State v. Simmons, COA16-861

• Decision Date: 18 April 2017
• Docket Number: No. COA16-861,COA16-861
• Citation: 798 S.E.2d 441 (Table)
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Gary Franklin SIMMONS

798 S.E.2d 441 (Table)

STATE of North Carolina
v.
Gary Franklin SIMMONS

No. COA16-861

Court of Appeals of North Carolina.

Filed: April 18, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General Sherri Horner Lawrence, for the State.

Paul F. Herzog, Fayetteville, for defendant-appellant.

DAVIS, Judge.

Gary Franklin Simmons ("Defendant") appeals from his convictions for two counts of statutory rape. On appeal, Defendant argues that (1) he received ineffective assistance of counsel; and (2) the trial court erred by failing to conduct a hearing regarding the reasonableness of imposing lifetime satellite-based monitoring ("SBM"). After careful review, we dismiss Defendant's ineffective assistance of counsel claim without prejudice, vacate the trial court's SBM order, and remand for a new SBM hearing.

Factual and Procedural Background

The State presented evidence at trial tending to establish the following facts: "Mary,"¹ who was 15 years old at the time, spent the night of 12 April 2014 at the home of her friend "Tracy." Tracy lived with her mother and Defendant, who was her mother's boyfriend. Defendant's son "Nick" was also at the residence when Mary spent the night. Sometime after dinner, Defendant and Tracy's mother went to the store and returned with three cans of "Four Lokos," which was "a very strong alcoholic beverage" that also contained caffeine. One can each was given to Mary, Tracy, and Nick. Mary testified that she drank nearly her entire can and began to feel drunk.

At some point in the evening, Mary and Nick began kissing; Tracy later joined in and all three kissed. Eventually, Tracy's mother told Mary and Tracy that they were "too drunk" and that they needed to stop drinking and go to bed. Tracy's mother sent Mary and Tracy to Tracy's bedroom and Nick to the living room. Shortly thereafter, Nick entered the girls' room and climbed into bed between them and resumed kissing. Tracy's mother, however, caught Nick in bed with Mary and Tracy and made him leave the room.

Sometime during the night, Mary left the bedroom to use the bathroom and saw Nick standing in the hallway with his pants unzipped. Nick put his arm around Mary and helped her walk to the living room. After Nick helped Mary undress, they laid down on a futon and had sexual intercourse. While they were doing so, Defendant entered the room. Nick asked Mary if she "wanted to have sex with [Defendant]." Mary told him no, but Defendant got onto the futon and began having sexual intercourse with her. Defendant asked Mary if she "liked it," and she told him no "around six times." Eventually, Defendant left the room, and she and Nick resumed engaging in sexual intercourse. Defendant later came back into the room and again had sexual intercourse with Mary. Afterwards, Mary returned to Tracy's room and slept.

On 17 November 2014, Defendant was indicted on two counts of statutory rape. A jury trial was held before the Honorable Linwood O. Foust in Gaston County Superior Court beginning on 12 November 2015. The jury found Defendant guilty of both counts, and the trial court sentenced him to two concurrent terms of 317 to 441 months imprisonment. The trial court also ordered that Defendant enroll in SBM for the rest of his natural life. On 17 December 2015, Defendant filed a written notice of appeal from the judgments.

Analysis

I. Ineffective Assistance of Counsel

Defendant first argues that he was denied effective assistance of counsel because of certain statements made by his trial counsel during opening statements. In order to prevail on an ineffective assistance of counsel claim, "a defendant must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense." State v. Phillips , 365 N.C. 103, 118, 711 S.E.2d 122, 135 (2011) (citation and quotation marks omitted), cert. denied , 565 U.S. 1204, 182 L.Ed. 2d 176 (2012).

Deficient performance may be established by showing that counsel's 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's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

State v. Allen , 360 N.C. 297, 316, 626 S.E.2d 271, 286 (internal citations and quotation marks omitted), cert. denied , 549 U.S. 867, 166 L.Ed. 2d 116 (2006).

"In general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal." State v. Stroud , 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001), cert. denied , 356 N.C. 623, 575 S.E.2d 758 (2002). This is so because on direct appeal, review is limited to the cold record, and the court is "without the benefit of information provided by defendant to trial counsel, as well as defendant's thoughts, concerns, and demeanor that could be provided in a full evidentiary hearing on a motion for appropriate relief." Id . at 554-55, 557 S.E.2d at 547 (internal citation and quotation marks omitted). Only when "the cold record reveals...