going to make such a concession.\u201d Id. at 109, 591 S.E.2d at 540. And recently, this Court noted that our Supreme Court\u2019s holdings in \u201cHarbison and Matthews clearly indicate that the trial court must be satisfied that, prior to any admissions of guilt at trial by a defendant\u2019s counsel, the defendant must have given knowing and informed consent, and the defendant must be aware of the potential consequences of his decision.\u201d State v. Maready,_N.C. App._,_, 695 S.E.2d 771, 776, disc. review denied, 364 N.C. 329, 701 S.E.2d 247 (2010).\nPrior to trial in the present case, defense counsel informed the trial court that at some point during the trial, he may concede defendant\u2019s guilt to \u201csomething other\u201d than felony fleeing to elude arrest, and the following colloquy occurred:\n[DEFENSE COUNSEL]: And there may be a time during this trial, I probably need to address this now \u2014 and I don\u2019t know at what point it may occur. It may occur sometime during opening, it certainly may occur during closing \u2014 where I concede guilt for Mr. Holder something other than felony fleeing to speed \u2014 speeding to elude arrest. And I just \u2014 you know, that\u2019s with his consent.\n[DEFENSE COUNSEL]: We talked about that, and that that is something we would need to get out. And I don\u2019t \u2014 you know, I don\u2019t know at this point what the instructions will be, where we\u2019ll be at that point. I don\u2019t know that it will come up right away, but I just wanted to put you on notice as to that.\nTHE COURT: Okay. Mr. Holder, sir, your attorney \u2014 and we will certainly address it for the record again when necessary\u2014 but he has indicated to this Court, that there may be times when he will concede guilt as to some portion of the offenses charge[d]. Have you discussed that with your attorney?\nTHE DEFENDANT: Yes.\nTHE COURT: I need you to answer loudly and clearly for the record, please.\nTHE DEFENDANT: Yes, ma\u2019am.\nTHE COURT: Okay. And, sir, is that, indeed, part of the trial strategy that you have discussed with your attorney?\nTHE DEFENDANT: Yes, ma\u2019am.\nTHE COURT: All right, and, sir, do you understand that once there is that concession, it\u2019s out there for the jury, though the State still has the burden of proof. Do you understand that?\nTHE DEFENDANT: Yes, ma\u2019am.\nTHE COURT: And that a juror may infer from that concession that you are guilty of all of these charges; do you understand that?\nTHE DEFENDANT: Yes, ma\u2019am.\nTHE COURT: All right, sir. We will note that for the record. And is there anything you wish to bring to the Court\u2019s attention about that particular trial strategy before we get started? Because once the attorney makes an opening argument and says that, it\u2019s out there, can\u2019t bring it back. Have any objection to him doing that, or is that, indeed, something you want him to do?\nTHE DEFENDANT: Yes, ma\u2019am.\nTHE COURT: All right, I\u2019ll note that for the record. Anything else on behalf of your client, sir?\n[DEFENSE COUNSEL]: Not that I\u2019m aware of, your Honor.\nTHE COURT: All right. And, Mr. Holder, sir, noting, too, for the record that this will not be an issue that, should you be convicted, will be something that you can appeal at trial\u2014 appeal based on the trial, stating that you didn\u2019t [know] your lawyer was going to do it or it wasn\u2019t part of your trial strategy. Understood?\nTHE DEFENDANT: Yes, ma\u2019am.\n(Emphasis added.)\nSubsequently, during his closing argument, defense counsel argued the State could not meet its burden of proving defendant committed the offense of felony fleeing to elude arrest, but conceded that defendant was guilty of misdemeanor fleeing to elude arrest, stating:\nOn the felony fleeing to elude arrest charge, you\u2019re going to have a choice, guilty of felony fleeing to elude arrest. In order to find that, you\u2019ve got to find all of this. I respectfully submit to you, the State can\u2019t show that. And that\u2019s enough to kick it back to the misdemeanor fleeing to elude arrest. And that\u2019s what he\u2019s guilty of. I don\u2019t dispute a bit that he\u2019s guilty of that.\n(Emphasis added.) Although defendant acknowledges in his brief that \u201c[t]his was undoubtedly sound trial strategy in the face of compelling evidence of defendant\u2019s guilt,\u201d defendant argues the decision to admit guilt rests solely with him and that his attorney\u2019s concession during the closing argument to the jury constitutes a per se constitutional violation under Harbison. Defendant contends the colloquy between the trial court and defendant was not adequate to determine what offense defendant authorized his attorney to admit, nor to determine that his admission was knowing and voluntary. As a result, defendant argues he should be awarded a new trial on his conviction for felony fleeing to elude arrest, or in the alternative, defendant requests we remand to the trial court for a hearing to determine whether defendant gave his informed consent to his attorney\u2019s admitting his guilt of the offense of misdemeanor fleeing to elude arrest.\nContrary to defendant\u2019s contentions, the colloquy between the trial court, defense counsel, and defendant shows that defense counsel explained to the trial court in defendant\u2019s presence that defendant had consented to permitting his counsel to concede to the jury that he was guilty of \u201csomething other than felony fleeing to speed\u2014 speeding to elude arrest.\u201d The trial court judge spoke directly with defendant to ensure that he understood the consequences of conceding guilt and that he did in fact consent to an admission of guilt to \u201csome portion of the offenses charged,\u201d specifically a lesser-included offense of felonious fleeing to elude arrest, as specified by defense counsel at the beginning of the colloquy. Thus, the trial court\u2019s inquiry of defendant is sufficient evidence that defendant was aware his counsel would make such a concession, that he was informed of the potential consequences of that decision, and that he knowingly consented to an admission of guilt to the lesser-included offense. We also note that defendant has made no factual assertion in his brief that he did not actually consent to his attorney\u2019s concession.\nWhen there is a knowing consent, as demonstrated by this case, we examine the issue concerning ineffective assistance of counsel pursuant to the normal ineffectiveness standard set forth previously. State v. Goode, 197 N.C. App. 543, 547-48, 677 S.E.2d 507, 511 (2009). Here, aside from defense counsel\u2019s concession of defendant\u2019s guilt to the lesser-included offense of misdemeanor fleeing to elude arrest, defendant has not alleged any other deficiencies in his counsel\u2019s representation at trial or that he was therefore deprived of a fair trial. Having already determined that defendant gave knowing and voluntary consent to his counsel to concede guilt to the lesser offense, we hold defendant received a fair trial free from error.\nNo error.\nJudges HUNTER (Robert C.) and THIGPEN concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State.", "W. Michael Spivey for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERRY LEE HOLDER\nNo. COA11-919\n(Filed 7 February 2012)\nConstitutional Law \u2014 effective assistance of counsel\u2014 concession of guilt to lesser-included offense \u2014 defendant\u2019s consent\nDefendant was not deprived of his Sixth Amendment right to effective assistance of counsel in a felony fleeing to elude arrest case. The trial court\u2019s inquiry of defendant was sufficient evidence that defendant was aware his counsel would concede defendant\u2019s guilt of the lesser-included offense of misdemeanor fleeing to elude arrest, that he was informed of the potential consequences of that decision, and that he knowingly consented to an admission of guilt to the lesser-included offense. Aside from defense counsel\u2019s concession of defendant\u2019s guilt to the lesser-included offense, defendant did not allege any other deficiencies in his counsel\u2019s representation at trial or that he was therefore deprived of a fair trial.\nAppeal by defendant from judgments entered 25 January 2011, by Judge Ola M. Lewis in Johnston County Superior Court. Heard in the Court of Appeals 10 January 2012.\nAttorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State.\nW. Michael Spivey for defendant appellant." }, "file_name": "0422-01", "first_page_order": 432, "last_page_order": 438 }