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125 N.C. App. 695

482 S.E.2d 14

State v. Ware

Court of Appeals of North Carolina

Decided March 18, 1997

Court of Appeals of North Carolina · decided 1997-03-18

Cited by 9 later decisions — most recently June 2017

3 federal appellate · 4 state decisions

Key passage — most relied on by later courts

“[t]o properly advance these arguments, defendant must move for appropriate relief pursuant to G.S. 15A-1415”

quoted by 1 later decision, including 254 N.C. App. 202 - State v. Perry

“be accompanied by affidavits or other documentary evidence necessary to support defendant's contention”

quoted by 1 later decision, including Richmond v. Polk

Relies on Arizona v. Hicks · State v. Harbison · State v. McLaughlin

Good law ✅— No negative treatment on recordhow we know

Decided 1997-03-18

View the full empirical analysis of this case →

*697 EAGLES, Judge.

¶1 The sole issue raised by defendant here on appeal is whether he was afforded effective assistance of counsel at trial. Defendant argues that he was not afforded effective assistance of counsel because his counsel conceded, contrary to defendant’s own trial testimony, that defendant must be guilty of two lesser included charges. The following statements by defense counsel form the primary basis of defendant’s objection:

These sexual acts were happening between them, and when he was restraining her — I’ll admit it, she was restrained against her will.... She certainly did not consent....

¶2 We recognize that “ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which defendant’s counsel admits the defendant’s guilt without the defendant’s consent.” State v. Harbison, 316 N.C. 176, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986). We cannot address defendant’s assignments of error here, however, because we cannot determine from the record on appeal that these statements by defense counsel were made without defendant’s consent. To properly advance these arguments, defendant must move for appropriate relief pursuant to G.S. 15A-1415 (1981 & Supp. 1995) and G.S. 15A-1420 (1977 & Supp. 1995). This motion must be accompanied by affidavits or other documentary evidence necessary to support defendant’s contention that defense counsel’s arguments were made without his consent. G.S. 15A-1420(b)(l). Upon the filing of a motion for appropriate relief, the trial court will determine the motion and make appropriate findings of fact.

¶3 Dismissed.

Judges GREENE and MARTIN, John C., concur.
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