State v. Ware

Decision Date18 March 1997
Docket NumberNo. COA96-290,COA96-290
Citation482 S.E.2d 14,125 N.C.App. 695
PartiesSTATE of North Carolina v. Fred Thomas WARE.
CourtNorth Carolina Court of Appeals

Attorney General Michael F. Easley by Assistant Attorney General E. Burke Haywood, for State.

Harrington, Ward, Gilleland & Winstead by Eddie S. Winstead III, Sanford, for defendant-appellant.

EAGLES, Judge.

The 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's 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's objection:

These sexual acts were happening between them, and when he was restraining her--I'll admit it, she was restrained against her will.... She certainly did not consent....

We recognize that "ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which defendant's counsel admits the defendant's guilt 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, 106 S.Ct. 1992, 90 L.Ed.2d 672 (1986). We cannot address defendant's assignments of error here, however, because we cannot determine from the record on appeal that these statements by defense counsel were made without defendant's 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's contention that defense counsel's arguments were made without his consent. G.S. 15A-1420(b)(1). Upon the filing of a motion for appropriate relief, the trial court will determine the motion and make appropriate findings of fact.

Dismissed.

GREENE and JOHN C. MARTIN, JJ., concur.

To continue reading

Request your trial
7 cases
  • Strickland v. Lee
    • United States
    • U.S. District Court — Western District of North Carolina
    • 30 d2 Janeiro d2 2007
    ...v. Polk, 375 F.3d 309, 323-24 (4th Cir.2004) (citing Weeks v. Angelone, 176 F.3d 249, 270 (4th Cir.1999); see also State v. Ware, 125 N.C.App. 695, 482 S.E.2d 14, 16 (1997); State v. Payne, 312 N.C. 647, 325 S.E.2d 205, 219 (1985); State v. Parker, 61 N.C.App. 94, 300 S.E.2d 451, 453 (1983)......
  • Richmond v. Polk
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 20 d2 Julho d2 2004
    ...and consistently applied it prior to denying Richmond's MAR for noncompliance with its evidentiary requirement.5 State v. Ware, 125 N.C.App. 695, 482 S.E.2d 14, 16 (1997) (stating that N.C. Gen.Stat. § 15A-1420(b)(1) requires that MARs "be accompanied by affidavits or other documentary evid......
  • State v. Stroud
    • United States
    • North Carolina Court of Appeals
    • 18 d2 Dezembro d2 2001
    ...raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than direct appeal."); State v. Ware, 125 N.C.App. 695, 697, 482 S.E.2d 14, 16 (1997) (dismissing defendant's appeal because issues could not be determined from the record on appeal and stating that to ......
  • State v. Perry, COA16-768
    • United States
    • North Carolina Court of Appeals
    • 20 d2 Junho d2 2017
    ...raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than direct appeal."); State v. Ware , 125 N.C.App. 695, 697, 482 S.E.2d 14, 16 (1997) (dismissing defendant's appeal because issues could not be determined from the record on appeal and stating that "[......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT