              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-398-2

                              Filed: 18 December 2018

Bertie County, No. 01 CRS 54023

STATE OF NORTH CAROLINA

             v.

TERRENCE LOWELL HYMAN


      Appeal by defendant from order entered 12 May 2015 by Judge Cy A. Grant,

Sr. in Bertie County Superior Court. Originally heard in the Court of Appeals 5

October 2016. By opinion issued 21 February 2017, a divided panel of this Court, ___

N.C. App. ___, 797 S.E.2d 308 (2017), reversed the superior court’s order denying

defendant’s motion for appropriate relief based upon a merits-review of the

exculpatory-witness component of his ineffective assistance of trial counsel claim and,

therefore, declined to consider his remaining challenges to the trial court’s denial of

the dual-representation-conflict components of his ineffective assistance of counsel

claims. By opinion issued 17 August 2018, our Supreme Court, ___ N.C. ___, 817

S.E.2d 157 (2018), affirmed in part and reversed in part, and remanded to this Court

with instructions to consider those remaining challenges.


      Attorney General Joshua H. Stein, by Assistant Attorney General Mary Carla
      Babb and Nicholaos G. Vlahos, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
      C. Woomer-Deters, for defendant.


      ELMORE, Judge.
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                                  Opinion of the Court



      Previously, a divided panel of this Court, ___ N.C. App. ___, 797 S.E.2d 308

(2017) (Hyman III), held that the exculpatory-witness component of defendants’

ineffective assistance of trial counsel claim was not procedurally barred from

appellate review and that “defendant is entitled to relief under Strickland on [that

component of his] claim” and, therefore, reversed the trial court’s order denying

defendant’s motion for appropriate relief (“MAR”). Id. at ___, 797 S.E.2d at 322. The

majority thus declined to “address [defendant’s] remaining arguments,” id., which

included his challenges to the trial court’s denial of his MAR as to the dual-

representation-conflict components of his ineffective assistance of counsel claims, id.

at ___, 797 S.E.2d at 316. The dissenting judge opined that the exculpatory-witness

claim had been procedurally defaulted by N.C. Gen. Stat. § 15A-1419(a)(3) but,

nonetheless, that because defendant failed to satisfy his burden of establishing any

claim to support granting his MAR, he would affirm the trial court’s order. Id. at ___,

797 S.E.2d at 323–24 (Dillon, J., dissenting).

      On 17 August 2018, our Supreme Court affirmed in part our decision in Hyman

III—that is, “defendant’s [exculpatory-witness] ineffective assistance of counsel claim

[was] not procedurally barred pursuant to N.C.G.S. § 15A-1419(a)(3)”—reversed in

part our decision—that is, “to overturn the trial court’s order denying defendant’s

[MAR]” based upon a merits-review of the exculpatory-witness component of his

ineffective assistance of trial counsel claim—and remanded “for consideration of



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remaining challenges to the trial court’s order denying defendant’s [MAR].” State v.

Hyman, ___ N.C. ___, ___, 817 S.E.2d 157, 173 (2018).

      Defendant’s remaining challenges, which were neither addressed by our Court

in Hyman III nor our Supreme Court in its later decision, concerned the trial court’s

denial of his MAR as to his claims he received (1) ineffective assistance of trial counsel

because his attorney had a dual-representation conflict arising from her prior

representation of one of the State’s primary witnesses against him, and (2) ineffective

assistance of counsel at the evidentiary remand hearing ordered to develop that claim

in State v. Hyman, 172 N.C. App. 173, 616 S.E.2d 28, 2005 WL 1804345 (2005)

(unpublished) (Hyman I). Specifically, defendant argued the trial court improperly

concluded he was procedurally barred from reasserting as grounds to support his

MAR the dual-representation-conflict component of his ineffective assistance of trial

counsel claim because his remand attorney himself had a dual-representation conflict

arising from his prior representation of a co-defendant also charged with the victim’s

murder. Additionally, defendant argued that, to the extent the dual-representation

remand counsel conflict claim had been procedurally barred under N.C. Gen. Stat. §

15A-1419(a)(3) by his failure to raise it on direct appeal in State v. Hyman, 182 N.C.

App. 529, 642 S.E.2d 548, 2007 WL 968753 (2007) (unpublished) (Hyman II), he

received ineffective assistance of appellate counsel.

                                    I. Background



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      The trial facts and procedural history of this case are discussed more fully in

our prior opinions, Hyman I, Hyman II, Hyman III, and in our Supreme Court’s

subsequent opinion, Hyman, ___ N.C. at ___–___, 817 S.E.2d at 157–67. We discuss

only that relevant to provide basic context and to adjudicate the remanded issues.

      In September 2003, a jury found defendant guilty of first-degree murder for

the 6 May 2001 shooting death of Ernest Bennett, and the trial court sentenced him

to life in prison without parole. Defendant appealed, arguing the trial court erred by

failing to conduct a hearing and inquire into a potential dual-representation trial

counsel conflict when it became apparent that his first-chair defense counsel, Teresa

Smallwood, “previously represented [one of the State’s primary witnesses, Derrick]

Speller in an unrelated case.” Hyman I, at *4. On 2 August 2005, we issued our

decision in Hyman I, in part remanding to the superior court for an evidentiary

hearing on the Smallwood dual-representation-conflict claim “to determine if the

actual conflict adversely affected [Smallwood’s] performance[.]” Id. at *6 (quoting

State v. James, 111 N.C. App. 785, 791, 433 S.E.2d 755, 759 (1993)).

      That remand hearing occurred on 3 October and 2 November 2005. The trial

court appointed A. Jackson Warmack to represent defendant.             Warmack had

previously represented Telly Swain, a co-defendant also charged with Bennett’s

murder. Warmack advised the trial court before the remand hearing that there might

be a potential conflict with his later representation of defendant, but Warmack



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explained that he had previously contacted the North Carolina State Bar and

determined no actual conflict would exist given the limited scope of the remand

hearing. After defendant confirmed to the trial court he did not object to Warmack’s

representation, Warmack proceeded as defendant’s counsel at the remand hearing.

      After the remand hearing, the trial court entered an order concluding

“Smallwood’s representation of defendant was not adversely affected by her prior

representation of Speller.”      Hyman II, at *2.          Defendant appealed, arguing

“Smallwood’s actual conflict of interest adversely affected her representation of him.”

Id. On 3 April 2007, this Court issued its decision in Hyman II, directly addressing

and rejecting the Smallwood dual-representation-conflict component of defendant’s

ineffective assistance of trial counsel claim, and holding that defendant “failed to

show the trial court erred when it found and concluded Smallwood’s representation

of him was not adversely affected by her previous representation of Speller.” Id. at

*6. The Hyman II panel thus affirmed the trial court’s remand order. Id.

      In July 2013, defendant filed an MAR in the superior court, asserting “his right

to effective, conflict-free trial counsel was violated” and, “[t]o the extent this claim is

in any way procedurally barred, . . . his right to effective, conflict-free counsel was

violated on remand and/or ineffective assistance of appellate counsel.” Relevant to

defendant’s remaining challenges presented on remand, he argued he received

ineffective assistance of (1) trial counsel based upon Smallwood’s dual-representation



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conflict “between her duties to her former client, the State’s witness [Speller], and

her duties to defendant”; (2) remand counsel based upon Warmack’s dual-

representation conflict “from having previously represented [co-defendant] Swain”;

and (3) appellate counsel to the extent his failure to raise Warmack’s dual-

representation conflict on appeal in Hyman II procedurally defaulted that claim. The

trial court granted defendant’s request for an evidentiary MAR hearing.

      After that evidentiary hearing, the trial court entered an order on 12 May 2015

denying defendant’s MAR. In its order, the trial court concluded defendant was

procedurally barred from (1) reasserting Smallwood’s dual-representation conflict as

grounds to support his MAR because this Court in Hyman II previously addressed

and rejected that claim, see N.C. Gen. Stat. § 15A-1419(a)(2); and (2) raising

Warmack’s dual-representation conflict because defendant failed to raise it on appeal

in Hyman II, see N.C. Gen. Stat. § 15A-1419(a)(3). Alternatively, the trial court

concluded (3) the Warmack dual-representation remand counsel conflict claim was

meritless because (a) defendant waived Warmack’s potential conflict at the remand

hearing; (b) defendant failed to establish Warmack had an actual conflict when

representing him at the remand hearing; and (c) even if an actual conflict existed,

defendant failed to establish it adversely affected Warmack’s representation of him

at the remand hearing. The trial court also concluded (4) to the extent defendant was

procedurally barred from raising Warmack’s dual-representation conflict because his



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appellate counsel did not raise it on appeal in Hyman II, he did not receive ineffective

assistance of appellate counsel because the underlying claim was meritless.

                         II. Issues Presented on Remand

      Defendant’s remaining challenges presented on remand concerned the

propriety of the trial court’s denial of his MAR as to the Smallwood dual-

representation-conflict component of his ineffective assistance of trial counsel claim.

He argued he was “not procedurally barred from asserting Smallwood’s dual

representation conflict” because “Warmack provided ineffective assistance of counsel

at the remand hearing.”        Specifically, defendant challenged the trial court’s

conclusions that (1) the Smallwood dual-representation trial counsel conflict claim

was rejected by this Court in Hyman II; (2) the findings in its 2005 remand order as

to the timing of Smallwood’s representations of Speller and defendant were binding

at the 2013 evidentiary MAR hearing; (3) defendant “properly waived Warmack’s

conflict” at the 2005 remand hearing; (4) “any claim regarding Warmack’s conflict is

procedurally barred because appellate counsel did not raise it in Hyman II”; (5)

“Warmack provided effective representation” at the 2005 remand hearing; and (6)

“[defendant] would not have suffered prejudice even if his appellate counsel had

argued Warmack’s conflict in Hyman II because the conflict claim is meritless.”

Because these challenges concern three related but independent ineffective

assistance of counsel claims, we reorganize our discussion accordingly.



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                                    III. Analysis

A. Review Standard

      “[A]ppellate courts review trial court orders deciding motions for appropriate

relief ‘to determine 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.’ ” Hyman, ___ N.C. at ___, 817 S.E.2d at

169 (other internal quotation marks omitted) (quoting State v. Frogge, 359 N.C. 228,

240, 607 S.E.2d 627, 634 (2005)). But where, as here, “no exceptions are taken to

findings of fact made in a ruling on a motion for appropriate relief, such findings are

presumed to be supported by competent evidence and are binding on appeal.” Id.

(brackets omitted) (quoting State v. Mbacke, 365 N.C. 403, 406, 721 S.E.2d 218, 220

(2012)). Legal conclusions “are fully reviewable.” Id. (citing State v. Bush, 307 N.C.

152, 168, 297 S.E.2d 563, 573 (1982)).

B. Smallwood Dual-Representation Trial Counsel Conflict Claim

      Defendant argues the trial court erred by concluding he was procedurally

barred from reasserting in his MAR the Smallwood dual-representation-conflict

component of his ineffective assistance of trial counsel claim. We disagree.

      An MAR is properly denied when “[t]he ground or issue underlying the motion

was previously determined on the merits upon an appeal from the judgment or upon

a previous motion or proceeding in the courts of this State[.] . . .” N.C. Gen. Stat. §



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15A-1419(a)(2) (2017). Because this Court on direct appeal in Hyman II addressed

the merits and rejected the Smallwood dual-representation-conflict claim, Hyman II,

at *5–6, the trial court properly concluded that component of defendant’s ineffective

assistance of trial counsel claim had been defaulted under N.C. Gen. Stat. § 15A-

1419(a)(2)’s procedural bar on successive postconviction relief challenges. We thus

overrule defendant’s first two challenges to the trial court’s conclusions.

C. Warmack Dual-Representation Remand Counsel Conflict Claim

      Nonetheless, defendant essentially argues any procedural default of the

Smallwood dual-representation-conflict claim should be excused because he received

ineffective assistance of counsel at the evidentiary remand hearing ordered on that

claim. He argues Warmack provided him ineffective assistance of remand counsel

because Warmack himself had a dual-representation conflict arising from having

previously represented co-defendant Swain. We disagree.

1. Procedural Bars

      As an initial matter, defendant argues the trial court erred by concluding the

Warmack dual-representation-conflict claim was barred under N.C. Gen. Stat. § 15A-

1419(a)(3) because he failed to raise it on appeal in Hyman II. To the extent we agree

this claim was procedurally barred on that basis, defendant argues he received

ineffective assistance of appellate counsel because his attorney failed to raise it on




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appeal in Hyman II. Defendant also argues the trial court erred by concluding he

waived Warmack’s potential conflict at the remand hearing.

      An MAR is properly denied if “[u]pon a previous appeal the defendant was in

a position to adequately raise the ground or issue underlying the present motion but

did not do so.” N.C. Gen. Stat. § 15A-1419(a)(3) (2017). This procedural bar “ ‘is not

a general rule that any claim not brought on direct appeal is forfeited on state

collateral review’ and requires the reviewing court, instead, ‘to determine whether

the particular claim at issue could have been brought on direct review.’ ” Hyman, ___

N.C. at ___, 817 S.E.2d at 170 (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d

500, 525 (2001)). Rather, “to be subject to the procedural default specified in N.C.G.S.

§ 15A-1419(a)(3), the direct appeal record must have contained sufficient information

to permit the reviewing court to make all the factual and legal determinations

necessary to allow a proper resolution of the claim in question.” Id.

      Here, although the direct appeal record in Hyman II contained the 2005

remand hearing transcript disclosing Warmack’s potential conflict, see West v. G. D.

Reddick, Inc., 302 N.C. 201, 202–03, 274 S.E.2d 221, 223 (1981) (“[A] court may take

judicial notice of its own records in another interrelated proceeding where the parties

are the same, the issues are the same and the interrelated case is referred to in the

case under consideration.” (citations omitted)), the only information on that potential

conflict was reflected in the following relevant exchange:



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                                  Opinion of the Court



                   THE COURT: . . . I discussed this matter with the
             prosecution . . . and we decided in the best interest of all
             that [defendant] have a new attorney appointed to
             represent him at this hearing and I decided to appoint Mr.
             Warmack . . . .
                   Do you have any objection to handling this case, Mr.
             Warmack?

                    MR. WARMACK: No, sir, Your Honor. I think for
             the record, after I received the phone call last week since I
             did have some other involvement in the case I contacted the
             State bar and determined there would be no conflict there.
             And then I talked to [defendant] this morning or just a few
             minutes ago and came in and explained the situation and
             told him that if he had any problems with it this would be
             the time.

                 THE COURT: Do you have any objection to Mr.
             Warmack representing you, [defendant]?

                   THE DEFENDANT: No.

                   THE COURT: All right, very well. I’m going to
             appoint Mr. Warmack to represent [defendant] at [the
             remand] hearing.

(Emphasis added.) No other information in the 2005 remand hearing transcript

explained the nature or extent of Warmack’s potential conflict, which was later

developed at the 2013 evidentiary MAR hearing.

      Thus, we conclude that “defendant was not in a position to adequately raise

[this] ineffective assistance of counsel claim asserted in his [MAR] on direct appeal”

in Hyman II. Hyman, ___ N.C. at ___, 817 S.E.2d at 170. Accordingly, the trial court

erred by concluding defendant was procedurally barred by N.C. Gen. Stat. § 15A-



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                                    Opinion of the Court



1419(a)(3) from raising Warmack’s dual-representation conflict as grounds to support

his MAR. Because counsel’s failure to raise this claim on appeal in Hyman II did not

operate as a procedural bar, we overrule defendant’s related claim that he received

ineffective assistance of appellate counsel on that basis. Additionally, because the

above exchange was insufficient to establish defendant knowingly, intelligently, and

voluntarily waived Warmack’s potential conflict at the remand hearing, we hold the

trial court erred by concluding otherwise. See, e.g., State v. Choudhry, 365 N.C. 215,

223, 717 S.E.2d 348, 354 (2011) (“[A] trial court may not rely solely on representations

of counsel to find that a defendant understands the nature of a conflict[.] . . .”).

      Accordingly, we agree with defendant’s third and fourth challenges to the trial

court’s conclusions that he either waived or was procedurally barred from raising

Warmack’s dual-representation conflict, which renders irrelevant defendant’s sixth

challenge to the conclusion as to his ineffective assistance of appellate counsel claim.

We turn now to the merits of defendant’s fifth challenge to the trial court’s

conclusions—that is, Warmack provided him effective assistance of counsel at the

remand hearing on the Smallwood dual-representation-conflict component of his

ineffective assistance of trial counsel claim.

2. Merits




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                                   Opinion of the Court



      Defendant argues the trial court erred by concluding Warmack provided him

effective assistance of counsel at the remand hearing because Warmack had a dual-

representation conflict arising from his prior representation of Swain. We disagree.

      “ ‘A defendant who seeks relief by motion for appropriate relief must show the

existence of the asserted grounds for relief,’ with ‘the moving party ha[ving] the

burden of proving by a preponderance of the evidence every fact essential to support

the motion[.]’ ” Hyman, ___ N.C. at ___, 817 S.E.2d at 172 (quoting N.C. Gen. Stat. §

15A-1420(c)(6) (2017), and then id. § 15A-1420(c)(5) (2017)). “When issues involving

successive or simultaneous representation of clients in related matters have arisen

before this Court, we have applied the Sullivan analysis rather than the Strickland

framework to resolve resulting claims of ineffective assistance of counsel.” State v.

Phillips, 365 N.C. 103, 120–21, 711 S.E.2d 122, 137 (2011) (citations omitted). To

obtain relief under Sullivan, “a defendant who raised no objection at trial must

demonstrate that an actual conflict of interest adversely affected his lawyer’s

performance.” State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996) (quoting

Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L.Ed.2d 333, 346–47

(1980); other citation omitted).

      Here, the trial court issued the following relevant findings and conclusions

concerning the Warmack dual-representation-conflict claim:

             2. Prior to the 2005 remand hearing, Defendant’s attorney,
             Mr. Warmack, informed the undersigned that he had made


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Defendant aware of a potential conflict of interest. Mr.
Warmack also informed the undersigned that given he had
some other involvement in the case, he had contacted the
North Carolina State Bar, and based upon his conversation
with the North Carolina State Bar, he determined there
would be no conflict. The undersigned asked Defendant
whether he had any objection to Mr. Warmack
representing him, and Defendant responded in the
negative.

3. . . . [O]n May 16, 2001, Mr. Warmack was appointed to
represent Telly Swain, who like Defendant was charged
with the first-degree murder of Bennett. . . . In Swain’s
case, Mr. Warmack filed . . . an Enmund-Tison motion. . . .
Mr. Warmack noted that he had information indicating
Swain was not the person who shot Bennett. . . . Mr.
Warmack argued in the Enmund-Tison motion that
Defendant, not Swain, shot Bennett.

4. . . . [I]n connection with the first-degree murder charge,
Swain pled guilty to felony riot and assault inflicting
serious bodily injury on June 2, 2003. Swain’s plea
agreement specified that he was to give truthful testimony
if called to testify against any of his codefendants. As such,
Swain’s judgment was continued until prayed for by the
State. Mr. Warmack testified at the MAR evidentiary
hearing that he encouraged Swain to give a statement to
law enforcement. Swain did so and, therein, identified
Defendant as the person who shot Bennett. However, Mr.
Warmack did not expect the State to call Swain as a
witness, given his criminal record.            Mr. Warmack
specifically testified that he thought the State calling
Swain was at best a “remote possibility” that would happen
only if the State’s case fell apart. Swain did not testify at
Defendant’s trial. The Superior Court, Bertie County,
entered judgment against Swain on October 6, 2003[.] . . .

5. At the MAR evidentiary hearing, Mr. Warmack testified
that on September 30, 2005, District Attorney Asbell asked
him if he would represent Defendant in a matter that had


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been remanded by the North Carolina Court of Appeals as
to an evidentiary issue concerning Ms. Smallwood’s
representation of Defendant. Mr. Warmack expressed
concern to District Attorney Asbell about representing
Defendant, given that he had previously represented one of
his codefendants, Swain. Mr. Warmack called the North
Carolina State Bar and explained to personnel at the Bar
that District Attorney Asbell wanted him to represent
Defendant at an evidentiary hearing for the purpose of
resolving the very specific issue for which the Court of
Appeals remanded the case. According to Mr. Warmack,
the North Carolina State Bar informed him that as long as
the remand hearing was limited to what he articulated the
issue to be, there did not appear to be a conflict.

6. Mr. Warmack testified at the MAR evidentiary hearing
that it was his understanding from the Court of Appeals’
opinion [in Hyman I] that there was no evidence in the
record regarding Ms. Smallwood’s prior representation of
Speller. Nor was there information as to whether or not
that     representation     affected   Ms.    Smallwood’s
representation of Defendant. As such, Mr. Warmack
believed that the scope of the remand hearing was limited
to a determination of whether an actual conflict of interest
adversely affected Ms. Smallwood’s representation of
Defendant. It was Mr. Warmack’s belief that if he was to
present evidence beyond what he understood the limited
scope of the remand hearing to be, including probing the
substance of Ms. Smallwood’s alleged conversation with
Speller, he would have had a conflict based upon his prior
representation of Swain.

....

9. Mr. Warmack testified that nothing about his
representation of Defendant at the remand hearing had
anything to do with Swain and that he would not have
conducted the remand hearing any differently if he had not
previously represented Swain.



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             ....

             6. . . . Defendant has not presented any evidence at the
             MAR evidentiary hearing to establish that Mr. Warmack
             was engaged in an actual conflict of interest when
             representing Defendant at the remand hearing which
             adversely affected Mr. Warmack’s representation. Any
             competing interests between Mr. Warmack’s former client,
             Swain, and his client at the remand hearing, Defendant,
             were minimal, given the limited scope of the remand
             hearing. Moreover, the conflict of interest was only a
             potential one, given that Swain was at best a potential
             witness at any retrial.       This is true, particularly
             considering Swain did not testify at Defendant’s original
             trial. Also, it is notable that Mr. Warmack was of the
             opinion that the State would not have called Swain at
             Defendant’s trial because of his criminal record.

             7. Even assuming an actual conflict existed, there was no
             adverse effect on counsel’s representation. Defendant
             presented no evidence that Mr. Warmack’s representation
             of Defendant was in any way influenced by his prior
             representation of Swain. Mr. Warmack’s understanding of
             the remand hearing was that it had a very limited scope.
             The attorney conformed his performance in consideration
             of that scope, not in consideration of the interests of his
             former client. In fact, Mr. Warmack testified at the MAR
             evidentiary hearing that he would not have conducted the
             remand hearing any differently if he had not previously
             represented Swain.

      We conclude the trial court’s unchallenged findings supported its conclusion

that defendant failed to establish he received ineffective assistance of remand counsel

arising from Warmack’s alleged dual-representation conflict. Particularly, the trial

court’s binding findings—that “Defendant presented no evidence that Mr. Warmack’s

representation of Defendant was in any way influenced by his prior representation of


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Swain” and that Warmack “conformed his performance in consideration of [his

understanding of the very limited] scope [of the remand hearing], not in consideration

of the interests of his former client[,]” Swain—supported its conclusion that, even if

Warmack had an actual dual-representation conflict, defendant failed to satisfy his

burden of establishing that conflict “adversely affected [Warmack’s] performance.”

Bruton, 344 N.C. at 391, 474 S.E.2d at 343 (quoting Sullivan, 446 U.S. at 348, 100 S.

Ct. at 1718, 64 L. Ed. 2d at 346–47). We therefore overrule defendant’s fifth challenge

to the trial court’s conclusions concerning the merits of the Warmack dual-

representation-conflict claim.     Accordingly, the trial court properly denied

defendant’s MAR on the asserted ground that Warmack provided him ineffective

assistance of counsel at the remand hearing on the Smallwood dual-representation-

conflict component of his ineffective assistance of trial counsel claim because

Warmack himself had a dual-representation conflict.

                                   IV. Conclusion

      Defendant’s remaining challenges to the trial court’s denial of his MAR, which

were remanded for our consideration, concerned only the dual-representation-conflict

components of his ineffective assistance of counsel claims. Because this Court on

direct appeal in Hyman II addressed the merits of and rejected the Smallwood dual-

representation-conflict component of defendant’s ineffective assistance of trial




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counsel claim, the trial court properly concluded defendant was procedurally barred

by N.C. Gen. Stat. § 15A-1419(a)(2) from reasserting that claim to support his MAR.

       Because the appellate record in Hyman II had not been sufficiently developed

for defendant to adequately raise the Warmack dual-representation remand counsel

conflict claim, the trial court improperly concluded defendant was procedurally

barred by N.C. Gen. Stat. § 15A-1419(a)(3) from raising that claim to support his

MAR.    Accordingly, we overrule defendant’s related argument that he received

ineffective assistance of appellate counsel based upon his attorney’s failure to raise

that claim on appeal in Hyman II. However, because the trial court’s unchallenged

findings supported its conclusion that defendant failed to satisfy his burden of

establishing Warmack’s prior representation of Swain adversely affected his

representation of defendant at the remand hearing, the trial court properly denied

defendant’s MAR on that basis.

       In summary, because the trial court properly concluded N.C. Gen. Stat. § 15A-

1419(a)(2)’s procedural bar defaulted the Smallwood dual-representation-conflict

component of defendant’s ineffective assistance of trial counsel claim, and its findings

supported its conclusion that defendant failed to establish he received ineffective

assistance of remand counsel based upon Warmack’s alleged dual-representation

conflict, the trial court properly denied defendant’s MAR as to the dual-

representation-conflict components of his ineffective assistance of counsel claims.



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Therefore, after our “consideration of defendant’s remaining challenges to the trial

court’s order denying his [MAR],” Hyman, ___ N.C. at ___, 817 S.E.2d at 159, we

affirm the trial court’s order.

      AFFIRMED.

      Judges HUNTER, JR. and DILLON concur.




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