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NO. COA 03-682                               TENTH DISTRICT
              NORTH CAROLINA COURT OF APPEALS
           *************************************

STATE OF NORTH CAROLINA        )
                               )
V.                             )              From Wake
                               )         99CrS5323-25; 63111
CHARLES D. BECTON              )
           **************************************
                 DEFENDANT/APPELLANT’S BRIEF
           **************************************
                     QUESTIONS PRESENTED


     I. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR
APPROPRIATE RELIEF, THEREBY ALLOWING THE DEFENDANT TO
RECEIVE MULTIPLE PUNISHMENTS FOR ONE CRIME, CONTRARY TO THE
STATE AND FEDERAL CONSTITUTIONS.

     II. THE TRIAL COURT ERRED IN FAILING TO HOLD AN
EVIDENTIARY HEARING ON THE MOTION FOR APPROPRIATE RELIEF.

     III. THE ORDER DENYING THE MOTION FOR APPROPRIATE
RELIEF IS NOT SUPPORTED BY THE EVIDENCE, THE FINDINGS OF
FACTS OR THE CONCLUSIONS OF LAW.


     IV. THE DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHT TO EFFECTIVE REPRESENTATION OF COUNSEL.
                                2



                  STATEMENT OF JURISDICTION

    This matter is reviewed pursuant to the March 21, 2003

order of this Court wherein counsel was instructed to

prepare a proposed record on appeal and pursue the matter

accordingly.   A copy of the Order is attached hereto.

                    STATEMENT OF THE CASE

    The Petitioner was indicted on February 8, 1999 on a

charge of armed robbery of the sum of $7,411.00 from the

“presence, person, and place of business of Fran Donavant,

Linda Bennett, and the Carolina Telco Federal Credit Union.

On July 17, 1999, a superseding indictment charged the

defendant with the armed robbery of $3,696.00, the property

of Carolinas Telco Federal Credit Union, from the person

and presence of Fran Donavant.      A second indictment charged

him with the armed robbery of #,714.00, the property of

Carolinas Telco Federal Credit Union, from the person and

presence of Linda Bennett.     He was   convicted on September

15, 1999 of two counts of armed robbery, possession of a

firearm by a felon and speeding to elude arrest.     He

received two consecutive sentences of imprisonment of 117

to 150 months, and 20 to 24 months, and a concurrent

sentence of 11 to 14 months.
                              3

    The convictions were upheld on appeal by this Court on

June 4, 2002.   Discretionary review was denied by the

Supreme Court of North Carolina on August 15, 2002. On June

24, 2002, the pro se Petitioner filed a Motion for

Appropriate Relief in Wake County Superior Court.    The

Motion was denied, without a hearing, on July 19, 2002 by

the Superior Court of Wake County. On August 21, 2002, the

pro se Petitioner filed a Petition for Writ of Certiorari

in this Court, alleging that the July 19, 2002 order of

Judge Stephens was in error and asking this Court to review

the same.   The State filed a response on September 12,

2002.

    On September 17, 2002, this Court allowed review of

the July 19, 2002 order of Judge Stephens and remanded the

matter to the Wake County Superior Court for a

determination of indigency and appointment of counsel.     The

undersigned was subsequently appointed.
                                                     4

                                  STATEMENT OF THE FACTS

         The evidence at trial was that a masked man with a

silver handgun robbed the Carolinas Telco Federal Credit

Union in Raleigh, North Carolina, taking approximately
                   1
$6,800.00.              Two employees, Fran Donovant and Linda Bennett

were working at the credit union at that time.                                        As the

robber climbed over the counter during the robbery, the

handgun discharged, hitting Ms. Donovant.                                    Another employee

in the same building saw the robber run from the building

and enter a white Chevrolet Blazer.                               Police subsequently

spotted the Petitioner in a white Chevrolet Blazer and a

high-speed chase ensued.                       The Petitioner jumped from the

vehicle, clutching a bag.                       He was stopped by the police and

said, several times, “I didn’t mean to shoot the lady.”

The bag contained the money stolen from the credit union.

The Petitioner was returned to the bank where he was

identified by Donovant and Bennett as the robber.

         The defendant was convicted as indicated previously.

On direct appeal, this Court addressed the following

issues:




1
  The facts are taken from the June 4, 2002 opinion of this Court. The trial transcripts have previously
been filed with this Court in conjunction with the direct appeal.
                              5

    (1) Was it error to refuse to allow the defendant to

represent himself pro se, as was his statutory and

constitutional right;

    (2) Was it error to recommend that the defendant pay

restitution to the alleged victims before his release from

prison; and

    (3) Was it error to fail to find that the defendant

 was denied the effective assistance of counsel.

    This Court found no error in the trial and conviction

 of the defendant.   Following the decision of this Court on

 direct appeal, the defendant filed a pro se Petition for

 Discretionary Review, which was denied, as indicated.

 Subsequently, the defendant filed a Motion for Appropriate

 Relief (hereinafter MAR) and alleged that his armed

 robbery convictions violated the double jeopardy clause of

 the State and Federal Constitutions and evidenced

 vindictive prosecution. He further alleged ineffective

 assistance of trial and appellate counsel in failing to

 raise these issues at trial and on appeal.(Rpp.22-30).

    The MAR was denied on July 19, 2002 by the Superior

Court of Wake County. The Honorable Donald W. Stephens,

Senior Resident Superior Court Judge, denied the Motion for

Appropriate Relief, without an evidentiary hearing.    The

Order states, in pertinent part “[t]he indictments of
                              6

record show that the defendant was convicted of armed

robbery of two separate victims named in two separate bills

of indictment.   As such these were separate crimes for

which defendant could and did receive separate convictions

and sentences.” (Rp.35).



    I.   THE TRIAL COURT ERRED IN DENYING THE MOTION FOR

APPROPRIATE RELIEF, THEREBY ALLOWING THE DEFENDANT TO

RECEIVE MULTIPLE PUNISHMENTS FOR ONE CRIME, CONTRARY TO THE

STATE AND FEDERAL CONSTITUTIONS.

    Assignment of Error Number 6, Record page 68

    Assignment of Error Number 7, Record page 68

    The defendant submits that he was improperly punished

multiple times for one crime; the armed robbery of the

money belonging to the Credit Union. The trial court

erroneously ruled that because the property was taken from

the presence of more than one person, more than one robbery

occurred.

    The property in question belonged to the credit union.

There is no evidence that any property belonging to

Donovant or Bennett was taken by the robber.    The law of

this State is clear: if property is taken from an owner, it

does not matter how many employees are present at the time,

only one robbery has occurred.     The prosecutor cannot bend
                              7

the law by cranking out multiple indictments for

presentation to the grand jury.

    The double jeopardy clause protects one from being

subjected to the trial and possible conviction more than

once for an alleged offense. Missouri v. Hunter, 459 U.S.

359, 365, 103 S.Ct. 673, 678, 74 L.Ed.2d 535, 542(1983).

The double jeopardy clause, of both the Fifth Amendment to

the United States Constitution and Article I, Section 19 of

the North Carolina Constitution, consists of several

protections: it protects against a second prosecution for

the same offense after acquittal, a second prosecution for

the same offense after conviction, and protects against

multiple punishments for the same offense. North Carolina

v. Pearce, 395 U.S. 711, 717, 23 L.Ed.2d 656, 89 S.Ct.

2072(1969); State v. Gardner, 315 N.C. 444, 340 S.E.2d 701

(1986).

    N.C.G.S.14-87 makes it a crime to take, or attempt to

take, by threat or force the personal property of another.

State v. Rogers, 273 N.C.208, 159 S.E.2d 525, 527(1968).

When there are two or more victims of a violation of

G.S.14-87, a distinction is drawn based on ownership of the

stolen money.   If two or more victims are each robbed of

his own property, there are multiple offenses. For example,

in State v. Gibbs, 29 N.C.App. 647, 225 S.E.2d 837 (1976),
                               8

Gibbs took, at knife point, a purse from one store clerk

and the night’s proceeds from another.   This Court found

there were two separate armed robberies. Accord, State v.

Lewis, 28 N.C.App. 212, 220 S.E.2d 408(1975).

    The distinction based on property ownership is the

basis for the decision in State v. Potter, 285 N.C. 238,

204 S.E.2d 649 (1974).   In Potter, the defendant went into

the convenience store where Hall and Harrell worked, and

were present.    Potter pulled a gun on the men and demanded

all the money.   Hall got the money from register one and

Harrell got the money from register two.   Potter first took

the money from Hall and then walked over to register two

and got the money from Harrell.    The money from both

registers totaled approximately $265.00.   The indictment in

Potter was that the defendant took $265.00 from the

presence, person, place of business, and residence of Mike

Hall.   A separate indictment charged Potter with the armed

robbery of Harrell in which $265.00 was taken from his

presence, person, place of business and residence.    The

evidence at trial indicated that all of the money taken

from Hall and Harrell belonged to their employer, the Food

Market.   The case in both registers belonged to their

employer.   Our State Supreme Court held that there was, in

effect, only one robbery.   The case was remanded to the
                              9

Superior Court and the two robbery judgments were to be

considered as though there was only one robbery, and the

sentence was to be adjusted accordingly.

    The State, in its response to the Petitioner’s

previous Petition for Writ of Certiorari, seized on the

following sentence in the Potter decision: “We express no

opinion as to factual situations in which, in addition to

robbery, an employee is physically injured or killed, or to

factual situations in which, in addition to the theft of

the employer’s money or property, the robber takes money or

property of an employee or customer.”    The State spun this

sentence into a new way to sidestep the double jeopardy

clause, indicating that if an employee was hurt, as was

Donovant, the injury would transform the single robbery

into two robberies, regardless of the ownership of the

property.

    The defendant submits that if an employee is hurt

during a robbery, and there are multiple employees but only

one source of money, then Potter seems to indicate that in

addition to robbery, the accused could also be charged with

the injury of the employee.   In this case the State did

just that and the jury acquitted him of that charge.

    There are other jurisdictions that allow multiple

convictions under factual situations similar to the one at
                               10

bar.    In those jurisdictions, the armed robbery crime is

classified as an assault against the person and the “unit

of prosecution” is the person assaulted.    The courts in

those jurisdictions reached the conclusion that the

legislature intended that the crime be one against the

person, as opposed to a property crime.     For instance, in

Commonwealth v. Levia, 385 Mass. 345, 431 N.C.2d 928(1982),

the court noted that the robbery statute, ALM GL Ch.265§17

places the armed robbery statute under the statutory

section entitled “Crimes Against The Person.”    Similarly,

the court in People v. Wakeford, 418 Mich. 95, 341 N.W.2d

68(1983), determined that the legislative intent was that

the crime was to be treated as a crime against the person.

Having thus determined the legislative intent, the courts

reached the conclusion that there was no double jeopardy

violation when the accused received multiple sentences for

the robbery if multiple people were present, regardless of

whether or not the stolen property only belonged to one

person or entity.

       There are cases in other jurisdictions however, that

are similar to North Carolina law. In those jurisdictions,

the crime of armed robbery is a property crime.    See, State

v. Collins, 174 W.Va. 767, 329 S.E.2d 839(1984); Allen v.

State, 428 N.E.2d 1237, 1240(Ind. 1981); People v. Nicks,
                                                     11

23 Ill. App.3d 435, 319 N.E.2d 531, 535-536(1974)rev’d in

part, 62 Ill.2d 350, 343 N.E.2d 360(Ill.1976); State v.

Faatea, 65 Hawaii 156, 648 P.2d 197, 198-199(1982).

         In determining whether our statute allows multiple

punishments, based on the person rather than the property,

one looks to legislative intent.                              In North Carolina, armed

robbery is a common law crime, and considered as an

aggravated larceny. State v. Bond, 345 N.C. 1, 478 S.E.2d

163(1996); State v. Smith, 268 N.C. 167, 150 S.E.2d

194(1966).           The punishment for armed robbery statute is

located in Chapter 14, Subchapter V, entitled “Offenses

Against Property.                   Thus it seems that the legislature

considered robbery to be as it was considered in common

law; an aggravated larceny.                           The intent of the legislature

is paramount.2              When determining whether or not a single act

may be punished by several different statutes, one needs to

look at the intent of the legislature. State v. Gardner,
                                                                 3
315 N.C. 444, 340 S.E.2d 701(1986).

         The position taken by the trial court is not supported

by our statutes or our case law.                              It was error for the

court to deny the Motion for Appropriate Relief by reliance

2
   The legislature does not have unfettered power to carve a single episode into a multitude of criminal
offenses however. The Eighth Amendment limits the power of the legislature to define crimes and
prescribe punishments. Bell v. United States, 349 U.S. 81, 82, 75 S.Ct. 620, 99 L.Ed.2d 905(1955).
3
   The defendant points out that larceny is a lesser included offense of armed robbery, further support for
the argument that in this State, robbery is a property crime. State v. Jaynes, 342 N.C. 249, 464 S.E.2d
448(1995); State v. White, 322 N.C. 506, 369 S.E.2d 817(1988).
                                12

on the laws of other jurisdictions.        The court was bound by

the intent of the legislature and the interpretation of our

law by our appellate courts, not the courts of

Massachusetts, Maryland, Texas or elsewhere. Only the

credit union’s money was taken; there was only one armed

robbery.   The order denying the MAR should be set aside,

the convictions set aside, and the matter remanded to the

Superior Court for the imposition of a single sentence.

    II.    THE TRIAL COURT ERRED IN FAILING TO HOLD AN

EVIDENTIARY HEARING ON THE MOTION FOR APPROPRIATE RELIEF.

    Assignment of Error Number 1, Record page 67

    The defendant alleged that his trial attorney and his

appellate attorney were ineffective for failing to raise

the issue of double jeopardy.        The defendant argued that

since the money taken belonged to only one entity, there

was only one robbery regardless of how many people were

present at the time.   His MAR alleged that counsel were

ineffective for failing to spot this issue and argue it at

trial or on appeal. The defendant also claimed

prosecutorial vindictiveness was evidenced in the decision

to “double-up” the charges by dividing the sum of money

taken and assign each portion to a separate indictment.

(Rp.25)    These are the kind of issues that require the

resolution of facts:   was the prosecutor acting in bad
                             13

faith?; was trial counsel exercising some type of strategy

in failing to raise the double jeopardy issue?; was

appellate counsel exercising some type of strategy in

failing to raise the double jeopardy issue?   The answers to

these questions are necessarily preceded by the taking of

testimony, followed by a decision by the fact-finder.

    When the movant advances fact intensive issues, they

should be determined following an evidentiary hearing.

N.C.G.S.15A-1420(c)(1) provides that “any party is entitled

to a hearing on questions of law or fact arising from the

motion and any supporting or opposing information presented

unless the court determines that the motion is without

merit.”

    In State v. McHone, 348 N.C. 254, 499 S.E.2d 761(1998)

this Court found that the right to a hearing is not

automatic, but is to be determined by the trial court from

the motion and any supporting or opposing information

presented. In determining whether a claim is clearly

without merit, the court must take the evidence in the

light most favorable to the defendant. Id, 348 N.C. at 258,

499 S.E.2d at 763(“an evidentiary hearing is required

unless the motion presents assertions of fact which will

entitle the defendant to no relief even if resolved in his

favor.”) See also State v. Dickens, 299 N.C. 76, 85, 261
                                14

S.E.2d 183, 188(1980) (holding that evidentiary hearings

must be held when necessary to resolve questions of fact.)

    The legislature has carved out three narrow exceptions

to the general rule that evidentiary hearings must be held

on post-conviction claims.    First, if the motion and

supporting and opposing information present only questions

of law, the court may determine the motion without a

hearing. Second, where the facts are in dispute, but the

trial court can determine that the defendant is entitled to

no relief even upon the facts asserted by him, then a

hearing is not required.     Third, where the claim is raised

in a motion for appropriate relief, under N.C.G.S.15A-1414,

within ten days following the completion of the trial, then

a hearing is not required, but may be held if necessary to

resolve questions of fact.    Thus, in State v. Harris, 338

N.C. 129, 449 S.E.2d 371, 377(1994), the Court held that

the trial court did not err by declining to conduct an

evidentiary hearing on a motion for appropriate relief

pursuant to N.C.G.S.15A-1420(c)(2).     This Court reached

this conclusion because there were no specific contentions

that required an evidentiary hearing to resolve questions

of fact, and because shortly before ruling on this motion

the judge “had conducted the trial and was able to
                             15

determine the effect of these matters without an

evidentiary hearing.” 338 N.C. at 143.

    The distinction between when one is entitled to an

evidentiary hearing when not at the post-conviction level,

and one at the post-conviction level is made clear by our

State Supreme Court in Harris, supra:

     The defendant next assigns error to the court’s
failure to find he had ineffective assistance of counsel.
He concedes there is no evidence in the record which would
support such a finding because, he says, the court did
not conduct an evidentiary hearing...Although we overrule
this assignment of error, we note that the defendant may
make a motion for appropriate relief under N.C.G.S.15A-1415
and present any additional evidence he may have as to
ineffective assistance of counsel. 338 N.C. at 143-44, 449
S.E.2d at 377(emphasis added).

    Clearly, N.C.G.S.}15A-1420(c)(4), read in conjunction

with N.C.G.S}15A-1420(c)(2) and (c)(3), requires

evidentiary hearings on motions for appropriate relief

unless the motions present “only questions of law” or are

filed within ten days following the completion of the trial

under N.C.G.S.}15A-1414. This reading of the post-

conviction statute is consistent with the Court’s

conclusion in McHone that an evidentiary hearing is

required unless the facts will not entitle the defendant to

relief even if resolved in his favor, presents only

questions of law, or made under N.C.G.S.}15A-1414. McHone,

348 N.C. at 258, 499 S.E.2d at 763.
                               16

    The state must afford the movant a full and fair

hearing on his federal claims or else a federal rehearing

of the facts is required. (Michael) Williams v. Taylor, 120

S.Ct. 1479(2000); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10

(1992).   State post-conviction relief is even further

removed from the criminal trial than is discretionary

direct review.   It is a collateral attack that occurs only

after the defendant has failed to secure relief through

direct review of his conviction. Pennsylvania v. Finley,

481 U.S. 551, 556-57(1987).    As a result, the collateral

matters must be fleshed out by testimony or other evidence.

    The Antiterrorism and Effective Death Penalty Act of

1996 creates procedural defenses to federal habeas corpus

consideration and relief and expands other defenses that

already existed.   A number of these defenses depend on the

type, scope and quality of factual and legal adjudications

that do and do not take place during the state post-

conviction proceedings.    Therefore, movants   have even more

reason than before to fully litigate every issue. (See

McFarland v. Scott, 512 U.S. 849, 860(1994).

    Clearly, the law prohibits multiple punishments for

the single armed robbery of the property of the credit

union.    There may have been a reason trial counsel or

appellate counsel wanted to avoid this issue.    The trial
                                17

judge should have held an evidentiary hearing to determine

this factual issue.   Failure to do so was unduly

prejudicial to the defendant.



    III.   THE ORDER DENYING THE MOTION FOR APPROPRIATE

RELIEF IS NOT SUPPORTED BY THE EVIDENCE, THE FINDINGS OF

FACTS OR THE CONCLUSIONS OF LAW.

    Assignment of Error Number 4, Record page 67

    Assignment of Error Number 5, Record page 68

    Assignment of Error Number 6, Record page 68

    Assignment of Error Number 7, Record page 68

    The order entered denying Mr. Becton relief is

woefully inadequate because the trial court did not address

the defendant’s claim of ineffective assistance of counsel

or prosecutorial vindictiveness.     The State did not argue,

nor did the court specify any procedural bar or waiver that

would preclude review of his claims.      This Court cannot

determine whether the trial court considered the

ineffective assistance of counsel claim or prosecutorial

vindictiveness claim at all, much less whether there was

any evidence to support the court’s conclusion.     The order

should be set aside and the matter remanded for relief

consistent with the first claim.
                             18

    At a trial before the judge without a jury, it is the

duty of the judge to “find the facts specifically and state

separately his conclusions of law and thereby resolve all

controversies between the parties raised by the pleadings

and the evidence.” Heating and Air Conditioning Associates,

Inc. v. Myerly, 29 N.C.App. 85, 88, 223 S.E.2d 545, 547,

cert. denied and appeal dismissed, 290 N.C. 94, 225 S.E.2d

323; N.C.G.S.1A-1, Rule 52; N.C.G.S.15A-1420(c)(4).     Where

the evidence is conflicting and contradictory, it is

incumbent upon the trial judge to weigh the credibility of

witnesses, resolve crucial conflicts, and make appropriate

findings of fact. The reason for the requirement it plain:

without such findings and conclusions, the appellate courts

cannot determine whether the judge correctly found the

facts or applied the law thereto. Jones v. Murdock, 20

N.C.App. 746, 203 S.E.2d 102(1974).   Following a trial

court’s decision on a motion for appropriate relief, the

appellate court must determine whether the trial court’s

findings of fact are supported by evidence, whether the

findings of facts support the conclusions of law, and

whether the conclusions of law support the order entered by

the trial court. State v. Morganherring, 350 N.C. 701, 714,

517 S.E.2d 622(1999), cert. denied, 529 U.S. 1024(2000).
                                                    19

        The issue of ineffective assistance of counsel needs

to be resolved.4               A hearing should be held to determine if

counsel fell below the standard required for effective

representation.

        The standard by which claims of ineffective assistance

of counsel must be measured is set out in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984).           In Strickland, the Supreme Court adopted a two-

part test to be applied on a case-by-case basis.                                         The first

inquiry is “whether counsel’s assistance was reasonable

considering all the circumstances.” Id. at 693.                                        The Court

emphasized that it did not intend to create a mechanical

standard.          The “benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so

undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having

produced a just result. Id at 686.

        The test to determine prejudice is whether there is a

reasonable probability that counsel’s errors affected the

outcome of the trial.                    A reasonable probability is one that

is sufficient to question the integrity of the outcome.                                               A

claimant need not establish that the attorney’s deficient


4
   Should this Court agree with the defendant that he has received unconstitutional multiple punishments,
then the remedy, setting aside one of the convictions, may well obviate the need for further attention to
these claims.
                               20

performance more likely than not altered the outcome in the

case. Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988,

89 L.Ed.2d 123(1986).    The “reasonable probability”

standard is a standard of proof less than a preponderance

of the evidence. Strickland, 466 U.S. at 694, 104 S.Ct. at

2068; Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1566,

131 L.Ed.2d 490(1995).

    A criminal defendant is entitled to representation by

counsel who has investigated the facts and the law of the

case and who is capable, based on his familiarity with the

case, of advising his client and giving informed

professional advice so that rational choices can be made on

his behalf.   “The duty of the trial lawyer to conduct a

prompt investigation ... exists regardless of the accused’s

admission or statements constituting guilt or the ...

desire to plead guilty.” ABA Standards for Criminal

Justice, 4-4.1, Duty to Investigate

    An attorney has a duty to “conduct appropriate

investigations, both factual and legal, to determine if

matters of defense can be developed...” Coles v. Peyton,

389 F.2d 224(4th Cir.), cert. denied, 393 U.S. 849(1968).

The reasonableness of a particular investigation is

evaluated in light of the totality of the circumstances

facing the attorney for the accused. Bunch v. Thompson, 949
                              21

F.2d 1354, 1363(4th Cir. 1991)(citing Strickland, 466 U.S.

at 691). The reviewing court conducts an objective review

of counsel’s performance, measured for reasonableness under

prevailing professional norms. Wiggins v. Smith, Warden, et

al, 539 U.S.____(2003)

    The issuance of a superseding indictment should have

raised neck hairs, set off bells, raised flags, and any

other appropriate metaphor for getting one’s attention.

There is no body of case law in this State that allows for

the equation of dividing a robbery by the number of victims

and arriving at the number of indictments.    There is at

best, an ambiguous, and importantly, not followed, sentence

in Potter, relied on by the State, after trial and after

the direct appeal.

    A defendant is entitled to effective assistance of

counsel in the appeal of his case as of right. Evitts v.

Lucey, 469 U.S. 387 (1956).   Although the failure to raise

a nonfrivolous issue on appeal is not a per se violation of

the Sixth Amendment, if counsel’s performance falls below a

reasonable standard of conduct and the conduct was

prejudicial, the defendant’s constitutional right to

effective assistance of appellate counsel has been

violated. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
                              22

2052, 80 L.Ed.2d 675 (1984); Jones v. Barnes, 463 U.S. 745

(1983)

    When reviewing a claim of ineffective assistance of

appellate counsel, the reviewing court determines whether

appellate counsel failed to present significant and obvious

issues on appeal.   When ignored issues are clearly stronger

than the issues presented, the presumption that counsel was

effective dissipates. Gray v. Greer, 800 F.2d 644, 646 (7th

Cir. 1986); Kurina v. Thieret, 853 F.2d 1409, 1417(7th Cir.

1988)

    Once it is shown that counsel’s appellate strategy was

deficient, the claimant must show that the neglected claim

would have had a reasonable probability of success on

appeal. Mayo v. Lynaugh, 882 F.2d 134(5th Cir. 1989), cert

denied, 502 U.S. 898(1991); Ellis v. Lynaugh, 873 F.2d

830(5th Cir.), cert. denied, 493 U.S. 970(1989); but see,

Matire v. Wainwright,   811 F.2d 1430, 1439 n.8 (11th Cir.)

(reserving the issue of whether the focus of the prejudice

prong should be the likelihood of success on appeal, or

success of a retrial after a reversal on appeal).

    As set out in the first argument in this Petition, it

is clear that the law is not as the District Attorney

hoped, or the trial court found in the July 19, 2002 order.

This issue was not raised at the trial level or on direct
                                23

appeal.   It appears, from reading the opinion on direct

appeal, that on direct appeal the issue of the right to

effective representation of counsel, was raised in the

context of the right of the defendant to represent himself.

In the Motion for Appropriate Relief, the defendant

complained that his trial counsel did not raise the double

jeopardy issue nor did appellate counsel.

    In the event this Court does agree that the double

jeopardy clause was violated, as a matter of law based on

the known facts, but declines to set aside the judgment as

a result, then an evidentiary hearing is needed to

determine if trial and appellate counsel considered this

issue and had a strategic reason for not raising it.

Although it is hard to imagine why any counsel would expose

his client to a doubling of convictions and resultant

consecutive sentences of no less than 110 months, there may

be one.   Before the defendant’s claims are summarily

dismissed, or as the trial court did, summarily ignored,

then he should at least be able to have a hearing on what

motivated counsel to ignore the issue of double jeopardy.

    Similarly, prosecutorial vindictiveness is a claim

that requires the taking of evidence.       Changes in

indictments are not, in and of themselves, proof of

prosecutorial vindictiveness.        The defendant is entitled to
                              24

present evidence of the motive of the prosecutor and if it

is found to be improper, than to have the convictions set

aside.

    IV.   THE DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL

RIGHT TO EFFECTIVE REPRESENTATION OF COUNSEL.

    Assignment of Error Number 5, Record page 68

    Assignment of Error Number 6, Record page 68

    Assignment of Error Number 7, Record page 68

    Based on the argument and citations presented in

Arguments I and III of the Brief, the defendant submits

that his trial counsel’s failure to raise the issue of

double jeopardy deprived him of his right to the effective

representation of counsel, guaranteed by the Sixth and

Fourteenth Amendment to the United States Constitution and

Article I, Sections 19 and 23 of the North Carolina

Constitution.   Similarly, the failure of appellate counsel

to raise this issue in any manner was ineffective, thereby

depriving the defendant of his right to effective

representation of counsel, guaranteed by the state and

federal constitutions.   The undersigned will not belabor

the issue by repeating each citation of Arguments I and

III, but does contend that the double jeopardy issue is so

clear as to warrant a determination by this Court, even

without further evidence, that the defendant was deprived
                               25

of his constitutional right to effective representation of

counsel.

                           CONCLUSION

    The defendant received multiple punishments for one

offense.   His sentences run afoul of the double jeopardy

prohibitions of the state and the federal constitutions.

He is therefore, entitled to have them set aside and the

matter remanded for appropriate sentencing.

    Alternatively, the defendant is entitled to a complete

hearing on the factual issues of his motion for appropriate

relief.    The appointment of counsel for the indigent

defendant would be in the best interests of the State and

the defendant, narrowing down the issues to be raised, and

providing the court with reasoned legal arguments.

    Therefore, the defendant requests that this Court set

aside his convictions and remand the matter to the Superior

Court of Wake County.

    Respectfully submitted, this the 7th day of July, 2003.



                                _____________________________
                                Nora Henry Hargrove
                                Attorney for Defendant
                                2330 Waverly Drive
                                Wilmington, NC 28403
                                910-763-7952
                             26

             CERTIFICATE OF FILING AND SERVICE

     I hereby certify that I have this date filed the
foregoing Brief by U.S. Mail, postage prepaid, properly
addressed to John Connell, Clerk, North Carolina Court of
Appeals, P.O. Box 2779, Raleigh, NC 27602.

     I further certify that I have this date served a copy
of the foregoing Brief by U.S.Mail, postage prepaid,
properly addressed to Kathleen U. Baldwin, Assistant
Attorney General, P.O. Box 629, Raleigh, NC 27602.

    This the 7th day of July, 2003.



                              _____________________________
                              Nora Henry Hargrove
                              Attorney at Law
27

								
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