               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-726

                                  Filed: 17 April 2018

Transylvania County, 12 CRS 52047, 13 CRS 463

STATE OF NORTH CAROLINA

              v.

JEFFREY TRYON COLLINGTON, Defendant.


        Appeal by the State from order entered 3 April 2017 by Judge Mark E. Powell

in Transylvania County Superior Court. Heard in the Court of Appeals 7 February

2018.


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

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


        ZACHARY, Judge.


        The State appeals from the trial court’s order granting defendant Jeffrey Tryon

Collington’s Motion for Appropriate Relief for ineffective assistance of counsel. For

the reasons explained herein, we affirm.

                                        Background

        The present appeal arises from defendant’s initial appeal to this Court

(“Collington I”) in which we issued an opinion dismissing defendant’s challenge to his
                                STATE V. COLLINGTON

                                   Opinion of the Court



conviction of possession of a firearm by a felon. As explained in Collington I, the

underlying facts of the case are as follows:

             . . . Christopher Hoskins (“Mr. Hoskins”) testified for the
             State at trial as follows: Mr. Hoskins went to the recording
             studio (“the studio”) of Dade Sapp (“Mr. Sapp”) to "hang
             out" on the evening of 1 October 2012. Shortly after he
             arrived, two men — identified by Mr. Hoskins as
             Defendant and Clarence Featherstone [(“Defendant’s
             brother”)]— entered the studio, passed by Mr. Sapp, and
             demanded to speak with someone named “Tony.”
             Defendant asked Mr. Hoskins if he was “Tony” and
             pointed a gun (“the gun”) at Mr. H[o]skins when he said
             he was not “Tony.” A struggle for the gun ensued.
             According to Mr. Hoskins, both Defendant and
             [Defendant’s brother] beat him up, went through his
             pockets, removed approximately $900.00 in cash that Mr.
             Hoskins had won in video poker earlier in the day, and then
             left the studio. At trial, Mr. Hoskins also identified the gun
             that reportedly was wielded by Defendant as belonging to
             Mr. Sapp.

                    Defendant testified that he and [his brother] did go
             to the studio on the evening of 1 October 2012. However,
             Defendant maintained that they went to the studio for
             [Defendant’s brother] to purchase a large quantity of
             oxycodone from Mr. Hoskins. According to Defendant,

                    Sapp set up the drug deal by calling Mr.
                    Hoskins on the cellphone and asking him to
                    come to the studio. Hoskins said . . . he would
                    be there in about three minutes.

                    When Mr. Hoskins came into the studio he
                    was wearing a hoody. You could not see his
                    face. He walked straight back past us and
                    made a left in the side booth which was a
                    soundproof booth used for a studio, and Sapp
                    walked in behind him.


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                     Opinion of the Court




      During that time Mr. Hoskins had gave Mr.
      Sapp the pills to come give [my brother].
      When Mr. Sapp gave [my brother] the pills,
      [my brother] started whispering to him that
      the money was short. Mr. Sapp said, “Don't
      worry about it, he can't count anyways.” Mr.
      Sapp went and gave Mr. Hoskins his money.

      And at that time I believe Mr. Sapp actually
      told Mr. Hoskins that we had shorted him.
      Mr. Hoskins came out of the side booth
      demanding the rest of his money. When he
      started demanding the rest of his money, he
      got in between me and [my brother]. And at
      that point in time he started pointing his
      fingers in my face, and I hit him with a closed
      fist. And we started fighting. When we started
      fighting, [my brother] jumped into the fight
      and we started beating . . . Mr. Hoskins until
      Mr. Sapp ran out of the building, because Mr.
      Hoskins had told him to go get a gun.

Defendant testified he never had possession of a gun, let
alone Mr. Sapp’s gun, during the altercation.

       Defendant also testified that he and [his brother]
met Mr. Sapp in a McDonald’s parking lot later in the
evening of 1 October 2012, where [Defendant’s brother]
gave Mr. Sapp a “cut” of the oxycodone pills acquired from
Mr. Hoskins. Defendant further testified that Mr. Sapp
also gave the gun to [Defendant’s brother] and asked him
to hold onto it because Mr. Sapp “was scared due to the
fact” that, during an investigation into the incident at the
studio that evening, “he had gave the detectives and Mr.
Hoskins a story about how he couldn't locate his gun.”
Defendant testified he did not know what [his brother] did
with the gun afterwards.

      Defendant was indicted for conspiracy to commit


                            -3-
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                     Opinion of the Court



robbery with a dangerous weapon, robbery with a
dangerous weapon, possession of a firearm by a felon, and
being an habitual felon. Defendant's indictment for
possession of a firearm by a felon stated only that, on the
evening of 1 October 2012, Defendant “did have in his
control a black handgun, which is a firearm” and that
Defendant “has previously been convicted of a felony.”
However, at trial, and without objection by Defendant, the
trial court instructed the jury, in part, as follows:

      For 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 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 Defendant acting either by himself or
      acting together with [Defendant’s brother]
      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 felon.

(emphasis added).




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                                  Opinion of the Court



State v. Collington, 2015 N.C. App. LEXIS 534 *1-7, disc. review denied, 368 N.C.

357, 776 S.E.2d 855 (2015) (alterations omitted).

      The jury found defendant not guilty of conspiracy or robbery with a dangerous

weapon, but did find him guilty of possession of a firearm by a felon. However, the

verdict sheet did not indicate whether the jury convicted defendant of possession of a

firearm by a felon under the theory of actual possession of the firearm by defendant

or under the theory of acting in concert with his brother to possess the firearm.

      Defendant appealed his conviction of possession of a firearm by a felon to this

Court, arguing “that the trial court committed plain error by providing the jury with

an instruction on acting in concert with respect to the charge of possession of a

firearm by a felon.” Id. at *7. Defendant specifically argued “that this instruction

impermissibly allowed the jury to convict Defendant of possession of a firearm by a

felon based on [his brother]—also a convicted felon—reportedly receiving the gun

from Mr. Sapp in a McDonald’s parking lot on the evening of 1 October 2012.” Id.

      In Collington I, this Court held that, “even assuming arguendo that the trial

court erred by instructing the jury on an acting in concert theory[,]” “Defendant has

not established plain error[.]” Id. at *8. Based on the victim’s testimony at trial and

the fact that “both Defendant and [the victim] testified that they engaged in a

physical altercation[,]” “[t]he jury reasonably could have believed that Defendant was

in possession of Mr. Sapp’s gun at that time.” Id. at *9. This Court continued:



                                         -5-
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                                      Opinion of the Court



             Finally, Defendant has not presented this Court with any
             arguments under State v. Pakulski, 319 N.C. 562, 574, 356
             S.E.2d 319, 326 (1987), which held that a trial court
             commits plain error when it instructs a jury on disjunctive
             theories of a crime, where one of the theories is improper,
             and “we cannot discern from the record the theory upon
             which the jury relied.” “It is not the role of the appellate
             courts to create an appeal for an appellant.” Viar v. N.C.
             Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361
             (2005). Therefore, Defendant has not met his “burden” of
             establishing that the trial court committed plain error in
             the present case. See [State v.] Lawrence, 365 N.C. [506,]
             516, 723 S.E.2d [326,] 333 [(2012)].

Id. at *9-10 (alterations omitted).

      Defendant filed a Motion for Appropriate Relief in the Transylvania County

Superior Court, seeking a new trial on the grounds that he received ineffective

assistance of appellate counsel in that “appellate counsel failed to raise the argument

on appeal that plain error was committed because the trial court instructed the jury

on disjunctive theories of a crime, one of which was improper, and the record does not

show upon which theory the jury relied.”

      The Honorable Mark E. Powell denied defendant’s Motion for Appropriate

Relief. Judge Powell reasoned:

             Taking into consideration that the Court of Appeals found
             that no plain error was established in the trial of the
             Defendant, even assuming that an acting in concert
             instruction was improper, the undersigned judge finds that
             no actual prejudice has been shown by the failure of the
             Defendant’s appellate counsel to argue Pakulski, and that
             failure now to consider said argument will not result in a
             fundamental miscarriage of justice.


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                                    Opinion of the Court




      Defendant petitioned for issuance of a writ of certiorari in this Court seeking

review of the trial court’s denial of his Motion for Appropriate Relief. On 29 December

2016, this Court granted defendant’s petition for writ of certiorari and entered the

following order:

             It appearing that the trial court utilized the incorrect legal
             standard in assessing defendant’s ineffective assistance of
             appellate counsel claim, see State v. Simpson, 176 N.C.
             App. 719, 627 S.E.2d 271 (2006), and it further appearing
             that this Court’s decision in [Collington I] did not hold that
             defendant’s claim of plain error was meritless irrespective
             of whether his appellate counsel raised any arguments
             under [Pakulski], the order of Judge [Powell] is hereby
             vacated and the matter remanded for the trial court to
             enter an appropriate dispositional order pursuant to N.C.
             Gen. Stat. [§] 15A-1420(c)(7) (2015).

      Upon remand, Judge Powell concluded that defendant received ineffective

assistance of appellate counsel and granted defendant’s Motion for Appropriate

Relief, vacated defendant’s conviction, and ordered a new trial. The trial court made

the following conclusions of law:

                                            ...

             (4) A reasonable attorney would have been aware of
             Pakulski, its application to Defendant’s case, and the
             remedy of a new trial that it would provide.

             (5) Appellate counsel’s performance fell below an objective
             standard of professional reasonableness. While appellate
             counsel did argue that the instruction on acting in concert
             was invalid, he did not complete the argument by arguing
             that because disjunctive jury instructions were given, one


                                           -7-
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                                   Opinion of the Court



             of which was improper, and there was no finding as to the
             jury’s chosen theory, there was plain error under Pakulski
             and Defendant is entitled to a new trial.

             (6) But for appellate counsel’s error, there is a reasonable
             probability that the Court of Appeals would have found
             plain error and granted Defendant a new trial.

             (7) Defendant received ineffective assistance of counsel in
             violation of the Sixth Amendment.

      The State filed its Petition for Writ of Certiorari and Petition for a Writ of

Supersedeas and Motion for Temporary Stay in this Court, which we allowed.

                                    Standard of Review

      On review from a trial court’s ruling on a Motion for Appropriate Relief, the

trial court’s findings of fact “are binding if they are supported by any competent

evidence[.]” State v. Pait, 81 N.C. App. 286, 288, 343 S.E.2d 573, 575 (1986) (citing

State v. Stevens, 305 N.C. 712, 291 S.E.2d 585 (1982)). “[T]he trial court’s ruling on

facts so supported may be disturbed only when there has been a manifest abuse of

discretion . . . or when it is based on an error of law.” Id. at 288-89, 343 S.E.2d at 575

(citations omitted).

                                         Discussion

      The State argues that the trial court’s conclusion that defendant received

ineffective assistance of appellate counsel was based on an error of law. The State

maintains that “[a]lthough defendant has altered his argument in that he now cites

to Pakulski . . . rather than to Lawrence . . . for the argument that there was plain


                                          -8-
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                                   Opinion of the Court



error in the instruction of acting in concert, the result is the same; he is not entitled

to relief and there is no plain error.” Accordingly, the State argues that the trial court

erred in granting defendant’s Motion for Appropriate Relief and ordering a new trial.

      In assessing the propriety of the trial court’s grant of defendant’s Motion for

Appropriate Relief for ineffective assistance of counsel, we first find it necessary to

examine the law at the center of the present dispute.

I. State v. Pakulski

                                                A.

      Where a defendant alleges on appeal that the trial court erred in some respect

during his trial, but did not make the appropriate objection at trial, the defendant is

limited to a plain error review of the issue. State v. Odom, 307 N.C. 655, 660, 300

S.E.2d 375, 378 (1983). “Generally speaking, the [plain error] rule provides that a

criminal defendant is entitled to a new trial if the defendant demonstrates that the

jury probably would have returned a different verdict had the error not occurred.”

State v. Lawrence, 365 N.C. 506, 507, 723 S.E.2d 326, 327 (2012) (emphasis added)

(citing State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)). “[P]lain error

review . . . is normally limited to instructional and evidentiary error.” Id. at 516, 723

S.E.2d at 333 (citing State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002),

cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003)).




                                          -9-
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                                   Opinion of the Court



      To be entitled to a new trial under plain error review, the defendant must

establish

             that a fundamental error occurred at trial. To show that an
             error was fundamental, a defendant must establish
             prejudice—that, after examination of the entire record, the
             error had a probable impact on the jury’s finding that the
             defendant was guilty. Moreover, because plain error is to
             be applied cautiously and only in the exceptional case, the
             error will often be one that seriously affects the fairness,
             integrity or public reputation of judicial proceedings.

Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (citations, quotation marks, and

brackets omitted). In the context of improper jury instructions, the plain error

analysis typically involves an examination of the evidence to determine whether the

jury would have probably returned a different verdict had it been instructed properly.

See e.g., id. at 519, 723 S.E.2d at 334-35. Where there was overwhelming evidence

presented at trial to support the defendant’s conviction despite the improper jury

instruction, plain error is unlikely to be established and the defendant will not be

entitled to a new trial. See e.g., id. at 516, 723 S.E.2d at 333 (citing United States v.

Cotton, 535 U.S. 625, 152 L. Ed. 2d 860 (2002)).

      In State v. Pakulski, our Supreme Court established the proper application of

the plain error standard of review where the jury received an improper alternative

jury instruction:

             Where the trial judge has submitted the case to the jury on
             alternative theories, one of which is determined to be
             erroneous and the other properly submitted, and we cannot


                                          - 10 -
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                                   Opinion of the Court



             discern from the record the theory upon which the jury
             relied, this Court will not assume that the jury based its
             verdict on the theory for which it received a proper
             instruction. Instead, we resolve the ambiguity in favor of
             the defendant.

State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987) (citation omitted)

(emphasis added). In such a case, plain error will be found because “we must assume

the jury based its verdict on the theory for which it received an improper instruction.”

State v. Petersilie, 334 N.C. 169, 193, 432 S.E.2d 832, 846 (1993) (citations omitted);

see also State v. Martinez, ___ N.C. App. ___, ___, 801 S.E.2d 356, 360 (2017).

      Pakulski does not, however, stand for the proposition that a new trial is

mandated any time an improper alternative instruction is given. Plain error requires

that the defendant establish that the instructional error “had a probable impact on

the jury’s finding that the defendant was guilty.” Lawrence, 365 N.C. at 518, 723

S.E.2d at 333 (citation and quotation marks omitted).        If one of the alternative

theories of conviction submitted to the jury is proper but the other improper, and the

verdict sheet does not indicate the theory upon which the jury relied, it may still be

apparent from the record upon which instruction the jury relied. If it is apparent from

the record that the jury did not convict the defendant based upon the improper

instruction, it would contravene the purpose of the plain error rule for the reviewing

court to nevertheless assume that the jury relied upon the improper instruction and

mandate a new trial. See Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203,



                                          - 11 -
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212 (1977) (“It is the rare case in which an improper instruction will justify reversal

of a criminal conviction when no objection has been made in the trial court.”);

Lawrence, 365 N.C. at 517, 723 S.E.2d at 333 (“The adoption of the ‘plain error’ rule

does not mean that every failure to give a proper instruction mandates reversal

regardless of the defendant’s failure to object at trial.”). Plain error review in the

context of improper disjunctive jury instructions will in large part turn on an analysis

of the probability that the jury relied upon the improper instruction as opposed to the

proper instruction.

      In certain circumstances, it may be clear that the jury did not rely upon the

improper instruction. For instance, if there was ample evidence presented at trial to

support the proper alternative theory of conviction, and the State presented no

evidence at trial that would have supported the improper alternative theory, then the

reviewing court may find it probable that the jury relied upon the proper instruction

rather than the improper instruction that was wholly unsupported by the evidence

at trial. See e.g., State v. Boyd, 222 N.C. App. 160, 170-73, 730 S.E.2d 193, 199-201

(2012) (Judge Stroud dissenting), reversed, 366 N.C. 548, 742 S.E.2d 798 (2013)

(reversing for the reasons stated in Judge Stroud’s dissent); Martinez, ___ N.C. App.

at ___, 801 S.E.2d at 360. In such a case, the reviewing court need not assume that

the jury relied upon the improper instruction and order a new trial. Martinez, ___

N.C. App. at ___, 801 S.E.2d at 361 (“[A] reviewing court is to determine whether a



                                          - 12 -
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                                   Opinion of the Court



disjunctive jury instruction constituted reversible error, without being required in

every case to assume that the jury relied on the inappropriate theory.”). Instead, the

reviewing court may apply the usual plain error standard of review to determine

whether the evidence at trial was sufficient to support a conviction under the proper

instruction. See Lawrence, 365 N.C. at 516, 723 S.E.2d at 333 (“The [plain error]

standard . . . is unlikely to be satisfied, however, when evidence of the defendant’s

guilt is overwhelming.”); Martinez, ___ N.C. App. at ___, 801 S.E.2d at 361 (“[Rather

than] assuming that the jury relied on the [improper] theory . . . , [the Court] cited

the overwhelming evidence supporting the other kidnapping theories . . . to conclude

that the defendant failed to show that, absent the error, the jury would have returned

a different verdict.”) (discussing State v. Boyd, 222 N.C. App. 160, 173, 730 S.E.2d

193, 201 (2013)) (citation, quotation marks, and alteration omitted).

      In contrast, there may occasionally arise the uncommon case in which the

verdict sheet fails to reveal whether the jury relied upon the proper instruction or the

improper instruction, and the reviewing court cannot discern from the evidence in

the record upon which of the two theories the jury relied. Pakulski, 319 N.C. at 574,

356 S.E.2d at 326. Where one of the alternative instructions was improper and the

State presented substantial evidence that would support a finding of guilt under

either the improper or the proper instruction, it would “seriously affect the fairness,

integrity or public reputation of” the appellate process for the court to assume that



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                                   Opinion of the Court



the jury premised its verdict on the proper instruction. Odom, 307 N.C. at 660, 300

S.E.2d at 378. Rather, such a case falls precisely within the category of “ ‘rare case[s]

in which an improper instruction will justify reversal of a criminal conviction[.]’ ” Id.

at 661, 300 S.E.2d at 378 (quoting Henderson, 431 U.S. at 154, 52 L. Ed. 2d at 212).

Accordingly, Pakulski and the consequent cases provide that the tie must be broken

in the defendant’s favor, with the result that the defendant’s conviction is vacated

and a new trial is ordered.

                                           B.

      In the instant case, the trial court instructed the jury on alternative theories

under which the jury could find defendant guilty of possession of a firearm by a felon.

The first was that he could be guilty by a showing of actual or constructive possession

of the firearm. This instruction was correct. State v. Young, 190 N.C. App. 458, 460,

660 S.E.2d 574, 576 (2008). The trial court also instructed the jury that it could find

defendant guilty if he acted in concert with his brother in the commission of the crime

of possession of a firearm by his brother, a convicted felon. Defendant argued that

this instruction was improper in Collington I.

      It is impossible to determine from the record upon which of the two alternative

instructions the jury relied in finding defendant guilty of possession of a firearm by a

felon. Under the first alternative, defendant could be found guilty if the jury believed

him to have been in actual or constructive possession of the firearm while being a



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                                   Opinion of the Court



convicted felon. There was conflicting evidence on this issue at trial. Hoskins testified

that defendant held a gun to his head, but defendant testified that the altercation

arose only after Hoskins confronted defendant and his brother for having shorted

Hoskins in the drug deal. According to defendant, it was then that Hoskins and

defendant began fighting. Defendant testified that:

              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 the money. I do admit that.

Although defendant testified that at no point did he have a firearm during this

encounter, Hoskins’s testimony to the contrary would have been sufficient to justify

defendant’s conviction under the first alternative theory of actual or constructive

possession.

      The evidence presented at trial was also sufficient to support a finding of guilt

under the alternative theory of acting in concert. At the close of the evidence, the

jury was instructed that:

              [i]f you find from the evidence beyond a reasonable doubt
              that . . . defendant . . . acting together [with his brother]
              with a common purpose to commit the crime of . . .
              possession of a firearm by a felon, each of them if actually
              or constructively present, is guilty of . . . possession of a
              firearm by a felon.



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                                   Opinion of the Court



Defendant testified that he never had possession of a firearm. Rather, defendant

testified that:

              [l]ater that night . . . Sapp did meet me and my brother . . .
              and handed him a Glock pistol to hold for him, because he
              said he was scared due to the fact he had gave the
              detectives and [Hoskins] a story about he couldn’t locate
              his gun. But [Hoskins] knew he had the gun, and so did the
              cops.

Given that evidence was admitted that Sapp handed defendant’s brother the gun in

front of defendant, and that defendant’s brother was also a convicted felon, this

admission would have been sufficient for the jury to find defendant guilty of

possession of a firearm by a felon under a theory of acting in concert, and not under

a theory of actual or constructive possession.

       The presence of conflicting evidence at trial sufficient to support either of the

alternative instructions, along with the jury’s verdict in favor of defendant on the

related charges, would have rendered this Court unable to determine under which of

the two theories defendant was convicted. Therefore, under Pakulski, if this Court in

Collington I were to have determined that the instruction for the crime of possession

of a firearm by a felon under the theory of acting in concert was improper, then

defendant would have been entitled to a new trial.

       However, on appeal, defendant’s appellate counsel did not cite Pakulski or

other consequent cases, or argue that because it could not be determined from the

record whether the jury relied upon the improper or the proper instruction, plain


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error was established. Rather, appellate counsel proceeded to discount the evidence

that would have supported the proper instruction on actual or constructive

possession.

      Where a defendant’s appellate counsel fails to raise an argument on appeal,

that argument is deemed abandoned, as “[i]t is not the job of this Court to make [a]

[d]efendant’s argument for him.” State v. Joiner, 237 N.C. App. 513, 522, 767 S.E.2d

557, 563 (2014) (citing Viar v. North Carolina Dep’t of Transp., 359 N.C. 400, 402, 610

S.E.2d 360, 361 (2005) (“It is not the role of the appellate courts, however, to create

an appeal for an appellant.”)). This is the case even where the omitted argument may

be dispositive of the defendant’s appeal. Accordingly, in Collington I, this Court was

left to determine whether “[t]he jury reasonably could have believed that Defendant

was in [actual or constructive] possession of” a gun from the evidence presented,

regardless of the impropriety of the acting in concert instruction. Collington, 2015

N.C. App. LEXIS at *9. Because we so concluded, we dismissed defendant’s appeal.

II. Defendant’s Motion for Appropriate Relief

      In the case at bar, because defendant’s appellate counsel neglected to raise the

Pakulski case, which may have otherwise entitled defendant to a new trial, defendant

sought to obtain a new trial by filing a Motion for Appropriate Relief in the trial court

arguing that he received ineffective assistance of appellate counsel. The trial court




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agreed that defendant had received ineffective assistance in his appeal in Collington

I and vacated defendant’s conviction.

       The State argues on appeal that the trial court erred in finding that defendant

received ineffective assistance of appellate counsel despite appellate counsel’s failure

to argue the holding in Pakulski. We disagree, and affirm the trial court’s conclusion

that appellate counsel’s omission constituted ineffective assistance of counsel and

that defendant is therefore entitled to a new trial.

                            Ineffective Assistance of Counsel

       The right to counsel under Article I, Section 23 of the North Carolina

Constitution and the Sixth Amendment to the United States Constitution “includes

the right to the effective assistance of counsel.” State v. Braswell, 312 N.C. 553, 561,

324 S.E.2d 241, 247 (1985) (citing McMann v. Richardson, 397 U.S. 759, 771, 25 L.

Ed. 2d 763, 773 (1970)). This includes the right to effective assistance of appellate

counsel. Evitts v. Lucey, 469 U.S. 387, 83 L. Ed. 2d 821 (1985); See e.g., Smith v.

Robbins, 528 U.S. 259, 285, 145 L. Ed. 2d 756, 764 (2000).

       The burden is on the defendant to demonstrate that he received ineffective

assistance of counsel “so . . . as to require reversal of [his] conviction[.]” Strickland v.

Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). In order to satisfy that

burden, the defendant must establish both of the elements of the analysis of a claim

of ineffective assistance of counsel:



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             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.

Id.; Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (adopting the test laid out in

Strickland for purposes of the North Carolina Constitution). “Unless a defendant

makes both showings, it cannot be said that the conviction . . . resulted from a

breakdown in the adversary process that renders the result unreliable.” Id. The

same standard applies to claims of ineffective assistance of appellate counsel. State

v. Simpson, 176 N.C. App. 719, 722, 627 S.E.2d 271, 275, disc. review denied, 360 N.C.

653, 637 S.E.2d 191 (2006) (citing Robbins, 528 U.S. at 285, 145 L. Ed. 2d at 780).

      The analysis of claims of ineffective assistance of counsel is guided by the

underlying purpose of the requirement that defendants receive effective assistance of

counsel, that is, “to ensure a fair trial[.]” Strickland, 466 U.S. at 686, 80 L. Ed. 2d at

692. “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result,” Id. at 686, 80 L.

Ed. 2d at 692-93, or for purposes of appellate counsel, that the appeal cannot be relied




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                                  STATE V. COLLINGTON

                                   Opinion of the Court



upon as having produced a just result. Robbins, 528 U.S. at 285-86, 145 L. Ed. 2d at

780.

       i. Deficient Performance

       The State argues that the trial court erred in finding that defendant received

ineffective assistance of appellate counsel because defendant failed to establish the

first prong of ineffectiveness claims, i.e., that his appellate counsel’s performance was

in fact deficient. According to the State, not only has it never been held that it is

improper to instruct the jury on acting in concert for the crime of possession of a

firearm by a felon, but that even if there were such legal precedent, such a mistake

on the part of appellate counsel was reasonable.

       The State’s argument on this point is misplaced. The question is not whether

appellate counsel’s performance was deficient for failing to argue that the acting in

concert instruction was improper. In fact, appellate counsel made that argument. The

question is whether appellate counsel’s performance was deficient for failing to

support the argument that defendant was entitled to a new trial because of the

improper instruction.

       To show “that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment[,]” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at

693, a defendant must establish “that his counsel’s conduct fell below an objective

standard of reasonableness.” Braswell, 312 N.C. at 561-62, 324 S.E.2d at 248 (citing



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                                   Opinion of the Court



Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693). In the appellate context, a claim of

ineffective assistance of counsel requires a showing that the appellate representation

did not fall “within the range of competence demanded of attorneys in [appellate]

cases.” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693 (citation and quotation marks

omitted).

      Generally, “the decision not to press [a] claim on appeal [is not] an error of such

magnitude that it render[s] counsel’s performance constitutionally deficient under

the test of Strickland[.]” Smith v. Murray, 477 U.S. 527, 535, 91 L. Ed. 2d 434, 445

(1986). There is a presumption that “the challenged action might be considered sound

trial strategy.” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 695 (citation and quotation

marks omitted). Nevertheless, the defendant may be able to establish “that his

counsel was objectively unreasonable in failing to find arguable issues[,]” and in

failing to raise, relevant supporting legal authority on appeal. See Robbins, 528 U.S.

at 285, 145 L. Ed. 2d at 780 (internal citation omitted).      “The proper measure of

attorney performance remains simply reasonableness under prevailing professional

norms.” Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694.

      We note that the instant case does not raise an issue of trial strategy. Appellate

counsel’s omission of the arguments under the Pakulski line of cases was not the

result of a “conscious[] elect[ion] not to pursue that claim before [this] Court.”

Murray, 477 U.S. at 534, 91 L. Ed. 2d at 444. As explained supra, in the absence of



                                          - 21 -
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                                         Opinion of the Court



citation to the principles set forth under the Pakulski cases, appellate counsel had

the exceptional task of establishing that absent the improper instruction, the jury

probably would have acquitted defendant, despite the fact that the evidence

presented at trial was sufficient to support a finding of guilt under the proper

instruction. Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. However, had appellate

counsel proffered the arguments under Pakulski, defendant would have secured a

new trial upon simply demonstrating that the acting in concert instruction was given

in error—plain error would be shown irrespective of the evidence admitted at trial in

support of defendant’s actual or constructive possession of a firearm.

       The task at hand is to examine appellate counsel’s “duty to bring to bear such

skill and knowledge as will render the [appeal] a reliable adversarial testing process.”

Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694 (citation omitted). Under the

prevailing professional norms, we conclude that appellate counsel “was objectively

unreasonable in failing to find” and raise the key legal principle that may have

secured a new trial for defendant. Robbins, 528 U.S. at 285, 145 L. Ed. 2d at 780.

       The record reveals that Pakulski has been cited in over fifty cases since 1987.

Further, not only did appellate counsel fail to cite Pakulski or one of the many cases

reiterating the principles enumerated therein1, but appellate counsel failed to raise


       1  Among others, these cases include State v. Belton, 318 N.C. 141, 347 S.E.2d 755 (1986); State
v. Lynch, 327 N.C. 210, 393 S.E.2d 811 (1990); State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992); State
v. Petersilie, 334 N.C. 169, 432 S.E.2d 832 (1993) (citing Williams v. North Carolina, 317 U.S. 287, 87
L. Ed. 279 (1942)).

                                                - 22 -
                                 STATE V. COLLINGTON

                                   Opinion of the Court



the applicable doctrine governing improper alternative jury instructions. Appellate

counsel simply argued that the theory of acting in concert is inapplicable to the crime

of possession of a firearm by a felon, without proffering any supporting authority as

to why such an error would require a new trial. Not only would effective assistance of

counsel in this case require citation to either Pakulski or its related principles, but

attorneys are on notice through well-settled case law that an argument not supported

by authority is deemed abandoned. See e.g., State v. Lloyd, 354 N.C. 76, 87, 552

S.E.2d 596, 607 (2001).

      Moreover, this is not a case where the implications of the omitted case law were

uncertain at the time of defendant’s appeal. See e.g., Simpson, 176 N.C. App. at 723,

627 S.E.2d at 275 (“In light of the number of arguably reasonable jurists rejecting the

notion that Apprendi and Ring had any effect on non-capital sentencing prior to

Blakely, we hold that it was well within reason for Defendant’s appellate counsel not

to pursue this issue on appeal.”). Appellate counsel’s lack of professional diligence in

uncovering the readily-available—and outcome determinative—legal principles

enunciated in the Pakulski line of cases was so unreasonable as to constitute

ineffective assistance of counsel. Such attorney diligence is needed in order “to justify

the law’s presumption that counsel will fulfill the role in the adversary process that

the [Sixth] Amendment envisions.” Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693.




                                          - 23 -
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                                   Opinion of the Court



      Accordingly, the trial court did not err when it concluded that the performance

of defendant’s appellate counsel was deficient, and that defendant had satisfied the

first prong of the analysis of defendant’s claim that he received ineffective assistance

of counsel.

      ii. Prejudice

      The State also argues that the trial court erred in concluding that defendant

made a proper showing of prejudice so as to establish that he received ineffective

assistance of appellate counsel. The State maintains that even if appellate counsel

had cited Pakulski for the proposition that plain error had been established, this

Court would have nevertheless been required to affirm defendant’s conviction due to

the evidence in support of the alternative instruction on actual or constructive

possession. However, for the reasons explained in Section I, this argument is

unpersuasive. Pakulski stands for the proposition that plain error is satisfied where

an improper disjunctive jury instruction was given and the reviewing court is wholly

unable to determine whether the jury rested its verdict upon the improper or the

proper instruction. The appropriate inquiry is whether defendant was prejudiced by

his appellate counsel’s failure to argue plain error under the Pakulski principles.

      To prevail on a claim of ineffective assistance of counsel, the defendant must

show not only that his counsel’s performance was deficient, but also that he was

prejudiced thereby. Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696. “The fact that



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                                   Opinion of the Court



counsel made an error, or even an unreasonable error, does not warrant reversal of a

conviction unless there is a reasonable probability that, but for counsel’s errors, there

would have been a different result in the proceedings.” Braswell, 312 N.C. at 563,

324 S.E.2d at 248 (citation omitted). This analysis must be guided by the underlying

purpose of the right to effective assistance of counsel, i.e., “to ensure that a defendant

has the assistance necessary to justify reliance on the outcome of the proceeding.”

Strickland, 466 U.S. at 691-92, 80 L. Ed. 2d at 696 (emphasis added). “The result of

a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even

if the errors of counsel cannot be shown by a preponderance of the evidence to have

determined the outcome.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698. Thus, for

purposes of establishing prejudice, a “reasonable probability” that there would have

been a different result simply means “a probability sufficient to undermine confidence

in the outcome” of the appeal. Id.

      In the instant case, we agree with the trial court that defendant made a proper

showing of prejudice. Reliance on the outcome in Collington I is sufficiently

undermined by the fact that, due to counsel’s errors, defendant was denied the

opportunity to have his case decided on the merits. Cf. Evitts, 469 U.S. at 395, 83 L.

Ed. 2d at 829 (“Because the right to counsel is so fundamental to a fair [appeal], the

Constitution cannot tolerate [appeals] in which counsel, though present in name, is

unable to assist the defendant to obtain a fair decision on the merits.”). If appellate



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                                   Opinion of the Court



counsel had argued that plain error was established pursuant to Pakulski, this Court

would not have disposed of defendant’s appeal on the grounds that there was

sufficient evidence to support a conviction under the actual or constructive possession

theory of guilt, for which the jury received an instruction. Instead, this Court would

have, under the direction of Pakulski, been required to examine the underlying merits

of defendant’s appeal in the first instance; that is, whether the jury instruction on

acting in concert was in fact improper. Moreover, given the persuasiveness of

defendant’s argument that acting in concert is not an appropriate theory upon which

to base a conviction of possession of a firearm by a felon, there is a reasonable

probability that, had appellate counsel cited Pakulski, this Court would have

concluded that defendant was entitled to a new trial.

      Accordingly, we conclude that defendant received ineffective assistance of

appellate counsel, and affirm the trial court’s order granting defendant’s Motion for

Appropriate Relief.

                                         Conclusion

      For the reasons explained herein, the trial court’s order granting defendant’s

Motion for Appropriate Relief is

      AFFIRMED.

      Judges CALABRIA and ARROWOOD concur.




                                          - 26 -
