State v. CholonÂ, 251 N.C. App. 821

Background

In March 2013 Defendant Derek Cholon (born 1971) met M.B. (15) via the Jack’d app; they met in person and engaged in sexual activity in Defendant’s car.
Officers arrived at the scene; Defendant initially said they were "sitting and talking," then admitted to Officer Wright and in a written statement that he performed oral sex on M.B. and that they kissed; M.B. initially lied about his age but then admitted he was 15.
Defendant was indicted on statutory sexual offense and taking indecent liberties with a child; the State abandoned a crime-against-nature charge before trial.
Defense counsel moved to suppress Defendant’s oral and written statements; the trial court denied the motion. Defendant did not testify at trial.
In closing, defense counsel conceded some factual elements (that M.B. was a minor and that Defendant admitted oral sex/kissing) while arguing for acquittal; jury convicted Defendant on both counts and he was sentenced to concurrent prison terms and sex-offender registration.
Defendant appealed alleging per se ineffective assistance under Harbison because counsel admitted guilt without consent; he also filed a contemporaneous motion for appropriate relief raising ineffective assistance.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s closing concessions constituted per se ineffective assistance under Harbison	State: No per se Harbison violation where counsel did not expressly concede full guilt; record supports convictions	Cholon: Counsel admitted all disputed elements without consent, so Harbison requires reversal	Court: No Harbison violation — counsel did not expressly admit full guilt or all elements and still argued for acquittal
Whether trial court erred by failing to inquire after counsel’s alleged admission	State: No inquiry required absent a Harbison error on the record	Cholon: Trial court should have inquired into counsel’s concession after defense counsel’s statements	Court: No error because record does not establish a Harbison violation requiring inquiry
Whether ineffective assistance of counsel warrants relief under Strickland (if no Harbison)	State: Even under Strickland, record shows no prejudice given overwhelming evidence	Cholon: Counsel’s concession prejudiced defense and warrants new trial or hearing	Court: No Strickland relief — Defendant cannot show reasonable probability of a different outcome given overwhelming evidence of guilt
Whether the record requires an evidentiary hearing on collateral motion for appropriate relief	State: Cold record is sufficient; no further investigation would change outcome	Cholon: If not reversed, appeal should be held and an evidentiary hearing ordered	Court: Denied motion for appropriate relief; no hearing or abeyance required

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard)
State v. Harbison, 315 N.C. 175 (1985) (counsel’s unconsented admission of guilt to jury is per se prejudicial)
State v. Braswell, 312 N.C. 553 (adopting Strickland standard in North Carolina)
State v. Campbell, 359 N.C. 644 (prejudice requirement under Strickland reiterated)
State v. Fisher, 318 N.C. 512 (distinguishing Harbison where counsel conceded an element but not full guilt)
State v. Gainey, 355 N.C. 73 (no Harbison violation where counsel’s statement did not amount to admission of charged offense)
State v. Hinson, 341 N.C. 66 (no Harbison violation absent concession that defendant committed the crime)
State v. Wilson, 236 N.C. App. 472 (no Harbison violation where counsel conceded a lesser or different offense not presented to the jury)
State v. Randle, 167 N.C. App. 547 (Harbison requires an express admission of guilt)
State v. Maniego, 163 N.C. App. 676 (placement of defendant at scene in opening is not necessarily a Harbison concession)