State v. Todd , 369 N.C. 707 ( 2017 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 18A14-2
Filed 9 June 2017
STATE OF NORTH CAROLINA
v.
PARIS JUJUAN TODD
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, ___ N.C. App. ___, 790 S.E.2d 349 (2016), reversing an order
denying defendant’s motion for appropriate relief entered on 15 January 2015 by
Judge Donald W. Stephens in Superior Court, Wake County, and remanding the case
for entry of an order granting defendant’s motion for appropriate relief and vacating
his prior conviction. Heard in the Supreme Court on 12 April 2017.
Joshua H. Stein, Attorney General, by Joseph L. Hyde, Assistant Attorney
General, for the State-appellant.
N.C. Prisoner Legal Services, Inc., by Reid Cater, for defendant-appellee.
BEASLEY, Justice.
In this appeal we consider whether this Court has jurisdiction to decide an
appeal taken from a divided decision of the Court of Appeals pursuant to N.C.G.S. §
7A-30(2) arising from a trial court’s ruling granting or denying a motion for
appropriate relief (MAR) and whether the Court of Appeals erred by reversing the
trial court’s decision that defendant received effective assistance of appellate counsel.
STATE V. TODD
Opinion of the Court
The Court of Appeals concluded that the State presented insufficient evidence to show
that defendant committed the underlying offense and further concluded that, if
defendant’s appellate counsel had raised the sufficiency of the evidence issue in the
previous appeal, defendant’s conviction would have been reversed. We hold that this
Court has jurisdiction to hear this matter and conclude that the record should be
further developed before a reviewing court can adequately address the ineffective
assistance of counsel claim. Accordingly, we reverse and remand the decision of the
Court of Appeals.
On 2 April 2012, Paris Jujuan Todd (defendant) was indicted for robbery with
a dangerous weapon and conspiracy to commit the same offense. After a trial
beginning on 12 June 2012, defendant was convicted of robbery with a dangerous
weapon. Defendant appealed that conviction to the Court of Appeals, arguing that
the trial court erred by denying his motion to continue and that he received ineffective
assistance of trial counsel. See State v. Todd, 229 N.C. App. 197, 749 S.E.2d 113 2013
WL 4460143 (2013) (unpublished) (Todd I). The Court of Appeals disagreed with
defendant and held that the trial court did not err in denying defendant’s motion to
continue and that defendant did not receive ineffective assistance of trial counsel.
Todd, 2013 WL 4460143, at *5.
On 21 October 2014, defendant filed a motion for appropriate relief (MAR) in
the trial court, arguing that the evidence was insufficient to support his conviction
-2-
STATE V. TODD
Opinion of the Court
and that his appellate counsel was ineffective for failing to raise this claim on appeal.
On 15 January 2015, the trial court, without conducting an evidentiary hearing on
defendant’s ineffective assistance of counsel claim, entered an order denying
defendant’s MAR. The trial court found that “[a] review of all the matters of record,
including the opinion of the North Carolina Court of Appeals . . . clearly demonstrates
that the evidence was sufficient to support the jury verdict and appellate counsel
rendered effective assistance to Defendant in his appeal.” Defendant filed a petition
for writ of certiorari to the Court of Appeals seeking review of the trial court’s order
denying his MAR, which the Court of Appeals allowed on 27 March 2015.
Defendant argued to the Court of Appeals that in the first appeal his appellate
counsel performed below an objective standard of reasonableness by failing to argue
that the evidence was insufficient to support defendant’s conviction. A divided panel
of the Court of Appeals held that defendant received ineffective assistance of
appellate counsel in his first appeal and concluded that defendant likely would have
been successful had his counsel raised the sufficiency of the evidence issue in his first
appeal. State v. Todd, ___ N.C. App. ___, ___, 790 S.E.2d 349, 364 (2016) (Todd II).
More specifically, after concluding that, “the State presented insufficient evidence
that defendant committed the underlying offense,” the majority held that the trial
court erred in denying defendant’s MAR. Id. at ___, 790 S.E.2d at 364. Accordingly,
the Court of Appeals reversed the trial court’s order and remanded the case to the
-3-
STATE V. TODD
Opinion of the Court
trial court with instructions to grant defendant’s MAR and vacate his conviction. Id.
at ___, 790 S.E.2d at 364.
Nonetheless, according to the dissent, defendant failed to show that appellate
counsel’s performance was deficient. Id. at ___, 790 S.E.2d at 365 (Tyson, J.,
dissenting). The dissent noted that “[e]ffective appellate advocates winnow out
weaker arguments and focus on those more likely to prevail on appeal.” Id. at ___,
790 S.E.2d at 367 (citing Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312
(1983)). Because “[t]his accepted discretionary process lies within the professional
judgment of appellate counsel,” id. at ___, 790 S.E.2d at 367, the dissent concluded
that defendant could not show that his appellate counsel was deficient in not raising
a sufficiency of the evidence argument in the first appeal, id. at ___, 790 S.E.2d at
368. The State gave timely notice of appeal based upon the dissenting opinion.1
As a threshold matter, we must consider whether this Court has jurisdiction
to decide this appeal. Generally N.C.G.S § 7A-30(2) provides an automatic right of
appeal to this Court based on a dissent at the Court of Appeals. N.C.G.S. § 7A-30(2)
(2015). But, that automatic right of appeal is limited by N.C.G.S. § 7A-28, which
1 Additionally, on 9 December 2016, we ordered the parties to brief and argue (1)
whether the Court of Appeals erred in reversing and remanding the trial court’s judgment,
and (2) whether this Court has jurisdiction to hear and decide an appeal taken from a decision
of the Court of Appeals that arose from a trial court ruling granting or denying a motion for
appropriate relief pursuant to N.C.G.S. § 7A-30(2), in light of the provisions of N.C.G.S. §§
7A-28(a) and 15A-1422(f).
-4-
STATE V. TODD
Opinion of the Court
states that “[d]ecisions of the Court of Appeals upon review of motions for appropriate
relief listed in G.S. 15A-1415(b) are final and not subject to further review in the
Supreme Court by appeal, motion, certification, writ, or otherwise.” Id., § 7A-28(a)
(2015). We acknowledge that the plain language of N.C.G.S. § 7A-28 precludes this
Court’s review of a case in which there is a dissent in the Court of Appeals when the
case involves review of a motion for appropriate relief; however, we maintain the
authority granted to us by the state constitution and recognize that “it is beyond
question that a statute cannot restrict this Court’s constitutional authority under
Article IV, Section 12, Clause 1 of the Constitution of North Carolina to exercise
‘jurisdiction to review upon appeal any decision of the courts below.’ ” State v. Ellis,
361 N.C. 200, 205, 639 S.E.2d 425, 428 (2007) (quoting N.C. Const. art. IV, § 12).
“This Court will not hesitate to exercise its rarely used general supervisory authority
when necessary to promote the expeditious administration of justice.” State v.
Stanley, 288 N.C. 19, 26, 215 S.E.2d 589, 594 (1975) (citations omitted). Thus, we
exercise the supervisory authority granted by Article IV, Section 12 of the North
Carolina Constitution to decide this matter.
Having determined that we have jurisdiction to hear this matter, we next
consider whether defendant received ineffective assistance of appellate counsel.
Before this Court, the State argues that defendant’s appellate counsel apparently
made a strategic decision not to challenge the sufficiency of the evidence. Because the
lower courts did not determine whether there was a strategic reason for defendant’s
-5-
STATE V. TODD
Opinion of the Court
appellate counsel to refrain from addressing the sufficiency of the evidence
supporting defendant’s conviction, we reverse and remand the decision of the Court
of Appeals.
A defendant’s right to counsel, as guaranteed by the Sixth Amendment to the
United States Constitution, includes the right to effective assistance of counsel. State
v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247-48 (1985) (citing McMann v.
Richardson, 397 U.S. 759, 771 & n.14, 90 S. Ct. 1441, 1449 & n. 14 (1970)). When
challenging a conviction on the basis that counsel was ineffective, a defendant must
show that counsel’s conduct “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984); see also
Braswell, 312 N.C. at 561-62, 324 S.E.2d at 248. In Strickland the United States
Supreme Court set forth a two-pronged test for determining whether a defendant has
received ineffective assistance of counsel. 466 U.S. at 687, 104 S. Ct. at 2064.
Strickland requires that a defendant first establish that counsel’s performance was
deficient. Id. at 687, 104 S. Ct. at 2064. This first prong requires a showing that
“counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S. Ct. at 2064.
Second, a defendant must demonstrate that the deficient performance prejudiced the
defense, which requires a showing that “counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S. Ct. at
-6-
STATE V. TODD
Opinion of the Court
2064. Thus, both deficient performance and prejudice are required for a successful
ineffective assistance of counsel claim.
In this case defendant’s claim stems from appellate counsel’s decision not to
argue in his first appeal that the evidence was insufficient to support defendant’s
conviction. Defendant contends that he would have won his appeal had this
dispositive issue been raised. Conversely, the State argues that defendant’s appellate
counsel “apparently made a strategic decision not to challenge the sufficiency of the
evidence.”
Rather than articulating specific guidelines for appropriate attorney conduct,
the Court in Strickland emphasized that “[t]he proper measure of attorney
performance remains simply reasonableness under prevailing professional norms.”
Id. at 688, 104 S. Ct. at 2065. Strickland notes that “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments support
the limitations on investigation.” Id. at 690-91, 104 S. Ct. at 2066. Simply put,
“counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Id. at 691, 104 S. Ct. at
2066. In considering the merits of any claim for ineffective assistance of counsel, “a
particular decision not to investigate must be directly assessed for reasonableness in
-7-
STATE V. TODD
Opinion of the Court
all the circumstances, applying a heavy measure of deference to counsel’s judgments.”
Id. at 691, 104 S. Ct. at 2066.
As to the first prong of the Strickland test, the Court of Appeals acknowledged
the State’s argument that defendant’s prior appellate counsel “apparently made a
strategic decision” not to challenge the sufficiency of the evidence. Todd II, ___ N.C.
App. at ___, 790 S.E.2d at 364 (majority opinion). But the Court of Appeals majority
opinion noted that the State failed to explain how the failure to challenge the
sufficiency of the evidence in the first appeal could be a strategic decision. Id. at ___,
790 S.E.2d at 364. Neither of our lower courts, however, addressed whether there
was an actual strategic reason for defendant’s appellate counsel not to address the
sufficiency of the evidence issue, and if so, whether the strategic decision was
reasonable. Specifically, the trial court did not address whether this was a strategic
decision because that court summarily denied defendant’s MAR without a hearing.
Additionally, the Court of Appeals did not fully address this issue. While “winnowing
out weaker arguments on appeal and focusing on one central issue” is an important
aspect of appellate advocacy, Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3313
(1983), the determination of whether a defendant’s appellate counsel made a
particular strategic decision remains a question of fact, and is not something which
can be hypothesized, see Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir.),
reh’g en banc denied, 162 F.3d 100 (11th Cir. 1998). Thus, the record before this Court
-8-
STATE V. TODD
Opinion of the Court
is not thoroughly developed regarding defendant’s appellate counsel’s
reasonableness, or lack thereof, in choosing not to argue sufficiency of the evidence.
We therefore hold that the record before us is insufficient to determine whether
defendant received ineffective assistance of counsel. On remand the Court of Appeals
should further remand this matter to the trial court with instructions to fully address
whether appellate counsel made a strategic decision not to raise a sufficiency of the
evidence argument, and, if such a decision was strategic, to determine whether that
decision was a reasonable decision. Further, if the trial court finds that defendant’s
appellate counsel’s performance was deficient, that court should then determine
whether counsel’s performance prejudiced defendant.
For the reasons stated herein, the decision of the Court of Appeals is reversed,
and that court is instructed to remand this matter to the trial court for further
proceedings not inconsistent with this opinion.
REVERSED AND REMANDED
-9-