2005 North Carolina Code - General Statutes Article 89 - Motion for Appropriate Relief and Other Post-Trial Relief.

Article 89.

Motion for Appropriate Relief and Other Post‑Trial Relief.

§ 15A‑1411.  Motion for appropriate relief.

(a)       Relief from errors committed in the trial division, or other post‑trial relief, may be sought by a motion for appropriate relief. Procedure for the making of the motion is as set out in G.S. 15A‑1420.

(b)       A motion for appropriate relief, whether made before or after the entry of judgment, is a motion in the original cause and not a new proceeding.

(c)       The relief formerly available by motion in arrest of judgment,  motion to set aside the verdict, motion for new trial, post‑conviction proceedings, coram nobis and all other post‑trial motions is available by motion for appropriate relief. The availability of relief by motion for appropriate relief is not a bar to relief by writ of habeas corpus. (1977, c. 711, s. 1.)

 

§ 15A‑1412.  Provisions of Article procedural.

The provision in this Article for the right to seek relief by motion for appropriate relief is procedural and is not determinative of the question of whether the moving party is entitled to the relief sought or to other appropriate relief. (1977, c. 711, s. 1.)

 

§ 15A‑1413.  Trial judges empowered to act.

(a)       A motion for appropriate relief made pursuant to G.S. 15A‑1415 may be heard and determined in the trial division by any judge who is empowered to act in criminal matters in the district court district as defined in G.S. 7A‑133 or superior court district or set of districts as defined in G.S. 7A‑41.1, as the case may be, in which the judgment was entered.

(b)       The judge who presided at the trial is empowered to act upon a motion for appropriate relief made pursuant to G.S. 15A‑1414. He may act even though he is in another district or even though his commission has expired.

(c)       When a motion for appropriate relief may be made before a judge who did not hear the case, he may, if it is practicable to do so, refer all or a part of the matter for decision to the judge who heard the case. (1977, c. 711, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 71.)

 

§ 15A‑1414.  Motion by defendant for appropriate relief made within 10 days after verdict.

(a)       After the verdict but not more than 10 days after entry of judgment, the defendant by motion may seek appropriate relief for any error committed during or prior to the trial.

(b)       Unless included in G.S. 15A‑1415, all errors, including but not limited to the following, must be asserted within 10 days after entry  of judgment:

(1)       Any error of law, including the following:

a.         The court erroneously failed to dismiss the charge prior to trial pursuant to G.S. 15A‑954.

b.         The court's ruling was contrary to law with regard to motions made before or during the trial, or with regard to the admission or exclusion of evidence.

c.         The evidence, at the close of all the evidence, was insufficient to justify submission of the case to the jury, whether or not a motion so asserting was made before verdict.

d.         The court erroneously instructed the jury.

(2)       The verdict is contrary to the weight of the evidence.

(3)       For any other cause the defendant did not receive a fair and  impartial trial.

(4)       The sentence imposed on the defendant is not supported by evidence introduced at the trial and sentencing hearing. This motion must be addressed to the sentencing judge.

(c)       The motion may be made and acted upon in the trial court whether or not notice of appeal has been given. (1977, c. 711, s. 1; 1979, c. 760, s. 3; 1981, c. 179, s. 6.)

 

§ 15A‑1415.  Grounds for appropriate relief which may be asserted by defendant after verdict; limitation as to time.

(a)       At any time after verdict, a noncapital defendant by motion may seek appropriate relief upon any of the grounds enumerated in this section. In a capital case, a postconviction motion for appropriate relief shall be filed within 120 days from the latest of the following:

(1)       The court's judgment has been filed, but the defendant failed to perfect a timely appeal;

(2)       The mandate issued by a court of the appellate division on direct appeal pursuant to N.C.R. App. P. 32(b) and the time for filing a petition for writ of certiorari to the United States Supreme Court has expired without a petition being filed;

(3)       The United States Supreme Court denied a timely petition for writ of certiorari of the decision on direct appeal by the Supreme Court of North Carolina;

(4)       Following the denial of discretionary review by the Supreme Court of North Carolina, the United States Supreme Court denied a timely petition for writ of certiorari seeking review of the decision on direct appeal by the North Carolina Court of Appeals;

(5)       The United States Supreme Court granted the defendant's or the State's timely petition for writ of certiorari of the decision on direct appeal by the Supreme Court of North Carolina or North Carolina Court of Appeals, but subsequently left the defendant's conviction and sentence undisturbed; or

(6)       The appointment of postconviction counsel for an indigent capital defendant.

(b)       The following are the only grounds which the defendant may assert by a motion for appropriate relief made more than 10 days after entry of judgment:

(1)       The acts charged in the criminal pleading did not at the time they were committed constitute a violation of criminal law.

(2)       The trial court lacked jurisdiction over the person of the defendant or over the subject matter.

(3)       The conviction was obtained in violation of the Constitution of the United States or the Constitution of North Carolina.

(4)       The defendant was convicted or sentenced under a statute that was in violation of the Constitution of the United States or the Constitution of North Carolina.

(5)       The conduct for which the defendant was prosecuted was protected by the Constitution of the United States or the Constitution of North Carolina.

(6)       Repealed by Session Laws 1995 (Regular Session, 1996), c. 719, s. 1.

(7)       There has been a significant change in law, either substantive or procedural, applied in the proceedings leading to the defendant's conviction or sentence, and retroactive application of the changed legal standard is required.

(8)       The sentence imposed was unauthorized at the time imposed, contained a type of sentence disposition or a term of imprisonment not authorized for the particular class of offense and prior record or conviction level was illegally imposed, or is otherwise invalid as a matter of law. However, a motion for appropriate relief on the grounds that the sentence imposed on the defendant is not supported by evidence introduced at the trial and sentencing hearing must be made before the sentencing judge.

(9)       The defendant is in confinement and is entitled to release because his sentence has been fully served.

(c)       Notwithstanding the time limitations herein, a defendant at any time after verdict may by a motion for appropriate relief, raise the ground that evidence is available which was unknown or unavailable to the defendant at the time of trial, which could not with due diligence have been discovered or made available at that time, including recanted testimony, and which has a direct and material bearing upon the defendant's eligibility for the death penalty or the defendant's guilt or innocence. A motion based upon such newly discovered evidence must be filed within a reasonable time of its discovery.

(d)       For good cause shown, the defendant may be granted an extension of time to file the motion for appropriate relief. The presumptive length of an extension of time under this subsection is up to 30 days, but can be longer if the court finds extraordinary circumstances.

(e)       Where a defendant alleges ineffective assistance of prior trial or appellate counsel as a ground for the illegality of his conviction or sentence, he shall be deemed to waive the attorney‑client privilege with respect to both oral and written communications between such counsel and the defendant to the extent the defendant's prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness. This waiver of the attorney‑client privilege shall be automatic upon the filing of the motion for appropriate relief alleging ineffective assistance of prior counsel, and the superior court need not enter an order waiving the privilege.

(f)        In the case of a defendant who has been convicted of a capital offense and sentenced to death, the defendant's prior trial or appellate counsel shall make available to the capital defendant's counsel their complete files relating to the case of the defendant. The State, to the extent allowed by law, shall make available to the capital defendant's counsel the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. If the State has a reasonable belief that allowing inspection of any portion of the files by counsel for the capital defendant would not be in the interest of justice, the State may submit for inspection by the court those portions of the files so identified. If upon examination of the files, the court finds that the files could not assist the capital defendant in investigating, preparing, or presenting a motion for appropriate relief, the court in its discretion may allow the State to withhold that portion of the files.

(g)       The defendant may file amendments to a motion for appropriate relief at least 30 days prior to the commencement of a hearing on the merits of the claims asserted in the motion or at any time before the date for the hearing has been set, whichever is later. Where the defendant has filed an amendment to a motion for appropriate relief, the State shall, upon request, be granted a continuance of 30 days before the date of hearing. After such hearing has begun, the defendant may file amendments only to conform the motion to evidence adduced at the hearing, or to raise claims based on such evidence. (1977, c. 711, s. 1; 1981, c. 179, s. 7; 1993, c. 538, s. 25; 1994, Ex. Sess., c. 24, s. 14(b); 1995 (Reg. Sess., 1996), c. 719, s. 1.)

 

§ 15A‑1416.  Motion by the State for appropriate relief.

(a)       After the verdict but not more than 10 days after entry of judgment, the State by motion may seek appropriate relief for any error which it may assert upon appeal.

(b)       At any time after verdict the State may make a motion for appropriate relief for:

(1)       The imposition of sentence when prayer for judgment has been continued and grounds for the imposition of sentence are asserted.

(2)       The initiation of any proceeding authorized under Article 82, Probation; Article 83, Imprisonment; and Article 84, Fines, with regard to the modification of sentences. The procedural provisions of those Articles are controlling. (1977, c. 711, s. 1.)

 

§ 15A‑1417.  Relief available.

(a)       The following relief is available when the court grants a motion for appropriate relief:

(1)       New trial on all or any of the charges.

(2)       Dismissal of all or any of the charges.

(3)       The relief sought by the State pursuant to G.S. 15A‑1416.

(4)       Any other appropriate relief.

(b)       When relief is granted in the trial court and the offense is  divided into degrees or necessarily includes lesser offenses, and the  court is of the opinion that the evidence does not sustain the verdict but is sufficient to sustain a finding of guilty of a lesser degree or of a lesser offense necessarily included in the one charged, the court may, with consent of the State, accept a plea of guilty to the lesser  degree or lesser offense.

(c)       If resentencing is required, the trial division may enter an appropriate sentence. If a motion is granted in the appellate division and resentencing is required, the case must be remanded to the trial division for entry of a new sentence. (1977, c. 711, s. 1.)

 

§ 15A‑1418.  Motion for appropriate relief in the appellate division.

 (a) When a case is in the appellate division for review, a motion for appropriate relief based upon grounds set out in G.S. 15A‑1415 must be made in the appellate division. For the purpose of this section a case is in the appellate division when the jurisdiction of the trial court has been divested as provided in G.S. 15A‑1448, or when a petition for a writ of certiorari has been granted. When a petition for a writ of certiorari has been filed but not granted, a copy or written statement of any motion made in the trial court, and of any disposition of the motion, must be filed in the appellate division.

(b)       When a motion for appropriate relief is made in the appellate division, the appellate court must decide whether the motion may be determined on the basis of the materials before it, or whether it is necessary to remand the case to the trial division for taking evidence or conducting other proceedings. If the appellate court does not remand the case for proceedings on the motion, it may determine the motion in conjunction with the appeal and enter its ruling on the motion with its determination of the case.

(c)       The order of remand must provide that the time periods for perfecting or proceeding with the appeal are tolled, and direct that the order of the trial division with regard to the motion be transmitted to the appellate division so that it may proceed with the  appeal or enter an appropriate order terminating it. (1977, c. 711, s. 1.)

 

§ 15A‑1419.  When motion for appropriate relief denied.

(a)       The following are grounds for the denial of a motion for appropriate relief, including motions filed in capital cases:

(1)       Upon a previous motion made pursuant to this Article, the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so. This subdivision does not apply when the previous motion was made within 10 days after entry of judgment or the previous motion was made during the pendency of the direct appeal.

(2)       The ground or issue underlying the motion was previously determined on the merits upon an appeal from the judgment or upon a previous motion or proceeding in the courts of this State or a federal court, unless since the time of such previous determination there has been a retroactively effective change in the law controlling such issue.

(3)       Upon a previous appeal the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so.

(4)       The defendant failed to file a timely motion for appropriate relief as required by G.S. 15A‑1415(a).

(b)       The court shall deny the motion under any of the circumstances specified in this section, unless the defendant can demonstrate:

(1)       Good cause for excusing the grounds for denial listed in subsection (a) of this section and can demonstrate actual prejudice resulting from the defendant's claim; or

(2)       That failure to consider the defendant's claim will result in a fundamental miscarriage of justice.

(c)       For the purposes of subsection (b) of this section, good cause may only be shown if the defendant establishes by a preponderance of the evidence that his failure to raise the claim or file a timely motion was:

(1)       The result of State action in violation of the United States Constitution or the North Carolina Constitution including ineffective assistance of trial or appellate counsel;

(2)       The result of the recognition of a new federal or State right which is retroactively applicable; or

(3)       Based on a factual predicate that could not have been discovered through the exercise of reasonable diligence in time to present the claim on a previous State or federal postconviction review.

A trial attorney's ignorance of a claim, inadvertence, or tactical decision to withhold a claim may not constitute good cause, nor may a claim of ineffective assistance of prior postconviction counsel constitute good cause.

(d)       For the purposes of subsection (b) of this section, actual prejudice may only be shown if the defendant establishes by a preponderance of the evidence that an error during the trial or sentencing worked to the defendant's actual and substantial disadvantage, raising a reasonable probability, viewing the record as a whole, that a different result would have occurred but for the error.

(e)       For the purposes of subsection (b) of this section, a fundamental miscarriage of justice only results if:

(1)       The defendant establishes that more likely than not, but for the error, no reasonable fact finder would have found the defendant guilty of the underlying offense; or

(2)       The defendant establishes by clear and convincing evidence that, but for the error, no reasonable fact finder would have found the defendant eligible for the death penalty.

A defendant raising a claim of newly discovered evidence of factual innocence or ineligibility for the death penalty, otherwise barred by the provisions of subsection (a) of this section or G.S. 15A‑1415(c), may only show a fundamental miscarriage of justice by proving by clear and convincing evidence that, in light of the new evidence, if credible, no reasonable juror would have found the defendant guilty beyond a reasonable doubt or eligible for the death penalty. (1977, c. 711, s. 1; 1995 (Reg. Sess., 1996), c. 719, s. 2.)

 

§ 15A‑1420.  Motion for appropriate relief; procedure.

(a)       Form, Service, Filing.

(1)       A motion for appropriate relief must:

a.         Be made in writing unless it is made:

1.         In open court;

2.         Before the judge who presided at trial;

3.         Before the end of the session if made in superior court; and

4.         Within 10 days after entry of judgment;

b.         State the grounds for the motion;

c.         Set forth the relief sought; and

d.         Be timely filed.

(2)       A written motion for appropriate relief must be served in the manner provided in G.S. 15A‑951(b). When the written motion is made more than 10 days after entry of judgment, service of the motion and a notice of hearing must be made not less than five working days prior to the date of the hearing. When a motion for appropriate relief is permitted to be made orally the court must determine whether the matter may be heard immediately or at a later time. If the opposing party, or his counsel if he is represented, is not present, the court must provide for the giving of adequate notice of the motion and the date of hearing to the opposing party, or his counsel if he is represented by counsel.

(3)       A written motion for appropriate relief must be filed in the manner provided in G.S. 15A‑951(c).

(b)       Supporting Affidavits.

(1)       A motion for appropriate relief made after the entry of judgment must be supported by affidavit or other documentary evidence if based upon the existence or occurrence of facts which are not ascertainable from the records and any transcript of the case or which are not within the knowledge of the judge who hears the motion.

(2)       The opposing party may file affidavits or other documentary evidence.

(b1)     Filing Motion With Clerk; Review of Motion by Judge.

(1)       The proceeding shall be commenced by filing with the clerk of superior court of the district wherein the defendant was indicted a motion, with service on the district attorney in noncapital cases, and service on both the district attorney and Attorney General in capital cases.

(2)       The clerk, upon receipt of the motion, shall place the motion on the criminal docket. The clerk shall promptly bring the motion, or a copy of the motion, to the attention of the resident judge or any judge holding court in the county or district. In noncapital cases, the judge shall review the motion and enter an order whether the defendant should be allowed to proceed without the payment of costs, with respect to the appointment of counsel, and directing the State, if necessary, to file an answer. In capital cases, the judge shall review the motion and enter an order directing the State to file its answer within 60 days of the date of the order. If a hearing is necessary, the judge shall calendar the case for hearing without unnecessary delay.

(c)       Hearings, Showing of Prejudice; Findings.

(1)       Any party is entitled to a hearing on questions of law or fact arising from the motion and any supporting or opposing information presented unless the court determines that the motion is without merit. The court must determine, on the basis of these materials and the requirements of this subsection, whether an evidentiary hearing is required to resolve questions of fact. Upon the motion of either party, the judge may direct the attorneys for the parties to appear before him for a conference on any prehearing matter in the case.

(2)       An evidentiary hearing is not required when the motion is made in the trial court pursuant to G.S. 15A‑1414, but the court may hold an evidentiary hearing if it is appropriate to resolve questions of fact.

(3)       The court must determine the motion without an evidentiary hearing when the motion and supporting and opposing information present only questions of law. The defendant has no right to be present at such a hearing where only questions of law are to be argued.

(4)       If the court cannot rule upon the motion without the hearing of evidence, it must conduct a hearing for the taking of evidence, and must make findings of fact. The defendant has a right to be present at the evidentiary hearing and to be represented by counsel. A waiver of the right to be present must be in writing.

(5)       If an evidentiary hearing is held, the moving party has the burden of proving by a preponderance of the evidence every fact essential to support the motion.

(6)       A defendant who seeks relief by motion for appropriate relief must show the existence of the asserted ground for relief. Relief must be denied unless prejudice appears, in accordance with G.S. 15A‑1443.

(7)       The court must rule upon the motion and enter its order accordingly. When the motion is based upon an asserted violation of the rights of the defendant under the Constitution or laws or treaties of the United States, the court must make and enter conclusions of law and a statement of the reasons for its determination to the extent required, when taken with other records and transcripts in the case, to indicate whether the defendant has had a full and fair hearing on the merits of the grounds so asserted.

(d)       Action on Court's Own Motion. – At any time that a defendant would be entitled to relief by motion for appropriate relief, the court may grant such relief upon its own motion. The court must cause appropriate notice to be given to the parties. (1965, c. 352, s. 1; 1973, c. 47, s. 2; 1977, c. 711, s. 1; 1995 (Reg. Sess., 1996), c. 719, ss. 3, 4.)

 

§ 15A‑1421.  Indigent defendants.

The provisions of Chapter 7A of the General Statutes with regard to the appointment of counsel for indigent defendants are applicable to proceedings under this Article. The court also may make  appropriate orders relieving indigent defendants of all or a portion of the costs of the proceedings. (1977, c. 711, s. 1.)

 

§ 15A‑1422.  Review upon appeal.

(a)       The making of a motion for appropriate relief is not a  prerequisite for asserting an error upon appeal.

(b)       The grant or denial of relief sought pursuant to G.S. 15A‑1414  is subject to appellate review only in an appeal regularly taken.

(c)       The court's ruling on a motion for appropriate relief pursuant  to G.S. 15A‑1415 is subject to review:

(1)       If the time for appeal from the conviction has not expired, by  appeal.

(2)       If an appeal is pending when the ruling is entered, in that appeal.

(3)       If the time for appeal has expired and no appeal is pending,  by writ of certiorari.

(d)       There is no right to appeal from the denial of a motion for appropriate relief when the movant is entitled to a trial de novo upon appeal.

(e)       When an error asserted upon appeal has also been the subject of a motion for appropriate relief, denial of the motion has no effect on the right to assert error upon appeal.

(f)        Decisions of the Court of Appeals on motions for appropriate relief that embrace matter set forth in G.S. 15A‑1415(b) are final and not subject to further review by appeal, certification, writ, motion, or otherwise. (1977, c. 711, s. 1; 1981, c. 470, s. 3.)

 

§§ 15A‑1423 through 15A‑1430.  Reserved for future codification purposes.