State v. Collington

• Decision Date: 25 September 2020
• Docket Number: No. 290PA15-2,290PA15-2
• Citation: 847 S.E.2d 691,375 N.C. 401
• Parties: STATE of North Carolina v. Jeffrey Tryon COLLINGTON
• Court: North Carolina Supreme Court

375 N.C. 401

847 S.E.2d 691

STATE of North Carolina

v.Jeffrey Tryon COLLINGTON

No. 290PA15-2

Supreme Court of North Carolina.

Filed September 25, 2020

Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State-appellant.

North Carolina Prisoner Legal Services, Inc., by Christopher J. Heaney, for defendant-appellee.

BEASLEY, Chief Justice.

In this case, we must determine whether appellate counsel's failure to cite a particular case or line of cases amounted to constitutionally ineffective assistance of counsel. Because the facts present in the line of cases the Court of Appeals would have had appellate counsel cite are distinguishable from those of this case, that precedent does not govern the instant case and appellate counsel's failure to rely thereon is objectively reasonable.

Facts and Procedural History

The State's primary witness, Christopher Hoskins, testified that he went to the recording studio of Dade Sapp to "hang out" on the evening of 1 October 2012. Shortly after his arrival, two men identified by Hoskins as defendant and Clarence Featherstone entered the studio and demanded to speak with someone named "Tony." Defendant asked Hoskins if he was Tony and pointed a gun at Hoskins when Hoskins answered that he was not. Hoskins testified that defendant and Featherstone beat him up, went through his pockets and removed approximately $900 in cash, and left the studio. At trial, Hoskins identified the gun that was reportedly wielded by defendant as belonging to Sapp.

Defendant's testimony differed greatly from that of Hoskins. Defendant testified that he and Featherstone went to the studio that evening but that the purpose of the visit was for Featherstone to purchase oxycodone from Hoskins. An argument ensued over the amount paid for the oxycodone, which resulted in a fistfight between Hoskins, defendant, and Featherstone. Defendant testified the following:

Sapp had set the whole deal up, and he had tried to cross us all up. He had taken warrants out on us for robbing his studio, when he had set up this whole ordeal.... He told the cops that we came in and robbed his studio. But that's not what happened. He set up a drug deal and got half of the pills that were purchased, or at least somewhere near ... I did admit that I got in a physical altercation after he tried to retaliate for the rest of his money.

Defendant also testified that he never possessed a gun during the altercation. Rather, defendant testified that later in the evening, he and Featherstone met Sapp in a McDonald's parking lot. There, Sapp gave the gun to Featherstone and asked him to hold onto it because according to defendant, Sapp "was scared due to the fact [that] he had gave the detectives and Mr. Hoskins a story about [how] he couldn't locate his gun." Defendant testified that he did not know what Featherstone did with the gun after the interaction.

Defendant was indicted for robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, possession of a firearm by a felon, and being a habitual felon. The indictment charging defendant with possession of a firearm by a felon stated that defendant "did have in [his] control a black handgun, which is a firearm" and that defendant had previously been convicted of a felony. Without objection by defendant, the trial court instructed the jury that

[f]or a person to be guilty of a crime it is not necessary that he personally do all of the acts necessary to constitute the crime. If two or more persons join in a common purpose to commit the crime of robbery with a dangerous weapon and/or possession of a firearm by a felon, each of them, if actually or constructively present, is not only guilty of that crime if the other person commits the crime but [is] also guilty of any other crime committed by the other in pursuance of the common purpose to commit robbery with a dangerous weapon and/or possession of a firearm by a felon, or as a natural or probable consequence thereof.

If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant acting either by himself or acting together [with] ... Featherstone with a common purpose to commit the crime of robbery with a dangerous weapon and/or possession of a firearm by a felon, each of them if actually or constructively present, is guilty of robbery with a dangerous weapon and/or possession of a firearm by [a] felon.

With respect to the specific charge of possession of a firearm by a felon, the trial court instructed the jury on the following:

The defendant has been charged with possessing a firearm after having been convicted of a felony. For you to find the defendant guilty of this offense, the State must prove two things beyond a reasonable doubt.

First, that on April 20, 2006, in the Superior Court Criminal Session of Transylvania County the defendant was convicted by pleading guilty to the felony of possession with the intent to sell and deliver cocaine that was committed on October 26, 2005, in violation of the laws of the State of North Carolina.

And second, that thereafter the defendant possessed a firearm.

If you find from the evidence beyond a reasonable doubt that the defendant was convicted of a felony in the Superior Court of Transylvania County, State of North Carolina, on April 10, 2006, and that the defendant thereafter possessed a firearm, it would be your duty to return a verdict of guilty.

If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

The jury found defendant guilty of possession of a firearm by a felon and being a habitual felon. He was not found guilty of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. The verdict sheet did not indicate whether the jury convicted defendant of possession of a firearm by a felon under a theory of actual possession or under a theory of acting in concert. Defendant was sentenced to 86 to 115 months imprisonment.

Defendant appealed the conviction, contending that the trial court committed plain error by instructing the jury on the acting in concert theory with respect to the charge of possession of a firearm by a felon. Defendant specifically argued that the jury instruction impermissibly allowed the jury to convict him of possession of a firearm by a felon based on testimony that Featherstone received a gun from Sapp in the McDonald's parking lot. In a unanimous, unpublished decision, the Court of Appeals held that defendant had not established that the trial court committed plain error in instructing the jury on the acting in concert theory for the charge of possession of a firearm by a felon. State v. Collington (Collington I) , No. COA14-1244, 2015 WL 4081786, at *4 (N.C. Ct. App. 2015) (unpublished). The Court of Appeals opined that although the jury did not believe that defendant robbed Hoskins, both defendant and Hoskins testified that they engaged in a physical altercation; therefore, the jury reasonably could have believed that defendant was in possession of Sapp's gun at the time. Id.

Finally, the Court of Appeals observed that defendant had not presented an argument under State v. Pakulski , 319 N.C. 562, 356 S.E.2d 319 (1987), "which held that a trial court commits plain error when it instructs a jury on disjunctive theories of a crime," one of which was erroneous, and it cannot be discerned from the record the theory upon which the jury relied. Id. Noting that "[i]t is not the role of the appellate courts ... to create an appeal for an appellant," the Court of Appeals concluded that defendant had not sufficiently demonstrated plain error. Id. (first quoting Viar v. N.C. Dep't of Transp. , 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) ; then citing State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012) ). Defendant filed a petition for discretionary review, which this Court denied on 24 September 2015.

After the Court of Appeals’ decision in Collington I , defendant filed a motion for appropriate relief in the trial court alleging ineffective assistance of appellate counsel. Specifically, defendant argued that had his appellate counsel made the proper argument under Pakulski , a reasonable probability exists that defendant would have received a new trial on appeal. The trial court denied defendant's motion for appropriate relief on 13 October 2016, stating that "the Court of Appeals found that no plain error was established in the trial ... even assuming ... an acting in concert instruction was improper." Defendant petitioned the Court of Appeals for writ of certiorari. The Court of Appeals entered an order allowing the petition for writ of certiorari, vacating the trial court's order denying defendant's motion for appropriate relief, and remanding the case to the trial court to enter an appropriate order. The Court of Appeals reasoned that "the trial court utilized the incorrect legal standard in assessing defendant's ineffective assistance of appellate counsel claim." On remand, the trial court entered an order granting the motion for appropriate relief, vacating defendant's conviction, and awarding defendant a new trial. The State proceeded to file a motion in the Court of Appeals to temporarily stay the trial court's order, a petition for writ of supersedeas, and a petition for writ of certiorari seeking review of the trial court's order. On 2 May 2017, the Court of Appeals allowed the State's motion for a temporary stay. On 17 May 2017, the Court of Appeals allowed the State's petition for writ of certiorari and petition for writ of supersedeas. On 17 April 2018, in a unanimous, published decision, the Court of Appeals affirmed the trial court's order, holding that defendant's appellate counsel was constitutionally ineffective for failing to make arguments under Pakulski . State v. Collington (Collington II) , 259 N.C. App. 127, 141, 814 S.E.2d 874, 885 (201...