              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-877

                                  Filed: 5 May 2020

Alleghany County, Nos. 14 CRS 50314-15

STATE OF NORTH CAROLINA

             v.

EDWARD BICKERTON LANE, JR.


      Appeal by defendant from orders entered 18 May 2018 and 11 January 2019

by Judge Michael D. Duncan in Alleghany County Superior Court. Heard in the

Court of Appeals 31 March 2020.


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

      Yoder Law PLLC, by Jason Christopher Yoder, for defendant.


      ARROWOOD, Judge.


      Edward Bickerton Lane, Jr. (“defendant”) appeals from orders denying his

motion for appropriate relief (“MAR”) and motion for discovery. Defendant contends

the trial court erred in concluding that a finding of no plain error precludes a finding

of ineffective assistance of counsel and that defendant’s MAR was frivolous. In the

alternative, defendant contends the trial court erred in denying his motion for

discovery and motion for post-conviction discovery where he was represented by
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counsel in a post-conviction proceeding pursuant to N.C. Gen. Stat. § 15A-1415(f).

For the following reasons, we affirm the order of the trial court.

                                   I.      Background

      On 14 December 2016, defendant was convicted of trafficking in opium or

heroin, resisting an officer, simple possession of marijuana, and possession of drug

paraphernalia. At trial, the evidence tended to show the following.

      Deputy Colt Kilby (“Deputy Kilby”) testified that on 18 September 2014, he

observed defendant driving above the speed limit, crossing the center line, and

weaving within his lane.       Deputy Kilby subsequently stopped defendant for the

observed traffic violations.    As he approached defendant’s vehicle, Deputy Kilby

detected the smell of both raw and burnt marijuana. Deputy Kilby conducted a

search of defendant’s vehicle and retrieved several items, including: a smoking pipe

containing burnt marijuana residue; small clear plastic bags of marijuana; and

plastic straws that had been cut up into several short pieces, which are often used to

inhale ground-up prescription pills.

      Deputy Kilby also retrieved an orange bottle of pills labeled “doxycycline” that

was prescribed to defendant. Upon opening the bottle, he noticed the pills did not

match the label. Another deputy found a single pill inside a small black container.

While Deputy Kilby was distracted, defendant tossed the pills in the orange bottle

about 10 to 15 feet away from the vehicle and into a nearby grassy area. Deputy



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Kilby recovered nineteen pills and the prescription bottle and arrested defendant.

The pills were later identified as hydrocodone.

       Defendant testified that in June 2014, he broke his left hand while at work.

He received treatment for his injury at the hospital, in the course of which doctors

put his hand in a cast and initially prescribed him twenty “hydrocodone fives” to take

as needed for pain. Several days later, a specialist prescribed defendant an additional

forty-five hydrocodone 10mg, a stronger medication. Defendant took the pills as

needed and often kept the medication in his car.         Defendant estimated that by

September 2014, he had approximately twenty hydrocodone 10mg pills left. He also

had a prescription filled in August for doxycycline, an antibiotic that treats

pneumonia. Defendant testified that he had the hydrocodone pills in the car the night

Deputy Kilby stopped him, and he kept a single hydrocodone pill in a separate

container that he took with him to work. He further testified that he tossed the pills

out while Deputy Kilby was searching his car because he “was irritated, very

irritated.”

       A Walgreens pharmacist testified that on 13 June 2014, she filled a

prescription for twenty hydrocodone of 5mg strength. On 16 June 2014, she filled a

second prescription of forty-five hydrocodone 10mg. The pills were marked “Watson”

and stamped with the number “853.”          The pharmacist further testified that if




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defendant had taken the second prescription according to the doctor’s instructions, it

would have lasted seven days.

      At the close of the State’s case and at the close of all the evidence, trial counsel

moved to dismiss the trafficking charge on the ground that defendant’s possession of

hydrocodone was pursuant to a valid prescription from a licensed physician. During

the jury charge conference, trial counsel for defendant did not request any jury

instruction on the definition of “unlawful” in the context of trafficking by possession,

or an instruction that possession pursuant to a valid prescription was a defense to

trafficking by possession.   However, on the charge of unlawfully and knowingly

possessing with intent to use drug paraphernalia, the jury was instructed that opium

is a controlled substance that is unlawful to possess without a valid prescription from

a licensed physician.    Defendant was found guilty of all charges and given a

consolidated sentence of 70 to 93 months’ imprisonment, in addition to a mandatory

fine of $50,000.00. Defendant appealed the matter to this Court.

      On 14 June 2017, defendant filed an MAR contemporaneously with his

appellant brief. On 19 December 2017, this Court held the trial court did not commit

plain error because defendant could not establish he was prejudiced by the trial

court’s failure to instruct the jury on the defense of possession pursuant to a valid

prescription. State v. Lane, Nos. 14 CRS 50314-15, 2017 WL 6460045, *2 (N.C. App.

Dec. 19, 2017). In addition, we dismissed defendant’s MAR without prejudice to refile



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in the trial court. On 2 February 2018, the trial court appointed counsel to represent

defendant on a potential MAR and gave defendant 120 days to file an MAR or file a

written notice of intent not to file. On 14 March 2018, defendant filed a motion for

discovery pursuant to N.C. Gen. Stat. § 15A-1415(f) and a proposed order. The trial

court denied the motion on the grounds that there was no current post-conviction

proceeding as defendant had not yet filed an MAR.

      On 29 May 2018, defendant filed an MAR alleging the same ineffective

assistance of counsel claim this Court previously dismissed without prejudice.

Specifically, defendant argued he was denied his constitutional right to effective

representation when his trial counsel failed to request a jury instruction that a valid

prescription was a defense to trafficking in opium by possession.        In the MAR,

defendant also renewed his motion for discovery and requested an opportunity to

amend his motion after receiving post-conviction discovery. On 11 January 2019, the

trial court issued an order denying defendant’s MAR. The trial court concluded that

because this Court found defendant was not prejudiced under the plain error

standard, defendant’s ineffective assistance of counsel claim must also fail.      On

7 June 2019, defendant filed a petition for writ of certiorari asking this Court to

review the trial court’s order denying defendant’s MAR. Defendant also later filed a

motion for initial en banc hearing. We granted certiorari, but denied the motion for

an en banc hearing.



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                                   II.    Discussion

      On appeal, defendant argues that the trial court erred in concluding that a

finding of no plain error precludes a finding of ineffective assistance of counsel and

that his MAR was frivolous. In the alternative, defendant contends the trial court

erred in denying his motion for discovery where he was represented by counsel in a

post-conviction proceeding pursuant to N.C. Gen. Stat. § 15A-1415(f).

      “Our review of a trial court’s ruling on a defendant’s MAR is ‘whether the

findings of fact are supported by evidence, whether the findings of fact support the

conclusions of law, and whether the conclusions of law support the order entered by

the trial court.’ ” State v. Peterson, 228 N.C. App. 339, 343, 744 S.E.2d 153, 157 (2013)

(quoting State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982)). “ ‘When a

trial court’s findings on a motion for appropriate relief are reviewed, these findings

are binding if they are supported by competent evidence and may be disturbed only

upon a showing of manifest abuse of discretion. However, the trial court’s conclusions

are fully reviewable on appeal.’ ” State v. Lutz, 177 N.C. App. 140, 142, 628 S.E.2d

34, 35 (2006) (quoting State v. Wilkins, 131 N.C. App. 220, 223, 506 S.E.2d 274, 276

(1998)).

                       1.     Ineffective Assistance of Counsel

      Defendant first argues the trial court erred in concluding that a finding of no

plain error requires a finding of no ineffective assistance of counsel. In support of his



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argument, defendant points to differences between the plain error standard and the

ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S.

668, 80 L. Ed.2d 674 (1984). We agree with defendant that the plain error standard

and ineffective assistance of counsel test are not so similar that a finding of no plain

error always precludes a finding of ineffective assistance of counsel.

       The Sixth Amendment to the Constitution guarantees criminal defendants the

right to counsel, which courts have recognized necessarily includes the right to

effective assistance or representation by counsel. Strickland, 466 U.S. 668, 686, 80

L. Ed.2d at 692 (citing McMann v. Richardson, 397 U.S. 759, 771, n. 14, 25 L. Ed.2d

763, 773, n. 14 (1970)). Thus, ineffective assistance of counsel violates that right. In

Strickland, the United States Supreme Court established the two-part test for

ineffective assistance of counsel subsequently adopted by our Supreme Court years

ago in State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). Pursuant to Strickland,

when bringing an ineffective assistance of counsel claim, a defendant must do the

following:

             First, the defendant must show that counsel’s performance
             was deficient. This requires showing that counsel made
             error 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 error were [sic] so serious
             as to deprive the defendant of a fair trial, a trial whose
             result is reliable.



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Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (emphasis in original) (quoting

Strickland, 466 U.S. at 687, 80 L. Ed.2d at 693).         The Supreme Court, further

elaborating on the prejudice prong, explained that “[t]he defendant must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 80

L. Ed.2d at 698.

      In comparison, under North Carolina’s plain error standard:

             For error to constitute plain error, a defendant must
             demonstrate 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.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations,

quotation marks, and brackets omitted). Thus, plain error should only be found

where “the claimed error is a ‘fundamental error, something so basic, so prejudicial,

so lacking in its elements that justice cannot have been done,’ or ‘where [the error] is

grave error which amounts to a denial of a fundamental right of the accused,’ or the

error has ‘resulted in a miscarriage of justice or in the denial to appellant of a fair

trial.’ ” Id. at 516-17, 723 S.E.2d at 333 (emphasis in original) (quoting State v. Odom,

307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)).


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      Notably, both the ineffective assistance of counsel test and the plain error

standard require a showing of prejudice. Under the former, a defendant must show

a “reasonable probability” the result of the proceeding would have been different,

while under the latter, they must show the error had a “probable impact” on the jury’s

finding of guilt. Given their similar language, the two prejudice inquiries initially

appear to be the same. This Court has thus previously held that a finding of no

prejudice under one also means the prejudice requirement of the other cannot be met

as well, particularly in the context of jury instructions. See State v. Land, 223 N.C.

App. 305, 316, 733 S.E.2d 588, 595 (2012), aff’d, 366 N.C. 550, 742 S.E.2d 803 (2013)

(“Since the trial court did not commit plain error when failing to give the [jury]

instructions at issue, defendant cannot establish the necessary prejudice required to

show ineffective assistance of counsel for failure to request the instructions.”); State

v. Seagroves, 78 N.C. App. 49, 54, 336 S.E.2d 684, 688 (1985) (“There being no ‘plain

error’ in the jury instructions, defendant’s assertion of ineffective assistance of

counsel with respect thereto must also fail.”).

      However, a review of North Carolina appellate decisions on the matter reveals

that there has been no thorough examination and comparison of the plain error

standard and ineffective assistance of counsel test by this Court or our Supreme

Court. We thus take the opportunity to do so here.




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      We first consider the differences in language used to articulate the two

prejudice inquiries. Prejudice under plain error requires that the trial court’s error

have had a “probable impact” on the jury’s finding of guilt. Odom, 307 N.C. at 660,

300 S.E.2d at 378. The plain error rule thus requires a defendant to show “[i]n other

words, . . . that the error in question ‘tilted the scales’ and caused the jury to reach

its verdict convicting the defendant.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80,

83 (1986) (citing State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 806-807 (1983)).

In State v. Juarez, our Supreme Court emphasized that “[f]or plain error to be found,

it must be probable, not just possible, that absent the instructional error the jury

would have returned a different verdict.” 369 N.C. 351, 358, 794 S.E.2d 293, 300

(2016) (citing Lawrence, 365 N.C. at 518, 723 S.E.2d at 334). In Lawrence, that court

illustrated the defendant’s high burden of proof under plain error, explaining that

“[i]n light of the overwhelming and uncontroverted evidence, defendant cannot show

that, absent the error, the jury probably would have returned a different verdict.

Thus, he cannot show the prejudicial effect necessary to establish that the error was

a fundamental error.” Lawrence, 365 N.C. at 519, 723 S.E.2d at 335.

      In contrast, prejudice under the ineffective assistance of counsel test requires

a showing of “reasonable probability” that, “but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland, 466 U.S. at 694,

80 L. Ed.2d at 698. “A reasonable probability is a probability sufficient to undermine



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confidence in the outcome.”       Id.   Under the reasonable probability standard, “a

defendant need not show that counsel’s deficient conduct more likely than not altered

the outcome in the case.” Id. at 693, 80 L. Ed.2d at 697. However, the defendant does

need to demonstrate that “at least one juror would have struck a different balance.”

Wiggins v. Smith, 539 U.S. 510, 537, 156 L. Ed.2d 471, 495 (2003).

         While under the reasonable probability standard “[t]he likelihood of a different

result must be substantial, not just conceivable[,]” Harrington v. Richter, 562 U.S. 86,

112, 178 L. Ed.2d 624, 647 (2011), it is something less than that required under plain

error.    In State v. Sanderson, our Supreme Court noted that we adopted the

ineffective assistance of counsel test in Strickland as our own standard because it

mirrored the language of our statutorily enacted test for prejudice under N.C. Gen.

Stat. § 15A-1443(a). 346 N.C. 669, 684, 488 S.E.2d 133, 141 (1997). Pursuant to N.C.

Gen. Stat. § 15A-1443(a), criminal defendants alleging prejudice due to errors

preserved for review on appeal must demonstrate “a reasonable possibility that, had

the error in question not been committed, a different result would have been reached

at the trial.” N.C. Gen. Stat. § 15A-1443(a) (2019). Importantly, “the test for ‘plain

error’ places a much heavier burden upon the defendant than that imposed by [N.C.

Gen. Stat.] § 15A-1443 upon defendants who have preserved their rights by timely

objection.” Walker, 316 N.C. at 39, 340 S.E.2d at 83. It follows, then, that the

prejudice prong of the ineffective assistance of counsel test, which is almost identical



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to the prejudice inquiry under N.C. Gen. Stat. § 15A-1443(a), also imposes a lesser

burden than that imposed by plain error.

      This line of reasoning is further supported by the Supreme Court’s decision in

Williams v. Taylor, 529 U.S. 362, 146 L. Ed.2d 389 (2000). In discussing the ways in

which a state-court decision would be contrary to clearly established precedent in

Strickland, the Williams court noted that:

             If a state court were to reject a prisoner’s claim of
             ineffective assistance of counsel on the grounds that the
             prisoner had not established by a preponderance of the
             evidence that the result of his criminal proceeding would
             have been different, that decision would be “diametrically
             different,” “opposite in character or nature,” and “mutually
             opposed” to our clearly established precedent because we
             held in Strickland that the prisoner need only demonstrate
             a “reasonable probability that . . . the result of the
             proceeding would have been different.

Williams, 529 U.S. at 405-406, 146 L. Ed.2d at 425-26 (citing Strickland, 466 U.S. at

694, 80 L. Ed.2d at 698).      Thus, the “reasonable probability” standard of the

ineffective assistance of counsel test can be satisfied by something less than the 51%

certainty associated with the preponderance of the evidence standard. In contrast,

the “probable impact” standard under plain error seems to require at least that much.

See Walker, 316 N.C. at 39, 340 S.E.2d at 83 (holding that plain error requires that

“the error in question ‘tilted the scales’ and caused the jury to reach its verdict

convicting the defendant.”).




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      Moreover, other differences between the plain error standard and ineffective

assistance of counsel test compel us to conclude that application of the two will not

always necessarily lend the same results. On this point, we find the Fourth Circuit’s

reasoning in United States v. Carthorne, 878 F.3d 458 (4th Cir. 2017) persuasive.

There, the Carthorne court also considered the issue of “whether application of the

plain error standard and the ineffective assistance of counsel standard ordinarily

requires equivalent outcomes.” Id. at 464. Similar to defendant here, the defendant

in Carthorne argued that the lower court erred “in concluding that the absence of

plain error on direct appeal constituted a basis for denial of relief on collateral review

for ineffective assistance of counsel.” Id. at 463.

      As the Carthorne court noted, the plain error standard and ineffective

assistance of counsel test “serve different, yet complementary, purposes,” with the

former concerned with trial court errors and the latter with errors by counsel. Id. at

465. Though both require a showing of prejudice, they differ in several important

respects.

             The ineffective assistance inquiry focuses on a factor that
             is not considered in a plain error analysis, namely, the
             objective reasonableness of counsel’s performance. In
             addition, plain error review requires that there be settled
             precedent before a defendant may be granted relief, while
             the ineffective assistance standard may require that
             counsel raise material issues even in the absence of
             decisive precedent.




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             There is also a temporal distinction in the analysis
             performed under the two types of review. Claims of
             ineffective assistance are evaluated in light of the available
             authority at the time of counsel’s allegedly deficient
             performance.      But the plain error inquiry applies
             precedential authority existing at the time of appellate
             review.      These differences, considered collectively,
             demonstrate why claims of ineffective assistance of counsel
             are not limited by an appellate court’s analysis whether a
             trial court plainly erred.

Id. at 465-66 (internal citations omitted). In addition, because ineffective assistance

of counsel claims focus on the reasonableness of counsel’s performance, courts can

consider the cumulative effect of alleged errors by counsel. See Williams, 529 U.S. at

395-99, 146 L. Ed.2d at 419-21 (holding that the lower court correctly considered the

cumulative effect of failure to raise mitigation evidence in ruling upon an ineffective

assistance of counsel claim); State v. Thompson, 359 N.C. 77, 121-22, 604 S.E.2d 850,

880-81 (2004) (recognizing cumulative argument but dismissing ineffective

assistance of counsel claim on other grounds). In contrast, prejudice under plain error

is not reviewed on a cumulative basis. State v. Holbrook, 137 N.C. App. 766, 769, 529

S.E.2d 510, 512 (2000). Moreover, error that was invited by the defendant is not

reviewable under plain error, State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413,

416 (2001), but may still form the basis of a successful ineffective assistance of counsel

claim if counsel had no reasonable strategy for making the error.

      The different purposes and concerns of the two standards thus play a

significant role in shaping the outcome of their application. As long as counsel’s


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deficient performance created a fundamentally unfair trial whose results were

unreliable, an ineffective assistance of counsel claim will be successful despite the

absence of plain error. See Kimmelman v. Morrison, 477 U.S. 365, 374, 91 L. Ed.2d

305, 318-19 (1986) (“The essence of an ineffective-assistance claim is that counsel’s

unprofessional errors so upset the adversarial balance between defense and

prosecution that the trial was rendered unfair and the verdict rendered suspect.”).

Accordingly, there will be instances in which the trial court committed no plain error

but counsel rendered ineffective assistance, and vice versa. See United States v.

Span, 75 F.3d 1383, 1389-90 (9th Cir. 1996) (holding that counsel’s failure to raise an

objection to jury instructions was ineffective assistance, even though district court’s

instructions were not plainly erroneous).          In addition, as discussed supra, the

different thresholds of prejudice (i.e. “reasonable probability” versus “probable

impact”) also mean that a claim that fails the plain error test may still be a successful

ineffective assistance of counsel claim. Thus, while an analysis of plain error may

inform an analysis of prejudice under the ineffective assistance of counsel test, it

should not be determinative.

      Having determined that sufficient differences exist between the plain error

and ineffective assistance of counsel standards such that separate and independent

inquiries are required, we now address whether the trial court properly dismissed the

claims raised in defendant’s MAR.



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      In the present case, upon defendant’s appeal of his criminal convictions to this

Court, we previously held the trial court did not commit plain error when it failed to

instruct the jury on the defense of possession pursuant to a valid prescription. Lane,

Nos. 14 CRS 50314-15, 2017 WL 6460045, at *2. In reaching our holding, we noted

that defendant could not satisfy the prejudice requirement under the plain error

standard because, in light of the ample evidence from which the jury could deduce

defendant did not possess the hydrocodone pills lawfully, it was very likely the jury

would have reached the same conclusion even absent the trial court’s alleged error.

Id. Because we found no plain error, the trial court subsequently denied defendant’s

MAR alleging ineffective assistance of counsel, reasoning that it was compelled by

this Court’s precedent to deny defendant’s ineffective assistance of counsel claim

where there was no plain error.

      In the alternative, the trial court, adopting our reasoning in Lane, concluded

that, based on the evidence presented at trial, defendant failed to establish a

reasonable probability that the result of the proceeding would have been different

had trial counsel requested the valid prescription jury instruction. Because as

analyzed above, a finding of no plain error does not preclude a finding of ineffective

assistance of counsel, the trial court erred in dismissing defendant’s claim on that

basis. However, to the extent the trial court conducted a Strickland analysis of




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defendant’s ineffective assistance of counsel claim in its alternative holding, we

affirm on that ground.

      As discussed supra, under Strickland, we apply a two-part test to determine

whether a defendant was denied effective assistance of counsel. First, the defendant

must show his counsel’s performance was deficient, such that “counsel made errors

so serious 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. Second,

the defendant must show counsel’s alleged errors prejudiced him such that “there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694, 80 L. Ed.2d at 698.

      In the present case, defendant was charged and convicted of trafficking opium

by possession. Lawful possession is a defense to Section 90-95 of the Controlled

Substances Act, which “makes the possession, transportation[,] or delivery of a

controlled substance a crime.” State v. Beam, 201 N.C. App. 643, 649, 688 S.E.2d 40,

44 (2010). Pursuant to N.C. Gen. Stat. § 90-101(c)(3), an individual lawfully possesses

a controlled substance if they are “[a]n ultimate user or a person in possession of any

controlled substance pursuant to a lawful order of a practitioner.” N.C. Gen. Stat. §

90-101(c)(3) (2019).     An “ultimate user” is “a person who lawfully possesses a

controlled substance for his own use, or for the use of a member of his household.”

N.C. Gen. Stat. § 90-87(27) (2019).



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      Defendant’s entire defense to trafficking opium by possession rested on his

assertion he possessed the hydrocodone pills pursuant to a valid prescription. At

trial, there was conflicting evidence on that issue. Though defendant at one point

had a valid prescription for 45 pills of 10mg hydrocodone, that prescription was only

supposed to last seven days and was filled three months prior to defendant’s

encounter with law enforcement.      During the search of defendant’s car, twenty

hydrocodone pills were found in a prescription bottle labeled “doxycycline,” and

defendant attempted to get rid of the pills while the deputies searching his car were

distracted. Deputies also found several cut up straws commonly used to inhale

crushed pills. Despite evidence supporting a theory of illegal possession, however,

there was also some evidence that defendant lawfully possessed the pills as well.

While testimony by defendant’s pharmacist indicated the pills prescribed to

defendant would only last seven days if taken as prescribed, according to defendant,

he only took them “as needed for pain.” In addition, the pills recovered by law

enforcement were marked “Watson 853,” similar to the pills prescribed to defendant.

      At the close of all the evidence, trial counsel for defense moved to dismiss the

trafficking charge on the ground that defendant’s possession of hydrocodone was

pursuant to a valid prescription. However, trial counsel failed to request a jury

instruction on the defense defendant lawfully possessed the hydrocodone pills. After

the jury charge, trial counsel also failed to object to any of the instructions given.



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“Failure to instruct upon all substantive or material features of the crime charged is

error.” State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989) (citing State v.

Loftin, 322 N.C. 375, 368 S.E.2d 613 (1988)). “All defenses arising from the evidence

presented during the trial constitute substantive features of a case and therefore

warrant the trial court’s instruction thereon.” Loftin, 322 N.C. at 381, 368 S.E.2d at

617 (citations omitted). Because defendant presented evidence he lawfully possessed

the hydrocodone pills, he was entitled to a jury instruction on that defense. Though

trial counsel argued throughout the trial that defendant possessed the pills pursuant

to a valid prescription, “ ‘[o]n matters of law, arguments of counsel do not effectively

substitute for statements by the court.’ ” State v. Locklear, 363 N.C. 438, 466, 681

S.E.2d 293, 313 (2009) (quoting State v. Spruill, 338 N.C. 612, 654, 452 S.E.2d 279,

302 (1994)).

      Whether trial counsel’s performance was deficient because she failed to request

a jury instruction on the lawful possession defense depends on whether her conduct

“fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 80

L. Ed.2d at 693. There is “a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance” and to overcome this

presumption defendant must show that the challenged action cannot be considered

sound trial strategy. Id. at 689, 80 L. Ed.2d at 694-95. As the trial court noted, the

burden of proof for proving an exemption to the Controlled Substances Act, including



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the “ultimate user” exemption, lies with the defendant. Thus, had trial counsel

requested the valid prescription instruction, she could have risked highlighting this

burden to the jury and possibly negating the value of the evidence that defendant

lawfully possessed the pills.

      Even assuming counsel’s performance was deficient, however, “[t]he fact that

counsel made an error, 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 (citing Strickland, 466 U.S. at 694, 80 L. Ed.2d at 698).

Importantly, “Strickland asks whether it is ‘reasonably likely’ the result would have

been different[,]” and “[t]he likelihood of a different result must be substantial, not

just conceivable.”   Harrington, 562 U.S. at 111-12, 178 L. Ed.2d. at 647 (citing

Strickland, 466 U.S. at 693, 696, 80 L. Ed.2d at 697, 699). Though defendant argues

it is possible that “at least one juror would have struck a different balance” if

presented with the valid prescription defense, we think it more probable that the

result of the proceeding would have been the same.

      The jury was presented with evidence defendant possessed the pills pursuant

to a valid prescription and also heard trial counsel argue defendant’s lawful

possession of the pills several times. In addition, on the charge of unlawfully and

knowingly possessing with intent to use drug paraphernalia, the jury was instructed



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                                    Opinion of the Court



that opium is a controlled substance that is unlawful to possess without a valid

prescription from a licensed physician. Under these facts, trial counsel’s failure to

request that the jury be instructed on the definition of “unlawful” and on the defense

of possession pursuant to a valid prescription does not “undermine confidence” in the

result and create a reasonable probability that the result of the proceeding would

have been different. We therefore affirm the order of the trial court.

                               2.     MAR not Frivolous

      Defendant next argues the trial court erred in finding that his MAR was

frivolous and without merit pursuant to N.C. Gen. Stat. § 15A-1420 and thus not

entitled to an evidentiary hearing. When considering a motion for appropriate relief,

“[t]he judge assigned to the motion shall conduct an initial review of the motion. If

the judge determines that all of the claims alleged in the motion are frivolous, the

judge shall deny the motion.” N.C. Gen. Stat. § 15A-1420(b1)(3) (2019). Furthermore

“[a]ny party is entitled to a hearing on questions of law or fact arising from the motion

and any supporting or opposing information presented unless the court determines

that the motion is without merit.” N.C. Gen. Stat. § 15A-1420(c)(1). The term

“frivolous” is not defined by statute. However, our case law has defined frivolous

claims as those claims that have no merit. See State v. Kinch, 314 N.C. 99, 102, 331

S.E.2d 665, 666 (1985) (holding that a finding of no merit in assignments of error “is

tantamount to a conclusion that the appeal is wholly frivolous.”). Non-meritorious or



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                                  Opinion of the Court



frivolous claims are those that are “not well grounded in fact and warranted by

existing law or a good faith argument for the extension, modification, or reversal of

existing law.” Long v. Long, 119 N.C. App. 500, 507, 459 S.E.2d 58, 63 (1995) (citing

N.C.R. App. P. 34(a)(1)).

      Here, the trial court denied defendant’s MAR on the basis his ineffective

assistance of counsel claim could not succeed given this Court already found no plain

error occurred at trial. Relying on this Court’s prior holdings, which did not address

the differences between plain error and the ineffective assistance of counsel test, the

trial court found that existing law did not support defendant’s argument. However,

to the extent that defendant argued in good faith for a modification or reversal of

existing law, his MAR was not frivolous. Because defendant raised arguments not

yet addressed by North Carolina appellate courts that support a modification or

reversal of existing law, the trial court erred in finding his MAR to be frivolous and

without merit. Nevertheless, because “[t]he court must determine the motion without

an evidentiary hearing when the motion and supporting and opposing information

present only questions of law[,]” the trial court properly concluded defendant was not

entitled to an evidentiary hearing. N.C. Gen. Stat. § 15A-1420(c)(3).

      Defendant lastly contends that, in the alternative, the trial court erred in

denying his motion for discovery and renewed motion for discovery in contravention




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                                  Opinion of the Court



of N.C. Gen. Stat. § 15A-1415(f).        Because we hold defendant did not receive

ineffective assistance of counsel, we decline to address his argument.

                                  III.    Conclusion

      For the foregoing reasons, we affirm the order of the trial court.

      AFFIRMED.

      Judges BRYANT and DIETZ concur.




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