per se rule in North Carolina

2026JACKSON Opinion of the Court In State v. Harbison, our Supreme Court held that a per se violation of a defendant’s Sixth Amendment right to effective assistance of counsel occurs when “the defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s consent.” 315 N.C. 175, 180 (1985).

2025In North Carolina, this per se rule applies even “where the evidence is so overwhelming that a plea of guilty is the best trial strategy” because “the gravity of the consequences demands that the decision to plead guilty remain in the defendant’s hands.” Harbison, 315 N.C. at 180 .

2020MCALLISTER Opinion of the Court In determining that these statements constituted a per se violation of the defendant’s constitutional right to effective assistance of counsel, we held that “[b]ecause the record does not indicate defendant knew his attorney was going to concede his guilt to second-degree murder, we must conclude defendant’s attorney made this concession without defendant’s consent, in violation of Harbison.” Id. at 109 , 591 S.E.2d at 540 .

2020MCALLISTER Opinion of the Court In determining that these statements constituted a per se violation of the defendant’s constitutional right to effective assistance of counsel, we held that “[b]ecause the record does not indicate defendant knew his attorney was going to concede his guilt to second-degree murder, we must conclude defendant’s attorney made this concession without defendant’s consent, in violation of Harbison.” Id. at 109 , 591 S.E.2d at 540 .

2005This Court has been more likely to find prejudice as the length of the delay increases, In re L.E.B., ___ 169 N.C.App. 375 , 610 S.E.2d 424 (2005); In re T.L.T., ___ N.C.App. ___, 612 S.E.2d 436 (2005), but this Court has consistently declined to adopt a per se standard even when long delays are involved.

2005This Court has been more likely to find prejudice as the length of the delay increases, In re L.E.B., ___ N.C.App. ___, 610 S.E.2d 424 (2005); In re T.L.T., ___ N.C.App. ___, 612 S.E.2d 436 (2005), but this Court has consistently declined to adopt a per se standard even when long delays are involved.

2006See, e.g., In re K.D.L., ___ N.C.App. ___, ___, 627 S.E.2d 221, 224 (2006) (respondent argues reversible error where "trial court entered the order fifty days after the deadline" but "admits, `[t]his Court has not previously found prejudice to exist from this short of a time violation'"); In re C.J.B. & M.G.B., 171 N.C.App. 132, 134 , 614 S.E.2d 368, 369 (2005) ("our Court's more recent decisions have been apt to find prejudice in delays of six months or more") (citations omitted); In re L.E.B., K.T.B., 169 N.C.App. 375, 379 , 610 S.E.2d 424, 426 , disc. review denied, 359 N.C. 632 , 616 S.E.2

2005This Court has been more likely to find prejudice as the length of the delay increases, In re L.E.B., ___ 169 N.C.App. 375 , 610 S.E.2d 424 (2005); In re T.L.T., ___ N.C.App. ___, 612 S.E.2d 436 (2005), but this Court has consistently declined to adopt a per se standard even when long delays are involved.

2022In re DiPippo, 678 A.2d 454, 456 (R.I. 1996) (concluding it is impermissible for an attorney “to engage in sexual relations with a divorce client when issues of child custody, support, and distribution of marital assets are at stake . . . .”); In re Lewis, 262 Ga. 37, 38 , 415 S.E.2d 173, 175 (1992) (“Every lawyer must know that an extramarital relationship can jeopardize every aspect of a client’s matrimonial case . . . .”); Att’y Grievance Comm’n v. Culver, 381 Md. 241, 274 , 849 A.2d 423, 443 (2002) (explaining an attorney who engages in consensual sexual relations with a domestic relations

2022In re DiPippo, 678 A.2d 454, 456 (R.I. 1996) (concluding it is impermissible for an attorney “to engage in sexual relations with a divorce client when issues of child custody, support, and distribution of marital assets are at stake . . . .”); In re Lewis, 262 Ga. 37, 38 , 415 S.E.2d 173, 175 (1992) (“Every lawyer must know that an extramarital relationship can jeopardize every aspect of a client’s matrimonial case . . . .”); Att’y Grievance Comm’n v. Culver, 381 Md. 241, 274 , 849 A.2d 423, 443 (2002) (explaining an attorney who engages in consensual sexual relations with a domestic relations

2022In re DiPippo, 678 A.2d 454, 456 (R.I. 1996) (concluding it is impermissible for an attorney “to engage in sexual relations with a divorce client when issues of child custody, support, and distribution of marital assets are at stake . . . .”); In re Lewis, 262 Ga. 37, 38 , 415 S.E.2d 173, 175 (1992) (“Every lawyer must know that an extramarital relationship can jeopardize every aspect of a client’s matrimonial case . . . .”); Att’y Grievance Comm’n v. Culver, 381 Md. 241, 274 , 849 A.2d 423, 443 (2002) (explaining an attorney who engages in consensual sexual relations with a domestic relations

2022In re DiPippo, 678 A.2d 454, 456 (R.I. 1996) (concluding it is impermissible for an attorney “to engage in sexual relations with a divorce client when issues of child custody, support, and distribution of marital assets are at stake . . . .”); In re Lewis, 262 Ga. 37, 38 , 415 S.E.2d 173, 175 (1992) (“Every lawyer must know that an extramarital relationship can jeopardize every aspect of a client’s matrimonial case . . . .”); Att’y Grievance Comm’n v. Culver, 381 Md. 241, 274 , 849 A.2d 423, 443 (2002) (explaining an attorney who engages in consensual sexual relations with a domestic relations

2022In re DiPippo, 678 A.2d 454, 456 (R.I. 1996) (concluding it is impermissible for an attorney “to engage in sexual relations with a divorce client when issues of child custody, support, and distribution of marital assets are at stake . . . .”); In re Lewis, 262 Ga. 37, 38 , 415 S.E.2d 173, 175 (1992) (“Every lawyer must know that an extramarital relationship can jeopardize every aspect of a client’s matrimonial case . . . .”); Att’y Grievance Comm’n v. Culver, 381 Md. 241, 274 , 849 A.2d 423, 443 (2002) (explaining an attorney who engages in consensual sexual relations with a domestic relations

2022In re DiPippo, 678 A.2d 454, 456 (R.I. 1996) (concluding it is impermissible for an attorney “to engage in sexual relations with a divorce client when issues of child custody, support, and distribution of marital assets are at stake . . . .”); In re Lewis, 262 Ga. 37, 38 , 415 S.E.2d 173, 175 (1992) (“Every lawyer must know that an extramarital relationship can jeopardize every aspect of a client’s matrimonial case . . . .”); Att’y Grievance Comm’n v. Culver, 381 Md. 241, 274 , 849 A.2d 423, 443 (2002) (explaining an attorney who engages in consensual sexual relations with a domestic relations

2022See Lenox, Inc. v. Tolson, 353 N.C. 659, 664 , 548 S.E.2d 513, 517 (2001) (“The principal goal of statutory construction is to accomplish the legislative intent.”). ¶ 25 Second, Father asserts, and we agree, that a per se rule of neglect as proposed by CCDSS would result in harsh, undesirable consequences.

2022See Lenox, Inc. v. Tolson, 353 N.C. 659, 664 , 548 S.E.2d 513, 517 (2001) (“The principal goal of statutory construction is to accomplish the legislative intent.”). ¶ 25 Second, Father asserts, and we agree, that a per se rule of neglect as proposed by CCDSS would result in harsh, undesirable consequences.

2021See York, 347 N.C. at 89 , 489 S.E.2d at 386 (explaining a witness appearing to read from a refreshing memorandum is not a per se violation).

2021See York, 347 N.C. at 89 , 489 S.E.2d at 386 (explaining a witness appearing to read from a refreshing memorandum is not a per se violation).

2020See Strickland, 346 N.C. at 454 , 488 S.E.2d at 200 (“Defense counsel’s statements were not the equivalent of asking the jury to find defendant guilty of any charge, and therefore, Harbison does not control.”); Harvell, 334 N.C. at 361 , 432 S.E.2d at 128 (holding that there was no Harbison error where defense counsel’s statements were “not the equivalent of admitting that the defendant was guilty of any crime”); Greene, 332 N.C. at 572 , 422 S.E.2d at 734 (“This is not the equivalent of asking the jury to find the defendant guilty[,] . . . and the rule of Harbison does not apply.”).

2020See Strickland, 346 N.C. at 454 , 488 S.E.2d at 200 (“Defense counsel’s statements were not the equivalent of asking the jury to find defendant guilty of any charge, and therefore, Harbison does not control.”); Harvell, 334 N.C. at 361 , 432 S.E.2d at 128 (holding that there was no Harbison error where defense counsel’s statements were “not the equivalent of admitting that the defendant was guilty of any crime”); Greene, 332 N.C. at 572 , 422 S.E.2d at 734 (“This is not the equivalent of asking the jury to find the defendant guilty[,] . . . and the rule of Harbison does not apply.”).

2020See Strickland, 346 N.C. at 454 , 488 S.E.2d at 200 (“Defense counsel’s statements were not the equivalent of asking the jury to find defendant guilty of any charge, and therefore, Harbison does not control.”); Harvell, 334 N.C. at 361 , 432 S.E.2d at 128 (holding that there was no Harbison error where defense counsel’s statements were “not the equivalent of admitting that the defendant was guilty of any crime”); Greene, 332 N.C. at 572 , 422 S.E.2d at 734 (“This is not the equivalent of asking the jury to find the defendant guilty[,] . . . and the rule of Harbison does not apply.”).

2020See Strickland, 346 N.C. at 454 , 488 S.E.2d at 200 (“Defense counsel’s statements were not the equivalent of asking the jury to find defendant guilty of any charge, and therefore, Harbison does not control.”); Harvell, 334 N.C. at 361 , 432 S.E.2d at 128 (holding that there was no Harbison error where defense counsel’s statements were “not the equivalent of admitting that the defendant was guilty of any crime”); Greene, 332 N.C. at 572 , 422 S.E.2d at 734 (“This is not the equivalent of asking the jury to find the defendant guilty[,] . . . and the rule of Harbison does not apply.”).

2020Judge Arrowood dissented, expressing his belief that defendant had shown a per se violation of his right to effective assistance of counsel when defense counsel elected “to highlight specific evidence that defendant physically injured the alleged victim and argued to the jury that defendant honestly admitted to police what he did.” Id. at 323 , 827 S.E.2d at 547 (Arrowood, J., dissenting).

2020Judge Arrowood dissented, expressing his belief that defendant had shown a per se violation of his right to effective assistance of counsel when defense counsel elected “to highlight specific evidence that defendant physically injured the alleged victim and argued to the jury that defendant honestly admitted to police what he did.” Id. at 323 , 827 S.E.2d at 547 (Arrowood, J., dissenting).

2020See Strickland, 346 N.C. at 454 , 488 S.E.2d at 200 (“Defense counsel’s statements were not the equivalent of asking the jury to find defendant guilty of any charge, and therefore, Harbison does not control.”); Harvell, 334 N.C. at 361 , 432 S.E.2d at 128 (holding that there was no Harbison error where defense counsel’s statements were “not the equivalent of admitting that the defendant was guilty of any crime”); Greene, 332 N.C. at 572 , 422 S.E.2d at 734 (“This is not the equivalent of asking the jury to find the defendant guilty[,] . . . and the rule of Harbison does not apply.”).

2020See Strickland, 346 N.C. at 454 , 488 S.E.2d at 200 (“Defense counsel’s statements were not the equivalent of asking the jury to find defendant guilty of any charge, and therefore, Harbison does not control.”); Harvell, 334 N.C. at 361 , 432 S.E.2d at 128 (holding that there was no Harbison error where defense counsel’s statements were “not the equivalent of admitting that the defendant was guilty of any crime”); Greene, 332 N.C. at 572 , 422 S.E.2d at 734 (“This is not the equivalent of asking the jury to find the defendant guilty[,] . . . and the rule of Harbison does not apply.”).

2017Supreme Court in State v. Boyd , 222 N.C.App. 160 , 730 S.E.2d 193 (2012), rev'd for the reasons stated in the dissenting opinion , 366 N.C. 548 , 742 S.E.2d 798 (2013) (per curiam), as "a shift away from the per se rule ... in cases involving disjunctive [jury] instructions," I write separately and concur in the result only.

2017Supreme Court in State v. Boyd , 222 N.C.App. 160 , 730 S.E.2d 193 (2012), rev'd for the reasons stated in the dissenting opinion , 366 N.C. 548 , 742 S.E.2d 798 (2013) (per curiam), as "a shift away from the per se rule ... in cases involving disjunctive [jury] instructions," I write separately and concur in the result only.

2026App. 461, 472 , 350 S.E.2d 880, 887 (1986)) (“To decide that these facts alone are sufficient to establish bias or unfair prejudice would amount to a per se rule of unconstitutionality, completely disregarding the presumption that the Board acted correctly and the presumption of honesty and integrity in those serving as adjudicators.”).

1993Taborn v. Hammonds, 83 N.C.

2018However, in State v. Boyd , 366 N.C. 548 , 742 S.E.2d 798 (2013) (per curiam), our Supreme Court adopted a dissent from this Court which advocated a "shift away from the per se rule ... that a reviewing court 'must assume' that the jury relied on the improper theory." State v. Martinez , --- N.C.

2018However, in State v. Boyd , 366 N.C. 548 , 742 S.E.2d 798 (2013) (per curiam), our Supreme Court adopted a dissent from this Court which advocated a "shift away from the per se rule ... that a reviewing court 'must assume' that the jury relied on the improper theory." State v. Martinez , --- N.C.