Opinion
No. 07-646.
Filed April 1, 2008.
Bertie County No. 06CRS50458.
Appeal by defendant from judgment entered 18 January 2007 by Judge J. Richard Parker in Bertie County Superior Court. Heard in the Court of Appeals 17 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General Scott T. Stroud, for the State. Haral E. Carlin for defendant-appellant.
Defendant Kathryn Odom Barlowe appeals from her convictions for felonious speeding to elude arrest and resisting a public officer. Her sole assignment of error on appeal is that she received ineffective assistance of counsel because her counsel failed to make a motion to dismiss for insufficiency of the evidence at the close of the State's evidence or at the close of all the evidence.
To demonstrate ineffective assistance of counsel, defendant must prove two elements:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by theSixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). Defendant does not make any specific argument regarding prejudice, but rather argues essentially that her trial counsel was ineffective per se.
North Carolina appellate courts have recognized that "in certain circumstances, the deficiency of the counsel's performance is so great that prejudice need not be argued." State v. Harrington, 171 N.C. App. 17, 32, 614 S.E.2d 337, 349, disc. review denied, 360 N.C. 70, 623 S.E.2d 35 (2005). For example, our Supreme Court has held that a defendant receives per se ineffective assistance of counsel when "the defendant's counsel admits the defendant's guilt to the jury without the defendant's consent." State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672, 106 S. Ct. 1992 (1986).
Defendant has, however, cited no authority for her position that trial counsel's failure to make a motion to dismiss constitutes deficient performance "so great that prejudice need not be argued." Harrington, 171 N.C. App. at 32, 614 S.E.2d at 349. Although in most trials, counsel does, as a matter of course, make a motion to dismiss, it may also be readily apparent, from the evidence, that the motion is an act of futility. Accordingly, in order to argue that a failure to move to dismiss constitutes ineffective assistance of counsel, a defendant must show that such a motion would have been granted. Here, defendant has made no attempt to argue that a motion to dismiss would have been allowed, and our review of the evidence indicates that any such motion would have properly been denied.
No error.
Judges TYSON and STEPHENS concur.
Report per Rule 30(e).