State v. Collington, 375 N.C. 401

Background

On Oct. 1, 2012, Hoskins testified Collington pointed a gun at him during a confrontation at a recording studio; Collington denied possessing a gun and testified a third party (Sapp) later handed the gun to Collington’s co-defendant in a McDonald’s parking lot.
Collington was tried and convicted of possession of a firearm by a felon and sentenced to 86–115 months; he was acquitted of robbery and conspiracy.
The trial court instructed the jury that Collington could be convicted on theories of actual possession, constructive possession, or acting in concert; the verdict form did not indicate which theory the jury used.
On direct appeal Collington argued plain error as to the acting-in-concert instruction but appellate counsel did not invoke State v. Pakulski; the Court of Appeals affirmed (Collington I) and the NC Supreme Court denied discretionary review.
Collington later filed a motion for appropriate relief claiming ineffective assistance of appellate counsel for failing to raise Pakulski; after remand the trial court granted relief and ordered a new trial; the Court of Appeals affirmed (Collington II).
The North Carolina Supreme Court reversed the Court of Appeals, holding appellate counsel’s failure to cite Pakulski was not objectively unreasonable because Pakulski applies to preserved errors and appellate counsel adequately argued plain error under the correct standard.

Issues

Issue	State's Argument	Collington's Argument	Held
Whether appellate counsel was constitutionally ineffective for failing to cite Pakulski	Counsel’s omission was reasonable because Pakulski governs preserved errors and was not controlling here	Failure to invoke Pakulski was deficient because it would have required reversal when jury instructions were disjunctive and the verdict form was ambiguous	Held: Not ineffective — counsel’s performance was objectively reasonable; Pakulski had limited precedential value here and counsel argued the correct plain-error standard
Whether Pakulski governs unpreserved (plain error) instructional claims	Pakulski applies to preserved errors; plain-error review (probable-impact test) governs unpreserved claims	Pakulski should apply to disjunctive-instruction situations even if error was unpreserved, entitling defendant to reversal when the verdict form is ambiguous	Held: Pakulski applies to preserved errors; unpreserved instruction errors are reviewed for plain error (probable-impact), so Pakulski was not controlling here
Whether appellate counsel properly framed a plain-error argument on appeal	Appellate counsel argued plain error using Lawrence’s probable-impact standard, a proper approach for unpreserved errors	Counsel failed to press the Pakulski principle that an erroneous disjunctive instruction + ambiguous verdict mandates reversal	Held: Counsel did press a correct plain-error argument; failing to cite Pakulski was not objectively unreasonable given the applicable standard
Whether the Court decides the substantive question whether acting-in-concert can support a possession-by-felon conviction	State argued acting-in-concert can be a valid theory when supported by evidence	Collington argued acting-in-concert is inapplicable to possession-by-felon (personal-status element) and that error required reversal	Held: Court declined to decide the substantive availability of acting-in-concert for this offense; the sole question resolved was ineffective-assistance of appellate counsel

Key Cases Cited

State v. Pakulski, 319 N.C. 562 (N.C. 1987) (when jury receives alternative theories and one is erroneous and the record does not show which theory the jury used, ambiguity is resolved for defendant)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance: deficient performance and prejudice)
State v. Braswell, 312 N.C. 553 (N.C. 1985) (applies Strickland standard and endorses objective-reasonableness review of counsel’s performance)
State v. Lawrence, 365 N.C. 506 (N.C. 2012) (plain-error review uses the "probable impact" standard for unpreserved instructional errors)
State v. Maddux, 371 N.C. 558 (N.C. 2018) (clarifies that Pakulski’s rule does not apply to unpreserved plain-error cases)
State v. Malachi, 371 N.C. 719 (N.C. 2018) (Pakulski discussed in harmless-error context and not treated as creating per se reversible error)