              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA14-542-2

                                Filed: 20 March 2018

Lee County, No. 09CRS001227

STATE OF NORTH CAROLINA

             v.

JUAN CARLOS BENITEZ, Defendant.


      Appeal by defendant from judgment entered 20 May 2013 by Judge Douglas B.

Sasser and order entered 21 January 2016 by Judge C. Winston Gilchrist in Superior

Court, Lee County. Heard in the Court of Appeals 6 February 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Amy
      Kunstling Irene, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M.
      Gomez, for defendant-appellant.


      STROUD, Judge.


      After the denial of his motions to suppress, defendant pled guilty to first degree

murder; he appealed and also filed a motion for appropriate relief with this Court. In

2014, this Court allowed defendant’s motion for appropriate relief, reversed the

denial of his motions to suppress, and vacated his judgment. The State petitioned

the Supreme Court for discretionary review and ultimately that Court vacated this

Court’s opinion and ordered that defendant’s motion for appropriate relief be

remanded for consideration by the trial court. On remand, the trial court denied
                                    STATE V. BENITEZ

                                    Opinion of the Court



defendant’s motion for appropriate relief. Defendant now appeals the denial of his

motion for appropriate relief. On defendant’s appeal before us, because defendant’s

attorney made an objectively reasonable determination that defendant’s uncle would

qualify as his “guardian[,]” a term not defined in the applicable statutes, and

therefore did not seek suppression of defendant’s statement on that ground, he did

not provide ineffective assistance of counsel in failing to argue his rights under North

Carolina General Statute § 7B-2101(b), and his MAR was properly denied.

      Furthermore, during the remand, the Supreme Court specifically tolled the

time for appeal of the motion to suppress with instructions for this Court to hear such

appeal or terminate it, based upon the determination of defendant’s MAR. Because

defendant did not prevail with his MAR, we have also addressed his arguments

regarding denial of his motions to suppress. Defendant argues he did not make a

knowing and intelligent waiver of his rights during police interrogation. Because the

trial court failed to address key considerations in determining whether defendant

made a knowing and intelligent waiver, we remand the order denying defendant’s

motion to suppress for further findings of fact.

                               I.      Procedural Background

      Because this appeal addresses the interrogation of defendant and his

attorney’s effectiveness as counsel, we will not repeat the factual details of

defendant’s first degree murder charge and conviction but will instead focus on the



                                           -2-
                                 STATE V. BENITEZ

                                 Opinion of the Court



procedural background of this case which led to this appeal. In 2007, defendant, age

13, provided a signed statement to the Lee County Sheriff’s Office stating he had

“shot the lady as she was sleeping on the couch in the head.” Defendant’s uncle, with

whom defendant had been living, was present during the interrogation. On 14 August

2007 — only two weeks after the interrogation – the trial court on its own motion

entered an order appointing the director of the Lee County Department of Social

Services as guardian of the person for defendant pursuant to North Carolina General

Statute § 7B-2001. In the order appointing the guardian, the district court found

that “the juvenile appeared in court with no parent, guardian or custodian but he

lived with an uncle who did not have legal custody of him” and “[t]hat the mother of

the juvenile resides in El Salvador and the father of the juvenile is no where to be

found and based on information and belief lives in El Salvador.” In 2009, defendant

was indicted for first degree murder and was prosecuted as an adult.

      Although there was other evidence that defendant had shot the victim, his

signed statement was the most direct evidence of premeditation as an element of first

degree murder. Prior to his trial, defendant made separate motions to suppress his

statements based upon alleged violations of his right to counsel and his right to

remain silent and upon his claim he had not knowingly and voluntarily waived his

Miranda rights. In December of 2012, the trial court denied defendant’s motions to

suppress, and the trial court found that defendant’s uncle was present during the



                                        -3-
                                   STATE V. BENITEZ

                                   Opinion of the Court



questioning; the uncle was defendant’s custodian; an interpreter was provided; and

neither defendant nor his uncle “indicated any lack of understanding of what was

being said” when defendant agreed to waive his rights. In 2013, defendant pled guilty

to first degree murder but preserved his right to challenge the denial of his motions

to suppress.

      In 2014, defendant filed a motion for appropriate relief (“MAR”) with this Court

arguing he had been provided ineffective assistance of trial counsel because his

attorney did not challenge the admission of his confession because his uncle was not

his “parent, guardian, custodian, or attorney[,]” and therefore his rights under North

Carolina General Statute § 7B-2101(b) were violated as no appropriate adult had

been present during his custodial interrogation. In an unpublished opinion, this

Court allowed defendant’s MAR, reversed the denial of defendant’s motions to

suppress, and vacated defendant’s judgment.

      The State petitioned for discretionary review, and our Supreme Court vacated

the Court of Appeals’ opinion and remanded the case to this Court for remand to the

trial court to conduct an evidentiary hearing on the MAR; the entire Supreme Court

order reads:

                      This case has come before the Court by way of the
               State’s Petition for Discretionary Review pursuant to
               N.C.G.S. § 7A–31.
                      Pursuant to N.C.G.S. § 15A–1418, the decision of the
               Court of Appeals is vacated and this Court now ORDERS
               this case remanded to the Court of Appeals for remand to


                                          -4-
                                  STATE V. BENITEZ

                                  Opinion of the Court



             the Superior Court, Lee County, for an evidentiary hearing
             to make findings of fact necessary to determine whether
             the trial counsel's actions fell below an objective standard
             of reasonableness, see State v. McHone, 348 N.C. 254, 499
             S.E.2d 761 (1998) (remanding a motion for appropriate
             relief to the trial court with instructions to conduct an
             evidentiary hearing), and, if so, whether defendant was
             prejudiced by any deficient performance by his trial
             counsel.
                    The time periods for perfecting or proceeding with
             the appeal are tolled. The Superior Court, Lee County, is
             ordered to transmit its order on the motion for appropriate
             relief within 120 days so that the Court of Appeals may
             proceed with the appeal or enter an order terminating the
             appeal, as appropriate.
                    By order of the Court in Conference, this 24th day of
             September, 2015.

State v. Benitez, 368 N.C. 350, 777 S.E.2d 60 (2015).

      The trial court then held an evidentiary hearing on the MAR and entered an

order with these findings of fact regarding defendant’s uncle and his attorney’s

knowledge and investigation regarding his uncle’s status:

             1.     Attorney Fred D. Webb of Sanford, North Carolina,
                    was duly appointed to represent the defendant upon
                    the defendant being charged with murder in
                    Juvenile Court in the District Court of Lee County
                    and continued to represent the defendant through
                    the Superior Court proceedings in Lee County
                    wherein the defendant entered a plea agreement as
                    is of record.

             ....

             4.     Defendant’s Uncle, Jeremias-Cruz, advised Mr.
                    Webb that the defendant was Mr. Cruz’s sister’s son,
                    and that by agreement with defendant’s mother, the


                                         -5-
                   STATE V. BENITEZ

                   Opinion of the Court



     defendant had lived with him ever since the
     defendant came to North Carolina from El Salvador;
     for approximately 1 ½ years before the defendant
     was arrested. Defendant had no parent, custodian
     or guardian other than Jeremias Cruz living in the
     United States.

5.   Mr. Cruz provided the sole support for the
     defendant, had provided the defendant with his own
     room in Mr. Cruz’s house, provided food for the
     defendant, provided clothing for the defendant,
     provided medical care for the defendant, enrolled the
     defendant in the Lee County school system and had
     otherwise provided all the needs of a juvenile the
     defendant’s age.

6.   Attorney Webb had learned from the conferences
     with Mr. Cruz and with the defendant that Mr. Cruz
     had provided all the above referenced care for the
     defendant and had been accepted as a guardian by
     the Lee County School system to enroll the
     defendant in school.

7.   Attorney Webb had obtained documentation from
     the Lee County Schools and Lee County Health
     Department showing that Mr. Cruz had appeared
     before each of these entities and been accepted as
     the guardian of the defendant Juan C. Benitez.

8.   Mr. Cruz considered himself to have legal custody of
     the defendant since he had sole physical custody of
     the defendant by agreement with his sister and Mr.
     Cruz had advised others including Detective
     Brandon Wall on the day the defendant was arrested
     before the interview of defendant, that he was the
     defendant’s uncle, that the defendant lived with him
     . . ., that he was defendant’s legal guardian or
     custodian and Juan had lived with him for about a
     year and a half and Mr. Webb had seen this in
     discovery provided by the State.


                          -6-
                     STATE V. BENITEZ

                     Opinion of the Court




9.     The defendant’s uncle Jeremias Cruz signed or was
       listed as a parent or guardian on numerous
       documents some of which are dated January 2006;
       those documents were obtained and received by
       Attorney Webb.

....

12.    After learning of the evidence of the relationship of
       Jeremias Cruz and the defendant, Attorney Webb
       had a member of his staff, early in his representation
       of the defendant, research the issue of who is a
       parent, guardian or custodian under NCGS 7B-
       2101, and Attorney Webb reviewed the cases of State
       v. Jones and State v. Oglesby as written by the Court
       of Appeals.

....

15.    Prior to the evidentiary hearing on defendant’s
       Motion to Suppress Defendant’s statement,
       Attorney Webb read the Supreme Court of North
       Carolina’s opinion in State v. Oglesby.

....

      18.   Attorney Webb, in the exercise of professional
judgment, formed the opinion that Oglesby as decided by
the Supreme Court was not inconsistent with the Court of
Appeals opinion in Jones in that the same factors were
discussed in determining if a person qualified as an
approved person under NCGS 7B-2101, those factors being
whether the person ever had custody of the juvenile,
whether the juvenile stayed with or lived with the person
for a considerable length of time, whether the person
signed school paperwork, fed and clothed the juvenile,
provided medical and other necessary care for the juvenile.

       19.   Based upon the case law as interpreted by


                            -7-
                     STATE V. BENITEZ

                     Opinion of the Court



Attorney Webb and the facts of this case regarding the
Uncle Jeremias Cruz and the defendant, Attorney Webb
made the decision that Uncle Jeremias Crus would be the
appropriate person under 7B-2101 and believed his
interpretation of the law as it existed was correct. Attorney
Webb therefore did not identify or raise at the suppression
hearing any issues as to whether Jeremias Cruz was the
parent, custodian, or guardian of Defendant. On direct
appeal, the Court of Appeals determined that Jeremias
Cruz was not the “guardian” of the defendant.

       20.    Attorney Webb’s file does not contain any copy
of, nor any reference to, the Court of Appeals decision in
the case of In re M.L.T.H. Given the existence of Oglesby,
counsel was not under any duty to find the M.L.T.H.
opinion or the dicta contained in a footnote of that opinion
stating that Oglesby “imp[l]iedly” overruled Jones. The
decision in M.L.T.H. was filed in November, 2009, and did
not become final until 2010. . . .

      21.    . . . the evidence does not establish that
Attorney Webb read M.L.T.H. before the hearing on the
motion to suppress. The court finds as a fact that Attorney
Webb was mistaken in his belief that he had reviewed
M.L.T.H. prior to the suppression hearing. . . .

       22.   At the time of the suppression hearing[,]
Attorney Webb knew that Jeremias Cruz had assumed
responsibility for the care and upbringing of the defendant.
Attorney Webb conducted a preliminary review of the cases
and the law relating to the issue of who could be a “parent,
guardian or custodian” under the applicable statute,
including the Supreme Court’s decision in Oglesby. These
cases were understood by Attorney Webb, in the reasonable
exercise of his best professional judgment, to support the
conclusion, which was consistent with the realities of
defendant’s actual living situation, that Jeremias Cruz was
acting as defendant’s “guardian” within the meaning of
N.C. Gen. Stat. 7B-2101. . . .



                            -8-
                                  STATE V. BENITEZ

                                  Opinion of the Court



             ....

                   25.   Attorney Webb’s representation of defendant,
             viewed at the time of counsel’s representation, and not
             merely through hindsight, was objectively reasonable.

The trial court then concluded that Attorney Webb did not provide ineffective

assistance of counsel as counsel’s performance was not deficient nor was defendant

prejudiced. The trial court denied defendant’s MAR; it is from this order and the

denial of defendant’s motion to suppress that defendant’s appeal is now before us.

                                     II.    MAR

      Defendant argues the trial court erred when it denied his MAR. Defendant

contends he did not receive effective assistance from his counsel because Attorney

Webb failed to challenge his confession on the ground that an appropriate adult was

not present during his interrogation.

                    When considering rulings on motions for
             appropriate relief, we review the trial court’s order to
             determine whether the findings of fact are supported by
             evidence, whether the findings of fact support the
             conclusions of law, and whether the conclusions of law
             support the order entered by the trial court. However, if
             the issues raised by Defendant’s challenge to the trial
             court’s decision to deny his motion for appropriate relief are
             primarily legal rather than factual in nature, we will
             essentially use a de novo standard of review in evaluating
             Defendant’s challenges to the court’s order.

State v. Marino, 229 N.C. App. 130, 139–40, 747 S.E.2d 633, 640 (2013) (citations,

quotation marks, and brackets omitted).



                                           -9-
                                         STATE V. BENITEZ

                                         Opinion of the Court



        Defendant’s MAR was based upon ineffective assistance of counsel, and thus

we must also consider that standard.

                To obtain relief for ineffective assistance of counsel, the
                defendant must demonstrate initially that his counsel’s
                conduct fell below an objective standard of reasonableness.
                The defendant’s burden of proof requires the following:
                      First, the defendant must show that counsel’s
                      performance was deficient. This requires
                      showing that counsel made errors so serious
                      that counsel was not functioning as the
                      counsel guaranteed the defendant by the
                      Sixth Amendment. Second, the defendant
                      must show that the deficient performance
                      prejudiced the defense. This requires showing
                      that counsel’s errors were so serious as to
                      deprive the defendant of a fair trial, a trial
                      whose result is reliable.
                The 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. Quick, 152 N.C. App. 220, 222, 566 S.E.2d 735, 737 (2002) (citations and

quotation marks omitted).

        Defendant does not challenge the trial court’s findings of fact regarding his

relationship with his uncle but only its conclusions of law regarding ineffective

assistance of counsel.1           We must first consider whether Attorney Webb’s


        1Defendant’s brief does mention three findings of fact made in the order denying defendant’s
motion to suppress, regarding whether defendant knowingly and intelligently waived his rights, and
we will address those findings of fact as necessary in the portion of this opinion addressing the motion
to suppress. Defendant then extends his argument regarding the order denying his motion to suppress



                                                - 10 -
                                          STATE V. BENITEZ

                                          Opinion of the Court



representation “was deficient” in that he “made errors so serious that counsel was not

functioning as the counsel guaranteed the defendant by the Sixth Amendment.”

Quick, 152 N.C. App. at 222, 566 S.E.2d at 737.

        In his MAR, defendant contends that his trial counsel rendered IAC because

an objectively reasonable attorney would have argued that no person approved by

North Carolina General Statute § 7B–2101(b) was present when defendant was

interrogated; defendant also contends that had his counsel made this argument, the

trial court would have been obligated to suppress                   his statements and, further,

defendant would not have pled guilty to first degree murder.

        North Carolina General Statute § 7B-2101 governs interrogation procedures of

juveniles. See N.C.G.S. § 7B-2101. In 2007, when defendant was interrogated, the

portion of the statute relevant to this issue provided as follows:

                (a)   Any juvenile in custody must be advised prior to
                questioning:
                      (1)    That the juvenile has a right to remain silent;

                        (2)   That any statement the juvenile does make
                        can be and may be used against the juvenile;

                        (3)   That the juvenile has a right to have a parent,
                        guardian, or custodian present during questioning;


by claiming that order was not sufficient, and thus on remand the trial court should have made more
factual findings addressing the insufficiency of that order. But the trial court did not have jurisdiction
on remand to reconsider defendant’s motion to suppress and any “insufficienc[ies]” in it. The Supreme
Court specifically remanded to the trial court for consideration of the MAR. The Supreme Court also
tolled the time of appeal of the motion to suppress based upon the determination made in the MAR.
Thus, ultimately, the trial court only had jurisdiction to address the MAR while this Court has both
the jurisdiction to address the original appeal of the motion to suppress and the MAR now appealed.

                                                 - 11 -
                                         STATE V. BENITEZ

                                         Opinion of the Court



                       and

                       (4)   That the juvenile has a right to consult with
                       an attorney and that one will be appointed for the
                       juvenile if the juvenile is not represented and wants
                       representation.

               (b)    When the juvenile is less than 14 years of age, no in-
               custody admission or confession resulting from
               interrogation may be admitted into evidence unless the
               confession or admission was made in the presence of the
               juvenile’s parent, guardian, custodian, or attorney. If an
               attorney is not present, the parent, guardian, or custodian
               as well as the juvenile must be advised of the juvenile’s
               rights as set out in subsection (a) of this section; however,
               a parent, guardian, or custodian may not waive any right
               on behalf of the juvenile.

Id. (emphasis added).2

       This issue is based upon the definition of a “guardian” under North Carolina

General Statute § 7B–2101(b); the applicable statutes do not define the term, and in

our research we have not found any cases clearly defining that term as applied in this

particular statute. But to determine if defendant’s counsel made a legal error at all,

we must consider how a person may qualify as a “guardian” under North Carolina

General Statute § 7B–2101(b).3 Most instructive on the term “guardian” in this




       2  Subsection (b) of North Carolina General Statute § 7B-2101 was amended in 2015 to raise
the age from 14 to 16; see N.C. Gen. Stat. § 7B-2101, Editor’s Note (2017), under either version of the
statute, defendant fell within the protection of subsection (b).

       3 We have adopted some of the following analysis nearly verbatim from the vacated Benitez
opinion. See State v. Benitez, 238 N.C. App. 363, 768 S.E.2d 201 (Dec. 31, 2014) (No. COA14-542)
(unpublished) (“Benitez I”); vacated, 368 N.C. 350, 777 S.E.2d 60 (2015).

                                                - 12 -
                                  STATE V. BENITEZ

                                  Opinion of the Court



context is State v. Oglesby wherein our Supreme Court determined the defendant’s

aunt was not his “guardian” within the meaning of North Carolina General Statute

§ 7B–2101:

                    Clearly, defendant was entitled by N.C.G.S. § 7B–
             2101(a)(3) to have a “parent, guardian, or custodian”
             present during his interrogation. However, an “aunt” is not
             an enumerated relation in the statute, and an
             interpretation of the term “guardian” to encompass
             anything other than a relationship established by legal
             process would unjustifiably expand the plain and
             unambiguous meaning of the word. See Black’s Law
             Dictionary 566 (abr. 7th ed. 2000) (defining “guardian” as
             “[o]ne who has the legal authority and duty to care for
             another’s person or property” (emphasis added)). We are
             bound by well-accepted rules of statutory construction to
             give effect to this plain and unambiguous meaning and we
             therefore decline any attempt to ascertain a contrary
             legislative intent.

361 N.C. 550, 555–56, 648 S.E.2d 819, 822 (2007).

      The State, citing State v. Jones, 147 N.C. App. 527, 556 S.E.2d 644 (2001),

points out that in construing the term “guardian” this Court had previously

determined that the “[l]egal authority [described by Black’s Law Dictionary] is not

exclusively court-appointed authority, but is rather any authority conferred by the

government upon an individual.”     The State also notes that the Court in Oglesby

explained the defendant’s particular relationship with his aunt indicating the factual

circumstances could change the analysis. However, we agree with a prior panel's

conclusion in dicta that the Supreme Court’s decision in Oglesby implicitly overruled



                                         - 13 -
                                     STATE V. BENITEZ

                                     Opinion of the Court



Jones:

                In State v. Jones, 147 N.C. App. 527, 538, 556 S.E.2d 644,
                651 (2001), disc. review denied, 355 N.C. 351, 562 S.E.2d
                427 (2002), this court held that presence of a thirteen year
                old defendant’s aunt satisfied the requirements of N.C.
                Gen. Stat. § 7A–595, because the defendant lived with his
                aunt, “was dependent upon her for room, board, education,
                and clothing”, and the aunt was “defendant's guardian
                within the spirit and intent of N.C.G.S. § 7A–595 . . . .”
                However, the aunt was not the defendant's legally
                appointed guardian or custodian. Id. at 539, 556 S.E.2d at
                652. The North Carolina Supreme Court in State v. Oglesby
                expressly held that a person in the position of a guardian
                could not be treated as a guardian for purposes of N.C. Gen.
                Stat. § 7B–2101, impliedly overruling State v. Jones.

In re M.L.T.H., 200 N.C. App. 476, 486 n.6, 685 S.E.2d 117, 124 n.6 (2009) (emphasis

in original).

         In Oglesby, the Supreme Court did not simply reference “legal authority[,]” but

rather narrowed the necessary inquiry into whether the relationship was one

“established by legal process[.]” 361 N.C. at 555–56, 648 S.E.2d at 822. We conclude

that the Supreme Court’s requirement of “legal process” necessarily means that the

individual’s authority was established through a court proceeding. See generally

Black’s Law Dictionary at 979, 1325 (9th ed. 2009) (noting for “legal process” “SEE

PROCESS” and defining “process” as “[t]he proceedings in any action or

prosecution”). However, we need not decide precisely what the Supreme Court meant

by “legal process[,]” Oglesby, 361 N.C. at 555 , 648 S.E.2d at 822, as we conclude that,

at a minimum, the legal authority held by a “guardian,” within the meaning of North


                                            - 14 -
                                  STATE V. BENITEZ

                                  Opinion of the Court



Carolina General Statute § 7B–2101(b), requires authority gained through some legal

proceeding. See id; see also Black’s Law Dictionary at 979, 1325.

      The trial court’s unchallenged findings of fact on remand show that defendant’s

uncle had not obtained legal authority over defendant through any legal proceeding.

The findings establish that defendant had lived with Mr. Cruz for at least a year, and

Mr. Cruz was accepted as defendant’s guardian by the school system and was listed

on or signed several documents as defendant’s parent or guardian; these findings are

not sufficient to support a determination that Mr. Cruz was defendant’s “guardian”

for purposes of North Carolina General Statute § 7B–2101(b); thus, at the very least,

there was a violation of the statute when law enforcement interrogated defendant

with only his uncle present on his behalf.

      But an error of law alone is not sufficient to find ineffective assistance of

counsel because

             the performance inquiry must be whether counsel’s
             assistance was reasonable considering all the
             circumstances. Prevailing norms of practice as reflected in
             American Bar Association standards and the like, e.g.,
             ABA Standards for Criminal Justice 4–1.1 to 4–8.6 (2d ed
             1980) (“The Defense Function”), are guides to determining
             what is reasonable, but they are only guides. No particular
             set of detailed rules for counsel’s conduct can satisfactorily
             take account of the variety of circumstances faced by
             defense counsel or the range of legitimate decisions
             regarding how best to represent a criminal defendant. Any
             such set of rules would interfere with the constitutionally
             protected independence of counsel and restrict the wide
             latitude counsel must have in making tactical decisions.


                                         - 15 -
                                 STATE V. BENITEZ

                                 Opinion of the Court



            Indeed, the existence of detailed guidelines for
            representation could distract counsel from the overriding
            mission of vigorous advocacy of the defendant’s cause.
            Moreover, the purpose of the effective assistance guarantee
            of the Sixth Amendment is not to improve the quality of
            legal representation, although that is a goal of considerable
            importance to the legal system. The purpose is simply to
            ensure that criminal defendants receive a fair trial.
                   Judicial scrutiny of counsel’s performance must be
            highly deferential. It is all too tempting for a defendant to
            second-guess counsel’s assistance after conviction or
            adverse sentence, and it is all too easy for a court,
            examining counsel’s defense after it has proved
            unsuccessful, to conclude that a particular act or omission
            of counsel was unreasonable. A fair assessment of attorney
            performance requires that every effort be made to
            eliminate the distorting effects of hindsight, to reconstruct
            the circumstances of counsel’s challenged conduct, and to
            evaluate the conduct from counsel’s perspective at the
            time. Because of the difficulties inherent in making the
            evaluation, a court must indulge a strong presumption that
            counsel’s conduct falls within the wide range of reasonable
            professional assistance; that is, the defendant must
            overcome the presumption that, under the circumstances,
            the challenged action might be considered sound trial
            strategy. There are countless ways to provide effective
            assistance in any given case. Even the best criminal
            defense attorneys would not defend a particular client in
            the same way.

Strickland v. Washington, 466 U.S. 668, 688–89, 80 L. Ed. 2d 674, 693 (1984)

(citations and quotation marks omitted).

      Here, in his MAR, defendant included an affidavit from his trial counsel

acknowledging that his sole strategy in the trial court was to suppress defendant’s

statements to law enforcement and that his failure to argue a violation under North



                                        - 16 -
                                  STATE V. BENITEZ

                                  Opinion of the Court



Carolina General Statute § 7B-2101(b) “was not a strategic decision on the part of

counsel, but was the result of oversight.” The trial court’s findings on remand address

the details of Attorney Webb’s representation of defendant as follows:



             13.    Attorney Webb’s file contains a memorandum of law
             from his associate Monica Magnuson which references
             State v. Jones and the original Court of Appeals decision in
             State v. Oglesby.

             14. Attorney Webb’s associate Monica Magnuson
             shepardized the decisions in State v. Jones, 147 N.C. App.
             527, 556 S.E.2d 644 (2001) and State v. Oglesby to check
             the validity of these cases.

             15.   Prior to the evidentiary hearing on defendant’s
             Motion to Suppress Defendant’s statement, Attorney Webb
             read the Supreme Court of North Carolina’s opinion in
             State v. Oglesby.

             16.    The Supreme Court decision in Oglesby, 361 N.C.
             550, 648 S.E.2d 819 (2007), reversed the Court of Appeals
             decision suppressing a statement made by the accused; the
             Supreme Court allowed the use of the statement at trial.
             The Supreme Court in Oglesby did not mention State v.
             Jones anywhere in the majority opinion. The opinion did
             not expressly overrule Jones. The earlier decision in Jones
             is only discussed in the Oglesby dissent, which has no
             precedential value. Counsel did not read the dissent in
             Oglesby and did not thereby act unreasonably.

             17.    Citing Black’s Law Dictionary, the majority decision
             in Oglesby stated that the definition of a “guardian” for
             purposes of 7B-2101 was “one who has the authority and
             duty to care for another’s person. . . .” The     Supreme
             Court went on to apply its definition of guardian to the
             facts of the case in a manner consistent with the test set


                                         - 17 -
                     STATE V. BENITEZ

                     Opinion of the Court



forth in Jones:
       From the testimony of defendant’s aunt, it is
       apparent that she never had custody of defendant,
       that defendant had only stayed with        her     on
       occasion but not for any considerable length of time,
       and that she had never signed any school papers for
       him. . . . . Moreover, the only evidence which could
       possibly support a contrary finding of fact is the
aunt’s testimony that she was ‘a mother figure’ to
defendant. However, this does not amount to the legal
authority inherent in a guardian or custodial relationship.
361 N.C. at 556.

18.   Attorney Webb, in the exercise of professional
judgment, formed the opinion that Oglesby as decided by
the Supreme Court was not inconsistent with the Court of
Appeals opinion in Jones in that the same factors were
discussed in determining if a person qualified as an
approved person under NCGS 7B-2101, those factors being
whether the person ever had custody of the juvenile,
whether the juvenile stayed with or lived with the person
for a considerable length of time, whether the person
signed school paperwork, fed and clothed the juvenile,
provided medical and other necessary care for the juvenile.

19.   Based upon the case law as interpreted by Attorney
Webb and the facts of this case regarding the Uncle
Jeremias Cruz and the defendant, Attorney Webb made
the decision that Uncle Jeremias Cruz would be the
appropriate person under 7B-2101 and believed his
interpretation of the law as it existed was correct. Attorney
Webb therefore did not identify or raise at the suppression
hearing any issue as to whether Jeremias Cruz was the
parent, custodian or guardian of Defendant. On direct
appeal, the Court of Appeals determined that Jeremias
Cruz was not the “guardian” of the defendant.

20.   Attorney Webb’s file does not contain any copy of,
nor any reference to, the Court of Appeals decision in the
case of In re M.L.T.H. Given the existence of Oglesby,


                            - 18 -
                     STATE V. BENITEZ

                     Opinion of the Court



counsel was not under any duty to find the M.L.T.H.
opinion or the dicta contained in a footnote of that opinion
stating that Oglesby “impliedly” overruled Jones. The
decision in M.L.T.H. was filed in November, 2009, and did
not become final until 2010. Defendant Benitez was
charged in this case in August, 2007. Attorney Webb was
appointed to represent defendant in August 2007. The case
proceeded through numerous hearings on competency, on
transfer to Superior Court, and on defendant’s motion to
suppress before defendant entered his guilty plea.
Defendant’s case was thereafter appealed to the Court of
Appeals. Attorney Webb’s representation then terminated.
Appellate counsel first raised the issue of Attorney Webb’s
alleged ineffective assistance of counsel on direct appeal.
After the Court of Appeals decision in Benitez, petition for
discretionary review was thereafter granted by the
Supreme Court, and the case was remanded to the
Superior Court of Lee County. On remand, Attorney Webb
testified at the evidentiary hearing now in question in
December of 2015. Attorney Webb has therefore been
involved with this case for approximately eight and one
half years. The length, complexity and procedural history
of this case are sufficient to challenge the memory of any
individual.

21.    The court is satisfied that Attorney Webb read In re
M.L.T.H. at some time well before the MAR evidentiary
hearing in December 2015. However, the evidence does not
establish that Attorney Webb read M.L.T.H. before the
hearing on the motion to suppress. The court finds as a
fact that Attorney Webb was mistaken in his belief that he
had reviewed M.L.T.H. prior to the suppression hearing.
The court is completely convinced based on the evidence
and on the court’s opportunity to view and evaluate the
demeanor of the witness that all of Attorney Webb’s
testimony was offered in good faith.

22.   At the time of the suppression hearing. Attorney
Webb knew that Jeremias Cruz had assumed
responsibility for the care and upbringing of the defendant.


                            - 19 -
                     STATE V. BENITEZ

                     Opinion of the Court



Attorney Webb conducted a preliminary review of the cases
and the law relating to the issue of who could be a “parent,
guardian or custodian” under the applicable statute,
including the Supreme Court’s decision in Oglesby. These
cases were understood by Attorney Webb, in the reasonable
exercise of his best professional judgment, to support the
conclusion, which was consistent with the realities of
defendant’s actual living situation, that Jeremias Cruz was
acting as defendant's “guardian” within the meaning of
N.C. Gen. Stat. 7B-2101. Attorney Webb did not thereafter
pursue the issue of whether Jeremias Cruz was defendant's
“guardian”, but engaged in extensive preparation and
litigation of other issues relating to the admissibility of
defendant’s confession. These issues actually litigated
during the defendant’s case included whether defendant
was competent to make a knowing, voluntary and
intelligent waiver of his juvenile Miranda rights and
whether sufficient interpretive services were provided to
defendant during his interrogation. Attorney Webb offered
expert evidence on and zealously pursued these issues.

23.    Defendant did not offer any expert or opinion
testimony that Attorney Webb’s performance fell below an
objective standard of reasonableness. However, for
purposes of this case, the court assumes that such evidence
is not required.

24.   Defendant did not offer any evidence of “prevailing
professional norms or of Bar Association standards or the
like” which were violated by Attorney Webb in his
representation of defendant. As such norms and standards
are not determinative, but merely guides to evaluating
what is reasonable under Strickland v. Washington, 466
U.S. 668 (1984) and its progeny, the court assumes,
without deciding, that specific evidence of such norms and
standards is not required for defendant to meet his burden.

25.   Attorney Webb’s representation of defendant,
viewed at the time of counsel’s representation, and not
merely through hindsight, was objectively reasonable.


                            - 20 -
                            STATE V. BENITEZ

                            Opinion of the Court




The trial court then made the following conclusions of law:

      1.     Attorney Webb’s actions in not raising an argument
      in the motion to suppress that the defendant’s statement
      at the Sheriff’s Department should be suppressed because
      defendant did not have a parent, guardian, custodian, or
      attorney present were reasonable at the time and did not
      fall below an objective standard of reasonableness.

      2.     In the alternative, even if Attorney Webb reviewed,
      or should have reviewed, the opinion in M.L.T.H. before the
      hearing on the motion to suppress, Attorney Webb’s
      representation still did not fall below an objective standard
      of reasonableness. In re M.L.T.H. held that 7B-2101
      required that a juvenile could not be advised that he had a
      right to have a “parent, custodian, guardian, attorney or
      any other person” present during custodial interrogation.
      There was no contention by either side in M.L.T.H. that the
      other person present during interrogation in fact met the
      definition of a “guardian”. Further, the only express
      reference to the Supreme Court’s decision in Oglesby
      overruling State v. Jones occurs in dicta in footnote 6 of
      M.L.T.H. Finally, the body of the M.L.T.H. opinion cites
      State v. Jones with apparent approval. (“Cases which have
      addressed this situation focus on the legal authority of the
      person over the juvenile. . . . [citing Oglesby and State v.
      Jones][)]” In re M.L.T.H., 200 N.C. App. 476, 488 (2009).
      These factors do not establish, either alone or in
      combination with the other facts found, that Attorney
      Webb’s service, viewed from the perspective of that time,
      was objectively unreasonable.

      3.     In the alternative, even if trial counsel’s actions were
      objectively unreasonable, the defendant was not prejudiced
      by any deficient performance by his trial counsel.
      Defendant has not met his burden of showing that, had
      counsel’s performance not been deficient, there is a
      reasonable probability that he would not have entered a
      guilty plea and received a sentence of life with parole.


                                   - 21 -
                                         STATE V. BENITEZ

                                         Opinion of the Court




                4. In the alternative, any violation of the defendant’s
                statutory rights under NCGS 7B-2101 to have a parent,
                guardian, custodian, or attorney present under the facts
                stated herein would not be a substantial violation
                warranting suppression of the statement pursuant to
                NCGS 15A-974.

        Thus, the trial court did not find that defendant’s trial counsel had a strategic

reason for failing to file a motion to suppress based upon North Carolina General

Statute § 7B-2101 but instead that his actions were objectively reasonable at the time

-- considering the state of the law -- and that he acted diligently and in good faith in

his representation of defendant. The trial court’s findings of fact demonstrate the

court’s efforts “to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694.

Defendant’s trial counsel did make a legal error, but it was not an “objectively

unreasonable” error at the time.4 Because we have determined that the trial court

correctly concluded that defendant’s counsel’s representation was “reasonable at the

time and did not fall below an objective standard of reasonableness[,]” we need not




        4 We also note the trial court’s finding that “[d]efendant did not offer any expert or opinion
testimony that Attorney Webb’s performance fell below an objective standard of reasonableness.
However, for purposes of this case, the court assumes that such evidence is not required.” We agree
expert evidence is not necessarily required for every claim of IAC, though we note some evidence from
practicing attorneys as to the standards of practice is often helpful, particularly in cases such as this
where the issue is the interpretation of case law rather than a more blatant error such as a failure to
prepare for a hearing at all.

                                                 - 22 -
                                     STATE V. BENITEZ

                                     Opinion of the Court



address the trial court’s alternative conclusions of law regarding prejudice and lack

of a substantial violation of defendant’s rights under North Carolina General Statute

§ 15A-974. The MAR order is affirmed.

                              III.     Motion to Suppress

      Because defendant did not prevail on his current appeal of his MAR and the

Supreme Court left the jurisdiction of this Court open to consider defendant’s

original appeal of his motion to suppress, we now turn to that appeal. We also turn

back to defendant’s 2014 brief and his reply brief for the basis of his argument

regarding the denial of his motion to suppress. Defendant did file a supplemental

brief and a supplemental reply brief in 2016, but the focus of those briefs is the

second appeal regarding the MAR.

      Defendant made three arguments in his 2014 briefs in the appeal of his motion

to suppress.   Most of defendant’s brief was devoted to his primary argument

regarding violation of his rights under North Carolina General Statute § 7B-2101(b),

but we have already addressed that argument in relation to the trial court’s order

on remand for the MAR. Defendant’s second argument was that “the trial court

erred by denying . . . [defendant’s] motion to suppress his statement at the Lee

County Sheriff’s Department because his waiver of right was not knowing and

intelligent.” (Original in all caps.) Defendant’s third argument is related to the

second: in the alternative, he contends that “the trial court erred by failing to make



                                            - 23 -
                                   STATE V. BENITEZ

                                   Opinion of the Court



findings of fact to resolve material conflicts in the evidence” regarding whether

defendant “knowingly and intelligently waived his rights.” (Original in all caps.)

Since both of defendant’s remaining arguments address the trial court’s findings of

fact regarding knowing and voluntary waiver and the sufficiency of the evidence to

support those findings, we will address them together.

      North Carolina General Statute § 7B-2101(d) includes an additional

requirement before evidence of a statement by a juvenile may be admitted as

evidence: “Before admitting into evidence any statement resulting from custodial

interrogation, the court shall find that the juvenile knowingly, willingly, and

understandingly waived the juvenile’s rights.” N.C. Gen. Stat. § 7B-2101(d) (2007).

      To determine if a defendant has “knowingly and voluntarily” waived his right

to remain silent, the trial court must consider the totality of the circumstances of the

interrogation, and for juveniles, this analysis includes the “juvenile’s age,

experience, education, background, and intelligence, and [evaluation] into whether

he has the capacity to understand the warnings given him, the nature of his Fifth

Amendment rights, and the consequences of waiving those rights”:

             [T]he determination whether statements obtained during
             custodial interrogation are admissible against the accused
             is to be made upon an inquiry into the totality of the
             circumstances surrounding the interrogation, to ascertain
             whether the accused in fact knowingly and voluntarily
             decided to forgo his rights to remain silent and to have the
             assistance of counsel.
                    This totality-of-the-circumstances approach is


                                          - 24 -
                                  STATE V. BENITEZ

                                  Opinion of the Court



             adequate to determine whether there has been a waiver
             even where interrogation of juveniles is involved. We
             discern no persuasive reasons why any other approach is
             required where the question is whether a juvenile has
             waived his rights, as opposed to whether an adult has done
             so. The totality approach permits—indeed, it mandates—
             inquiry into all the circumstances surrounding the
             interrogation. This includes evaluation of the juvenile’s
             age, experience, education, background, and intelligence,
             and into whether he has the capacity to understand the
             warnings given him, the nature of his Fifth Amendment
             rights, and the consequences of waiving those rights.

Fare v. Michael C., 442 U.S. 707, 724–25, 61 L. Ed. 2d 197, 212 (1979) (citations and

quotation marks). Defendant argues that the trial court failed to make sufficient

findings of fact to address the factors required by the “totality-of-the-circumstances

approach” mandated by the United States Supreme Court. Id. at 725, 61 L. Ed. 2d

at 212. This approach requires “inquiry into all of the circumstances surrounding

the interrogation” and “evaluation of the juvenile’s age, experience, education,

background, and intelligence, and into whether he has the capacity to understand

the warnings given to him, the nature of his Fifth Amendment rights, and the

consequences of waiving these rights.” Id.

      Furthermore,

             A child’s age is far more than a chronological fact. It is a
             fact that generates commonsense conclusions about
             behavior and perception. Such conclusions apply broadly
             to children as a class. And, they are self-evident to anyone
             who was a child once himself, including any police officer
             or judge.
                    Time and again, this Court has drawn these


                                         - 25 -
                                  STATE V. BENITEZ

                                   Opinion of the Court



             commonsense conclusions for itself. We have observed that
             children generally are less mature and responsible than
             adults; that they often lack the experience, perspective,
             and judgment to recognize and avoid choices that could be
             detrimental to them; that they are more vulnerable or
             susceptible to outside pressures than adults. Addressing
             the specific context of police interrogation, we have
             observed that events that would leave a man cold and
             unimpressed can overawe and overwhelm a lad in his early
             teens. Describing no one child in particular, these
             observations restate what any parent knows—indeed,
             what any person knows—about children generally.

J.D.B. v. North Carolina, 564 U.S. 261, 272–73, 180 L. Ed. 2d 310, 323-24 (2011)

(citations, quotation marks, and ellipses omitted).

      Defendant does not challenge any of the trial court’s findings of fact in the

order denying his motion to suppress, so all of its findings are binding on appeal. See

State v. Osterhoudt, 222 N.C. App. 620, 626, 731 S.E.2d 454, 458 (2012) (“Any

unchallenged findings of fact are deemed to be supported by competent evidence and

are binding on appeal.” (citation and quotation marks omitted)). As to binding

findings of fact, we must note at the outset that defendant’s competency to stand

trial was an issue in this case; ultimately, in 2012, the trial court entered an order

determining defendant was competent to stand trial.           In addition, all of the

testimony and evidence from the competency hearing was also admitted for purposes

of the hearing on the motion to suppress which is at issue in this appeal.         The

competency order found:

             3.     That the Defendant does suffer from a mental illness


                                          - 26 -
                                         STATE V. BENITEZ

                                         Opinion of the Court



                       or defect however there is insufficient evidence with
                       respect to the requirement of adaptive functioning to
                       determine the exact nature of that mental illness or
                       defect as regard to those prongs of the test for mental
                       retardation.

               4.      The Court further finds that based upon testimony
                       of Brian David, a supervisor at the Richmond
                       Detention Center that the Defendant gets along well
                       with the other inmates, communicates well, and
                       serves as a Trustee at the facility.

               5.      That the Defendant has shown the ability to respond
                       in a reasonable and rational manner to questions
                       regarding the proceedings, and the Defendant[’]s
                       situation, and the ability to assist defense counsel.

       At the time of the competency order, defendant would have been 18 years old

and thus an adult, but he was 13 at the time of the interrogation, so the

determination of defendant’s competency has little weight in the analysis of

defendant’s knowing and intelligent waiver at age 13.5 But the finding that defendant

“suffer[s] from a mental illness or defect” but does not meet the “test for mental

retardation” is a relevant finding of fact which we cannot ignore when reviewing the



       5  Defendant devotes a substantial part of his argument to the background of his competency
evaluation leading up to the hearing and order regarding his competency to stand trial, but we will
not address this in detail. The competency order was not appealed and in the suppression order on
appeal, the trial court was considering a different question. It does not appear the trial court heavily
relied on the competency order in its order denying defendant’s motion to suppress, but even if it did
rely in part on the competency order, neither order addressed defendant’s “experience, education,
background, and intelligence, and into whether he has the capacity to understand the warnings given
to him, the nature of his Fifth Amendment rights, and the consequences of waiving these rights” at
the time of the interrogation when he was 13. Fare, 442 U.S. at 725, 61 L. Ed. 2d at 212.




                                                - 27 -
                                         STATE V. BENITEZ

                                         Opinion of the Court



denial of defendant’s motion to suppress based upon a knowing and intelligent waiver

of his rights.6

       Based upon the record and the extensive evaluations of defendant, it appears

defendant’s “mental illness or defect” existed since before defendant was age 18 and

the “mental illness or defect” is relevant to any consideration of his “experience,

education, background, and intelligence, and [ ] whether he has the capacity to

understand the warnings given to him, the nature of his Fifth Amendment rights,

and the consequences of waiving these rights.” Fare, 442 U.S. at 725, 61 L. Ed. 2d at

212. The competency order’s finding did not identify the “mental illness or defect” or

describe its impact upon defendant’s abilities or understanding but seems only to

have determined that defendant did not meet “the test for mental retardation.”

       Much of the order denying defendant’s motion to suppress is devoted to law

enforcement’s initial encounters with defendant, leading up to his “transfer” to the

Sheriff’s Office. As to the interrogation, the order then finds:



       6  To be accurate we have used the terminology as used in the record of this case, but we note
that the terminology used by mental health professionals for mental retardation has changed since
the 2012 order was entered. The United State Supreme Court noted in 2014 that “[p]revious opinions
of this Court have employed the term “mental retardation.” This opinion uses the term “intellectual
disability” to describe the identical phenomenon. See Rosa's Law, 124 Stat. 2643 (changing entries in
the U.S. Code from “mental retardation” to “intellectual disability”); Schalock et al., The Renaming of
Mental Retardation: Understanding the Change to the Term Intellectual Disability, 45 Intellectual &
Developmental Disabilities 116 (2007). This change in terminology is approved and used in the latest
edition of the Diagnostic and Statistical Manual of Mental Disorders, one of the basic texts used by
psychiatrists and other experts;” the manual is often referred to by its initials “DSM,” followed by its
edition number, e.g., “DSM–5.” See American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 33 (5th ed. 2013).” Hall v. Florida, 572 U.S. ___, ____, 188 L. Ed. 2d 1007,
1014 (2014).

                                                - 28 -
                    STATE V. BENITEZ

                    Opinion of the Court



12.   Lee County Detective Clint Babb met with
      Defendant’s Uncle Jeremiah Cruz who was the
      Defendant’s custodian, the Defendant, and Spanish
      interpreter Celinda Carney at the Lee County
      Sheriff’s Office.

13.   The Defendant who was 13 years old at the time was
      duly advised of his juvenile rights in the presence of
      his uncle and the juvenile rights were interpreted by
      Celinda Carney. Celinda Carney was retained by
      the Lee County Sheriff’s Office to assist them with
      interpreting in this matter. Celinda Carney had
      never interpreted in a criminal matter before.

14.   Detective Babb and Ms. Carney testified the
      Defendant understood all questions asked and
      Defendant responded appropriately to all questions.

15.   The Defendant acknowledged he understood each
      right read to him and initialed each one to indicate
      he understood each item as shown on the rights form
      admitted to evidence.

16.   The Defendant agreed to waive his rights and signed
      the waiver indicating same. Neither Defendant nor
      [hi]s uncle at anytime indicated any lack of
      understanding of what was being said.

17.   The Defendant began responding to questions and at
      some point advised Detective Babb through the
      interpreter Ms. Carney that he would tell Ms.
      Carney what happened but not Detective Babb.

18.   Detective Babb advised Ms. Carney to tell the
      Defendant whatever he told Ms. Carney she was
      going to tell Detective Babb and Ms. Carney did so
      and the Defendant agreed to tell her anyway.
      Detective Babb left the interview room leaving the
      Defendant with Ms. Carney.



                           - 29 -
                                 STATE V. BENITEZ

                                  Opinion of the Court



             19.   Defendant told Ms. Carney the information
                   contained in his written signed statement after
                   Detective Babb left the room and she relayed same
                   to Detective Babb as she indicated she would.

             20.   Detective Babb went over what the Defendant told
                   Ms. Carney with the Defendant and Defendant
                   agreed that it was correct.

             21.   The Defendant told the same story again in the
                   computer room, Defendant was read the statement
                   again from the computer screen and Ms. Carney
                   read the statement to the Defendant in printed form,
                   and the defendant acknowledged the statement as
                   accurate and signed it, and the Defendant’s uncle
                   was present with him throughout the process.

             22.   Each witness indicated that the Defendant was
                   never threatened, coerced or otherwise harassed and
                   all conversations were done in a conversational tone
                   without yelling.

             23.   None of the witnesses in the presence of the
                   Defendant from the point of contact with the
                   Defendant saw any signs of the Defendant being
                   confused or otherwise not understanding what was
                   being asked or instructed.

The findings of fact in the motion to suppress do address defendant’s age and “the

circumstances surrounding the interrogation[,]” but not defendant’s “experience,

education, background, and intelligence” or “whether he has the capacity to

understand the warnings given him, the nature of his Fifth Amendment rights, and

the consequences of waiving those rights.” Id.

      The absence of findings regarding defendant’s        “experience, education,



                                         - 30 -
                                  STATE V. BENITEZ

                                  Opinion of the Court



background, and intelligence” and “capacity to understand the warnings given him,

the nature of his Fifth Amendment rights, and the consequences of waiving those

rights[,]” id., is especially concerning since the trial court had already found

defendant suffers from an unnamed “mental illness or defect” and had before it “all

of [the] testimony and evidence” from the competency hearing, including an

evaluation from Dr. Antonio Puente in 2008 when defendant was only 14 years old.

Dr. Puente’s evaluation was the first done, when defendant was not much older than

at the time of the interrogation. Dr. Puente found “the diagnosis is mild retardation

with organic deficits limiting his ability to understand and appreciate the

complexities involved with the alleged incident, as well as his own legal situation.”

Dr. Puente also did a follow-up evaluation in 2011, again diagnosing defendant with

“Mild Mental Retardation.” Because all of the testimony and evaluations presented

at the competency hearing were included as part of the evidence for the hearing on

the motion to suppress, the trial court had before it extensive evidence regarding

defendant’s “experience, education, background, and intelligence” and “capacity to

understand the warnings given him, the nature of his Fifth Amendment rights, and

the consequences of waiving those rights.” Id. The trial court must evaluate the

evidence, consider its weight, and make the required findings, but here it simply did

not. See generally id., 442 U.S. at 724–25, 61 L. Ed. 2d at 212.

       This case has gone on for a long time. When it started, defendant was a 13



                                         - 31 -
                                  STATE V. BENITEZ

                                  Opinion of the Court



year old child. When defendant entered his plea, he was nearing his 20th birthday.

At the time of the filing of this opinion, defendant is 24 years old. Nonetheless, we

must remand for the trial court to make additional findings of fact addressing

whether defendant’s waiver of rights at age 13 was knowing and intelligently made,

taking into account the evidence regarding defendant’s “experience, education,

background, and intelligence” and evaluation of “whether he has the capacity to

understand the warnings given to him, the nature of his Fifth Amendment rights,

and the consequences of waiving these rights.” Id. These considerations under Fare

are not technicalities but are essential to any conclusion of whether defendant

knowingly and intelligently waived his right to remain silent. See generally id. The

trial court’s order did not properly address the constitutional arguments before it in

defendant’s motion to suppress, and thus remand is necessary at this late stage in

defendant’s ongoing criminal proceedings. Certainly the trial court may consider

later evaluations and events in its analysis of defendant’s knowing and intelligent

waiver at age 13 but should take care not to rely too much on hindsight. Hindsight

is reputed to be 20/20, but hindsight may also focus on what it is looking for to the

exclusion of things it may not wish to see. The trial court’s focus must be on the

relevant time period and defendant’s circumstances at that time as a 13 year old boy

who required a translator and who suffered from a “mental illness or defect” and not

on the 10 years of litigation of this case since that time. The trial court must make



                                         - 32 -
                                  STATE V. BENITEZ

                                  Opinion of the Court



findings as to defendant’s mental state and capacity to understand the Miranda

warnings at age 13, including the nature of his “mental illness or defect[,]” and the

impact, if any, this condition had on his ability to make a knowing and intelligent

waiver. See generally id.

                                 IV.    Conclusion

      Although defendant’s trial counsel made a legal error by not seeking

suppression of defendant’s statement based upon his wrongful determination that

defendant’s uncle was his “guardian” as defined by North Carolina General Statute

§ 7B-2101, and thus a proper person to be present during his interrogation, the trial

court correctly determined on remand that this error was objectively reasonable at

the time. We affirm the order denying defendant’s MAR.

      Because the trial court failed to address the key considerations in determining

whether defendant had knowingly and intelligently waived his rights during police

interrogation, we must remand the order denying defendant’s motion to suppress for

further findings of fact. We note that both the State and defendant have already

presented evidence regarding these issues, but if either the State or defendant

should request that the trial court allow presentation of       further evidence or

argument on remand, the trial court may in its sole discretion either allow or deny

this request.

      AFFIRMED in part; REMANDED in part.



                                         - 33 -
                       STATE V. BENITEZ

                       Opinion of the Court



Chief Judge McGEE and Judge TYSON concur.




                              - 34 -
