State v. Merritt

142 S.E.2d 687 (1965)

264 N.C. 716

STATE v. Funtroy MERRITT.

No. 661.

Supreme Court of North Carolina.

June 18, 1965.

*689 T. W. Bruton, Atty. Gen., and Theodore C. Brown, Jr., Staff Atty., for the State, petitioner.

E. D. Kuykendall, Jr., Greensboro, for prisoner, respondent.

SHARP, Justice.

The first question presented by this appeal is: Did the judge presiding over a session of the Superior Court of Guilford County have authority to hear and pass upon a petition filed in Guilford County under G.S. § 15-217 et seq. to review the constitutionality of the prisoner's convictions in any county other than Guilford?

The North Carolina Post-Conviction Hearing Act (G.S. §§ 15-217 through 15-222) originated as Sess.Laws of 1951, ch. 1083. Codified as Gen.Stats. ch. 15, art. XXII, it is entitled "Review of the Constitutionality of Criminal Trials." Like the Illinois act on which it was modeled, Miller v. State, 237 N.C. 29, 74 S.E.2d 513 (see People v. Dale, 406 Ill. 238, 92 N.E.2d 761, for the Illinois act), the Act was passed "to replace the ancient and little known or understood writ of error coram nobis," 29 N.C.L.Rev. 390, 391, insofar as the review of the constitutionality of criminal trials is concerned. The remedy afforded by the Act "closely resembles that available under the common-law writ." People v. Bernatowicz, 413 Ill. 181, 184, 108 N.E.2d 479, 481, cert. den. 345 U.S. 928, 73 S. Ct. 788, 97 L. Ed. 1358. The writ of error coram nobis "is brought for an alleged error of fact, not appearing upon the record, and lies to the same court, in order that it may correct the error, which it is presumed would not have been committed had the fact in the first instance been brought to its notice." Battle, J., in Roughton v. Brown, 53 N.C. 393, 394. (Italics ours.) This explanation has been widely adopted, Ernst v. State, 179 Wis. 646, 192 N.W. 65, 30 A.L.R. 681; 18 Am.Jur.2d, Coram Nobis and Allied Statutory Remedies § 2 (1965); 5 Wharton, Criminal Law and Procedure § 2252 (Anderson's Ed. 1957). "Error in fact," however, does not mean that guilt or innocence is an issue in coram nobis proceedings. "(I)t is not the purpose of the writ to review evidence presented at the trial." 18 Am.Jur.2d, Coram Nobis and Allied Statutory Remedies § 8 (1965); see In re Taylor (I), 229 N.C. 297, 49 S.E.2d 749; In re Taylor (II), 230 N.C. 566, 53 S.E.2d 857.

"The writ of error coram nobis can only be granted in the court where the judgment *690 was rendered," State v. Daniels, 231 N.C. 17, 25, 56 S.E.2d 2, 7; accord, Latham v. Hodges, 35 N.C. 267; 18 Am.Jur.2d, Coram Nobis and Allied Statutory Remedies § 4 (1965), although under the common law of England it would lie in the king's bench from the court of common pleas, Casteldine v. Mundy, 4 B. & Ad. 90, 110 Eng.Rep. 389 (K.B.). When the General Assembly undertook to provide a simpler and more effective post-conviction remedy than the common-law writ for convicted persons who, through no fault of their own, had suffered substantial and unreviewed deprivations of constitutional rights in the original trial, it extended the jurisdiction of the Superior Court to one county, Wake, in addition to that in which the conviction took place. By Sess.Laws of 1959, ch. 21, however, the legislature struck out the reference to Wake County and thereby limited jurisdiction under the Act to the Superior Court in which a prisoner was convicted. The applicable provision of G.S. § 15-217 now reads: "The proceeding shall be commenced by filing with the clerk of the superior court of the county in which the conviction took place, a petition with a copy thereof, verified by affidavit." The section also requires the prisoner to serve another copy upon the solicitor "who prosecutes the criminal docket of the superior court of the county in which said petition is filed." Without any doubt this change was dictated by the same considerations which limit relief in common-law coram nobis proceedings to the court in which the original error was committed.

In the county of conviction are to be found the records of the trial which the prisoner attacks, as well as the court officials and other persons likely to have any knowledge of the truth or falsity of the prisoner's allegations that he suffered a substantial denial of his constitutional rights. If entries in the minutes are to be corrected or judgments vacated, manifestly this should be done in the county where they are required to be kept. "A writ of that kind (coram nobis) can be had only when allowed by the court where the record is. * * *" Williams v. Edwards, 34 N.C. 118, 119. The solicitor who prosecuted the prisoner or the solicitor's successor in office has the duty to represent the State and to defend the constitutionality of the trial if, in fact, there has been no violation of the prisoner's constitutional rights. He has a duty, as well, to see that the trial judge, the original defense counsel, and the prosecuting attorney are not misrepresented and falsely accused of malfeasance in office. Too many prisoners these days apparently believe they have nothing to lose and everything to gain by making any charge which has ever been successfully employed by another prisoner, regardless of whether there is any truth in it. Of course, it goes without saying that, if the solicitor has reason to believe that a prisoner's constitutional rights have been violated, he owes equal duties to the prisoner and to the State to disclose that fact to the Court, for "the government wins its case when justice is done." It would be utterly unreasonable and impose an undue obligation to require the solicitors of Mitchell, Haywood, or Henderson counties to attend post-conviction hearings in Guilford and other counties outside their districts.

The answer to the first question posed by this appeal is, No.

That portion of the judgment which purported to vacate sentences imposed upon the prisoner in Henderson, Haywood, and Mitchell counties is reversed. The prisoner may, upon a proper petition, filed with the Clerk of the Superior Court of each of these counties, obtain a review of the proceedings which resulted in his sentence there. State v. Johnson, 263 N.C. 479, 139 S.E.2d 692. Incidentally, it was curious for the prisoner to move for a change of venue in the county to which he sought removal.

We now come to the second question: Did his Honor err in vacating the prisoner's partially served Guilford County *691 sentence without ordering a new trial upon the original bill of indictment? The answer is, Yes.

Upon Judge Latham's finding that the prisoner was inops consilii at the time of this trial for armed robbery in Guilford County, which trial resulted in sentence (3), he properly vacated that sentence. State v. Goff, 263 N.C. 515, 139 S.E.2d 695. The prisoner was not, however, thereby relieved of the charge contained in the bill of indictment in Case No. 1617. The effect of Judge Latham's order was to vacate the entire sentence, not merely the unserved portion. The prisoner is entitled to a new trial, but it will be "a re-trial of the whole case, verdict, judgment, and sentence." State v. White, 262 N.C. 52, 54, 136 S.E.2d 205, 206, cert. den. 379 U.S. 1005, 85 S. Ct. 726, 13 L. Ed. 2d 707; accord, State v. Slade, 264 N.C. 70, 140 S.E.2d 723; State v. Anderson, 262 N.C. 491, 137 S.E.2d 823; State v. Williams, 261 N.C. 172, 134 S.E.2d 163. Furthermore, when the judge vacated the sentence, he should have ordered a new trial. State v. Goff, supra. "Failure to appoint counsel goes only to due process, and not to the guilt or innocence of the accused. In no event could he obtain more than a vacation of the judgments against him and a restoration of the indictments to the docket for trial." Stacy, C.J., In re Taylor (I), supra, 229 N.C. at 302, 49 S.E.2d at 752. If, upon his second trial, the prisoner is again convicted, the matter of punishment will be for the trial judge. Should he think, as Judge Latham apparently did, that the prisoner has served time enough, he can sentence him accordingly. A new trial, however, carries hazards, as well as benefits.

This proceeding is remanded to the Superior Court of Guilford County, with directions that the indictment against the prisoner for armed robbery (Docket No. 1617) be restored to the trial docket and that the solicitor proceed promptly to re-try the prisoner or otherwise, as necessity may require, dispose of the case. That part of the judgment vacating the Guilford County sentence is affirmed, subject to the modification hereinabove specified.

Reversed in partModified and affirmed in part.