               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA16-4

                                Filed: 7 February 2017

Onslow County, No. 051604

STATE OF NORTH CAROLINA,

              v.

DEREK JACK CHOLON, Defendant.


        Appeal by Defendant from judgment entered 9 July 2015 by Judge Jack W.

Jenkins in Onslow County Superior Court. Heard in the Court of Appeals 24 May

2016.


        Attorney General Joshua H. Stein, by Assistant Attorney General Alexandra
        Gruber, for the State.

        Appellate Defender Glenn Gerding, by Assistant Appellate Defender John F.
        Carella, for Defendant-Appellant.


        INMAN, Judge.


        Defense counsel’s closing arguments, which admitted some elements of the

charged offenses, while maintaining Defendant’s innocence, did not constitute per se

ineffective assistance of counsel.

        Derek Jack Cholon (“Defendant”) appeals the judgment entered after a jury

found him guilty of statutory sexual offense and taking indecent liberties with a child.

On appeal, Defendant contends that he received ineffective assistance of counsel.
                                  STATE V. CHOLON

                                  Opinion of the Court



After careful review, we hold that Defendant has failed to demonstrate reversible

error in his direct appeal.

                       I.     Factual And Procedural History

      The State’s evidence tended to show the following:

      On 6 March 2013, Defendant met M.B. through Jack’d, described as “an

application where you can meet gay men and have sex.” M.B. was 15 years old at the

time; however, he indicated on his online profile that he was 18 years old, the

minimum age requirement for Jack’d. M.B. received a signal on Jack’d indicating

that Defendant wanted to speak with M.B. Defendant and M.B. exchanged messages

and nude photographs. They agreed to meet later that night in Jacksonville, North

Carolina, at a stop sign at the end of the street where M.B. lived.

      Defendant arrived at the stop sign at approximately 10:30 pm. M.B. got into

the front passenger seat of Defendant’s car and instructed him to drive to a dirt road

in a wooded area located in the back of the neighborhood. Once there, Defendant

performed oral sex on M.B. and M.B. “fingered” Defendant.             They remained in

Defendant’s car for twenty to thirty minutes until a Jacksonville Police Department

patrol car arrived, turned on bright “takedown lights,” and Officer Taylor Wright

approached Defendant’s car.       Officer Wright, who had been patrolling the

neighborhood following a series of break-ins, had driven down the dirt road in

response to a suspicious vehicle report.



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                                  STATE V. CHOLON

                                  Opinion of the Court



      Defendant and M.B. each initially told Officer Wright that they were just

sitting and talking.   Officer Wright requested that her backup, Officer David

Livingston, question M.B. alone while she spoke with Defendant. M.B. initially told

Officer Livingston that he was 18 years old and provided a false address. However,

after Officer Livingston expressed doubt as to M.B.’s truthfulness, M.B. admitted that

he was 15 years old and provided his correct address.

      Defendant told Officer Wright that “he had performed oral sex on [M.B.], and

that they were kissing.” Defendant said he believed that M.B. was 18 years old.

Officer Wright confirmed Defendant’s birth date as 16 December 1971.            After

determining that Defendant had outstanding warrants, Officer Wright arrested

Defendant and transported him to the Jacksonville Police Department.           At the

station, Defendant made a written statement, containing in pertinent part:

             We proceeded to a secluded area and sat in the car and
             talked. After about ten minutes, the police arrived. Before
             the police arrived, I gave [M.B.] oral and we kissed. I
             advised the police that I have screen shots of his two
             profiles on my phone, and that I asked [M.B.] his age and
             he said he was 18.

      On 8 April 2014, Defendant was indicted on one count each of first degree

statutory sexual offense, crime against nature, and indecent liberties with a child.




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                                         STATE V. CHOLON

                                         Opinion of the Court



The charges1 came on for trial on 7 July 2015 in Onslow County Superior Court,

Judge Jack W. Jenkins presiding.

      On the first day of trial, defense counsel filed a motion to suppress Defendant’s

alleged verbal statements to police and his subsequent written statement. In support

of the motion to suppress, counsel submitted an affidavit by Defendant stating under

oath that he did not tell Officer Wright at any time that he engaged in oral sex or

kissing with M.B. and stating that he does not remember giving an oral statement to

police, because of a medical condition that makes him prone to blackout. The trial

court denied the motion, and the oral and written statements were admitted into

evidence.

      Defendant did not testify or present evidence at trial. In his closing argument

to the jury, defense counsel conceded that M.B. was a minor at the time of the sexual

encounter and that Defendant’s oral and written confessions to police were true.

Specifically, defense counsel said about M.B.: “He, apparently was, and I don’t think

otherwise, that on this occasion he was 15 years old.” In reviewing with the jury

Defendant’s statements to officers, defense counsel remarked:

                What does [Defendant] say? The officer comes back there,
                Officer Wright comes back there and begins to talk to him
                and he tells this officer the truth; tells her what happened
                between the two of them. “I gave him oral, and we were
                kissing.” But now we know that there’s more than kissing
                going on with [M.B.]. He gets on the stand and he admits


      1   Prior to trial, the State abandoned the crime against nature charge.

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                                  STATE V. CHOLON

                                  Opinion of the Court



             that he was massaging or using his fingers to massage
             [Defendant’s] anus. So now he admits that.

             ...

             [Defendant] did not say anything that was not truthful,
             apparently except, “We were just talking.” And when the
             officers persisted with the asking about what happened, he
             told them the truth. He didn’t lie to them. He wrote it
             down in a statement, which you read. So here he is. He’s
             looking—subject to go to prison for such a long time.

      The jury found Defendant guilty of both charges. He was sentenced to

concurrent prison terms of 144 to 233 months for statutory sexual offense and 10 to

21 months for taking indecent liberties with a minor. The trial court also ordered

Defendant to register as a sex offender for thirty years. Defendant gave oral notice

of appeal in open court.

      One week later, Defendant submitted a pro se letter to the trial court

requesting a mistrial on the basis that his counsel “entered an admission of guilt on

my behalf without my permission during his closing statement.”

                      II.    Ineffective Assistance of Counsel

      Defendant argues that his trial counsel admitted guilt to each disputed

element of the charged offenses in closing argument without his consent, constituting

per se ineffective assistance of counsel. Because defense counsel only implicitly

conceded some—but not all—of the elements of each charge and urged jurors to find

Defendant not guilty of each charge, we hold that counsel was not per se ineffective.



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                                  STATE V. CHOLON

                                  Opinion of the Court



   A. Standard of Review and Legal Standards for Ineffective Assistance of Counsel
      Claims

        “On appeal, this Court reviews whether a defendant was denied effective

assistance of counsel de novo.” State v. Wilson, 236 N.C. App. 472, 475, 762 S.E.2d

894, 896 (2014) (citation omitted).

        In general, state appellate courts including this Court determine claims of

ineffective assistance of counsel following the standards established by the United

States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674

(1984). To establish ineffective assistance of counsel under Strickland, “[f]irst, the

defendant must show that counsel’s performance was deficient.” State v. Braswell,

312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). “Second, the defendant must show

that the deficient performance prejudiced the defense.” State v. Campbell, 359 N.C.

644, 690, 617 S.E.2d 1, 29 (2005) (quoting Strickland, 466 U.S. at 687, 80 L.Ed.2d at

693).   However, the North Carolina Supreme Court has identified one type of

ineffective assistance of counsel that is per se prejudicial. In State v. Harbison, the

North Carolina Supreme Court held that “ineffective assistance of counsel, per se in

violation of the Sixth Amendment, has been established in every criminal case in

which the defendant’s counsel admits the defendant’s guilt to the jury without the

defendant’s consent.” 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985).

   B. Analysis




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                                  STATE V. CHOLON

                                  Opinion of the Court



      Defendant contends that he received ineffective assistance of counsel per se

when his trial counsel conceded all of the elements of the State’s case in closing

argument without Defendant’s consent, so that pursuant to Harbison, this Court

must order a new trial.

      In Harbison, the defendant’s counsel maintained throughout trial that the

defendant had acted in self-defense; however, during closing arguments, defense

counsel urged the jury to convict the defendant of manslaughter rather than first-

degree murder. Id. at 177-78, 337 S.E.2d at 506. The North Carolina Supreme Court

held that counsel rendered per se ineffective assistance to the defendant, explaining:

             [T]he gravity of the consequences demands that the
             decision to plead guilty remain in the defendant’s hands.
             When counsel admits his client’s guilt without first
             obtaining the client’s consent, the client's rights to a fair
             trial and to put the State to the burden of proof are
             completely swept away. The practical effect is the same as
             if counsel had entered a plea of guilty without the client’s
             consent. Counsel in such situations denies the client’s
             right to have the issue of guilt or innocence decided by a
             jury.

Id. at 180, 337 S.E.2d at 507.

      In a line of cases following Harbison, our appellate courts have found that “a

defendant receives ineffective assistance of counsel per se when the defendant’s

counsel concedes the defendant’s guilt to either the offense charged or a lesser-

included offense without the defendant’s consent.” State v. Holder, 218 N.C. App.

422, 424, 721 S.E.2d 365, 367 (2012) (citation omitted).        But our courts have


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                                  STATE V. CHOLON

                                  Opinion of the Court



distinguished Harbison in cases in which defense counsel did not expressly concede

the defendant’s guilt or admitted only certain elements of the charged offense. See,

e.g., State v. Gainey, 355 N.C. 73, 92-93, 558 S.E.2d 463, 476 (2002) (holding no

Harbison violation occurred when defense counsel stated “if he’s guilty of anything,

he’s guilty of accessory after the fact,” because the statement did not amount to an

admission of murder and the defendant was not charged as an accessory); State v.

Hinson, 341 N.C. 66, 78, 459 S.E.2d 261, 268 (1995) (holding no Harbison violation

occurred when defense counsel did not concede to the jury that the defendant himself

had committed any crime); State v. Fisher, 318 N.C. 512, 532-33, 350 S.E.2d 334, 346

(1986) (holding no Harbison violation occurred when defense counsel conceded

malice—an element of first-degree murder—but did not clearly admit guilt and told

the jury it could find the defendant not guilty); State v. Wilson, 236 N.C. App. 472,

475-78, 762 S.E.2d 894, 896-97 (2014) (holding no Harbison violation occurred when

defense counsel conceded that the defendant, who was charged with attempted first

degree murder, was guilty of assault by pointing a gun, a charge not presented to the

jury); State v. Randle, 167 N.C. App. 547, 551-52, 605 S.E.2d 692, 695 (2004) (noting

that “our Supreme Court has found no Harbison violation where defense counsel did

not expressly admit the defendant’s guilt”); State v. Maniego, 163 N.C. App. 676, 684,

594 S.E.2d 242, 247 (2004) (holding that defense counsel’s opening statement placing

the defendant at the scene of the crime was not a concession of guilt under Harbison).



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                                        STATE V. CHOLON

                                        Opinion of the Court



       Here, Defendant was charged with statutory sexual offense pursuant to N.C.

Gen. Stat. § 14-27.7A(a) (2013)2, providing for a defendant’s guilt “if the defendant

engages in vaginal intercourse or a sexual act with another person who is 13, 14, or

15 years old and the defendant is at least six years older than the person, except when

the defendant is lawfully married to the person,” and indecent liberties pursuant to

N.C. Gen. Stat. § 14-202.1(a)(2) (2013), providing for a defendant’s guilt if, “being 16

years of age or more and at least five years older than the child in question, he . . .

[w]illfully commits or attempts to commit any lewd or lascivious act upon or with the

body or any part or member of the body of any child of either sex under the age of 16

years.”

       Defense counsel did not expressly concede Defendant’s guilt. See Maniego, 163

N.C. App. at 683, 594 S.E.2d at 246 (“To establish a Harbison claim, the defendant

must first show that his trial attorney has made a concession of guilt.”). Defense

counsel did not admit each element of each offense. For example, defense counsel did

not admit that Defendant was six or more years older than M.B. and did not admit

that Defendant willfully committed a lewd or lascivious act. N.C. Gen. Stat. § 14-

27.7A; N.C. Gen. Stat. § 14-202.1(a)(2). And at the close of his argument, defense

counsel asked the jury to find Defendant not guilty of the charged offenses.




       2N.C. Gen. Stat. § 14-27.7A was recodified as N.C. Gen. Stat. § 14-27.25, effective 1 December
2015. 2015 N.C. Sess. Laws. ch. 181, § 7(a).

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                                      STATE V. CHOLON

                                      Opinion of the Court



      “Admission by defense counsel of an element of a crime charged, while still

maintaining the defendant’s innocence, does not necessarily amount to a Harbison

error.” Wilson, 236 N.C. App. at 476, 762 S.E.2d at 897. Accordingly, we hold that

the principles set out in Harbison do not require a finding of per se ineffective

assistance of counsel in this case.

   III.     The Trial Court’s Failure to Conduct an Inquiry or Take Further
            Action Following Defense Counsel’s Concessions in Closing
            Argument

      Defendant also contends, related to his Harbison argument, that the trial court

erred by failing to inquire into defense counsel’s concession of Defendant’s guilt.

Because we conclude that the record before us does not establish a Harbison error,

we reject this argument as well.

      IV.     Motion for Appropriate Relief

      Defendant has filed concurrently with his direct appeal a motion for

appropriate relief contending that he received ineffective assistance of counsel.

Defendant argues that if this Court does not order a new trial, we should hold the

appeal in abeyance, order the trial court to hold an evidentiary hearing, and direct

the trial court to transmit the order to this Court so that it can rule on the motion.

The record precludes Defendant’s claim for ineffective assistance of counsel and no

additional evidence could change the outcome of his claim.        We therefore deny

Defendant’s motion.



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                                   STATE V. CHOLON

                                   Opinion of the Court



      Because this case “does not fall with the Harbison line of cases where violation

of the defendant’s Sixth Amendment rights are presumed, [Defendant’s] claim of

ineffective assistance of counsel must be analyzed using the Strickland factors.”

Fisher, 318 N.C. at 533, 350 S.E.2d at 346; see also Strickland, 346 N.C. at 460–61,

488 S.E.2d at 205.     To obtain relief pursuant to Strickland, a defendant must

demonstrate not only that his counsel’s performance was deficient, but that it

prejudiced the defense. Braswell, 312 N.C. at 562, 324 S.E.2d at 248; Campbell, 359

N.C. at 690, 617 S.E.2d at 29. If defense counsel’s performance did not prejudice the

defense, we need not determine whether counsel’s performance was deficient. State

v. Phillips, 365 N.C. 103, 122, 711 S.E.2d 122, 138 (2011). “Prejudice is established

by showing ‘that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Campbell, 359 N.C. at 690, 617 S.E.2d at 29 (quoting Strickland, 466 U.S. at 687, 80

L.Ed.2d at 693). Here, the record reveals such overwhelming evidence of Defendant’s

guilt that we cannot conclude that but for defense counsel’s ineffective assistance, the

result of the trial would have been different.

      This Court has explained:

             In general, claims of ineffective assistance of counsel
             should be considered through motions for appropriate relief
             and not on direct appeal. This is so because this Court, in
             reviewing the record, is without the benefit of information
             provided by defendant to trial counsel, as well as
             defendant’s thoughts, concerns, and demeanor, that could


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                                     STATE V. CHOLON

                                     Opinion of the Court



              be provided in a full evidentiary hearing on a motion for
              appropriate relief. However, ineffective assistance of
              counsel claims are appropriately reviewed on direct appeal
              when the cold record reveals that no further investigation
              is required, i.e., claims that may be developed and argued
              without such ancillary procedures as the appointment of
              investigators or an evidentiary hearing.

State v. James, __ N.C. App. __, __, 774 S.E.2d 871, 876 (2015), aff'd, 368 N.C. 728,

782 S.E.2d 509 (2016) (internal quotation marks and citations omitted).

       Here, the record is sufficient to conduct a Strickland analysis and no further

investigation is required in order to conduct a meaningful review.         The record

precludes Defendant from demonstrating that, but for the alleged deficient

performance of his counsel, he would have received a different verdict.

       The State presented overwhelming evidence of Defendant’s guilt as to both

charges. At trial, Officer Wright testified that shortly after the incident, Defendant

admitted that he had performed oral sex on M.B. and that they had kissed.

Defendant’s written statement, wherein he admitted that “I gave [M.B.] oral and we

kissed,” was also admitted into evidence. Testimonial evidence also established that

Defendant was born in 1971, and that M.B. was 15 years of age at the time of the

incident. M.B. testified about the sexual encounter. In a hearing outside the presence

of the jury, the trial court conducted a colloquy with Defendant regarding his right to

testify. Defendant stated that he had previously decided not to testify and that it was

still his decision not to testify.



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                                 STATE V. CHOLON

                                 Opinion of the Court



      Defendant has not met his burden to show that, but for his counsel’s

statements in closing argument, the result of the proceeding would be any different.

Given our holding—based on careful consideration of the record—that Defendant did

not receive ineffective assistance of counsel, we deny Defendant’s motion for

appropriate relief.

                                   V. Conclusion

      For the aforementioned reasons, we hold that Defendant has failed to establish

prejudicial error.

      NO ERROR.

      Judges BRYANT and TYSON concur.




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