STATE OF NORTH CAROLINA v. JAAMALL DENARIS OGLESBY
No. 683A05-3
IN THE SUPREME COURT OF NORTH CAROLINA
19 August 2022
2022-NCSC-101
Appeal pursuant to
Joshua H. Stein, Attorney General, by Robert C. Ennis, Assistant Attorney General, for the State-appellee.
Glenn Gerding, Appellate Defender, by Jillian C. Katz, Assistant Appellate Defender, for defendant-appellant.
¶ 1 Defendant Jaamall Denaris Oglesby‘s motion for appropriate relief (MAR) seeking resentencing under Miller v. Alabama, 567 U.S. 460 (2012) explicitly requested that he be sentenced to one consolidated sentence of life with parole or to have his sentences for first-degree murder, first-degree kidnapping, and two counts of robbery with a dangerous weapon all run concurrently. The trial court allowed the motion, and the matter was set for a resentencing hearing. At the resentencing hearing, Oglesby‘s counsel—despite the clear language of the original motion which listed each of the relevant file numbers—without explanation told the resentencing court that two of the sentences were not before the Court and only requested that two of the four sentences be run concurrently.
¶ 2 After hearing evidence from the defense regarding Oglesby‘s age and intellectual capacity, his diagnosed but untreated bipolar disorder at the time of the crime, his self-improvement activities in prison, and the fact that before confessing he was subjected to a twenty-six hour interrogation by police without a parent or guardian present, the resentencing court resentenced defendant on the first-degree murder conviction to life with the possibility of parole after 25 years but concluded in its discretion that “based upon the information presented at the resentencing hearing” it would run his first-degree kidnapping sentence consecutively with the murder sentence. The resentencing court “specifically [found] that consecutive sentences are warranted by the facts presented at the resentencing hearing.” On appeal, a majority of the Court of Appeals rejected Oglesby‘s claim that he received ineffective assistance of counsel (IAC) at the resentencing hearing, concluding that Oglesby‘s counsel did not render deficient performance and that, regardless, Oglesby could not have been
¶ 3 We agree with the majority below that, under the circumstances of this case, Oglesby cannot show prejudice because “the [resentencing] court heard thorough arguments from both parties regarding a range of mitigating and aggravating circumstances surrounding the serious nature of Defendant‘s offenses . . . [and] chose not to consolidate the two sentences that were before it . . . instead exercising its discretion to keep these sentences consecutive.” Id. ¶¶ 51–52. Oglesby has not advanced any basis to support his assertion that, notwithstanding the resentencing court‘s choice to run his first-degree murder sentence consecutively with his first-degree kidnapping sentence, there is a reasonable probability that the court would have chosen to run his first-degree murder sentence consecutively with either or both of his robbery sentences.
¶ 4 However, the majority below erred when it characterized Oglesby‘s argument that the resentencing court possessed the authority to run all of his sentences concurrently as “speculative and untested.” Id. ¶ 49. Rather, under
I. Background
¶ 5 On 7 and 8 September 2002, Oglesby and a group of accomplices entered two separate convenience stores and robbed each store‘s cashier at gunpoint. Two days later, Oglesby and three other individuals abducted a man named Scott Jester from a restaurant in Winston-Salem. After pulling over on the side of I-40, Oglesby “made Jester get out of the car, Jester pled for his life and told [Oglesby] he had a young child, and [Oglesby] shot Jester three times in the back of the head.” State v. Oglesby, 174 N.C. App. 658, 660 (2005), aff‘d in part, vacated in part, 361 N.C. 550 (2007). Oglesby, who was sixteen years old at the time, was later arrested and confessed his involvement in both sets of crimes during an interrogation that lasted for twenty-six hours without a parent or guardian present. Id.
¶ 6 Oglesby pleaded guilty to two counts of robbery with a dangerous weapon in relation to the convenience store incidents. After a trial, he was convicted of first-degree murder, first-degree kidnapping, and attempted robbery with a dangerous weapon in connection with Jester‘s killing. On 28 May 2004, Oglesby was sentenced to the following active terms of imprisonment:
| File Number | Offense | Sentence |
|---|---|---|
| 02 CRS 60325 (51) | Robbery with a dangerous weapon | 95 to 123 months |
| 02 CRS 60325 (52) | Robbery with a dangerous weapon | 95 to 123 months |
| 02 CRS 60369 (52) | First-degree murder | Life without parole (mandatory) |
| 02 CRS 60369 (51) | First-degree kidnapping | 29 to 44 months |
| 02 CRS 60369 (53) | Attempted robbery with a dangerous weapon | 77 to 102 months. |
The trial court ordered all of Oglesby‘s sentences to be run consecutively. On direct appeal, the Court of Appeals ordered the trial court to arrest judgment on either Oglesby‘s conviction for attempted robbery with a dangerous weapon or his conviction for first-degree kidnapping to avoid a double jeopardy violation, State v. Oglesby, 174 N.C. App. 658, 665 (2005), and we did not disturb that order, see 361 N.C. 550, 556 (2007). The trial court ultimately arrested judgment on his attempted robbery with a dangerous weapon conviction.
¶ 7 On 4 April 2013, Oglesby filed an MAR seeking resentencing in light of the United
¶ 8 Oglesby‘s resentencing hearing occurred on 13 April 2021, with Judge William A. Wood presiding. At the hearing, the court informed the parties that the original sentencing judge had already arrested judgment on Oglesby‘s 77-month minimum sentence for attempted armed robbery. In addition, the State did not contest Oglesby‘s assertion that he was entitled to be resentenced to life with parole for his murder conviction pursuant to
¶ 9 In support of his argument that the convictions should be run concurrently, Oglesby‘s attorney presented mitigating evidence including Oglesby‘s age at the time of his crimes, that he was the youngest of his co-defendants, that he suffered from untreated bipolar disorder and borderline intellectual impairment when he was arrested, and that he had developed and submitted a proposal for a program to assist at-risk youth while he was incarcerated. In support of its argument that the convictions should be run consecutively, the State noted the factual underpinnings of Oglesby‘s convictions and his lengthy disciplinary record while incarcerated, including serious disciplinary incidents near to the time of the resentencing hearing, which the State contended indicated that Oglesby had not been “reformed.”
¶ 10 In the middle of the hearing, the court sought clarification from Oglesby‘s counsel regarding his outstanding sentences and the scope of the court‘s resentencing authority:
THE COURT: Just to make sure I understand. . . . First, there are two consecutive armed robbery sentences that the defendant has already served.
DEFENSE COUNSEL: It depends how DOC [the Department of Corrections] actually would calculate that. However, they are not at issue here because they are not related to this particular conduct. They were sentenced at the same time as this was, but it was not part of that trial.
THE COURT: All right. So there are two sentences that he has served or he will have to serve.
DEFENSE COUNSEL: There are. The DOC website shows that he would have been released in February of 2012 in one of them. So it does show that those would be the first sentences that he would be serving. This is from the DOC website and from combined records as to how it was imposed. So the two armed robbery sentences were imposed by DOC prior to the 25 to life.
THE COURT: All right. And then he began a life without parole sentence.
DEFENSE COUNSEL: Yes.
. . . .
THE COURT: . . . I‘m curious, is there any authority under
15A-1340.19B , which I believe is what we are doing here, that permits the Court to modify the order inwhich the sentence is run, as opposed to modifying the 25 to life? . . . .
DEFENSE COUNSEL: . . . So the language of Miller, we would contend, is that it fully anticipates that felonious conduct leading to the death and that‘s what‘s here. And so with that, the appropriate sentence would be a concurrent sentence because it fully encompasses a single act, a single progression of actions, that led to a death. So with that single death and the felonies that led to that, that that would indicate a 25-to-life sentence.
Later in the hearing, Oglesby‘s counsel reiterated that she was “not referring to the other armed robberies because they are not related, even though they were sentenced at the same time.” Ultimately, Oglesby was resentenced to life with the possibility of parole to be run consecutively with his sentence for first-degree kidnapping; in a subsequent written order, the court noted that it “specifically finds that consecutive sentences are warranted by the facts presented at the resentencing hearing and consecutive sentences in this case are not violative of the Eighth Amendment to the United States Constitution.”
II. The Court of Appeals opinion
¶ 11 On appeal, Oglesby asserted that he received IAC during the resentencing hearing.1 A majority of the Court of Appeals rejected Oglesby‘s claim. According to the majority, Oglesby‘s claim failed on both prongs of the IAC standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
¶ 12 With respect to the first prong of the Strickland test, deficient performance, the majority rejected Oglesby‘s contention that “his counsel acted deficiently by ‘[telling] the trial court repeatedly that the robbery convictions were unrelated and not before the court’ ” instead of “rel[ying] on
¶ 13 With respect to the second prong of the Strickland test, prejudice, the majority held that Oglesby “cannot show that he was prejudiced by defense counsel‘s failure to request that the trial court consider the armed robbery convictions for resentencing.” Id. ¶ 50. According to the majority, “proving prejudice requires a showing of ‘a reasonable probability’ that ‘the result of the proceeding would have been different’ if counsel had not erred.” Id. (quoting State v. Lane, 271 N.C. App. 307, 312 (2020)). Applying this standard, the majority concluded that “even if defense counsel had requested that the trial court consider the armed robbery sentences under
¶ 14 Judge Arrowood dissented from the majority‘s resolution of Oglesby‘s IAC claim. Id. ¶ 57 (Arrowood, J., concurring in part and dissenting in part). According to the dissent,
¶ 15 Oglesby timely filed a notice of appeal in this Court based on Judge Arrowood‘s dissent.
III. Oglesby‘s IAC claim
¶ 16 The Sixth Amendment to the United States Constitution guarantees to all defendants the right to counsel in criminal proceedings. See, e.g., Strickland, 466 U.S. at 684 (“[T]his Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.“). The right to counsel necessarily encompasses “the right to effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). To prevail on an IAC claim, a defendant must generally satisfy the two-prong test set forth in Strickland:
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 the Sixth 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.
466 U.S. at 687; see also State v. Fair, 354 N.C. 131, 167 (2001) (“Attorney conduct that falls below an objective standard of reasonableness and prejudices the defense denies the defendant the right to effective assistance of counsel.“). With this familiar two-prong test in mind, we turn to Oglesby‘s IAC claim.
A. Deficient performance.
¶ 17 To prevail on the first prong of the Strickland test, “the defendant must show that counsel‘s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. There exists a “strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. “Counsel is given wide latitude in matters of strategy, and the burden to show that counsel‘s performance fell short of the required standard is a heavy one for defendant to bear.” State v. McNeill, 371 N.C. 198, 218–19 (2018) (cleaned up). At the same time, “this presumption is rebuttable.” State v. Allen, 378 N.C. 286, 2021-NCSC-88, ¶ 32. “Once a defendant presents evidence rebutting the presumption of reasonableness, the court is not at liberty to invent for counsel
¶ 18 In this case, Oglesby contends that his counsel rendered deficient performance at his resentencing hearing by failing to ask the court to consider running all of his sentences concurrently and instead asserting that his two robbery convictions were “not before this [c]ourt.” In rejecting this claim, the majority below relied principally on its assessment of the legal merits of the argument Oglesby contends his counsel improperly failed to present: the argument that
¶ 19 However, the majority‘s assessment of
(a) Authority of Court.—When multiple sentences of imprisonment are imposed on a person at the same time or when a term of imprisonment is imposed on a person who is already subject to an undischarged term of imprisonment, including a term of imprisonment in another jurisdiction, the sentences may run either concurrently or consecutively, as determined by the court. If not specified or not required by statute to run consecutively, sentences shall run concurrently.
¶ 20 Naturally, the Court of Appeals’ interpretation of
¶ 22 But remand is unnecessary in this case because, for reasons more fully explained below, the record and the trial court‘s order are sufficient to assure us that Oglesby could not have been prejudiced by his counsel‘s failure to raise this particular legal argument at his resentencing hearing. Of course, it is not always possible to resolve a defendant‘s prejudice claim by looking to a cold record that was itself shaped by counsel‘s allegedly deficient performance. When “the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results,” Strickland, 466 U.S. at 696, denying a defendant‘s IAC claim on direct appeal on the grounds that he cannot show prejudice based on a suspect record is inconsistent with the right the Sixth Amendment protects.
¶ 23 Thus, an appellate court‘s decision to deny or dismiss an IAC claim depends in part on that court‘s confidence in the record produced during the underlying proceeding. See State v. Phillips, 365 N.C. 103, 122 (2011) (concluding that it was appropriate to assess a defendant‘s IAC claim by applying Strickland because “the facts do not make it impractical to determine whether defendant suffered prejudice“). By extension, the nature of the deficient performance an attorney allegedly rendered may be relevant in deciding whether it is appropriate to dispose of an IAC claim on direct appeal on prejudice grounds alone. If a defendant alleges that counsel performed deficiently in a manner that could plausibly undermine the validity of the adversarial proceeding as a mechanism for ascertaining facts—for example, by a failure to call witnesses who would have contributed to the evidentiary record or by a failure to raise a legal argument that deprived the defendant of an opportunity to introduce supporting evidence—then it may not be feasible to resolve an IAC claim on direct appeal on prejudice grounds alone. Cf. In re B.B., 2022-NCSC-67, ¶ 43 (resolving IAC claim on prejudice grounds in case where “[t]he trial court had the totality of the evidence before [it]“).
¶ 24 By contrast, in this case, Oglesby does not allege that his counsel was deficient in a way that would undermine the validity of the resentencing hearing as a means of eliciting the facts and information necessary for the court to exercise its discretion to decide between ordering Oglesby to serve consecutive or concurrent sentences. Oglesby alleges solely that his counsel rendered deficient performance by failing to advance a discrete legal argument that was implicitly rejected by the trial court‘s specific findings that consecutive sentences were warranted. Accordingly, given the nature of Oglesby‘s IAC claim here and the logic of the resentencing court‘s ultimate decision, we need not remand for further factual findings because we
B. Prejudice.
¶ 25 In order to prevail on an IAC claim, “a defendant must [also] demonstrate that [counsel‘s] deficient performance prejudiced the defense, which requires a showing that ‘counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ ” State v. Todd, 369 N.C. 707, 710–11 (2017) (quoting Strickland, 466 U.S. at 687). “To prove prejudice, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Allen, 2021-NCSC-88, ¶ 27 (quoting Strickland, 466 U.S. at 694).
¶ 26 Here, Oglesby contends that he was prejudiced by his counsel‘s assertedly deficient performance at the resentencing hearing because he “may have received a shorter sentence had his counsel presented” the argument that the court could “reconsider how the robbery convictions were run.” The problem with this argument is that the resentencing court heard all of Oglesby‘s mitigating evidence and chose not to run his murder sentence concurrently with his kidnapping sentence. As noted above, when presented with the opportunity to run Oglesby‘s life with parole sentence concurrently with his kidnapping sentence of 29 to 44 months, the resentencing court expressly concluded that “consecutive sentences are warranted by the facts presented at the resentencing hearing.” In essence, Oglesby asks us to speculate that the court, presented with the exact same evidence, would have chosen to run his life with parole sentence concurrently with at least one of his robbery sentences of 95 to 123 months. We would have to conclude it was a reasonable probability that while choosing not to shorten his sentence by two and a half to three and a half years, the trial court nevertheless would have chosen to shorten his sentence by at least eight to ten years. This counterintuitive assertion is insufficient to demonstrate prejudice.
¶ 27 Furthermore, the sentences that the resentencing court chose not to run concurrently both arose out of the same criminal transaction. The resentencing court chose to reject counsel‘s argument that running the life with parole and kidnapping sentences concurrently was appropriate because “the kidnapping charge is part of . . . that felony murder,” in that the kidnapping formed part of the “felonious conduct leading up to a death.” This choice indicates that the resentencing court believed Oglesby should be punished separately for each of his crimes. Oglesby offers no basis for his assertion that there is any “reasonable probability” that the resentencing court would have deviated from its approach had it also been asked to consider his sentences imposed for separate crimes he committed on different days.
¶ 28 Finally, Oglesby echoes the dissenting opinion at the Court of Appeals in arguing that “[i]t is substantially likely, not just conceivable, that the trial court would have exercised its discretion to consider all of defendant‘s convictions in resentencing had defendant‘s trial counsel presented the argument.” Oglesby, 2021-NCCOA-354, ¶ 64 (Arrowood, J., concurring in part and dissenting in part). But the possibility that the court would have considered Oglesby‘s robbery sentences when exercising its discretion is not enough under the second prong of Strickland: while “a defendant need not show that counsel‘s deficient conduct more likely than not altered the outcome in the case,” Strickland, 466 U.S. at 693, the possibility that a court may have arrived at the same result by way of a slightly different path does not demonstrate that “the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results,” id. at 696.
IV. Conclusion
¶ 29 The Court of Appeals erred in characterizing as “speculative and untested” Oglesby‘s
MODIFIED AND AFFIRMED.