GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	1 

HOUSE BILL 9*

Short Title:  Streamline Crim. Appeals.	(Public)

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Sponsors: Representatives Brawley, Justus, Daughtry, Hayes, Russell, Bowie, Kiser, Eddins, Pulley, Thompson; Aldridge, Arnold, Baker, Braswell, Buchanan, Cansler, Capps, Carpenter, Clary, Cocklereece, Culp, Cummings, Davis, Decker, Dickson, Dockham, Edwards, Esposito, Gray, Hiatt, Holmes, Ives, Lemmond, McComas, McCombs, McMahan, K. Miller, Mitchell, Neely, Nichols, Pate, Preston, Rayfield, Reynolds, Robinson, Sexton, Sharpe, Shubert, Snowden, Tallent, Warner, C. Wilson, G. Wilson, and Wood.

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Referred to:  Judiciary II.

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January 26, 1995

A BILL TO BE ENTITLED
AN ACT TO STREAMLINE THE APPEALS PROCESS IN NORTH CAROLINA FOR CRIMINAL CASES.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 15A-1419 reads as rewritten:
"§ 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 to a motion based upon deprivation of the right to counsel at the trial or upon failure of the trial court to advise the defendant of such right. This subdivision does not apply when the previous motion was made within 10 days after entry of judgment.
(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.
(b)	The court shall deny the motion under any of the circumstances specified in this section, except that in the interest of justice and for good cause shown, it may in its discretion grant the motion if it is otherwise meritorious.  A claim of ineffective assistance of prior postconviction counsel shall not constitute good cause for lifting an otherwise valid procedural bar."
Sec. 2.  (a)	G.S. 15-217.1 is recodified as G.S. 15A-1420(b1).
(b)	G.S. 15A-1420, as amended by subsection (a) of this section, reads as rewritten:
"§ 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; and
c.	Set forth the relief sought.
(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 county in which the conviction took place a motion, with service on the district attorney.
(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 the courts of the district or any judge holding court in the county.  The judge shall review the motion and make an order with respect to permitting the defendant to prosecute the action without providing for the payment of costs and with respect to the appointment of counsel.  If a hearing is necessary, the district attorney shall calendar the case for hearing without unnecessary delay.  If it appears to the judge that substantial injustice may be done by any delay in hearing upon the matters alleged in the motion, the judge may issue an order as may be appropriate to bring the defendant before the court without delay, and may direct the district attorney to answer the motion at a time specified in the order.  The court shall then inquire into the matters alleged as directed by the reviewing judge, as in the case of a writ of habeas corpus. If upon review of the motion it does not appear to the judge that an order advancing the hearing or other order is appropriate, the judge shall return the motion to the clerk with a notation to that effect.
(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.
(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.
(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."
Sec. 3.  Article 91 of Chapter 15A of the General Statutes is amended by adding a new section to read:
"§ 15A-1448.1.  Production and delivery of trial court transcript.
(a)	From the date of the court reporter's receipt of a contract for the production of a trial transcript, the reporter shall have either: (i) 30 days to produce and deliver the transcript of a criminal case, or (ii) a period of time equal to the length of time that the criminal trial lasted.  Where the clerk's order of transcript is accompanied by the trial court's order establishing the indigency of the appellant and directing the transcript to be prepared at State expense, the time for production of the transcript begins seven days after the filing of the clerk's order of transcript.
(b)	The court reporter shall deliver the completed transcript to the parties, as ordered, within the time provided by this section.  The reporter shall certify to the clerk of the trial tribunal that the parties' copies have been so delivered, and shall send a copy of the certification to the appellate court to which the appeal is taken.  The appealing party shall retain custody of the original of the transcript and shall transmit the original transcript to the appellate court upon settlement of the record on appeal."
Sec. 4.  This act becomes effective December 1, 1995, and applies to motions for appropriate relief filed on or after that date.