STATE v. HAUSER (2018)

Milton Denard Hauser (“Defendant”) appeals following jury verdicts convicting him of three counts of statutory rape, three counts of indecent liberties with a child, and two counts of statutory sex offense. The trial court sentenced Defendant to five consecutive terms of 365 to 498 months imprisonment and ordered Defendant to register as a sex offender. On appeal, Defendant contends his trial counsel rendered ineffective assistance of counsel. At oral argument, the Court discerned the problems of resolving ineffective assistance of counsel claims without an evidentiary hearing at the trial court. Following an agreement of appellate counsel, we remanded the appeal for an evidentiary hearing on the ineffective assistance of counsel claims Defendant presented in his initial appeal. By order, the trial court found no merit in Defendant's ineffective assistance of counsel claims. The parties filed supplemental briefs to this Court seeking review of this order. We conclude Defendant received a trial free of ineffective assistance of counsel and find no error.

I. Factual and Procedural History

On 14 December 2015, a Forsyth County Grand Jury indicted Defendant for six counts of statutory rape and three counts of indecent liberties with a child. On 2 March 2016, the State offered Defendant a plea deal, which Defendant rejected. On 15 August 2016, the court called Defendant's case for trial.

The State's evidence tended to show from 2009 to 2014, Defendant sexually assaulted and raped his underage daughter and her underage friend. At the close of the State's evidence, Defendant moved to dismiss all the charges. The trial court allowed Defendant's motion to dismiss on several charges, and denied Defendant's motion to dismiss as to three counts of statutory rape, three counts of indecent liberties with a child, and two counts of statutory sex offense. The jury found Defendant guilty of three counts of statutory rape, three counts of indecent liberties with a child, and two counts of statutory sex offense. During the sentencing conference, defense counsel argued the evidence presented at trial evinced the mitigating factors of family support and employment. The court sentenced Defendant to five consecutive terms of 365 to 498 months imprisonment and ordered Defendant to register as a sex offender. Defendant gave oral notice of appeal.

The case came to be heard at this Court on 10 January 2018. In an order entered 12 January 2018, we instructed the trial court to conduct an evidentiary hearing on Defendant's claims of ineffective assistance of trial counsel and to enter an order thereon. On 4 June 2018, the trial court held an evidentiary hearing and denied Defendant's motion in an order entered 15 June 2018. Defendant and the State filed supplemental briefs.

II. Analysis

Defendant's first three arguments in his supplemental brief concern whether trial defense counsel's decisions were strategic. Defendant contends none of trial defense counsel's actions at issue were strategic decisions. The trial court entered findings in accordance with Defendant's arguments on appeal—the contested decisions were not strategic decisions. Defendant does not challenge any findings.

Defendant also argues counsel's actions were not reasonable. However the unchallenged findings support the trial court's conclusions of law on reasonableness. Because Defendant fails to show counsel's actions were not reasonable, we need not analyze the second prong of Strickland.¹

III. Conclusion

For the foregoing reasons, we find no error in the judgments.²

NO ERROR.

Report per Rule 30(e).

FOOTNOTES

1.   Defendant argues prejudice is assumed because counsel's errors were structural errors. However, we need not decide whether any alleged errors would be a structural error, because of the conclusion that counsel's actions were reasonable.

2.   To the extent our 12 January 2018 order and the trial court's 15 June 2018 order did not fully encapsulate Defendant's arguments on direct appeal, we dismiss them without prejudice to his right to file a motion for appropriate relief below.

HUNTER, JR., Robert N., Judge.

Judges ELMORE and DIETZ concur.