Court rejects convicted sex offender's appeal

By Thomas Wilson
STAR STAFF
twilson@starhq.com
A three-judge panel of the state's Court of Criminal Appeals upheld the dismissal of an appeal filed by a former North Carolina man who pleaded guilty to five sexual offenses in Carter County Criminal Court more than three years ago.
Charles W. Cole, 69, formerly of Granite Falls, N.C., petitioned to the Court of Criminal Appeals that his trial counsel was ineffective because the defense failed to file a motion to suppress videotape evidence of him confessing to sexual assault. The petition was filed for Cole by attorney Randolph Fallin, of Mountain City in Jan. 2001.
Issued Aug. 29 by the Court of Criminal Appeals at Knoxville, Judge Robert W. Wedemeyer delivered the opinion of the court, in which Judges James Curwood Witt, Jr. and John Everett Williams joined.
Cole pled guilty on Feb. 4, 2000, in Carter Count Criminal Court to five sexual offenses including three counts of rape. According to criminal court records, Cole pleaded guilty to two counts of aggravated sexual battery and three counts of rape for sexual contact he had with a 5-year-old female in Oct. 1993. A Carter County Grand Jury returned true bills on Cole in Nov. 1999.
Criminal Court Judge Lynn Brown handed down 10-year sentences for each of Cole's convictions on Feb. 4, 2000, with two of the sentences to be served consecutively. He is serving his sentences at the Northeast Correctional Complex in Mountain City and is not scheduled to be released until Feb. 2020.
According to court records, Cole's daughter, Lisa Parlier, testified at a post-conviction hearing that the petitioner could not read or write. She said that the petitioner was living with her in North Carolina at the time he learned of the charges. She subsequently brought the petitioner to meet with Investigator Randy Bowers at the Carter County Sheriff's Department.
At this meeting, she asked if the petitioner needed a lawyer, and Bowers responded, "No, we're just going to talk to him." Bowers then "took [the petitioner] back to the back," and, after about an hour and a half, he and the petitioner returned. Bowers informed Parlier that the petitioner had confessed to sexual assault, according to court records.
The court viewed the approximately 30-minute videotape of the petitioner's statement regarding the allegations against him. The court's opinion stated that "The petitioner's limited education was not at all apparent from his responses to the questions. At the end of the session, he agreed that he had told the truth, but 'didn't know what was going to happen to [him], though.'"
Cole's appeal argued his defense counsel was ineffective for not filing a motion to suppress his videotaped statement, saying that because of his limited intellect, counsel "should have erred on the side of caution and file[d] a motion in raising the issue of voluntariness."
The court upheld the findings of the post-conviction court that Bowers had advised Cole of his Miranda rights, who then had voluntarily given his statement. The court further upheld the lower court's determination that, since a motion to suppress the statement would have been without merit, Cole failed to prove that he had been prejudiced by the alleged ineffective representation of counsel.