State v. Collington

259 N.C.App. 127

814 S.E.2d 874

STATE of North Carolina

v.Jeffrey Tryon COLLINGTON, Defendant.

No. COA17-726

Court of Appeals of North Carolina.

Filed: April 17, 2018

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

North Carolina Prisoner Legal Services, Inc., by Christopher J. Heaney, for defendant-appellee.

ZACHARY, Judge.

The State appeals from the trial court's order granting defendant Jeffrey Tryon Collington's Motion for Appropriate Relief for ineffective assistance of counsel. For the reasons explained herein, we affirm.

Background

The present appeal arises from defendant's initial appeal to this Court (" Collington I ") in which we issued an opinion dismissing defendant's challenge to his conviction of possession of a firearm by a felon. As explained in Collington I , the underlying facts of the case are as follows:

... Christopher Hoskins ("Mr. Hoskins") testified for the State at trial as follows: Mr. Hoskins went to the recording studio ("the studio") of Dade Sapp ("Mr. Sapp") to "hang out" on the evening of 1 October 2012. Shortly after he arrived, two men—identified by Mr. Hoskins as Defendant and Clarence Featherstone [ ("Defendant's brother") ]—entered the studio, passed by Mr. Sapp, and demanded to speak with someone named "Tony." Defendant asked Mr. Hoskins if he was "Tony" and pointed a gun ("the gun") at Mr. H[o]skins when he said he was not "Tony." A struggle for the gun ensued. According to Mr. Hoskins, both Defendant and [Defendant's brother] beat him up, went through his pockets, removed approximately $900.00 in cash that Mr. Hoskins had won in video poker earlier in the day, and then left the studio. At trial, Mr. Hoskins also identified the gun that reportedly was wielded by Defendant as belonging to Mr. Sapp.

Defendant testified that he and [his brother] did go to the studio on the evening of 1 October 2012. However, Defendant maintained that they went to the studio for [Defendant's brother] to purchase a large quantity of oxycodone from Mr. Hoskins. According to Defendant,

Sapp set up the drug deal by calling Mr. Hoskins on the cellphone and asking him to come to the studio. Hoskins said ... he would be there in about three minutes.

When Mr. Hoskins came into the studio he was wearing a hoody. You could not see his face. He walked straight back past us and made a left in the side booth which was a soundproof booth used for a studio, and Sapp walked in behind him.

During that time Mr. Hoskins had gave Mr. Sapp the pills to come give [my brother]. When Mr. Sapp gave [my brother] the pills, [my brother] started whispering to him that the money was short. Mr. Sapp said, "Don't worry about it, he can't count anyways." Mr. Sapp went and gave Mr. Hoskins his money.

And at that time I believe Mr. Sapp actually told Mr. Hoskins that we had shorted him. Mr. Hoskins came out of the side booth demanding the rest of his money. When he started demanding the rest of his money, he got in between me and [my brother]. And at that point in time he started pointing his fingers in my face, and I hit him with a closed fist. And we started fighting. When we started fighting, [my brother] jumped into the fight and we started beating ... Mr. Hoskins until Mr. Sapp ran out of the building, because Mr. Hoskins had told him to go get a gun.

Defendant testified he never had possession of a gun, let alone Mr. Sapp's gun, during the altercation.

Defendant also testified that he and [his brother] met Mr. Sapp in a McDonald's parking lot later in the evening of 1 October 2012, where [Defendant's brother] gave Mr. Sapp a "cut" of the oxycodone pills acquired from Mr. Hoskins. Defendant further testified that Mr. Sapp also gave the gun to [Defendant's brother] and asked him to hold onto it because Mr. Sapp "was scared due to the fact" that, during an investigation into the incident at the studio that evening, "he had gave the detectives and Mr. Hoskins a story about how he couldn't locate his gun." Defendant testified he did not know what [his brother] did with the gun afterwards.

Defendant was indicted for conspiracy to commit robbery with a dangerous weapon, robbery with a dangerous weapon, possession of a firearm by a felon, and being an habitual felon. Defendant's indictment for possession of a firearm by a felon stated only that, on the evening of 1 October 2012, Defendant "did have in his control a black handgun, which is a firearm" and that Defendant "has previously been convicted of a felony." However, at trial, and without objection by Defendant, the trial court instructed the jury, in part, as follows:

For a person to be guilty of a crime it is not necessary that he personally do all of the acts necessary to constitute the crime. If two or more persons join in a common purpose to commit the crime of robbery with a dangerous weapon and/or possession of a firearm by a felon , each of them, if actually or constructively present, is not only guilty of that crime if the other person commits the crime but also guilty of any other crime committed by the other in pursuance of the common purpose to commit robbery with a dangerous weapon and/or possession of a firearm by a felon , or as a natural or probable consequence thereof.

If you find from the evidence beyond a reasonable doubt that on or about the alleged date Defendant acting either by himself or acting together with [Defendant's brother] with a common purpose to commit the crime of robbery with a dangerous weapon and/or possession of a firearm by a felon , each of them if actually or constructively present, is guilty of robbery with a dangerous weapon and/or possession of a firearm by felon .

(emphasis added).

State v. Collington , 242 N.C.App. 252, 2015 WL 4081786 *2, 2015 N.C. App. LEXIS 534 *1–7, disc. review denied , 368 N.C. 357, 776 S.E.2d 855 (2015) (alterations omitted).

The jury found defendant not guilty of conspiracy or robbery with a dangerous weapon, but did find him guilty of possession of a firearm by a felon. However, the verdict sheet did not indicate whether the jury convicted defendant of possession of a firearm by a felon under the theory of actual possession of the firearm by defendant or under the theory of acting in concert with his brother to possess the firearm.

Defendant appealed his conviction of possession of a firearm by a felon to this Court, arguing "that the trial court committed plain error by providing the jury with an instruction on acting in concert with respect to the charge of possession of a firearm by a felon." Id. at *3, 2015 N.C. App. LEXIS 534 at *7. Defendant specifically argued "that this instruction impermissibly allowed the jury to convict Defendant of possession of a firearm by a felon based on [his brother]—also a convicted felon—reportedly receiving the gun from Mr. Sapp in a McDonald's parking lot on the evening of 1 October 2012." Id.

In Collington I , this Court held that, "even assuming arguendo that the trial court erred by instructing the jury on an acting in concert theory[,]" "Defendant has not established plain error[.]" Id. at *3, 2015 N.C. App. LEXIS 534 at *8. Based on the victim's testimony at trial and the fact that "both Defendant and [the victim] testified that they engaged in a physical altercation[,]" "[t]he jury reasonably could have believed that Defendant was in possession of Mr. Sapp's gun at that time." Id. at *4, 2015 N.C. App. LEXIS 534 at *9. This Court continued:

Finally, Defendant has not presented this Court with any arguments under State v. Pakulski , 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987), which held that a trial court commits plain error when it instructs a jury on disjunctive theories of a crime, where one of the theories is improper, and "we cannot discern from the record the theory upon which the jury relied." "It is not the role of the appellate courts to create an appeal for an appellant." Viar v. N.C. Dep't of Transp. , 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). Therefore, Defendant has not met his "burden" of establishing that the trial court committed plain error in the present case. See [ State v. ] Lawrence , 365 N.C. [506,] 516, 723 S.E.2d [326,] 333 [ (2012) ].

Id. at *4, 2015 N.C. App. LEXIS 534 at *9–10 (alterations omitted).

Defendant filed a Motion for Appropriate Relief in the Transylvania County Superior Court, seeking a new trial on the grounds that he received ineffective assistance of appellate counsel in that "appellate counsel failed to raise the argument on appeal that plain error was committed because the trial court instructed the jury on disjunctive theories of a crime, one of which was improper, and the record does not show upon which theory the jury relied."

The Honorable Mark E. Powell denied defendant's Motion for Appropriate Relief. Judge Powell reasoned:

Taking into consideration that the Court of Appeals found that no plain error was established in the trial of the Defendant, even assuming that an acting in concert instruction was improper, the undersigned judge finds that no actual prejudice has been shown by the failure of the Defendant's appellate counsel to argue Pakulski , and that failure now to consider said argument will not result in a fundamental miscarriage of justice.

Defendant petitioned for issuance of a writ of certiorari in this Court seeking review of the trial court's denial of his Motion for Appropriate Relief. On 29 December 2016, this Court granted defendant's petition for writ of certiorari and entered the following order:

It appearing that the trial court utilized the incorrect legal standard in assessing defendant's ineffective assistance of appellate counsel claim, see State v. Simpson , 176 N.C. App. 719, 627 S.E.2d 271 (2006), and it further appearing that this Court's decision in [Collington I ] did not hold that defendant's claim of plain error was meritless irrespective of whether his appellate counsel raised any arguments under [ Pakulski ], the order of Judge [Powell]

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