                IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 18A14-2

                                   Filed 9 June 2017

 STATE OF NORTH CAROLINA

              v.
 PARIS JUJUAN TODD



      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, ___ N.C. App. ___, 790 S.E.2d 349 (2016), reversing an order

denying defendant’s motion for appropriate relief entered on 15 January 2015 by

Judge Donald W. Stephens in Superior Court, Wake County, and remanding the case

for entry of an order granting defendant’s motion for appropriate relief and vacating

his prior conviction. Heard in the Supreme Court on 12 April 2017.

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

      N.C. Prisoner Legal Services, Inc., by Reid Cater, for defendant-appellee.


      BEASLEY, Justice.


      In this appeal we consider whether this Court has jurisdiction to decide an

appeal taken from a divided decision of the Court of Appeals pursuant to N.C.G.S. §

7A-30(2) arising from a trial court’s ruling granting or denying a motion for

appropriate relief (MAR) and whether the Court of Appeals erred by reversing the

trial court’s decision that defendant received effective assistance of appellate counsel.
                                    STATE V. TODD

                                   Opinion of the Court



The Court of Appeals concluded that the State presented insufficient evidence to show

that defendant committed the underlying offense and further concluded that, if

defendant’s appellate counsel had raised the sufficiency of the evidence issue in the

previous appeal, defendant’s conviction would have been reversed. We hold that this

Court has jurisdiction to hear this matter and conclude that the record should be

further developed before a reviewing court can adequately address the ineffective

assistance of counsel claim. Accordingly, we reverse and remand the decision of the

Court of Appeals.


      On 2 April 2012, Paris Jujuan Todd (defendant) was indicted for robbery with

a dangerous weapon and conspiracy to commit the same offense.             After a trial

beginning on 12 June 2012, defendant was convicted of robbery with a dangerous

weapon. Defendant appealed that conviction to the Court of Appeals, arguing that

the trial court erred by denying his motion to continue and that he received ineffective

assistance of trial counsel. See State v. Todd, 229 N.C. App. 197, 749 S.E.2d 113 2013

WL 4460143 (2013) (unpublished) (Todd I). The Court of Appeals disagreed with

defendant and held that the trial court did not err in denying defendant’s motion to

continue and that defendant did not receive ineffective assistance of trial counsel.

Todd, 2013 WL 4460143, at *5.


      On 21 October 2014, defendant filed a motion for appropriate relief (MAR) in

the trial court, arguing that the evidence was insufficient to support his conviction


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                                   Opinion of the Court



and that his appellate counsel was ineffective for failing to raise this claim on appeal.

On 15 January 2015, the trial court, without conducting an evidentiary hearing on

defendant’s ineffective assistance of counsel claim, entered an order denying

defendant’s MAR. The trial court found that “[a] review of all the matters of record,

including the opinion of the North Carolina Court of Appeals . . . clearly demonstrates

that the evidence was sufficient to support the jury verdict and appellate counsel

rendered effective assistance to Defendant in his appeal.” Defendant filed a petition

for writ of certiorari to the Court of Appeals seeking review of the trial court’s order

denying his MAR, which the Court of Appeals allowed on 27 March 2015.


      Defendant argued to the Court of Appeals that in the first appeal his appellate

counsel performed below an objective standard of reasonableness by failing to argue

that the evidence was insufficient to support defendant’s conviction. A divided panel

of the Court of Appeals held that defendant received ineffective assistance of

appellate counsel in his first appeal and concluded that defendant likely would have

been successful had his counsel raised the sufficiency of the evidence issue in his first

appeal. State v. Todd, ___ N.C. App. ___, ___, 790 S.E.2d 349, 364 (2016) (Todd II).

More specifically, after concluding that, “the State presented insufficient evidence

that defendant committed the underlying offense,” the majority held that the trial

court erred in denying defendant’s MAR. Id. at ___, 790 S.E.2d at 364. Accordingly,

the Court of Appeals reversed the trial court’s order and remanded the case to the



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                                      STATE V. TODD

                                     Opinion of the Court



trial court with instructions to grant defendant’s MAR and vacate his conviction. Id.

at ___, 790 S.E.2d at 364.


       Nonetheless, according to the dissent, defendant failed to show that appellate

counsel’s performance was deficient.         Id. at ___, 790 S.E.2d at 365 (Tyson, J.,

dissenting).   The dissent noted that “[e]ffective appellate advocates winnow out

weaker arguments and focus on those more likely to prevail on appeal.” Id. at ___,

790 S.E.2d at 367 (citing Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312

(1983)). Because “[t]his accepted discretionary process lies within the professional

judgment of appellate counsel,” id. at ___, 790 S.E.2d at 367, the dissent concluded

that defendant could not show that his appellate counsel was deficient in not raising

a sufficiency of the evidence argument in the first appeal, id. at ___, 790 S.E.2d at

368. The State gave timely notice of appeal based upon the dissenting opinion.1


       As a threshold matter, we must consider whether this Court has jurisdiction

to decide this appeal. Generally N.C.G.S § 7A-30(2) provides an automatic right of

appeal to this Court based on a dissent at the Court of Appeals. N.C.G.S. § 7A-30(2)

(2015). But, that automatic right of appeal is limited by N.C.G.S. § 7A-28, which



       1 Additionally, on 9 December 2016, we ordered the parties to brief and argue (1)
whether the Court of Appeals erred in reversing and remanding the trial court’s judgment,
and (2) whether this Court has jurisdiction to hear and decide an appeal taken from a decision
of the Court of Appeals that arose from a trial court ruling granting or denying a motion for
appropriate relief pursuant to N.C.G.S. § 7A-30(2), in light of the provisions of N.C.G.S. §§
7A-28(a) and 15A-1422(f).

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                                   Opinion of the Court



states that “[d]ecisions of the Court of Appeals upon review of motions for appropriate

relief listed in G.S. 15A-1415(b) are final and not subject to further review in the

Supreme Court by appeal, motion, certification, writ, or otherwise.” Id., § 7A-28(a)

(2015). We acknowledge that the plain language of N.C.G.S. § 7A-28 precludes this

Court’s review of a case in which there is a dissent in the Court of Appeals when the

case involves review of a motion for appropriate relief; however, we maintain the

authority granted to us by the state constitution and recognize that “it is beyond

question that a statute cannot restrict this Court’s constitutional authority under

Article IV, Section 12, Clause 1 of the Constitution of North Carolina to exercise

‘jurisdiction to review upon appeal any decision of the courts below.’ ” State v. Ellis,

361 N.C. 200, 205, 639 S.E.2d 425, 428 (2007) (quoting N.C. Const. art. IV, § 12).

“This Court will not hesitate to exercise its rarely used general supervisory authority

when necessary to promote the expeditious administration of justice.”          State v.

Stanley, 288 N.C. 19, 26, 215 S.E.2d 589, 594 (1975) (citations omitted). Thus, we

exercise the supervisory authority granted by Article IV, Section 12 of the North

Carolina Constitution to decide this matter.


      Having determined that we have jurisdiction to hear this matter, we next

consider whether defendant received ineffective assistance of appellate counsel.

Before this Court, the State argues that defendant’s appellate counsel apparently

made a strategic decision not to challenge the sufficiency of the evidence. Because the

lower courts did not determine whether there was a strategic reason for defendant’s

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                                    Opinion of the Court



appellate counsel to refrain from addressing the sufficiency of the evidence

supporting defendant’s conviction, we reverse and remand the decision of the Court

of Appeals.


      A defendant’s right to counsel, as guaranteed by the Sixth Amendment to the

United States Constitution, includes the right to effective assistance of counsel. State

v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247-48 (1985) (citing McMann v.

Richardson, 397 U.S. 759, 771 & n.14, 90 S. Ct. 1441, 1449 & n. 14 (1970)). When

challenging a conviction on the basis that counsel was ineffective, a defendant must

show that counsel’s conduct “fell below an objective standard of reasonableness.”

Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984); see also

Braswell, 312 N.C. at 561-62, 324 S.E.2d at 248. In Strickland the United States

Supreme Court set forth a two-pronged test for determining whether a defendant has

received ineffective assistance of counsel.       466 U.S. at 687, 104 S. Ct. at 2064.

Strickland requires that a defendant first establish that counsel’s performance was

deficient. Id. at 687, 104 S. Ct. at 2064. This first prong requires a showing that

“counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S. Ct. at 2064.

Second, a defendant must demonstrate that the deficient performance prejudiced the

defense, which requires a showing that “counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S. Ct. at



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                                   Opinion of the Court



2064. Thus, both deficient performance and prejudice are required for a successful

ineffective assistance of counsel claim.


      In this case defendant’s claim stems from appellate counsel’s decision not to

argue in his first appeal that the evidence was insufficient to support defendant’s

conviction.   Defendant contends that he would have won his appeal had this

dispositive issue been raised. Conversely, the State argues that defendant’s appellate

counsel “apparently made a strategic decision not to challenge the sufficiency of the

evidence.”


      Rather than articulating specific guidelines for appropriate attorney conduct,

the Court in Strickland emphasized that “[t]he proper measure of attorney

performance remains simply reasonableness under prevailing professional norms.”

Id. at 688, 104 S. Ct. at 2065. Strickland notes that “strategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments support

the limitations on investigation.” Id. at 690-91, 104 S. Ct. at 2066. Simply put,

“counsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.” Id. at 691, 104 S. Ct. at

2066. In considering the merits of any claim for ineffective assistance of counsel, “a

particular decision not to investigate must be directly assessed for reasonableness in


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                                   Opinion of the Court



all the circumstances, applying a heavy measure of deference to counsel’s judgments.”

Id. at 691, 104 S. Ct. at 2066.


      As to the first prong of the Strickland test, the Court of Appeals acknowledged

the State’s argument that defendant’s prior appellate counsel “apparently made a

strategic decision” not to challenge the sufficiency of the evidence. Todd II, ___ N.C.

App. at ___, 790 S.E.2d at 364 (majority opinion). But the Court of Appeals majority

opinion noted that the State failed to explain how the failure to challenge the

sufficiency of the evidence in the first appeal could be a strategic decision. Id. at ___,

790 S.E.2d at 364. Neither of our lower courts, however, addressed whether there

was an actual strategic reason for defendant’s appellate counsel not to address the

sufficiency of the evidence issue, and if so, whether the strategic decision was

reasonable. Specifically, the trial court did not address whether this was a strategic

decision because that court summarily denied defendant’s MAR without a hearing.

Additionally, the Court of Appeals did not fully address this issue. While “winnowing

out weaker arguments on appeal and focusing on one central issue” is an important

aspect of appellate advocacy, Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3313

(1983), the determination of whether a defendant’s appellate counsel made a

particular strategic decision remains a question of fact, and is not something which

can be hypothesized, see Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir.),

reh’g en banc denied, 162 F.3d 100 (11th Cir. 1998). Thus, the record before this Court



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                                    STATE V. TODD

                                  Opinion of the Court



is   not   thoroughly   developed    regarding      defendant’s   appellate   counsel’s

reasonableness, or lack thereof, in choosing not to argue sufficiency of the evidence.


      We therefore hold that the record before us is insufficient to determine whether

defendant received ineffective assistance of counsel. On remand the Court of Appeals

should further remand this matter to the trial court with instructions to fully address

whether appellate counsel made a strategic decision not to raise a sufficiency of the

evidence argument, and, if such a decision was strategic, to determine whether that

decision was a reasonable decision. Further, if the trial court finds that defendant’s

appellate counsel’s performance was deficient, that court should then determine

whether counsel’s performance prejudiced defendant.


      For the reasons stated herein, the decision of the Court of Appeals is reversed,

and that court is instructed to remand this matter to the trial court for further

proceedings not inconsistent with this opinion.


      REVERSED AND REMANDED




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