v. Sharp

Citations

• 2019 COA 133

Syllabus

A jury found defendant guilty of sexual assault on a child, sexual assault on a child as a pattern of abuse, and sexual assault on a child by one in a position of trust. At defendant's sentencing hearing, R.H., a cousin of the victim's mother, spoke with defense counsel's investigator and made new allegations. Specifically, R.H. stated that the victim had asked her what would happen if she lied and stated that the victim's grandmother had offered to pay R.H. to make false allegations of sexual assault against others. Defense counsel didn't move for a new trial based on R.H.'s allegations. Defendant's convictions were affirmed on direct appeal. Defendant later filed a pro se motion for postconviction relief under Crim. P. 35(c). He sought a new trial based on newly discovered evidence (the information R.H. had given the investigator) and his counsel's ineffective assistance. After an evidentiary hearing, the court found that trial counsel provided ineffective assistance that prejudiced defendant by (1) failing to move for a new trial after R.H. came forward, and (2) failing to investigate defendant's assertion that he had taken the victim to a hospital to be examined during the same period he was allegedly assaulting her. The postconviction court vacated defendant's convictions and ordered that defendant be allowed to file a motion for a new trial if the Court of Appeals vacated the convictions. On appeal, the People challenged both of the postconviction court's bases for finding ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel under Rule 35(c), a defendant must show that counsel's deficient performance prejudiced him. As to the first basis, defendant failed to show that the evidence probably would have resulted in an acquittal if presented at trial. Therefore, there wasn't a reasonable probability that defendant would have been granted a new trial had counsel brought the motion for new trial, and defendant isn't entitled