               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-1327

                                 Filed: 7 August 2018

Guilford County, No. 14 CRS 88609

STATE OF NORTH CAROLINA

              v.

GREGORY CHARLES BASKINS, Defendant.


        Appeal by defendant from order entered 29 August 2017 by Judge Stuart

Albright in Guilford County Superior Court. Heard in the Court of Appeals 16 May

2018.


        Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
        Hyde, for the State.

        N.C. Prisoner Legal Services, Inc., by Laura E. A. Altman and Reid Cater, for
        defendant-appellant.


        ZACHARY, Judge.


        Defendant Gregory Charles Baskins appeals from the trial court’s order

denying his Motion for Appropriate Relief. We reverse.

                                       Background

        Defendant was charged with conspiracy to traffic in heroin, trafficking by

possession of 28 grams or more of heroin, and trafficking by transportation of 28

grams or more of heroin. Defendant filed a Motion to Suppress the evidence on the

grounds that the initial seizure that resulted in the inculpatory search was unlawful.
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                                  Opinion of the Court



The trial court denied Defendant’s Motion to Suppress, which this Court affirmed in

State v. Baskins, No. COA15-1137, 2016 N.C. App. LEXIS 465             (“Baskins I”).

Defendant thereafter filed a Motion for Appropriate Relief arguing that he received

ineffective assistance of appellate counsel in Baskins I. The trial court denied

Defendant’s Motion for Appropriate Relief. Defendant appeals.

I. The Seizure

      The evidence presented at the hearing on Defendant’s Motion to Suppress

tended to show that, on 6 October 2014, Defendant and his traveling companion

Tomekia Bone arrived in Greensboro from New York at 6:30 a.m. on the China Bus.

At the time of Defendant’s arrival, Detective M.R. McPhatter of the Greensboro Police

Department was conducting surveillance of the China Bus stop as part of an

interdiction team. Detective McPhatter was surveilling the China Bus stop because

he “was aware the China Bus was a known method for individuals to transport

narcotics because, among other reasons, there was little screening of passengers or

their baggage.”

      Detective McPhatter observed Defendant and Ms. Bone exit the China Bus

carrying small bags. According to Detective McPhatter, he “was aware that

individuals who transport narcotics often travel on short, up and back trips to New

York and, therefore, travel with only small bags.”




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      While Detective McPhatter watched, Defendant and Ms. Bone went inside the

Shell station where Detective McPhatter was parked in an unmarked vehicle.

Defendant exited the Shell station after a few minutes and looked toward Detective

McPhatter’s vehicle. “Defendant then gestured at the vehicle as if to [wave] it off and

walked back to the door of the Shell station.” Detective McPhatter was not sure

whether Defendant was trying to determine whether the unmarked vehicle was his

ride, or whether Defendant was trying to determine if a police officer was inside the

car. Detective McPhatter radioed the other officers on the interdiction team

concerning the occurrence. Shortly thereafter, a Buick pulled into the Shell station

and picked up Defendant and Ms. Bone.

      Detective McPhatter testified that he ran the Buick’s registration on the laptop

in his vehicle and learned that the Buick had an expired registration and an

inspection violation. However, Detective McPhatter feared that his identity may have

been compromised, so he relayed that information to the other detectives and asked

them to follow the Buick.

      Detective M.P. O’Hal began following the Buick. Detective O’Hal also ran the

Buick’s tag information and testified that he learned the Buick had an expired

registration and an inspection violation. Detective O’Hal testified that at that point

he made the decision to stop the Buick. Detective O’Hal approached the vehicle and




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began conversing with the driver. During that time, Detective O’Hal noticed that

Defendant and Ms. Bone appeared very anxious and were sweating heavily.

       Detective O’Hal asked the driver for his permission to search the vehicle. The

driver consented and the detectives discovered heroin.

II. Motion to Suppress

       At the hearing on Defendant’s Motion to Suppress, the focus was on the

validity of the initial stop of the Buick. At issue was the fact that when the State

introduced the DMV information upon which the detectives relied when making the

decision to stop the Buick, the DMV information revealed that the Buick’s

registration was still valid. While technically expired, the DMV printout indicated

that the registration was still valid through 15 October 2014:

              PLT STATUS: EXPIRED
              ISSUE DT: 09262013 VALID THROUGH 10152014

Indeed, the driver was operating the Buick during the fifteen-day grace period within

which the vehicle could be lawfully operated pursuant to N.C. Gen. Stat. § 20-66.1.

Detective O’Hal testified that he knew there was a fifteen-day grace period following

expiration of a vehicle’s registration during which the expired registration remained

valid. However, Detective O’Hal explained that he stopped reading the DMV printout

when he read that the registration was expired, and therefore he did not learn that

it was still valid.




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      Further, while Detective O’Hal testified that he had also stopped the Buick for

an inspection violation, the DMV printout contained no information concerning the

status of the Buick’s inspection.

      Nevertheless, in its order denying Defendant’s Motion to Suppress, the trial

court found that the detectives “ran the license tag information for the Red Buick . .

. and . . . determined that the car had an expired registration and an inspection

violation[,]” and that “[t]he stop was initiated because of the expired registration and

the inspection violation.” The trial court then denied Defendant’s Motion to Suppress

based upon the following pertinent conclusions of law:

             1.     The . . . registration on the Buick had expired at the
             time of the stop. North Carolina General Statutes gives
             officers the authority to issue a citation where probabl[e]
             cause exists to believe there has been a violation of Chapt.
             20 of the General Statutes. N.C.G.S. § 15A-302. Where
             probable cause exists that a Chapt. 20 violation exists, an
             officer may stop the vehicle to issue a violation or a
             warning.

             2.     The officers had probabl[e] cause to stop the Buick
             based on the information received from the DMV search
             that the vehicle’s registration had expired and that an
             inspection violation had occurred. If the officers were
             mistaken as to whether or not a Chapt. 20 violation existed
             at the time of the stop, such was a reasonable mistake of
             law that did not render the stop invalid. Heien v. North
             Carolina, ___ U.S. ___, 135 S. Ct. 530 (2014).

             3.     Considering the totality of the circumstances, Det.
             O’Hal had reasonable suspicion that criminal activity
             related to narcotics was afoot when he stopped the Buick,
             based on the information received from Det. Mc[Ph]atter


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               and his own experience with the circumstances[.]”

       Defendant thereafter entered an Alford plea1 to all charges but preserved his

right to appeal the denial of his Motion to Suppress.

III. Baskins I

       While the trial court concluded that the initial seizure of the Buick was

justified based on (1) the Buick’s inspection violation, (2) the Buick’s expired

registration, and (3) Detective O’Hal’s “reasonable suspicion that criminal activity

related to narcotics was afoot[,]”          Defendant’s counsel on appeal in Baskins I

challenged only the latter two justifications. Appellate counsel did not challenge any

of the trial court’s findings of fact. In particular, appellate counsel did not challenge

the trial court’s findings of fact that the detectives learned of the inspection violation

when they ran the Buick’s tag information. Thus, despite Defendant’s arguments

challenging the lack of reasonable suspicion and the reasonableness of the mistake

concerning the Buick’s registration status, this Court concluded that, “[b]ecause

Defendant did not challenge the trial court’s findings of fact, we must disagree.”

Baskins I, 2016 N.C. App. LEXIS 465, at *7. We explained:

               As the State correctly points out, Defendant “does not
               challenge the trial court’s findings as to the inspection
               violation.” In fact, Defendant does not specifically
               challenge any of the trial court’s findings of fact, and
               Defendant does not address the alleged inspection violation
               in his brief to this Court. In response to the State’s brief,

       1  Named after North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970), a defendant is
said to have entered an Alford plea when the defendant pleads guilty without an admission of guilt.

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Defendant filed a reply brief in which he argues that there
was no evidence presented at the suppression hearing
indicating that Detective O’Hal could have known the
inspection was expired. Though Defendant’s argument in
his reply brief might have merit, Defendant cannot use a
reply brief to introduce new arguments on appeal. State v.
Dinan, 233 N.C. App. 694, 698, 757 S.E.2d 481, 485, disc.
review denied, 367 N.C. 522, 762 S.E.2d 203 (2014) (citation
omitted) (“[A] reply brief is not an avenue to correct the
deficiencies contained in the original brief. See N.C.R. App.
P. 28(b)(6)[.]”). Further, even in his reply brief, Defendant
failed to challenge the following findings of fact:

      5. Det. McPhatter ran the registration for the
      . . . Buick on the laptop in his vehicle and
      learned that the Buick had an expired
      registration and an inspection violation. He
      communicated this information to other,
      assisting detectives and, because he was
      concerned that his identity had been
      compromised, he asked other detectives to
      follow the . . . Buick so he could stay back a
      distance.

      ...

      8. Det. O’Hal also ran the license tag
      information for the . . . Buick relayed by Det.
      McPhatter and also determined that the
      [Buick] had an expired registration and an
      inspection violation.

      ...

      10. The stop was initiated because of the
      expired registration and the inspection
      violation.

Because Defendant does not challenge these findings of
fact, they are binding on appeal. White, 232 N.C. App. at


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              301, 753 S.E.2d at 701.

                     Driving a vehicle without the required up-to-date
              inspection is an infraction in North Carolina. N.C. Gen.
              Sat. § 20-183.8(a)(1) (2015). “A law enforcement officer
              who has probable cause to believe a person has committed
              an infraction may detain the person for a reasonable period
              in order to issue and serve him a citation.” N.C. Gen. Stat.
              § 15A-1113(b) (2015).       Based upon the trial court’s
              unchallenged findings of fact, Detective O’Hal determined
              that the Buick was being operated with an expired
              inspection, and Detective O’Hal initiated the stop of the
              Buick, in part, on that basis. These findings of fact are
              sufficient to support the trial court’s conclusion that
              Detective O’Hal “had [probable] cause to stop the Buick
              based on the information received from the DMV search
              that an inspection violation had occurred.” This argument
              is without merit.

Baskins I, 2016 N.C. App. LEXIS 465, at *7-10 (alterations omitted) (footnote

omitted).    Accordingly, without having to address Defendant’s subsequent

arguments, this Court affirmed “the denial of Defendant’s motion to suppress based

solely upon the trial court’s [unchallenged] determination that an inspection violation

justified the initial stop of the Buick.” Id. at *10.

IV. Motion for Appropriate Relief

       According to Defendant, “[t]here was no evidence to support the finding of fact

that the officer was aware of an inspection violation at the time of the stop.”

Defendant therefore filed a Motion for Appropriate Relief with the trial court on 5

June 2017 in which he alleged that he “received ineffective assistance of counsel” in

Baskins I “when appellate counsel failed to challenge the trial court’s findings of fact


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in its order denying his Motion to Suppress.” In support of this contention, Defendant

noted that appellate counsel did challenge the findings of fact concerning the

inspection violation in her reply brief “upon reading the State’s response brief, which

relied on the inspection violation as the basis for the stop.” Defendant also attached

as an exhibit the affidavit of appellate counsel in which she averred that

                 I did not make a strategic decision not to challenge the
                 findings of fact related to the DMV printout in the
                 appellate brief. I did not raise this issue because I did not
                 notice it when I reviewed the record. If I had noticed this
                 issue before filing the brief, I would have raised it at the
                 appropriate time.

       Defendant argued that had his appellate counsel “properly challenged the trial

court’s findings of fact,” this Court “would have reversed the trial court’s denial of the

motion [to suppress] and vacated [Defendant’s] convictions because the officer did not

have a reasonable suspicion for the traffic stop.” Accordingly, based on the facts

already in the record, Defendant asked the trial court to adjudicate his Motion for

Appropriate Relief for ineffective assistance of counsel “on the merits of the

pleadings” and attachments, or in the alternative, to “order the State to file a response

and schedule a hearing for the purpose of taking evidence and hearing the arguments

of counsel[.]”

       The trial court concluded by order entered 29 August 2017 that Defendant’s

Motion for Appropriate Relief on the grounds of ineffective assistance of counsel could

“be resolved without an evidentiary hearing” and that it “present[ed] only legal


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issues[.]” The trial court determined that Defendant’s Motion for Appropriate Relief

ultimately asked the trial court to “reverse the order denying the Defendant’s Motion

to Suppress . . . and vacate Defendant’s convictions.” To that point, the trial court

cited “the well established rule in North Carolina . . . that one Superior Court judge .

. . may not modify, overrule, or change the judgment of another Superior Court judge

previously made in the same action.” N.C. Nat’l Bank v. Va. Carolina Builders, 307

N.C. 563, 566, 299 S.E.2d 629, 631 (1983) (alteration omitted) (citation omitted). The

trial court regarded Defendant’s Motion for Appropriate Relief as “asking th[e] Court

. . . to overrule another Superior Court judge,” and therefore concluded that

Defendant’s Motion for Appropriate Relief for ineffective assistance of appellate

counsel was “meritless and should be denied.”

      Defendant filed a Petition for Writ of Certiorari asking this Court to review the

trial court’s order denying his Motion for Appropriate Relief. This Court allowed

Defendant’s Petition for Writ of Certiorari by order entered 9 October 2017.

                                     Discussion

      Defendant argues (1) that the trial court erred in denying his Motion for

Appropriate Relief based on the incorrect conclusion that it did not have the authority

to do otherwise, and (2) that the trial court erred in denying his Motion for

Appropriate Relief because Defendant made a proper showing of ineffective

assistance of appellate counsel. We agree.



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I. Ineffective Assistance of Appellate Counsel

      The right to counsel guaranteed by 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)). The Fourteenth Amendment further requires that

defendants be afforded effective assistance of appellate counsel. Evitts v. Lucey, 469

U.S. 387, 396, 83 L. Ed. 2d 821, 830 (1985); Smith v. Robbins, 528 U.S. 259, 279, 145

L. Ed. 2d 756, 776 (2000).

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

assistance of counsel “so . . . as to require reversal of [the defendant’s] 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 a claim

for ineffective assistance of counsel:

             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.




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Id. (emphasis omitted); accord Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (adopting

the test laid out in Strickland). “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.” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693.

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).

II. Superior Court Judge’s Authority on a Motion for Appropriate Relief

      In his Motion for Appropriate Relief, Defendant argued that his

             appellate counsel fell below an objective standard of
             professional reasonableness by failing to challenge the trial
             court’s findings of fact in its order denying the motion to
             suppress, which resulted from her failure to identify the
             issue in her review of the record. [Defendant] was
             prejudiced by this error. There was no competent evidence
             that the officers had reasonable suspicion to believe that a
             traffic law was being broken at the time of the stop. If
             appellate counsel had raised this issue by challenging the
             findings of fact in [Defendant’s] case the Court of Appeals
             would have reversed the order denying the Motion to
             Suppress and vacated [Defendant’s] convictions.

Nevertheless, the trial court denied Defendant’s Motion for Appropriate Relief on the

grounds that the ineffective assistance of counsel analysis would require the trial

court to overrule the earlier superior court judge’s order denying Defendant’s Motion




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to Suppress. The trial court concluded that because it did not have the authority to

do so, Defendant’s Motion for Appropriate Relief must be denied.

      The rule that “one superior court judge may not reconsider an order entered by

another superior court judge,” State v. Woolridge, 357 N.C. 544, 545, 592 S.E.2d 191,

191 (2003), is premised upon the fact that “[t]he power of one judge of the superior

court is equal to and coordinate with that of another[.]” Michigan Nat’l Bank v.

Hanner, 268 N.C. 668, 670, 151 S.E.2d 579, 580 (1966). “[I]t is well established in

our jurisprudence that . . . ordinarily one judge may not modify, overrule, or change

the judgment of another Superior Court judge previously made in the same action.”

Woolridge, 357 N.C. at 549, 592 S.E.2d at 194 (citation and quotation marks omitted).

However, this rule is generally inapplicable where a judge is tasked with deciding the

merits of a defendant’s motion for appropriate relief.

      Pursuant to N.C. Gen. Stat. § 15A-1415(a) and (b), a defendant may file a

motion for appropriate relief at any time after the verdict on the grounds that “[t]he

conviction was obtained in violation of the Constitution of the United States or the

Constitution of North Carolina.” N.C. Gen. Stat. § 15A-1415(b)(3) (2017). Because

effective assistance of appellate counsel is guaranteed by the Due Process Clause of

the Constitution, Evitts, 469 U.S. at 396, 83 L. Ed. 2d at 830, a defendant may

“allege[] ineffective assistance of . . . appellate counsel as a ground for the illegality

of his conviction” under N.C. Gen. Stat. § 15A-1415(b)(3). N.C. Gen. Stat. § 15A-



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1415(e) (2017). N.C. Gen. Stat. § 15A-1413 specifically provides that such motions

are to be heard and determined by any superior court judge “empowered to act in

criminal matters[.]” N.C. Gen. Stat. § 15A-1413(a) (2017). Our Supreme Court has

likewise made clear that it is the duty of the trial judge—when faced with a motion

for appropriate relief based on a claim of ineffective assistance of appellate counsel—

to “fully address” whether the “defendant’s appellate counsel’s performance was

deficient,” and if so, “whether counsel’s performance prejudiced [the] defendant.”

State v. Todd, 369 N.C. 707, 712, 799 S.E.2d 834, 838 (2017). Such a situation

presents the superior court judge with the task of determining a new issue that has

yet to be decided. Cf. Va. Carolina Builders, 307 N.C. at 567, 299 S.E.2d at 631.

      As explained in subsection ii below, while the prejudice prong of an ineffective

assistance of appellate counsel claim may implicate prior orders at the trial level,

such implications are ancillary to the underlying claim of ineffective assistance of

counsel. Indeed, N.C. Gen. Stat. § 15A-1415 explicitly authorizes such collateral

action by a superior court judge.       E.g., N.C. Gen. Stat. § 15A-1415 (official

commentary) (“The Motion for appropriate relief . . . is a device which may be used

for any additional matters which relate to the original case[,]” such as “the question

of whether or not . . . probation has been unlawfully revoked.”). Not only are superior

court judges statutorily authorized to do so, but superior court judges routinely

perform such collateral reviews upon a defendant’s motion for appropriate relief, with



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the sanction of our appellate courts. This is the case even though such a review may

implicate an earlier superior court judge’s actions or determinations. See, e.g., Vester

v. Stephenson, 465 F. Supp. 868, 870 (E.D.N.C. 1978) (allowing the petitioner to

proceed with his claims, including ineffective assistance of counsel, noting that,

among other things, “collateral attacks [are] proper under Section 1415”); State v.

Spruiell, ___ N.C. App. ___, ___, 798 S.E.2d 802, 806 (2017) (“In the MAR order, the

trial court concluded that, under the factual circumstances of [the] [d]efendant’s case,

it was improper for the trial court to instruct the jury on felony murder.”); State v.

Wilkerson, 232 N.C. App. 482, 491, 753 S.E.2d 829, 836 (2014) (“[T]he trial court

clearly had jurisdiction to reach the merits of [the] [d]efendant’s challenge to Judge

Gore’s original judgments pursuant to N.C. Gen. Stat. § 15A-1415(b)(4) and (b)(8).”);

Edmondson v. State, 33 N.C. App. 746, 749, 236 S.E.2d 397, 399 (1977), overruled on

other grounds, State v. Dickens, 299 N.C. 76, 84, 261 S.E.2d 183, 188 (1980)

(answering in the negative the question of “whether an adjudication by a trial judge

that a plea of guilty is voluntarily made bars a criminal defendant from collaterally

attacking that plea in a post conviction hearing”).

      Accordingly, the superior court judge in the instant case acted under a

misapprehension of the law when he denied Defendant’s Motion for Appropriate

Relief on the grounds that it would impermissibly require him to “overrule another

Superior Court judge[.]”



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III. Merits of Defendant’s Motion for Appropriate Relief

      The State argues that “[e]ven assuming the trial court erred in its rationale, it

did not err by ultimately denying Defendant’s MAR” because “Defendant failed to

show ineffective assistance of appellate counsel.” On the other hand, Defendant

argues that he made a proper showing of ineffective assistance of appellate counsel,

and that the trial court was required to grant his Motion for Appropriate Relief. Thus,

Defendant maintains that the “MAR court’s order must be reversed[,]” and that

“[t]his Court should vacate [his] convictions since he was denied effective assistance

of appellate counsel.” We agree with Defendant.

      In the instant case, Defendant properly asserted his claim of ineffective

assistance of appellate counsel through a motion for appropriate relief in the trial

court. See State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001), cert.

denied, 356 N.C. 623, 575 S.E.2d 758 (2002) (“In general, claims of ineffective

assistance of counsel should be considered through motions for appropriate relief and

not on direct appeal.”). The order denying Defendant’s Motion for Appropriate Relief

is devoid of findings relating to any deficiency in appellate counsel’s performance,

possibly as a result of the trial court’s conclusion that it could not overrule the prior

judge. Nevertheless, it is appropriate for an appellate court to reach the merits of a

claim of ineffective assistance of appellate counsel on direct review “when the cold

record reveals that no further investigation is required, i.e., claims that may be



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developed and argued without such ancillary procedures as the appointment of

investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d

500, 524 (2001) (citing State v. Blakeney, 352 N.C. 287, 308-09, 531 S.E.2d 799, 815-

16 (2000) and State v. House, 340 N.C. 187, 196-97, 456 S.E.2d 292, 297 (1995)).

       Here, we agree with the trial court that Defendant’s Motion for Appropriate

Relief on the grounds of ineffective assistance of counsel “may be resolved without an

evidentiary hearing.” For the reasons explained below, we are able to “discern from

the record before us whether” appellate counsel’s performance was deficient in

Baskins I and whether Defendant was prejudiced thereby. State v. Edgar, 242 N.C.

App. 624, 632, 777 S.E.2d 766, 771 (2015). We therefore proceed to the parties’

arguments on the merits of Defendant’s ineffective assistance of counsel claim.2

       i. Deficient Performance

       In order to establish the first prong of an ineffective assistance of counsel claim,

the defendant must show “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

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




       2  We also note the particular appropriateness of an appellate court ruling on the merits of an
ineffective assistance of appellate counsel claim, as that inquiry now necessitates an analysis of
whether there is a reasonable probability that the defendant ultimately “ ‘would have prevailed on his
appeal but for his counsel’s unreasonable failure to raise an issue.’ ” Spruiell, ___ N.C. App. at ___,
798 S.E.2d at 805 (quoting United States v. Rangel, 781 F.3d 736, 745 (4th Cir. 2015)).

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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) (citation omitted), as 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). “[S]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable[.]” Id. at 690, 80 L. Ed. 2d at 695. Nevertheless, a defendant may

be able to overcome this presumption of sound trial strategy and successfully

establish “that his counsel was objectively unreasonable in failing to find arguable

issues[.]” Robbins, 528 U.S. at 285, 145 L. Ed. 2d at 780 (internal citation omitted);

see Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d at 695 (“[S]trategic choices made

after less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.”). “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.




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      Here, Defendant argues that his appellate counsel’s performance in Baskins I

was deficient in failing to challenge the trial court’s findings of fact regarding the

detectives’ knowledge of the Buick’s inspection status at the time of the initial stop.

The State argues that “[s]ince the trial court’s findings were supported by competent

evidence, appellate counsel did not render deficient performance by failing to

challenge the findings.” (emphasis added).

      Contrary to the State’s position, the record before this Court reveals that

appellate counsel’s failure to challenge the trial court’s findings of fact regarding the

inspection violation was not a reasonable strategic decision based on the argument’s

lack of merit. Todd, 369 N.C. at 712, 799 S.E.2d at 838. As the trial court denied

Defendant’s Motion to Suppress on the basis that the initial stop of the Buick was

justified on three independent grounds, appellate counsel was tasked with reviewing

the sufficiency—both legal and evidentiary—for each of those grounds. See Murray,

477 U.S. at 536, 91 L. Ed. 2d at 445. However, appellate counsel apparently realized

that she had failed to do so upon reading the State’s brief, wherein the State noted

the inspection violation as an additional justification for the stop. Appellate counsel

thereafter submitted a reply brief in which she, for the first time, challenged the

evidentiary support for the trial court’s findings of fact concerning the inspection

violation. That appellate counsel subsequently raised the argument in her reply brief

demonstrates that the initial omission was an oversight rather than a reasoned



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judgment. Moreover, while not controlling, appellate counsel’s subjective explanation

is relevant to the determination of whether her performance was objectively deficient.

On record before us is an affidavit submitted by appellate counsel in Baskins I, which

directly contradicts the State’s position that appellate counsel made a strategic

decision not to challenge the trial court’s findings of fact. The affidavit provides that

“[a]fter reviewing the State’s response to my brief, which relied on the inspection

status as the basis for the stop, I realized that I had missed this issue in my initial

review of the record.” The affidavit further provides that “I knew from my training

and experience as an appellate attorney that a reply brief cannot be used to make

new arguments on appeal.”

      Accordingly, the record sufficiently demonstrates that appellate counsel did

not make a “reasonable professional judgment[]” when she neglected to challenge the

trial court’s findings of fact concerning the inspection status. Strickland, 466 U.S. at

691, 80 L. Ed. 2d at 695. Defendant has thus satisfied the first prong of his ineffective

assistance of counsel claim.

      ii. Prejudice

      Nonetheless, as our Supreme Court has explained, “[t]he fact that 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,



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324 S.E.2d at 248 (citation omitted). In other words, a defendant must not only

demonstrate 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.       “ ‘To show

prejudice in the context of appellate representation, a [defendant] must establish a

reasonable probability he would have prevailed on his appeal but for his counsel’s

unreasonable failure to raise an issue.’ ” Spruiell, ___ N.C. App. at ___, 798 S.E.2d

at 805 (quoting Rangel, 781 F.3d at 745 (internal quotation marks omitted)). “[F]or

purposes of establishing prejudice, a ‘reasonable probability’ . . . simply means ‘a

probability sufficient to undermine confidence in the outcome’ of the appeal.” State

v. Collington, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, 2018 N.C. App. LEXIS 397,

at *29 (quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698).

      In the instant case, Defendant argues that he has set out a proper showing of

prejudice because “[i]f appellate counsel had argued that the findings of fact were not

supported by competent evidence, [this Court] would have reversed the denial of the

Motion to Suppress and vacated his convictions.” On the other hand, the State argues

that even “[h]ad appellate counsel challenged the findings regarding the [vehicle’s]

inspection status” in Baskins I, “this Court would have been bound to reject the

argument because Detective O’Hal’s testimony supported the findings.” Moreover,

the State argues that Defendant was not prejudiced by appellate counsel’s failure to




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challenge the trial court’s findings of fact because the trial court’s ultimate

“conclusion—upholding the traffic stop—was legally correct.”

      We address each of the trial court’s three justifications for the stop of the Buick

in turn as they become relevant to the prejudice analysis.

      1. Inspection Violation

      When reviewing a trial court’s order granting or denying a motion to suppress,

this Court “is strictly limited to determining whether the trial judge’s underlying

findings of fact are supported by competent evidence, . . . and whether those factual

findings in turn support the judge’s ultimate conclusions of law.” State v. Cooke, 306

N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Findings of fact will be binding on an

appellate court so long as they are supported by competent evidence. Id.

      In the present case, had appellate counsel in Baskins I challenged the trial

court’s relevant findings of fact, there is a reasonable probability that this Court

would have concluded that the trial court’s finding that “[t]he stop was initiated

because of . . . the inspection violation” was not supported by competent evidence and

thus could not support the trial court’s conclusion of the stop’s validity.

      The State’s Exhibit 1 was a printout of the DMV request for the Buick, which

the detective testified was “the same information that [was] available to [him] when

[he] ran the plate” on the Buick. However, the DMV printout contained no

information concerning the Buick’s inspection status, and the detectives did not claim



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                                  Opinion of the Court



any other source for their alleged knowledge of the Buick’s inspection violation. In

light of the actual DMV information that was presented, the detectives could not have

known that the Buick’s inspection was expired at the time Detective O’Hal decided

to stop the Buick. Moreover, even if the trial court had noted the discrepancy between

the detectives’ testimony and the DMV information presented, the trial court

concluded as a matter of law that “[t]he officers had probabl[e] cause to stop the

[vehicle] based on the information received from the DMV search . . . that an

inspection violation had occurred.” (emphasis added). Because the DMV information

presented at the hearing contained no information concerning an inspection violation,

we agree with Defendant that there exists a reasonable probability that this Court

would have found the findings regarding the inspection to be unsupported by

competent evidence had appellate counsel challenged them in Baskins I.        See, e.g.,

State v. Fisher, 141 N.C. App. 448, 454, 539 S.E.2d 677, 682 (2000) (“We recognize

that contradictions and inconsistencies rarely render a court’s factual findings

erroneous. However, the testimony presented at the suppression hearing . . .

contained material inconsistencies in the State’s own evidence, not simply

contradictions between the State’s evidence and defendant’s evidence.”).

      Given the reasonable probability that the inspection status would not have

been found to support the validity of the stop in Baskins I, this Court would have next

proceeded to an examination of Defendant’s arguments pertaining to the two



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additional grounds upon which the trial court based its denial of Defendant’s Motion

to Supress. See Dixon v. Dixon, 67 N.C. App. 73, 77, 312 S.E.2d 669, 672 (1984).

      2. Reasonable Mistake of Fact

      On appeal from the trial court’s denial of Defendant’s Motion to Suppress in

Baskins I, appellate counsel argued that “the trial court erred in ruling that police

lawfully stopped the car in which [Defendant] was riding because a mistaken belief

of fact that a traffic violation occurred is objectively unreasonable and cannot justify

a warrantless seizure.” We conclude that there is a reasonable probability this Court

would have agreed with this argument had it been addressed in Baskins I.

      “[T]o conduct an investigatory warrantless stop and detention of an individual,

a police officer must have reasonable suspicion, grounded in articulable and objective

facts, that the individual is engaged in criminal activity.” State v. Hudgins, 195 N.C.

App. 430, 433, 672 S.E.2d 717, 719 (2009) (citation omitted). “[T]he reasonable

suspicion standard requires that the stop be based on specific and articulable facts .

. . as viewed through the eyes of a reasonable, cautious officer, guided by his

experience and training.” State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643, 645

(2008) (alteration omitted) (citation and quotation marks omitted). Indeed, “the

ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ”             Riley v.

California, ___ U.S. ___, ___, 189 L. Ed. 2d 430, 439 (2014) (citation omitted).

Nevertheless, “[t]o be reasonable is not to be perfect[.]” Heien v. North Carolina, ___



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U.S. ___, ___, 190 L. Ed. 2d 475, 482 (2014). The Fourth Amendment therefore

“allows for some mistakes on the part of government officials, giving them ‘fair leeway

for enforcing the law in the community’s protection.’ ” Id. (quoting Brinegar v. United

States, 338 U.S. 160, 176, 93 L. Ed. 1879, 1891 (1949)). That some leeway is provided,

however, does not afford law enforcement officials the unfettered liberty to be

inaccurate. “The Fourth Amendment tolerates only reasonable mistakes, and those

mistakes—whether of fact or law—must be objectively reasonable.” Id. at ___, 190 L.

Ed. 2d at 486.

      Here, the detectives contended that they also stopped the Buick for having an

expired registration even though the registration was, in fact, still valid.

Nevertheless, the trial court concluded that even “[i]f the officers were mistaken as

to whether or not a Chapt. 20 violation existed at the time of the stop, such was a

reasonable mistake of law that did not render the stop invalid” under the Fourth

Amendment. Our duty in the instant case is simply to determine whether there is a

reasonable probability that this Court would have disagreed with this conclusion of

law had it been addressed in Baskins I.

      Initially, we note that the case at bar does not involve a mistake of law. The

detective testified that he was aware that the North Carolina statute provides a

fifteen-day grace period following the date of a vehicle’s registration expiration during

which the vehicle may be lawfully operated, and that “to the best of [his] knowledge,”



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                                   Opinion of the Court



“it was in fact lawful for [Defendant’s] vehicle to be operated” on the date of the stop.

N.C. Gen. Stat. § 20-66(g) (2017). The detective’s belief that the Buick was being

operated without a valid registration was thus a mistake of fact rather than of law.

      In addition, not only did the detective testify that he knew there was a fifteen-

day grace period following expiration of a vehicle’s registration, but the DMV

information upon which the detective relied at the time of the stop explicitly provided

that the Buick’s registration was “VALID THRU: 10152014.” Nevertheless, the

detective testified that his oversight regarding the vehicle’s lawful status was due to

the fact that “We’re not going to scroll down to check a date being valid or not valid.”

That the detectives stopped the Buick for a registration violation despite having

intentionally neglected to read the very sentence in which the relevant expiration

date appeared renders questionable the reasonableness of any resultant mistake that

ensued. See State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439 (2008) (“This

Court requires that the stop be based on specific and articulable facts . . . as viewed

through the eyes of a reasonable, cautious officer, guided by his experience and

training.”) (alterations omitted) (citation and quotation marks omitted). This is also

not a case in which the factual assessment regarding the Buick’s registration status

was required to be made “on the fly.” Heien, ___ U.S. at ___, 190 L. Ed. 2d at 486.

Rather, the detective accessed the DMV information while he was following the Buick




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                                    Opinion of the Court



as it was obeying the speed limit, at 7:00 a.m., in an area with “not a lot of vehicles

on the road,” and with the active assistance of at least four additional officers.

      Thus, in the present case the detectives had an admittedly accurate

understanding of the law, which was coupled with information that was readily

available to them indicating that the Buick’s registration was still valid. Under these

circumstances, we conclude that there is a reasonable probability that this Court

would have determined that the facts do not constitute the sort of objectively

reasonable mistake of fact tolerable under the Fourth Amendment, and therefore

these facts could not serve as a justification for the stop.

      3. Reasonable Suspicion

      Finally, had appellate counsel challenged the trial court’s findings of fact in

Baskins I, this Court would have been required to address Defendant’s argument that

“the trial court erred in concluding that reasonable suspicion existed to stop the car

in which [Defendant] was a passenger . . . to conduct a narcotics investigation when

police lacked individualized reasonable suspicion and acted on the same hunch they

applied to everyone who arrived in Greensboro on the China Bus.” We conclude that

there is a reasonable probability that this Court would have found this argument

meritorious in Baskins I.

      As explained supra, “[a]n investigatory stop must be justified by ‘a reasonable

suspicion, based on objective facts, that the individual is involved in criminal activity.’



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” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (quoting Brown v.

Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979)). Whether an officer had a

reasonable suspicion to stop a vehicle for investigatory purposes must be considered

in light of the totality of the circumstances. Id. (citation omitted). “The stop must be

based on specific and articulable facts, as well as the rational inferences from those

facts, as viewed through the eyes of a reasonable, cautious officer, guided by his

experience and training.” Id. (citing Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d

889, 906 (1968), and State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779

(1979)). The justification must be objective rather than subjective. Id. at 442, 446

S.E.2d at 70 (citing United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)).

The officer “must be able to articulate something more than an inchoate and

unparticularized suspicion or ‘hunch.’ ” Sokolow, 490 U.S. at 7, 104 L. Ed. 2d at 10

(citation and quotation marks omitted).

      Here, we note that the trial court’s findings of fact in its denial of Defendant’s

Motion to Suppress provided only that “[t]he stop was initiated because of the expired

registration and the inspection violation.” Moreover, the conclusion that the

detectives “had reasonable suspicion that criminal activity related to narcotics was

afoot” was based solely on the facts (1) that the detectives observed Defendant and

Ms. Bone exit the China Bus carrying small bags at the “same bus stop that a lot of

heroin is being transported from New York to the Greensboro area[;]” and (2) that



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                                  Opinion of the Court



while waiting for his ride at the adjacent gas station, Defendant briefly looked toward

Detective McPhatter’s unmarked vehicle and “shooed [his vehicle] off[,]” at which

point Defendant’s ride—the Buick—pulled into the parking lot.

      The facts of this case bear a marked likeness to those presented in the United

States Supreme Court case Reid v. Georgia, in which

             [t]he appellate court’s conclusion . . . that the DEA agent
             reasonably suspected the petitioner of wrongdoing rested
             on the fact that the petitioner appeared to the agent to fit
             the so-called “drug courier profile,” a somewhat informal
             compilation of characteristics believed to be typical of
             persons unlawfully carrying narcotics. Specifically, the
             court thought it relevant that (1) the petitioner had arrived
             from Fort Lauderdale, which the agent testified is a
             principal place of origin of cocaine sold elsewhere in the
             country, (2) the petitioner arrived early in the morning,
             when law enforcement activity is diminished, (3) he and his
             companion appeared to the agent to be trying to conceal the
             fact that they were traveling together, and (4) they
             apparently had no luggage other than their shoulder bags.

448 U.S. 438, 440-41, 65 L. Ed. 2d 890, 894 (1980). From these facts, the Supreme

Court concluded

             that the agent could not, as a matter of law, have
             reasonably suspected the petitioner of criminal activity on
             the basis of these observed circumstances. Of the evidence
             relied on, only the fact that the petitioner preceded another
             person and occasionally looked backward at him as they
             proceeded through the concourse relates to their particular
             conduct. The other circumstances describe a very large
             category of presumably innocent travelers, who would be
             subject to virtually random seizures were the Court to
             conclude that as little foundation as there was in this case
             could justify a seizure.


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                                    Opinion of the Court




Id. at 441, 65 L. Ed. 2d at 894.

         In the instant case, the detectives’ inference of criminal activity from

Defendant waving off Detective McPhatter’s unmarked vehicle at the gas station

“was more an inchoate and unparticularized suspicion or ‘hunch,’ than a fair

inference in the light of [their] experience[.]” Id. And, even when viewed through the

officers’ experience that “persons that get on this bus line could possibly be trafficking

in narcotics[,]” the fact that an individual—entirely unknown to officers—is seen

carrying “just some small, little luggage bags” while returning on the China Bus from

a weekend trip to New York is far “too slender a reed to support the seizure in this

case.”    Id.

         Accordingly, had appellate counsel challenged the findings of fact in Baskins I,

we conclude that there is a reasonable probability that this Court would have

determined that the trial court also erred in denying Defendant’s Motion to Suppress

on the grounds that the detective “had reasonable suspicion that criminal activity

related to narcotics was afoot when he stopped the Buick.”

                                            ***

         Despite the trial court’s reluctance to reach the merits of Defendant’s Motion

for Appropriate Relief on the grounds of ineffective assistance of appellate counsel,

we are able to conclude from the cold record developed on appeal that the trial court

erred in denying Defendant’s Motion for Appropriate Relief. Had appellate counsel


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                                   Opinion of the Court



challenged the trial court’s findings of fact regarding the Buick’s inspection status in

its order denying Defendant’s Motion to Suppress, there is a reasonable probability

that this Court would have concluded that those findings of fact were not supported

by competent evidence. This Court would have then proceeded to the two arguments

that Defendant did raise in Baskins I. Given the merit of those two arguments, we

conclude that there is a reasonable probability that had appellate counsel challenged

the trial court’s findings of fact concerning the inspection violation, Defendant would

have been successful in his appeal in Baskins I. Accordingly, the trial court erred

when it denied Defendant’s Motion for Appropriate Relief on the grounds of

ineffective assistance of appellate counsel.

                                     Conclusion

      For the reasons explained herein, the trial court’s order denying Defendant’s

Motion for Appropriate Relief is reversed and this matter is remanded for entry of an

order granting Defendant’s Motion for Appropriate Relief and vacating his

convictions.

      REVERSED AND REMANDED FOR NEW TRIAL.

      Judges ELMORE and HUNTER, JR. concur.




                                          - 31 -
