Man convicted of child sex offenses in Onslow seeking new trial, says lawyer made error

A man convicted of sex offenses with a minor in 2015 is seeking a new trial, saying his lawyer made an error.

In July of 2015, Derek Jack Cholon, then 41, of Raleigh was convicted of a first-degree statutory sex offense, as well as taking indecent liberties with a minor, according to North Carolina court records.

Cholon met a 15-year-old boy through a dating app, and although the boy acknowledged the app's minimum age was 18, he signed up anyway, putting his age as 18, according to court documents.

Records say police found Cholon in a car with the boy, and Cholon eventually told the police they were kissing, and he was giving the boy oral sex.

At trial, Cholon's lawyer essentially admitted to the jury that Cholon was guilty, though lawyers are not permitted to do that without permission from the client, and Cholon said he had not given permission, the court documents stated.

Cholon was subsequently convicted, and sentenced to 12-19 years in prison, according to records.

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The N.C. Court of Appeals document, State of North Carolina v. Derek Jack Cholon, states that shortly after the trial, Cholon sent a letter to the trial court requesting a review of his trial, and a mistrial, on the grounds that his attorney entered an admission of guilt on his behalf without his permission during closing statement.

Cholon said he also told his attorney about a health condition that led to him writing the statement confessing to the crime to the police. He explained the condition is considered valid to overturn such a statement, but added his attorney would not research it.

Court records also show Cholon filed a Motion for Appropriate Relief (MAR) with the trial court on March 2, 2016, which ended in the court's favor.

A Motion for Appropriate Relief is a motion to correct an alleged error in the legal proceedings and asks the court for relief such as vacating a conviction or ordering a new trial.

N.C. Court of Appeals found that Cholon's attorney did not expressly admit the defendant’s guilt and did not admit each element of each offense. It also held that the record revealed such overwhelming evidence of Cholon's guilt that they couldn't conclude the result of the trial would have been different, had his attorney not made such statements.

Cholon went on to file three other petitions and appeals in the coming years. The first two were denied, but on June 11, 2021, the N.C. Court of Appeals allowed Cholon's request for review of the previous decision.

The N.C. Court of Appeals found that Cholon did not appear to give his attorney permission to admit his guilt, though his attorney told the jury Cholon had told an officer 'the truth' about what happened between the two of them.

Before this statement, the state had presented evidence that the boy was 15, Cholon was 41, and they were not lawfully married to each other.

"Defendant’s trial counsel’s statement effectively admitted and established that defendant had, in fact, engaged in a sexual act with (the boy), the remaining element to be established for both charges," records state. "Significantly, the statement was in reference to an apparent admission by defendant to a law enforcement officer, which defendant denied making."

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The court found that the attorney simply asking the jury to find Cholon not guilty, did not serve to negate the attorney's prior statements.

The court said although Cholon maintained his innocence and filed an affidavit denying he made incriminating statements to police, his attorney states the opposite during his closing argument.

However, the court did not make specific findings regarding whether Cholon consented to his attorney's statements, so the correct course of action is to remand for an evidentiary hearing.

"For the foregoing reasons, we reverse the trial court’s order and remand for an evidentiary hearing to be held as soon as practicable for the sole purpose of determining whether the defendant knowingly consented in advance to his trial counsel’s admission of guilt to both charged offenses," N.C Court of Appeals documents state.

This decision came on June 21, 2022, and District Attorney Ernie Lee said the case now needs to be scheduled for another hearing. Assistant District Attorney Caroline Wahoff is assigned to the case.

Lee said his office will schedule the evidentiary hearing per the appellate courts' order and will continue to argue the law and represent the state in a manner consistent with the law.

"Appeals and requests or petitions for review with the appellate courts are quite common in the more serious cases," Lee said. "If ordered to have a new trial, that would be challenging for the state since the offense date is March 6, 2013. However, this office has successfully tried old cases in Onslow Superior Court including homicides and other cases. But those cases are challenging with the passage of time."

Reporter Morgan Starling can be reached at mstarling@gannett.com

This article originally appeared on The Daily News: Man seeks new trial in Onslow child sex case, says lawyer errored