IN THE SUPREME COURT OF NORTH CAROLINA

No. 290PA15-2

Filed 25 September 2020

STATE OF NORTH CAROLINA

v.

JEFFREY TRYON COLLINGTON

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision 

of the Court of Appeals, 259 N.C. App. 127, 814 S.E.2d 874 (2018), affirming an order 

granting defendant’s motion for appropriate relief entered on 3 April 2017 by 

Judge Mark E. Powell in Superior Court, Transylvania County. Heard in the 

Supreme Court on 18 November 2019.

Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney 

General, for the State-appellant.

North Carolina Prisoner Legal Services, Inc., by Christopher J. Heaney, for 

defendant-appellee.

BEASLEY, Chief Justice.

In this case, we must determine whether appellate counsel’s failure to cite a 

particular case or line of cases amounted to constitutionally ineffective assistance of 

counsel. Because the facts present in the line of cases the Court of Appeals would 

have had appellate counsel cite are distinguishable from those of this case, that 

precedent does not govern the instant case and appellate counsel’s failure to rely 

thereon is objectively reasonable.
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Opinion of the Court

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Facts and Procedural History

The State’s primary witness, Christopher Hoskins, testified that he went to 

the recording studio of Dade Sapp to “hang out” on the evening of 1 October 2012. 

Shortly after his arrival, two men identified by Hoskins as defendant and Clarence

Featherstone entered the studio and demanded to speak with someone named “Tony.”

Defendant asked Hoskins if he was Tony and pointed a gun at Hoskins when Hoskins

answered that he was not. Hoskins testified that defendant and Featherstone beat 

him up, went through his pockets and removed approximately $900 in cash, and left 

the studio. At trial, Hoskins identified the gun that was reportedly wielded by 

defendant as belonging to Sapp. 

Defendant’s testimony differed greatly from that of Hoskins. Defendant 

testified that he and Featherstone went to the studio that evening but that the

purpose of the visit was for Featherstone to purchase oxycodone from Hoskins. An 

argument ensued over the amount paid for the oxycodone, which resulted in a 

fistfight between Hoskins, defendant, and Featherstone. Defendant testified the 

following: 

Sapp had set the whole deal up, and he had tried to cross 

us all up. He had taken warrants out on us for robbing his 

studio, when he had set up this whole ordeal. . . . He told 

the cops that we came in and robbed his studio. But that’s 

not what happened. He set up a drug deal and got half of 

the pills that were purchased, or at least somewhere near

. . . I did admit that I got in a physical altercation after he 

tried to retaliate for the rest of his money. 
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Defendant also testified that he never possessed a gun during the altercation. 

Rather, defendant testified that later in the evening, he and Featherstone met Sapp 

in a McDonald’s parking lot. There, Sapp gave the gun to Featherstone and asked 

him to hold onto it because according to defendant, Sapp “was scared due to the fact 

[that] he had gave the detectives and Mr. Hoskins a story about [how] he couldn’t 

locate his gun.” Defendant testified that he did not know what Featherstone did with 

the gun after the interaction.

Defendant was indicted for robbery with a dangerous weapon, conspiracy to 

commit robbery with a dangerous weapon, possession of a firearm by a felon, and 

being a habitual felon. The indictment charging defendant with possession of a 

firearm by a felon stated that defendant “did have in [his] control a black handgun, 

which is a firearm” and that defendant had previously been convicted of a felony. 

Without objection by defendant, the trial court instructed the jury that

[f]or a person to be guilty of a crime it is not necessary that 

he personally do all of the acts necessary to constitute the 

crime. If two or more persons join in a common purpose to 

commit the crime of robbery with a dangerous weapon 

and/or possession of a firearm by a felon, each of them, if 

actually or constructively present, is not only guilty of that 

crime if the other person commits the crime but [is] also 

guilty of any other crime committed by the other in 

pursuance of the common purpose to commit robbery with 

a dangerous weapon and/or possession of a firearm by a 

felon, or as a natural or probable consequence thereof.

If you find from the evidence beyond a reasonable

doubt that on or about the alleged date the defendant

acting either by himself or acting together [with]
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. . . Featherstone with a common purpose to commit the 

crime of robbery with a dangerous weapon and/or 

possession of a firearm by a felon, each of them if actually 

or constructively present, is guilty of robbery with a

dangerous weapon and/or possession of a firearm by [a] 

felon.

With respect to the specific charge of possession of a firearm by a felon, the trial court 

instructed the jury on the following: 

The defendant has been charged with possessing a

firearm after having been convicted of a felony. For you to 

find the defendant guilty of this offense, the State must 

prove two things beyond a reasonable doubt. 

First, that on April 20, 2006, in the Superior Court

Criminal Session of Transylvania County the defendant

was convicted by pleading guilty to the felony of possession 

with the intent to sell and deliver cocaine that was 

committed on October 26, 2005, in violation of the laws of 

the State of North Carolina. 

And second, that thereafter the defendant possessed 

a firearm. 

If you find from the evidence beyond a reasonable

doubt that the defendant was convicted of a felony in the 

Superior Court of Transylvania County, State of North 

Carolina, on April 10, 2006, and that the defendant 

thereafter possessed a firearm, it would be your duty to 

return a verdict of guilty. 

If you do not so find or have a reasonable doubt as to 

one or more of these things, it would be your duty to return 

a verdict of not guilty.

The jury found defendant guilty of possession of a firearm by a felon and being 

a habitual felon. He was not found guilty of robbery with a dangerous weapon and 
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Opinion of the Court

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conspiracy to commit robbery with a dangerous weapon. The verdict sheet did not 

indicate whether the jury convicted defendant of possession of a firearm by a felon 

under a theory of actual possession or under a theory of acting in concert. Defendant

was sentenced to 86 to 115 months imprisonment. 

Defendant appealed the conviction, contending that the trial court committed 

plain error by instructing the jury on the acting in concert theory with respect to the 

charge of possession of a firearm by a felon. Defendant specifically argued that the 

jury instruction impermissibly allowed the jury to convict him of possession of a 

firearm by a felon based on testimony that Featherstone received a gun from Sapp in 

the McDonald’s parking lot. In a unanimous, unpublished decision, the Court of 

Appeals held that defendant had not established that the trial court committed plain 

error in instructing the jury on the acting in concert theory for the charge of 

possession of a firearm by a felon. State v. Collington (Collington I), No. COA14-1244,

2015 WL 4081786, at *4 (N.C. Ct. App. 2015) (unpublished). The Court of Appeals

opined that although the jury did not believe that defendant robbed Hoskins, both 

defendant and Hoskins testified that they engaged in a physical altercation; 

therefore, the jury reasonably could have believed that defendant was in possession 

of Sapp’s gun at the time. Id.

Finally, the Court of Appeals observed that defendant had not presented an 

argument under State v. Pakulski, 319 N.C. 562, 356 S.E.2d 319 (1987), “which held 

that a trial court commits plain error when it instructs a jury on disjunctive theories
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of a crime,” one of which was erroneous, and it cannot be discerned from the record 

the theory upon which the jury relied. Id. Noting that “[i]t is not the role of the 

appellate courts . . . to create an appeal for an appellant,” the Court of Appeals

concluded that defendant had not sufficiently demonstrated plain error. Id. (first 

quoting Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005); 

then citing State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012)).

Defendant filed a petition for discretionary review, which this Court denied on 24 

September 2015.

After the Court of Appeals’ decision in Collington I, defendant filed a motion 

for appropriate relief in the trial court alleging ineffective assistance of appellate 

counsel. Specifically, defendant argued that had his appellate counsel made the 

proper argument under Pakulski, a reasonable probability exists that defendant 

would have received a new trial on appeal. The trial court denied defendant’s motion

for appropriate relief on 13 October 2016, stating that “the Court of Appeals found 

that no plain error was established in the trial . . . even assuming . . . an acting in 

concert instruction was improper.” Defendant petitioned the Court of Appeals for writ 

of certiorari. The Court of Appeals entered an order allowing the petition for writ of 

certiorari, vacating the trial court’s order denying defendant’s motion for appropriate 

relief, and remanding the case to the trial court to enter an appropriate order. The 

Court of Appeals reasoned that “the trial court utilized the incorrect legal standard 

in assessing defendant’s ineffective assistance of appellate counsel claim.” On 
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remand, the trial court entered an order granting the motion for appropriate relief, 

vacating defendant’s conviction, and awarding defendant a new trial. The State 

proceeded to file a motion in the Court of Appeals to temporarily stay the trial court’s 

order, a petition for writ of supersedeas, and a petition for writ of certiorari seeking 

review of the trial court’s order. On 2 May 2017, the Court of Appeals allowed the 

State’s motion for a temporary stay. On 17 May 2017, the Court of Appeals allowed 

the State’s petition for writ of certiorari and petition for writ of supersedeas. On 17 

April 2018, in a unanimous, published decision, the Court of Appeals affirmed the 

trial court’s order, holding that defendant’s appellate counsel was constitutionally 

ineffective for failing to make arguments under Pakulski. State v. Collington

(Collington II), 259 N.C. App. 127, 141, 814 S.E.2d 874, 885 (2018) (“[H]ad appellate 

counsel proffered the arguments under Pakulski, defendant would have secured a 

new trial upon simply demonstrating that the acting in concert instruction was given 

in error.”) The State petitioned this Court for discretionary review, which we allowed 

on 5 December 2018. 

Discussion

This Court reviews opinions of the Court of Appeals for errors of law. State v. 

Brooks, 337 N.C. 132, 149, 446 S.E.2d 579, 590 (1994). To prove ineffective assistance 

of counsel, a defendant must satisfy the following two-part test:

First, the defendant must show that counsel’s 

performance was deficient. This requires showing that 

counsel made errors so serious that counsel was not 
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Opinion of the Court

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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 error [was] so serious as to 

deprive the defendant of a fair trial, a trial whose result is 

reliable.

State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (emphasis omitted) 

(quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).

The proper standard for effective attorney performance is that of objectively 

reasonable assistance. Id. at 561–62, 324 S.E.2d at 248 (“When a defendant attacks 

his conviction on the basis that counsel was ineffective, he must show that his 

counsel’s conduct fell below an objective standard of reasonableness.”). The reviewing 

court “must indulge a strong presumption that counsel’s conduct falls within the 

broad range of what is reasonable assistance,” State v. Fisher, 318 N.C. 512, 532, 

350 S.E.2d 334, 346 (1986), and “strive to ‘eliminate the distorting effects of 

hindsight,’ ” State v. Augustine, 359 N.C. 709, 719, 616 S.E.2d 515, 524 (2005) 

(quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).

The Court of Appeals concluded that appellate counsel was ineffective for 

failing to cite Pakulski. We disagree for two reasons. First, the opinion in Pakulski

employed a standard of review different from the standard of review applicable in the 

instant case. Second, defendant’s appellate counsel did, in fact, make the arguments 

he should have made, albeit by reference to different authority.

The standard of review for alleged instructional errors depends on whether the 
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Opinion of the Court

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defendant preserved the error for appeal by raising an objection in the trial court. 

N.C. R. App. P. 10(a)(1), (4). Where the defendant fails to preserve the issue, he faces 

a greater burden on appeal. In Lawrence, the defendant was convicted of several 

offenses, including conspiracy to commit robbery with a dangerous weapon. 365 N.C. 

at 510, 723 S.E.2d at 329. 

[I]n its charge on conspiracy to commit robbery with 

a dangerous weapon, the trial court correctly instructed 

that robbery with a dangerous weapon is the taking of 

property from a person ‘while using a firearm,’ but 

erroneously omitted the element that the weapon must 

have been used to endanger or threaten the life of the 

victim.

Id. Because the defendant did not object to the jury instruction at trial, we applied 

the plain error standard of review. Id. at 512, 723 S.E.2d at 330 (“Because the plain 

error standard of review imposes a heavier burden on the defendant than the 

harmless error standard, it is to the defendant’s advantage to object at trial and 

thereby preserve the error for harmless error review.”). Under the more exacting 

standard of plain error review, we concluded that despite the acknowledged 

instructional error, the defendant had not met the burden of proving “that, after 

examination of the entire record, the error ‘had a probable impact on the jury’s finding 

that the defendant was guilty.’ ” Id. at 518, 723 S.E.2d at 334 (quoting State v. Odom, 

307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). 

In this case, the Court of Appeals’ decision appears to be based on a 

misidentification of the standard of review applied in Pakulski. The confusion is
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Opinion of the Court

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understandable. Admittedly, our opinion in Pakulski lacks clarity. The Court does 

not explicitly state which standard of review the Court applied. Nor does the Court

explicitly state whether the defendant objected to the jury instructions at trial—the 

fact on which the identity of the applicable standard of review turns. 

In Pakulski, the trial court instructed the jury on the felony-murder rule based 

on two predicate felonies, only one of which was legally supported by the evidence. 

Pakulski, 319 N.C. at 564, 356 S.E.2d at 321. The entirety of the discussion relevant 

to this issue is contained in a single, short section that reads, in relevant part, that

[w]here the trial judge has submitted the case to the jury 

on alternative theories, one of which is determined to be 

erroneous and the other properly submitted, and we cannot 

discern from the record the theory upon which the jury 

relied, this Court will not assume that the jury based its 

verdict on the theory for which it received a proper 

instruction. Instead, we resolve the ambiguity in favor of 

the defendant.

Id. at 574, 356 S.E.2d at 326. 

Although we failed to explicitly state it in our opinion, it appears that we 

applied the harmless error standard of review in Pakulski. First, we noted that the 

State asked the Court to hold that the trial court’s error was harmless. Id. at 574, 356 

S.E.2d at 326 (“The State contends that error in submitting the breaking or entering 

felony is harmless because the jury could have based its verdict solely on the robbery 

felony.” (Emphasis added.)). If we had believed at the time that the State had 

misidentified the standard of review, it seems reasonable to assume that we would 
STATE V. COLLINGTON

Opinion of the Court

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have noted that fact.

1

This Court’s failure to clearly state the standard of review in Pakulski has been 

rectified by subsequent decisions, which have made clear that the Pakulski rule 

applies when the issue is properly preserved on appeal. As such, the distinction 

between the standard of review to be applied to preserved issues and that which 

should be applied to unpreserved issues was born not in Pakulski, but in the case law 

 

1 In fact, we did note a misidentification of the standard of review applicable to a 

different issue in Pakulski, as follows:

The State requests that we review this assignment of 

error under the plain error rule, inasmuch as the omission was 

not called to the court’s attention prior to jury deliberations. 

However, based on our reading of the record, it appears that 

defense counsel complied with the spirit of [Rule 10(a)(4)] of the 

North Carolina Rule of Appellate Procedure], which in pertinent 

part provides:

No party may assign as error any portion of the 

jury charge or omission therefrom unless he 

objects thereto before the jury retires to consider 

its verdict, stating distinctly that to which he 

objects and the grounds of his objection . . . . An 

exception to the failure to give particular 

instructions to the jury . . . shall identify the 

omitted instruction . . . by setting out its 

substance immediately following the instructions 

given . . . . 

It is clear from the record that the defendant requested 

an instruction on impeaching a witness with a prior inconsistent 

statement. Therefore, our review consists of a determination of 

whether the court erred in failing to give the requested 

instruction and, if so, whether there is a reasonable possibility 

that had the error not been committed, a different result would 

have been reached. 

State v. Pakulski, 319 N.C. 562, 574–75, 356 S.E.2d 319, 327 (1987) (second through fifth 

alterations in original) (quoting N.C. R. App. P. 10(a)(4)).
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that followed. Secondly, in view of the fact that the defendants 'moved to dismiss on 

the grounds that there was insufficient evidence to permit the court to charge the 

jury on a theory of felony murder,' Pakulski, 319 N.C. at 571, 356 S.E.2d at 325, it is 

clear that the issue of the sufficiency of the evidence to support an instruction 

permitting the jury to find the defendants guilty of felony murder on any theory was 

brought to the trial court’s attention in advance of the delivery of the trial court's jury 

instructions, thereby serving the purpose of the contemporaneous objection now 

required by N.C. R. App. P. 10(a)(2). In State v. Maddux, 371 N.C. 558, 563, 819 

S.E.2d 367, 370 (2018), we reaffirmed that the plain error standard applies in cases 

involving unpreserved jury instruction issues. There, the trial court erroneously 

instructed the jury that the defendant could be found guilty either through a theory 

of individual guilt or a theory of aiding and abetting. The defendant did not object to 

the jury instructions at trial, and the jury convicted the defendant using a general 

verdict sheet. Thus, the record did not reflect whether the conviction was based on a 

theory of individual guilt or a theory of aiding and abetting. Id. at 562, 819 S.E.2d at 

370. We concluded that the defendant had not met his burden of proving plain error, 

and we rejected defendant’s argument that Pakulski should govern our decision.

[D]efendant argues that we cannot uphold his conviction 

even though there is ample evidence of his individual guilt 

because we have held that reversible error occurs when a 

jury is presented with alternative theories of guilt when 

(1) one of the theories is not supported by the evidence, and 

(2) it is unclear upon which theory the jury convicted 

defendant. . . . This rule, however, is not applicable to plain 
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Opinion of the Court

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error cases, such as this one, in which the error complained 

of is not preserved. As such, we need not address the 

substance of this argument.

Id. at 567 n.11, 819 S.E.2d at 373 n.11 (emphasis added). 

In State v. Malachi, 371 N.C. 719, 821 S.E.2d 407 (2018), we again referred to 

Pakulski as a harmless error case. See id. at 733 n.5, 821 S.E.2d at 418 n.5

(“This Court did discuss the harmless error issue in Pakulski, in which the State 

sought a finding of non-prejudice on the grounds that ‘the jury could have based its 

verdict solely on the robbery felony.’ ” (emphasis added) (quoting Pakulski, 319 N.C. 

at 574, 356 S.E.2d at 326)). We also made clear in Malachi that Pakulski did not 

create a rule of per se reversible error in all cases involving disjunctive jury 

instructions. Id. at 726, 821 S.E.2d at 413. Thus, neither the plain error standard of 

review nor the harmless error standard of review will automatically entitle a 

defendant to a new trial as a matter of law. See also State v. Boyd, 366 N.C. 548, 742 

S.E.2d 798 (2013) (reversing a decision of the Court of Appeals on the basis of a 

dissent that concluded that the defendant had failed to establish that the trial court's 

decision to allow the jury to consider whether the defendant was guilty of second 

degree kidnaping on the basis of a theory not supported by the evidence did not 

constitute plain error given the existence of “overwhelming” evidence tending to 

support other theories of guilt). Rather, each case must be resolved under the 

appropriate standard of review.

Confusion over Pakulski notwithstanding, this Court’s precedent 
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demonstrates that unpreserved issues related to jury instructions are reviewed under 

a plain error standard, while preserved issues are reviewed under a harmless error 

standard. See, e.g., State v. Mumma, 372 N.C. 226, 241, 827 S.E.2d 288, 298 (2019)

(“As a result of defendant’s failure to object to the delivery of an ‘aggressor’ instruction 

to the jury before the trial court, defendant is only entitled to argue that the delivery 

of the ‘aggressor’ instruction constituted plain error.”); Malachi, 371 N.C. at 719, 

821 S.E.2d at 407 (holding that the trial court’s error was subject to the harmless 

error standard of review where the defendant lodged an objection at trial); State v. 

Juarez, 369 N.C. 351, 357–58, 794 S.E.2d 293, 299 (2016) (“Because defendant did 

not object to the instruction as given at trial, we consider whether this instruction 

constitutes plain error.”); State v. Galaviz-Torres, 368 N.C. 44, 772 S.E.2d 434 (2015)

(applying the plain error standard of review where the defendant’s trial counsel did 

not object to any of the trial court’s instructions); State v. Petersilie, 334 N.C. 169, 432 

S.E.2d 832 (1993) (applying the harmless error standard of review where the trial 

court, despite the defendant’s objection, incorrectly instructed the jury regarding one 

of two possible theories upon which the defendant could be convicted).

The fundamental purpose of such a rule is to incentivize the parties to make 

timely objections so that the trial court may resolve the issue in real time. State v. 

Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (holding that the test for the plain 

error standard of review places a heavier burden upon the defendant because the 

defendant could have prevented any error by making a timely objection). However, 
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“[p]lain error review allows appellate courts to alleviate the potential harshness of 

preservation rules,” Lawrence, 365 N.C. at 514, 723 S.E.2d at 332, by allowing 

appellate courts to “take notice of errors for which no objection or exception had been 

made when ‘the errors [were] obvious, or if they otherwise seriously affect[ed] the 

fairness, integrity or public reputation of judicial proceedings,’ ” id. at 515, 723 S.E.2d 

at 332 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392 

(1936)). This distinction is codified in our Rules of Appellate Procedure and has been 

supported by decades of this Court’s precedent. See N.C. R. App. P. 10(a)(4)2 (“In 

criminal cases, an issue that was not preserved by objection noted at trial and that is 

not deemed preserved by rule or law without any such action nevertheless may be 

made the basis of an issue presented on appeal when the judicial action questioned 

is specifically and distinctly contended to amount to plain error.”).

The purpose of [Rule 10(a)(4)] is to encourage the parties 

to inform the trial court of errors in its instructions so that 

it can correct the instructions and cure any potential errors 

before the jury deliberates on the case and thereby 

eliminate the need for a new trial. Indeed, even when the 

“plain error” rule is applied, “[i]t is the rare case in which 

an improper instruction will justify reversal of a criminal 

conviction when no objection has been made in the trial 

court.”

Lawrence, 365 N.C. at 517, 723 S.E.2d at 333 (quoting Henderson v. Kibbe, 431 U.S. 

145, 154, 97 S. Ct. 1730, 1736, 52 L. Ed. 2d 203, 212 (1977)). Considering the extensive 

 

2 Since this Court’s holding in Lawrence, the Rules of Appellate Procedure have been 

revised such that Rule 10(b)(2) is now codified as Rule 10(a)(4) (“Plain Error”).
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precedent of this Court and the important interests promoted by clear rules related 

to issue preservation, we see no reason to create a subset of cases in which an 

unpreserved issue relating to jury instructions qualifies for harmless error review.

Here, defendant did not object at trial to the trial court’s jury instructions. The 

issue, therefore, was not properly preserved for appeal and could be reviewed only for 

plain error. Because today the standard of review applied in Pakulski applies only to 

preserved issues, it would have had little precedential value in the instant case, and 

appellate counsel’s failure to cite it was not objectively unreasonable.

Furthermore, appellate counsel’s arguments were appropriate for plain error 

review. Appellate counsel argued that the trial court committed plain error by

instructing the jury that defendant would be guilty if he had acted in concert to 

commit the offense of possession of a firearm by a felon. Quoting Lawrence, appellate 

counsel argued that “the plain error prejudice standard is not insufficiency of the 

evidence, but is whether ‘the error had a probable impact on the jury verdict.’ ”

Appellate counsel argued that the error did in fact have a probable impact on the 

jury’s verdict by demonstrating the probability that the jury found defendant guilty 

merely for accompanying Featherstone when Featherstone acquired the firearm from 

Sapp. Ultimately, appellate counsel argued that the jury was presented with multiple 

theories of guilt, one of which was erroneous, and that the error “had a probable 

impact on the jury’s finding that the defendant was guilty.” See Lawrence, 365 N.C.

at 518, 723 S.E.2d at 334. This was the appropriate argument and employed the 
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correct standard of review.

It is important to note that the underlying issue of whether the trial court 

committed reversible error is not before this Court. The issue brought before the

Court is whether defendant’s appellate counsel was ineffective for failing to cite to 

the Pakulski line of cases. We make no determination as to whether the trial court 

erred by instructing the jury on the acting in concert theory of guilt for the possession 

of a firearm by a felon charge, as that is not the issue before us. Our task today is 

merely to determine whether appellate counsel was constitutionally ineffective. Even 

assuming arguendo that the trial court committed plain error, we cannot fault 

appellate counsel for the Court of Appeals’ failure to so hold.

Accordingly, we hold that defendant failed to prove that his appellate counsel’s 

conduct “fell below an objective standard of reasonableness.” Braswell, 312 N.C. 

at 561–62, 324 S.E.2d at 248.

3 We reverse the decision of the Court of Appeals to the 

contrary.

REVERSED.

 

3 Because defendant fails to demonstrate the deficiency of appellate counsel’s 

performance we need not and do not address the prejudice prong of the ineffective assistance 

of counsel analysis. See State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985); 

Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (1984) (“[T]here is no 

reason for a court deciding an ineffective assistance claim to . . . address both components of 

the inquiry if the defendant makes an insufficient showing on one.”).
Justice ERVIN, concurring.

I agree with the Court’s interpretation of our earlier decision in State v. 

Pakulski, 319 N.C. 562, 356 S.E.2d 319 (1987), and the Court’s determination that 

defendant has failed to demonstrate that the representation that he received from his 

appellate counsel “fell below an objective standard of reasonableness,” State v. 

Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. 

Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)), in 

spite of the fact that defendant’s appellate counsel did not cite Pakulski when 

defendant’s appeal was initially decided by the Court of Appeals and join the Court’s 

opinion for that reason. I am, however, concerned that the Court’s opinion can be 

read to suggest that a defendant cannot, regardless of the state of the evidentiary 

record, be convicted of possession of a firearm by a felon based upon the theory of 

acting in concert and write separately in an attempt to make sure that our decision 

does not create any unnecessary confusion with respect to this issue.

In his initial appeal to the Court of Appeals, defendant contended that the trial 

court committed plain error by instructing the jury that it could convict defendant of 

possession of a firearm by a felon on the basis of the acting in concert doctrine. More 

specifically, defendant asserted that the trial court had committed plain error by 

“allow[ing] the jury to find [defendant] guilty of possession of a firearm by a convicted 

felon for Featherstone’s possession of the Glock pistol which [defendant] testified 

Sapp handed to Featherstone at the McDonald’s later that night after whatever had 
STATE V. COLLINGTON

Ervin, J., concurring

-2-

occurred at the recording studio.” In its initial, unpublished decision in this case, the 

Court of Appeals determined that, in light of defendant’s concession that there was 

sufficient evidence to permit the jury to find defendant guilty of possession of a 

firearm by a convicted felon on the basis of actual or constructive possession, 

“[d]efendant has not established plain error in the present case, even assuming 

arguendo that the trial court erred by instructing the jury on an acting in concert 

theory for the charge of possession of a firearm by a convicted felon,” State v. 

Collington, No. COA14-1244, 2015 WL 4081786, at *8 (July 7, 2015) (Collington I) 

(citing State v. Diaz, 155 N.C. App. 307, 314, 575 S.E.2d 523, 528 (2002)), while noting 

that “[d]efendant ha[d] not presented [that Court] with any arguments under State 

v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987).” Id. at *9.

In the aftermath of the Court of Appeals’ decision, defendant filed a motion for 

appropriate relief in which he alleged that he had received ineffective assistance of 

counsel on appeal. Defendant argued that, “[a]s a general rule, the acting in concert 

theory is not applicable to possession offenses,” citing Diaz, 155 N.C. App. at 314–15, 

575 S.E.2d at 528–29 (2002) (stating that “[t]he acting in concert theory is not 

generally applicable to possession offenses, as it tends to become confused with other 

theories of guilt”), and State v. Baize, 71 N.C. App. 521, 530, 323 S.E.2d 36, 42 (1984) 

(stating that “[w]e have found no acting in concert case in which the State was allowed 

to leap, in one single bound, the double hurdles of constructive presence and

constructive possession”). In defendant’s view, while “acting in concert may be 
STATE V. COLLINGTON

Ervin, J., concurring

-3-

instructed properly in cases charging possession of contraband,” citing State v. Diaz, 

317 N.C. 545, 552, 346 S.E.2d 488, 493 (1986), “[f]irearms . . . are not contraband per 

se” and, since “possession of a firearm by a felon [includes] an element personal to 

defendant–his or her status as a convicted felon–that only the defendant can satisfy,” 

“acting in concert is not a valid theory for the possession of a firearm by a felon 

charge.” As a result, defendant argued that, “[l]ike Pakulski, the present case 

involves a situation where both valid and invalid instructions were presented to the 

jury”; that it was impossible to determine whether the jury convicted defendant of 

possession of a firearm by a felon based upon the theory of actual or constructive 

possession or the theory of acting in concert; and that, “had [appellate] counsel made 

an argument pursuant to Pakulski, the remedy would have been a new trial.” As a 

result, defendant contended that he was entitled to a new trial.

On 13 October 2016, the trial court entered an order denying defendant’s 

motion for appropriate relief on the grounds “that no actual prejudice ha[d] been 

shown by the failure of the [d]efendant’s appellate counsel to argue Pakulski, and 

that failure now to consider said argument [would] not result in a fundamental 

miscarriage of justice.” On 13 December 2016, defendant filed a petition seeking the 

issuance of a writ of certiorari in the Court of Appeals authorizing review of the trial 

court’s denial of defendant’s motion for appropriate relief. On 29 December 2016, the 

Court of Appeals entered an order providing, among other things, that it had not held 

in Collington I “that defendant’s claim of plain error was meritless irrespective of 
STATE V. COLLINGTON

Ervin, J., concurring

-4-

whether his appellate counsel raised any arguments under [Pakulski]” and ordering 

that this case be remanded “to the trial court to enter an appropriate . . . order 

pursuant to N.C.G.S. § 15A-1420(c)(7). On 3 April 2017, the trial court entered an 

order granting defendant’s motion for appropriate relief and awarding defendant a 

new trial in which it concluded, in pertinent part, that:

(2) The jury was incorrectly instructed on the theory of 

acting in concert but correctly instructed on actual and 

constructive possession.

(3) With no way to determine the jury’s rationale for its 

guilty verdict, [d]efendant would have been entitled to 

a new trial if appellate counsel had made the proper 

argument pursuant to Pakulski on appeal. 

(4) A reasonable attorney would have been aware of 

Pakulski, its application to [d]efendant’s case, and the 

remedy of a new trial that it would provide.

(5) Appellate counsel’s performance fell below an objective 

standard of professional reasonableness. While 

appellate counsel did argue that the instruction on 

acting in concert was invalid, he did not complete the 

argument by arguing that because disjunctive jury 

instructions were given, one of which was improper, 

and there was no finding as to the jury’s chosen theory, 

there was plain error under Pakulski and [d]efendant 

is entitled to a new trial.

(6) But for appellate counsel’s error, there is a reasonable 

probability that the Court of Appeals would have found 

plain error and granted [d]efendant a new trial.

(7) Defendant received ineffective assistance of counsel in 

violation of the Sixth Amendment.
STATE V. COLLINGTON

Ervin, J., concurring

-5-

On 17 May 2017, the Court of Appeals allowed the State’s request for certiorari review 

of the trial court’s order.

In seeking relief from the trial court’s order before the Court of Appeals, the 

State argued that an acting in concert instruction “has never been held to be 

improper” in cases like this one and that, even if the delivery of the acting in concert 

instruction in this case was erroneous, the failure of defendant’s appellate counsel to 

advance an argument in reliance upon Pakulski did not constitute deficient 

performance for purposes of the test enunciated in Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In affirming the trial court’s order, 

the Court of Appeals noted that, in Collington I, it had been “left to determine” merely 

“whether ‘[t]he jury reasonably could have believed that [d]efendant was in [actual or 

constructive] possession of’ a gun from the evidence presented, regardless of the 

impropriety of the acting in concert instruction.” State v. Collington, 259 N.C. App. 

127, 138, 814 S.E.2d 874, 884 (2018) (Collington II) (first and third alteration in 

original). The Court of Appeals stated that, “had appellate counsel proffered the 

arguments under Pakulski [in Collington I], defendant would have secured a new 

trial upon simply demonstrating that the acting in concert instruction was given in 

error—plain error would be shown irrespective of the evidence admitted at trial in 

support of defendant’s actual or constructive possession of a firearm.” Id. at 141, 814 

S.E.2d at 885. However, the Court of Appeals pointed out that “[a]ppellate counsel 

simply argued [in Collington I] that the theory of acting in concert is inapplicable to 
STATE V. COLLINGTON

Ervin, J., concurring

-6-

the crime of possession of a firearm by a felon, without proffering any supporting 

authority as to why such an error would require a new trial.” Id. at 141, 814 S.E.2d 

at 886. Had defendant’s “appellate counsel . . . argued [in Collington I] that plain 

error was established pursuant to Pakulski, . . . [the Court of Appeals] would have, 

under the direction of Pakulski, been required to examine . . . whether the jury 

instruction on acting in concert was in fact improper.” Id. at 143, 814 S.E.2d at 887. 

In addition, the Court of Appeals held that, “given the persuasiveness of defendant’s 

argument that acting in concert is not an appropriate theory upon which to base a 

conviction of possession of a firearm by a felon, there is a reasonable probability that, 

had appellate counsel cited Pakulski [in Collington I], [the Court of Appeals] would 

have concluded [in that case] that defendant was entitled to a new trial.” Id. As a 

result, the record seems to reflect that the substantive premise upon which 

defendant’s ineffective assistance of counsel on appeal claim rested and upon which 

both the trial court and the Court of Appeals relied in granting defendant’s motion 

for appropriate relief was a determination that defendant could not have been 

properly convicted of possession of a firearm by a felon on the basis of an acting in 

concert theory regardless of the state of the evidentiary record.

Although the manner in which the Court has chosen to decide this case rests 

upon what appears to me to be a correct analysis of the applicable legal principles, I 

am concerned that certain statements contained in our opinion may create 

unnecessary confusion in the substantive criminal law of North Carolina. In order to 
STATE V. COLLINGTON

Ervin, J., concurring

-7-

obtain relief on the basis of ineffective assistance of appellate counsel in light of the 

theory alleged in defendant’s motion for appropriate relief, a reviewing court would 

have to determine that the trial court erred by instructing the jury that it could 

convict defendant of possession of a firearm by a felon and that the delivery of this 

instruction constituted plain error. State v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 

746, 764, 145 L. Ed. 2d 756, 780 (2000). Although the Court states that “the 

underlying issue of whether the trial court committed reversible error is not before 

this Court”; that “[t]he issue brought before the Court is whether defendant’s 

appellate counsel was ineffective for failing to cite to the Pakulski line of cases”; and 

that “[w]e make no determination as to whether the trial court erred by instructing 

the jury on the acting in concert theory of guilt for the possession of a firearm by a 

felon charge,” both the State and defendant presented arguments to this Court 

concerning the extent, if any, to which a defendant could lawfully be convicted of 

possession of a firearm by a felon in the briefs that they submitted for our 

consideration in this case. For that reason, the issue of whether defendant could have 

lawfully been convicted of possession of a firearm by a felon on the basis of an acting 

in concert theory does seem to me to be before us in this case.

Admittedly, neither this Court nor the Court of Appeals has directly held that 

a defendant can be convicted of possession of a firearm by a felon on the basis of an 

acting in concert theory. However, given that the Court of Appeals described 

defendant’s argument that “acting in concert is not an appropriate theory upon which 
STATE V. COLLINGTON

Ervin, J., concurring

-8-

to base a conviction of possession of a firearm” as “persuasive[ ],” Collington II, 259 

N.C. App. at 143, 814 S.E.2d at 887, I think that it is important to note that both this 

Court, see Diaz, 317 N.C. at 552, 346 S.E.2d at 493 (holding that the record contained 

sufficient evidence “to support the jury’s conclusion that defendant acted in concert 

with the traffickers to possess or transport in excess of 10,000 pounds of marijuana”), 

and the Court of Appeals, see Diaz, 155 N.C. App. at 314–15, 575 S.E.2d at 528–29 

(holding that the trial court did not err by instructing the jury that it could convict 

defendant of possession of cocaine with the intent to sell or deliver on the basis of an 

acting in concert theory given that “there was evidence that the defendant had 

constructive possession and was acting in concert”); State v. Garcia, 111 N.C. App. 

636, 640–41, 433 S.E.2d 187, 189 (1993) (holding that “[t]he evidence was sufficient 

for the trial court, when considering it in a light most favorable to the State, to find

that defendant acted in concert with [another individual] to possess the cocaine”); 

State v. Cotton, 102 N.C. App. 93, 98, 401 S.E.2d 376, 379 (1991) (holding that “the 

trial court did not err in instructing on acting in concert for the [possession of cocaine 

with the intent to sell or deliver] offense”), have upheld controlled substance 

possession convictions on the basis of an acting in concert theory.1 In addition, this 

 

1 Although the Court of Appeals awarded appellate relief to the defendants in State v. 

Autry, 101 N.C. App. 245, 254, 399 S.E.2d 357, 363 (1991); State v. James, 81 N.C. App. 91, 

96–97, 344 S.E.2d 77, 81 (1986); and Baize, 71 N.C. App. at 530, 323 S.E.2d at 42, based upon 

an erroneous use of the acting in concert doctrine, those decisions rested upon a 

determination that the record before the Court did not contain sufficient information to prove 

that the individuals in question had engaged in concerted action rather than upon a 

determination that the doctrine of acting in concert had no application to possessory offenses.
STATE V. COLLINGTON

Ervin, J., concurring

-9-

Court held in State v. Lovelace, 272 N.C. 496, 498–99, 158 S.E.2d 624, 625 (1968), 

that the defendant had been properly convicted of possession of implements of 

housebreaking, with the items in question being a large screwdriver and a hammer, 

on the basis of evidence tending to show that the defendant and another man “were 

acting together” and “were attempting to use [the tools] to force entry into the 

restaurant” even though “the tools were only seen in the hands of [the other man],”

suggesting that the doctrine of acting in concert is available to show a defendant’s 

guilt of possessory offenses other than those involving contraband. See also State v. 

Golphin, 352 N.C. 364, 456–58, 533 S.E.2d 168, 228–29 (2000) (finding no error in the 

trial court’s decision to instruct the jury that it could find that the defendant was 

guilty of possession of a stolen vehicle on the basis of an acting in concert theory in 

the course of also allowing the jury to convict the defendant of robbery with a 

dangerous weapon and first-degree murder in reliance upon the doctrine of acting in 

concert).

In apparent recognition of the general availability of the acting in concert 

doctrine in possession-related cases, defendant argues that “applying acting in 

concert to possession of a firearm by a felon impermissibly exceeds the plain statutory 

language that bans possession of a firearm only by a person with a felony conviction,” 

citing State v. Camp, 286 N.C. 148, 151, 209 S.E.2d 754, 756 (1974) (stating that 

“where a statute is intelligible without any additional words, no additional words may 

be supplied”) (citations omitted); N.C.G.S. § 14-415.1(a) (2019) (providing that “[i]t 
STATE V. COLLINGTON

Ervin, J., concurring

-10-

shall be unlawful for any person who has been convicted of a felony to purchase, own, 

possess, or have in his custody, care, or control any firearm”). However, the same 

statutory language from N.C.G.S. § 14-415.1(a) upon which defendant relies in 

support of this argument also appears, in essence, in the criminal statutes relating to 

the unlawful possession of controlled substances, N.C.G.S. § 90-95(a)(1) and (a)(2) 

(2019) (providing that “it is unlawful for any person” to “possess” or “possess with 

intent to . . . sell or deliver” “a controlled substance”); the possession of implements 

of housebreaking, N.C.G.S. § 14-55 (making it unlawful to “be found having in his 

possession, without lawful excuse, any picklock, key, bit, or other implement of 

housebreaking”); and the possession of a stolen motor vehicle, N.C.G.S. § 14-71.2 

(providing that “[a]ny person . . . who has in his possession any vehicle which he 

knows or has reason to believe has been stolen or unlawfully taken” “shall be 

punished as a Class H felon”). For that reason, I am not persuaded, contrary to the 

suggestion made in the Court of Appeals’ opinion, that the doctrine of acting in 

concert is not available in cases in which a defendant is charged with possession of a 

firearm by a felon as long as the State has presented sufficient evidence that the 

defendant has been previously convicted of a felony and has, acting in concert with 

another, had a firearm in his possession. Furthermore, I trust that the Court’s 

statement that “[w]e make no determination as to whether the trial court erred by 

instructing the jury on the acting in concert theory of guilt for the possession of a 

firearm by a felon charge” will not be understood to cast doubt upon the potential 
STATE V. COLLINGTON

Ervin, J., concurring

-11-

applicability of the doctrine of acting in concert to cases in which a defendant is 

charged with possession of a firearm by a felon and will be understood to be doing 

nothing more than expressing the Court’s decision to refrain from deciding whether 

the acting in concert doctrine has any application in this case as a matter of fact.

Justice NEWBY joins in this concurring opinion.
Justice EARLS dissenting.

Mr. Collington’s appellate counsel failed to make an argument on appeal that 

would have entitled him to relief. There is no record evidence to suggest that the 

oversight was a matter of strategy or consistent with the law as it existed at the time. 

The Court of Appeals, in two separate opinions, stated that this failure resulted in 

Mr. Collington’s inability to obtain relief on appeal. The majority, however, holds 

that this was not ineffective assistance of counsel. I disagree, and therefore 

respectfully dissent.

On 3 April 2017, the Superior Court, Transylvania County, granted Mr. 

Collington’s motion for appropriate relief (MAR), vacating his conviction and ordering 

a new trial. The Court of Appeals affirmed the trial court’s order in a unanimous, 

published opinion filed on 17 April 2018. State v. Collington (Collington II), 259 N.C. 

App. 127, 814 S.E.2d 874 (2018). We allowed the State’s petition for discretionary 
STATE V. COLLINGTON

Earls, J., dissenting

-2-

review on 5 December 2018.1 Given the procedural posture and that neither party 

has contested the trial court’s findings of fact, those facts are binding on appeal. 

Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). 

The trial court made the following findings of fact, from which it concluded that 

Mr. Collington’s appellate counsel had rendered ineffective assistance:

(1) Defendant Jeffrey Tryon Collington went to trial on 

charges of possession of firearm by a felon, conspiracy to 

commit robbery with a dangerous weapon, and robbery 

with a dangerous weapon. On 5 February 2014, a jury 

found Defendant not guilty of the robbery and conspiracy 

charges, and guilty of possession of a firearm by a felon. He 

was sentenced as a habitual felon to a consolidated 

sentence of 86–115 months.

(2) On the possession of a firearm by a felon charge, the 

jury was instructed that it could find Defendant guilty 

under the theories of actual possession, constructive 

 

1 Review of non-capital motions for appropriate relief by this Court is presumably 

limited to extreme situations. Compare N.C.G.S. § 15A-1422(f) (2019) (“Decisions of the 

Court of Appeals on motions for appropriate relief that embrace matter set forth in G.S. 15A1415(b) are final and not subject to further review by appeal, certification, writ, motion, or 

otherwise.”); N.C.G.S. § 7A-28 (2019) (same); N.C. R. App. P. 15(a) (prohibiting the filing of a 

petition for discretionary review of proceedings on motions for appropriate relief); 

N.C. R. App. P. 21(e) (stating that “the Supreme Court will not entertain . . . petitions for 

further discretionary review” in non-capital cases of motions for appropriate relief 

“determined by the Court of Appeals”); with State v. Todd, 369 N.C. 707, 710, 799 S.E.2d 834, 

837 (2017) (holding that this Court may “exercise its rarely used general supervisory 

authority” to review otherwise-final Court of Appeals determinations on motions for 

appropriate relief). It is striking that we should engage such rarely used constitutional 

authority in a case such as this, where there was no dissent in the Court of Appeals and even 

the majority suggests that the Court of Appeals’ interpretation of our precedent was 

reasonable. Until recently, the Court of Appeals’ interpretation was also the interpretation 

of this Court. See State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990) (applying our 

decision in Pakulski in a case involving plain error review).
STATE V. COLLINGTON

Earls, J., dissenting

-3-

possession, or acting in concert. The verdict sheets did not 

indicate under which theory the jury convicted Defendant.

(3) On 22 December 2014, appellate counsel filed a brief 

arguing that 1) the Superior[ ] Court’s jury instruction that 

Defendant would be guilty if he had acted in concert to 

commit the crime of possession of a firearm by a felon was 

plain error and 2) [t]he Superior Court’s jury instruction 

that ‘If you find from the evidence beyond a reasonable 

doubt that on or about the alleged date the defendant . . . 

acting together with Clarence Featherstone with a common 

purpose to commit the crime of . . . possession of a firearm 

by felon, each of them if actually or constructively present, 

is guilty of possession of a firearm by felon,’ was plain error.

(4) Appellate counsel failed to argue that under State v. 

Pakulski, when disjunctive jury instructions are paired 

with an improper jury instruction, and there is no finding 

as to the jury’s chosen theory, the defendant is entitled to 

a new trial. State v. Pakulski, 319 N.C. 562, 356 S.E.2d 

319 (1987).

(5) On 7 July 2015, the Court of Appeals ruled that 

assuming the acting in concert instruction was improper, 

that alone does not rise to the level of plain error. As 

appellate counsel did not raise a Pakulski argument, the 

Court of Appeals was not able to consider it.

(6) Defendant, through appellate counsel, filed a 

Petition for Discretionary Review to the North Carolina 

Supreme Court, and it was denied on 24 September 2015.

(7) On 30 March 2016, Defendant filed a Motion for 

Appropriate Relief on the grounds that he received 

ineffective assistance of counsel in violation of the Sixth 

and Fourteenth Amendments to the United States 

Constitution because his appellate counsel failed to raise 

the Pakulski argument on appeal that plain error was 

committed because the trial court instructed the jury on 

disjunctive theories of a crime, one of which was improper, 

and the record does not show upon which theory the jury 

relied. Defendant’s MAR was denied on 13 October 2016.
STATE V. COLLINGTON

Earls, J., dissenting

-4-

(8) Defendant filed a petition for Writ of Certiorari in 

the North Carolina Court of Appeals on 13 December 2016. 

On 29 December 2016, the Court of Appeals issued an order 

vacating the 13 October 2016 order on Defendant’s MAR 

and remanding the case to the trial court to enter an 

appropriate dispositional order. 

When evaluating whether a defendant received effective assistance of counsel, 

we conduct a Strickland analysis. State v. McNeill, 371 N.C. 198, 218, 813 S.E.2d 

797, 812 (2018); see Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). 

The first step of the analysis is “whether counsel’s representation ‘fell below an 

objective standard of reasonableness.’ ” Padilla v. Kentucky, 559 U.S. 356, 366, 

130 S. Ct. 1473, 1482 (2010) (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2064). 

“[E]ven an isolated error of counsel” may violate the Sixth Amendment right to 

effective assistance of counsel “if that error is sufficiently egregious and prejudicial.” 

Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649 (1986). Where appellate 

counsel “ha[s] researched the question, but ha[s] determined that the claim [is]

unlikely to succeed,” Smith v. Murray, 477 U.S. 527, 531–32, 106 S. Ct. 2661, 

2665 (1986), and therefore does not pursue the claim on appeal, counsel has not 

rendered ineffective assistance, id. at 535–36, 106 S. Ct. at 2667. The important 

question, however, is whether the decision not to pursue a claim was the result of 

reasoned judgment or merely an error. See Jones v. Barnes, 463 U.S. 745, 751, 

103 S. Ct. 3308, 3312 (1983) (“Neither Anders nor any other decision of this Court 

suggests, however, that the indigent defendant has a constitutional right to compel 

appointed counsel to press nonfrivolous points requested by the client, if counsel, as 
STATE V. COLLINGTON

Earls, J., dissenting

-5-

a matter of professional judgment, decides not to present those points.” (Second 

emphasis added.)). Where “counsel unreasonably failed to discover nonfrivolous 

issues and to file a merits brief raising them,” the first prong of the Strickland test 

has been met. Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764 (2000). 

The majority provides two reasons for reversing the decision of the Court of 

Appeals, stating (1) that “defendant’s appellate counsel did, in fact, make the 

arguments he should have made, albeit by reference to different authority” and (2) 

that “the opinion in Pakulski employed a standard of review different from the 

standard of review applicable in the instant case.” Both statements are inaccurate. 

First, the majority mischaracterizes the failure of appellate counsel and, in doing so, 

ignores both the trial court’s findings of fact and the statements of the Court of 

Appeals. Second, the majority misidentifies the standard of review employed in 

Pakulski and, as a result, misstates Pakulski’s applicability to this case.2

 

2 The majority goes to great lengths to explain the importance of distinguishing 

between plain error review, applied to unpreserved instructional error in criminal cases, and 

harmless error review, applied to preserved instructional error. The majority even goes so 

far as to invoke “the extensive precedent of this Court” distinguishing preserved error from 

unpreserved error to justify its decision. There is no question that, as the majority notes, 

“unpreserved issues related to jury instructions are reviewed under a plain error standard, 

while preserved issues are reviewed under a harmless error standard.” The difference 

between the two types of review is not at issue in this case. The rule stated by this Court in 

State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987) is one of plain error review. 

As a result, in arguing for Pakulski’s applicability to this case, this dissent does not suggest 

that harmless error review should apply to unpreserved issues. 
STATE V. COLLINGTON

Earls, J., dissenting

-6-

I.

Mr. Collington’s appellate counsel provided ineffective assistance by failing to 

properly identify the error in the jury instruction. The majority states that “[t]he 

Court of Appeals concluded that appellate counsel was ineffective for failing to cite 

Pakulski.” This is incorrect. The trial court’s finding on this fact is instructive. It 

stated the following:

(4) Appellate counsel failed to argue that under State v. 

Pakulski, when disjunctive jury instructions are paired 

with an improper jury instruction, and there is no finding 

as to the jury’s chosen theory, the defendant is entitled to 

a new trial. State v. Pakulski, 319 N.C. 562, 356 S.E.2d 

319 (1987). 

The Court of Appeals decision below is similarly instructive. In describing the 

argument of Mr. Collington’s appellate counsel, the Court of Appeals stated the 

following: 

Defendant appealed his conviction of possession of a 

firearm by a felon to this Court, arguing “that the trial 

court committed plain error by providing the jury with an 

instruction on acting in concert with respect to the charge 

of possession of a firearm by a felon.” [State v. Collington 

(Collington I), No. COA-14-1244, 2015 WL 4081786, at] *7 

[(N.C. Ct. App. 2015) (unpublished)]. Defendant 

specifically argued “that this instruction impermissibly 

allowed the jury to convict Defendant of possession of a 

firearm by a felon based on [his brother]—also a convicted 

felon—reportedly receiving the gun from Mr. Sapp in a 

McDonald’s parking lot on the evening of 1 October 2012.” 

Id.

Collington II, 259 N.C. App. at 130, 814 S.E.2d at 879.
STATE V. COLLINGTON

Earls, J., dissenting

-7-

While this may seem like a minor point, it is actually very important in the 

context of this case. The majority attempts to recast the argument that appellate 

counsel actually made, writing that “appellate counsel argued that the jury was 

presented with multiple theories of guilt, one of which was erroneous, and that the 

error ‘had a probable impact on the jury’s finding that the defendant was guilty.’ ” 

This statement is wrong when measured against the trial court’s findings of fact and 

the Court of Appeals decision below. But more importantly, it obfuscates the import 

of appellate counsel’s error. The problem with the jury instruction was not only that 

the trial court submitted an erroneous instruction to the jury. The instructional error 

was that an erroneous instruction was paired with a non-erroneous instruction, 

which allowed the jury to return a guilty verdict in an array of circumstances wider 

than the law permits.3 That instructional error is what appellate counsel failed to 

identify and argue to the Court of Appeals in Collington I. 

As a result, the majority is incorrect when it states that “defendant’s appellate 

counsel did, in fact, make the arguments he should have made, albeit by reference to 

different authority.” As the Court of Appeals stated, “defendant’s appellate counsel 

did not . . . argue that because it could not be determined from the record whether 

 

3 It is, of course, the inability of an appellate court to determine where in that array 

of circumstances a jury has situated its verdict when “we cannot discern from the record the 

theory upon which the jury relied” which leads to Pakulski’s rule that “we resolve the 

ambiguity in favor of the defendant.” Pakulski, 319 N.C. at 574, 356 S.E.2d at 326. The 

important point, though, is that the problem of appellate review and attendant remedy 

presented in Pakulski is distinct from the identification of the error. The former is, in the 

majority’s view, implicated by the relevant standard of review. The latter, however, is not.
STATE V. COLLINGTON

Earls, J., dissenting

-8-

the jury relied upon the improper or the proper instruction, plain error was 

established.” Collington II, 259 N.C. App. at 138, 814 S.E.2d at 883. As the trial 

court’s findings of fact note, “[a]ppellate counsel failed to argue that . . . when 

disjunctive jury instructions are paired with an improper jury instruction, and there 

is no finding as to the jury’s chosen theory, the defendant is entitled to a new trial.” 

Appellate counsel instead argued, as the trial court notes in its findings of fact, 

that “the Superior[ ] Court’s jury instruction that Defendant would be guilty if he had 

acted in concert to commit the crime of possession of a firearm by a felon was plain 

error.” The effect of counsel’s mistake is apparent in the first Court of Appeals 

opinion. See Collington I, 2015 WL 4081786, at *1–4. Had counsel made the 

appropriate argument, the Court of Appeals would have first considered the full 

extent of the instructional error and would have second considered whether the trial 

court’s error “had a probable impact on the jury’s finding that the defendant was 

guilty.” See State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). 

However, because counsel failed to accurately describe the error, arguing only that a 

theory of guilt presented to the jury was erroneous, the Court of Appeals instead 

conducted a sufficiency of the evidence analysis. See Collington I, 2015 WL 4081786, 

at *4 (concluding that there was not plain error because “[t]he jury reasonably could 

have believed that Defendant was in possession of Mr. Sapp’s gun” after noting that

defendant conceded in his brief that the evidence was legally sufficient to convict on 

a proper instruction and discounting any evidence put on by defendant at trial). If 
STATE V. COLLINGTON

Earls, J., dissenting

-9-

counsel had appropriately framed the argument, the Court of Appeals would have 

reached a different result. The Court of Appeals itself noted this fact, as follows:

Finally, Defendant has not presented this Court with any 

arguments under State v. Pakulski, 319 N.C. 562, 574, 356 

S.E.2d 319, 326 (1987), which held that a trial court 

commits plain error when it instructs a jury on disjunctive 

theories of a crime, where one of the theories is improper, 

and “we cannot discern from the record the theory upon 

which the jury relied[.]” “It is not the role of the appellate 

courts . . . to create an appeal for an appellant.” Viar v. N.C. 

Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 

361 (2005). Therefore, Defendant has not met his “burden”

of establishing that the trial court committed plain error in 

the present case. See Lawrence, 365 N.C. at 516, 723 S.E.2d 

at 333.

Id. (alteration in original). Given this failure by appellate counsel, the majority’s 

discussion of whether plain error or harmless error review applies is beside the point. 

Regardless of the appropriate standard of review, appellate counsel failed to correctly 

identify the error and pursue it on appeal. The record contains no evidence that this 

mistake resulted from reasoned judgment or that it was a strategic decision. As a 

result, Mr. Collington received ineffective assistance of appellate counsel, and there 

is no basis for this Court to overturn the decisions to the contrary by both the trial 

court and the Court of Appeals. 

II.

The majority is also wrong to assert that Pakulski does not apply to this case. 

The majority describes the analysis of the Court of Appeals as a “misidentification of 

the standard of review applied in Pakulski.” However, it is the majority which 
STATE V. COLLINGTON

Earls, J., dissenting

-10-

incorrectly identifies Pakulski’s standard of review. In reality, Pakulski applied the 

plain error standard of review and Pakulski is applicable to Mr. Collington’s case.

The majority writes that “it appears that we applied the harmless error 

standard of review in Pakulski” because the opinion uses the word “harmless” once 

when describing one of the State’s arguments. It is more instructive, I think, to look 

at the briefs actually filed in that case, as well as the transcripts of the trial court 

proceedings, which reveal (1) that the instructional error was not preserved and (2) 

that both the State and defense counsel argued in their briefs that the appropriate 

standard of review was plain error. 

The record in Pakulski makes clear that the error in that case was 

unpreserved, as neither defense counsel objected to any instruction proposed at the 

charge conference. Instead, defense counsel requested additional instructions and 

did not object when the felony murder instruction was discussed. The following is 

the transcript of the trial proceedings in Pakulski as they relate to this question. Mr. 

Buchanan is the prosecutor, Mr. Moody is Pakulski’s defense attorney, and Mr. 

McLean is the attorney for Pakulski’s co-defendant:

COURT: Well– All right. I’m waiting on that bill. I 

don’t have it before me. Now, let’s talk about the precharge

conference. I think we’d better do it before the arguments. 

On the murder charge what– First, what does the State say 

how the case ought to be submitted to the jury?

MR. BUCHANAN: May it please Your Honor, the State is 

of the opinion that the evidence would support possibly 4 

verdicts in the murder case of guilty of murder in the first 

degree in the perpetration of a felony; two, guilty of first 
STATE V. COLLINGTON

Earls, J., dissenting

-11-

degree murder with malice and premeditation and 

deliberation; or thirdly, guilty of murder in the 

perpetration of a felony and with malice and premeditation 

and deliberation; not guilty.

COURT: Well, it can’t be– 

MR. BUCHANAN: You asked me.

COURT: Let me ask: Do you think that there was 

premeditation?

MR. BUCHANAN: Yes, Your Honor, the State does feel 

that there is sufficient evidence to support such a charge.

COURT: Because of the evidence that Pakulski said 

that he was going to kill– 

MR. BUCHANAN: Yes, Your Honor.

COURT: The evidence also shows that he wasn’t 

looking for him at that time and it was just a chance that 

he happened to see him.

MR. BUCHANAN: Yes, Your Honor. The State certainly 

concedes that.

COURT: Let me look at this other bill I didn’t have.

(The court examined a document.)

COURT: Well, I think I’ll submit it only on the theory 

of murder in the perpetration of a felony.

MR. BUCHANAN: Yes, Your Honor.

MR. MOODY: Your Honor, might we inquire what 

would be the underlying felony?

COURT: Well, I think there are two, but actually the 

felony would be breaking and entering and robbery. I think 

robbery is of the-- Well, they are just so interlocking that– 

MR. MOODY: Yes, sir.
STATE V. COLLINGTON

Earls, J., dissenting

-12-

COURT: I may submit the breaking and entering. I 

don’t know. Well, I probably will. Now, on the– Well, let 

me say this before we go any further. Let me give you this. 

If you’ll come up here, let me show you how I’d like you to 

make the form for the verdict sheet.

. . . 

COURT: Anything else you gentlemen want to say 

about any particular thing concerning the charge? I’ll give 

them the routine charge on each of those alleged offenses, 

and if you like I want to inquire now if you want me to 

instruct the jury concerning the defendants not testifying.

MR. MOODY: Yes, sir. The defendant Pakulski 

would request that instruction, just a standard instruction 

on that– 

COURT: All right.

MR. MOODY: –as well as an instruction on 

reasonable doubt and the effect of the immunity granted to 

Mr. Chambers.

COURT: Yes, sir, I’ll do all that. What about you? Do 

you want me to instruct them on the defendant’s failure to 

testify?

MR. MCLEAN: Yes, sir. I would ask the Court– I 

believe it’s 101.30.

COURT: I don’t know what you are talking about.

MR. MCLEAN: It’s the effect of the defendant’s 

decision not to testify. That’s that pattern instruction. 

COURT: Well, I don’t have that with me.

MR. MCLEAN: I’ve got it here, Your Honor. I’ll present 

it to you.

COURT: Well, I don’t need it.

MR. MCLEAN: Okay. And also I would ask that the 
STATE V. COLLINGTON

Earls, J., dissenting

-13-

Court instruct–this is called in pattern of jury instruction 

105.20, but let me tell you what it’s about. It’s about prior 

inconsistent statements. We would ask that this 

instruction be given based on Mr. Chambers prior– 

COURT: Excuse me just a minute. Let me get it down.

MR. MCLEAN: Yes, sir.

COURT: And the accomplice charge would be part of 

that. All right, now.

MR. MCLEAN: And along that same thing since we’ve 

asked for that charge, we were asking in addition or I am 

to charge impeachment by prior inconsistent statement 

under– 

COURT: Well, let me see what you’ve got on that. I 

know about what I would tell them.

MR. MCLEAN: Yes, sir. It may be the same thing. I’m 

just wanting to– 

COURT: Well, I don’t know. I don’t have any set– 

(Mr. McLean handed the Court a document.)

COURT: Okay. All right.

MR. MCLEAN: And the other that mister– 

COURT: If I overlook that, call it to my attention. I 

don’t think I will.

MR. MCLEAN: Yes, sir. Of course, the standard 

burden of proof and those types of charges we would ask.

COURT: All right, Okay. Does that cover it?

MR. MOODY: Yes, sir, Your Honor. [The discussion 

continues on other matters.] 
STATE V. COLLINGTON

Earls, J., dissenting

-14-

Transcript of Record at 1242–48, Pakulski, 319 N.C. 562, 356 S.E.2d 319 (No. 

256PA85) [hereinafter Pakulski Transcript].

Defense counsel also did not object to the instruction when it was given. After 

closing arguments, the trial court instructed counsel that it would ask if there were 

any objections to the jury charge after the instructions were given and that any 

objections would be included in the record at that point. Pakulski Transcript at 1339. 

Defense counsel agreed. Id. After giving the instructions to the jury, the trial court 

asked whether counsel had any objections, and counsel replied that they did not. 

Id. at 1365. The next morning, after the jury left the courtroom to begin their 

deliberations, the State approached the bench and had a discussion with the trial 

court, the contents of which were not recorded. Id. at 1366. The trial court then 

stated the following: “Let the record show further that at the conclusion of the charge 

the defendants make a general objection to the charge.” Id.4 

 

4 The record in Pakulski shows that defense counsel did not object to the felony-murder 

jury instruction at the charge conference, before the instructions were given, or after the 

instructions were given. The majority points to a line in the Pakulski opinion indicating that 

defense counsel moved to dismiss on the grounds of insufficient evidence to charge the jury 

on a theory of felony murder. See Pakulski, 319 N.C. at 571, 356 S.E.2d at 325. The majority 

suggests that this was sufficient to preserve an exception to the jury instruction because it 

“serv[ed] the purpose of the contemporaneous objection now required by N.C. R. App. P. 

10(a)(2).” I note that the preservation requirements for exceptions to jury instructions 

remain substantially unchanged from those in existence at the time Pakulski was decided. 

Compare N.C. R. App. P. 10(b)(2), 312 N.C. 814 (1984) (repealed 1989) with N.C. R. App. P. 

10(a)(2). Indeed, the requirements in effect at the time that Pakulski was decided were more 

onerous, requiring that “an exception to instructions given the jury shall identify the portion 

in question by setting it within brackets” or making other clear reference in the record on 

appeal.
STATE V. COLLINGTON

Earls, J., dissenting

-15-

This Court in Pakulski ruled that the felony-murder instruction given to the 

jury was erroneous and warranted reversal. Pakulski, 319 N.C. at 574, 356 S.E.2d 

at 326. The record very clearly indicates that defense counsel in Pakulski never 

objected to the jury instruction at trial that we subsequently ruled was in error.5 As 

the majority notes, “unpreserved issues related to jury instructions are reviewed 

under a plain error standard.” This makes Pakulski a plain error case. See State v. 

Tucker, 317 N.C. 532, 536, 346 S.E.2d 417, 420 (1986) (“Since defendant failed to 

object to these instructions at trial, we consequently must consider whether they rise 

to the level of plain error . . . .”); see also N.C. R. App. P. 10(a)(4) (“In criminal cases, 

an issue that was not preserved by objection noted at trial and that is not deemed 

preserved by rule or law without any such action nevertheless may be made the basis 

of an issue presented on appeal when the judicial action questioned is specifically and 

distinctly contended to amount to plain error.”).6 The majority is wrong to assert that 

the Court in Pakulski applied the harmless error standard of review. 

 

5 The trial transcript does indicate that the defendant made a general motion to 

dismiss at the close of the State’s evidence, and another at the close of all evidence. 

Pakulski Transcript at 725, 1249. Both motions were denied. Id. at 728, 1249. 

6 In fact, the parties in Pakulski did “specifically and distinctly contend[]” that “the 

judicial action questioned . . . amount[ed] to plain error.” See N.C. R. App. P. 10(a)(4). Both 

defense counsel and the State argued in their briefs that the appropriate standard for our 

decision was plain error. Brief for Defendant-Appellant Pakulski at 34, Pakulski, 319 N.C. 

562, 356 S.E.2d 319 (No. 256PA85) (“On the facts of this case, the instructions on felony 

murder based on breaking or entering were plainly erroneous.”); Brief for State-Appellee at 

22, Pakulski, 319 N.C. 562, 356 S.E.2d 319 (No. 256PA85) (“Thus, [the trial court’s] jury 

charge appears reviewable only for plain error. See State v. Odom, 307 N.C. 355, 300 S.E. 

2d 375 (1983).”).
STATE V. COLLINGTON

Earls, J., dissenting

-16-

It does not aid the majority that Pakulski is paired with the words “harmless 

error” in a scant reference thirty-one years7 after Pakulski was issued. In State v. 

Maddux, we stated in a footnote that Pakulski did not apply to the defendant’s case 

because it “is not applicable to plain error cases.” 371 N.C. 558, 567 n.11, 819 S.E.2d 

367, 373 n.11 (2018). Two months later in State v. Malachi, in another footnote, we 

stated that “[t]his Court did discuss the harmless error issue in Pakulski.” 371 N.C. 

719, 732 n.5, 821 S.E.2d 407, 417 n.5 (2018). These passing references do not, as the 

majority claims, clarify that Pakulski is a harmless error case. Indeed, those two 

passing references are simply wrong. See State v. Lynch, 327 N.C. 210, 219, 393 

S.E.2d 811, 816 (1990) (applying Pakulski where it does not appear that the 

defendant objected to the jury instruction at trial); see generally Pakulski, 319 N.C. 

562, 356 S.E.2d 319 (containing no indication that the defendant specifically objected 

to any jury instruction). Given that the actual record in Pakulski clearly shows that 

Pakulski is a plain error case, the majority should not read it otherwise.8 

 

7 The long-standing nature of our decision in Pakulski, along with the fact that it 

seems to have been consistently applied as a plain error case for thirty-one years after its 

issuance, suggest that the majority’s concern about “creat[ing] a subset of cases in which an 

unpreserved issue relating to jury instructions qualifies for harmless error review” is 

unfounded. 

8 The majority seems concerned that acknowledging that Pakulski is a plain error 

case, thereby applying its rule to cases of unpreserved error, would apply too lenient a 

standard of review and undermine “the important interests promoted by clear rules related 

to issue preservation.” Honoring Pakulski’s promise would do no such thing. Instead, it 

would prevent appellate courts from keeping defendants in prison on an impermissible theory 

of guilt when “we cannot discern from the record the theory upon which the jury relied.” 

Pakulski, 319 N.C. at 574, 356 S.E.2d at 326. Thus, the rule in Pakulski is designed to 

address precisely the type of “fundamental error, something so basic, so prejudicial, so 
STATE V. COLLINGTON

Earls, J., dissenting

-17-

Thus, Pakulski is a plain error case, and Mr. Collington is entitled to relief.9 

At trial, according to the trial court’s findings of fact, Mr. Collington’s jury was 

instructed with respect to the possession of a firearm by a felon charge “that it could 

find Defendant guilty under the theories of actual possession, constructive 

possession, or acting in concert.” The jury found him guilty of possession of a firearm 

by a felon and the “verdict sheets did not indicate under which theory the jury 

convicted Defendant.” 

In Pakulski, we held:

Where the trial judge has submitted the case to the jury on 

alternative theories, one of which is determined to be 

erroneous and the other properly submitted, and we cannot 

discern from the record the theory upon which the jury 

relied, this Court will not assume that the jury based its 

verdict on the theory for which it received a proper 

instruction. Instead, we resolve the ambiguity in favor of 

the defendant. 

319 N.C. at 574, 356 S.E.2d at 326. It does not matter if “the jury could have based 

its verdict solely” on the permissible theory if “the verdict form does not reflect the 

theory upon which the jury based its finding of guilty.” Id. Mr. Collington’s appellate 

counsel did not make that argument. For that reason, his appellate counsel was 

deficient. See Robbins, 528 U.S. at 285, 120 S. Ct. at 764 (stating that appellate 

 

lacking in its elements that justice cannot have been done” to which the plain error rule is 

directed. See State v. Lawrence, 365 N.C. 506, 516–17, 723 S.E.2d 326, 333 (2012) (emphasis 

in original) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)).

9 As discussed in Part I of this dissent, Mr. Collington is entitled to relief even if 

Pakulski were a harmless error case.
STATE V. COLLINGTON

Earls, J., dissenting

-18-

counsel is deficient where “counsel unreasonably failed to discover nonfrivolous 

issues and to file a merits brief raising them”). 

The deficiency is particularly egregious in this case because of the facts. The 

only evidence presented at trial that Mr. Collington possessed a firearm, either 

actually or constructively, came from the testimony of Christopher Hoskins. Mr. 

Hoskins testified that Mr. Collington held a gun while Mr. Collington was robbing 

him. However, while the jury found Mr. Collington guilty of possession of a firearm 

by a felon, the jury found him not guilty of robbery with a dangerous weapon and 

conspiracy to commit robbery with a dangerous weapon. It seems more likely, then, 

that the jury found Mr. Collington guilty of possession of a firearm based on his own 

testimony. During trial, Mr. Collington testified that his brother, Clarence 

Featherstone, received a gun from Dade Sapp later in the evening. This supports the 

conclusion that the jury based its verdict on the acting in concert theory rather than 

on actual or constructive possession. 

Mr. Collington’s appellate counsel had an obligation to present the argument 

to the Court of Appeals which would have allowed that court to ensure that 

Mr. Collington was not convicted of possession of a firearm based on someone else’s 

possession. Because Mr. Collington’s counsel did not meet that obligation, 

Mr. Collington clearly received ineffective assistance of appellate counsel and is 

entitled to a new trial. I respectfully dissent.

Justice DAVIS joins in this dissenting opinion.