GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	4 

HOUSE BILL 9*
Corrected Copy 2/3/95
Committee Substitute Favorable 3/14/95
Fourth Edition Engrossed 3/28/95

Short Title:  Streamline Crim. Appeals.	(Public)

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Sponsors:

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Referred to:  

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January 26, 1995

A BILL TO BE ENTITLED
AN ACT TO EXPEDITE THE POSTCONVICTION PROCESS IN NORTH CAROLINA.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 15A-1415 reads as rewritten:
"§ 15A-1415.  Grounds for appropriate relief which may be asserted by defendant after verdict; limitation as to time.
(a)	Within the time limitations specified herein, the defendant by motion may seek appropriate relief upon any of the grounds enumerated in this section.  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 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 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 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 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 and within the 120-day time limitation of subsection (a) of this section:
(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.
	(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 factual guilt or innocence of the defendant.  A motion based upon such newly discovered evidence must be filed within a reasonable time of its discovery, and may be denied if the State shows it has been prejudiced in its ability to respond to the motion by the defendant's delay in filing.
(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 the complete files of the trial or appellate counsel. The capital defendant's counsel may inspect and photocopy the files, but the defendant's prior counsel shall maintain custody of their respective files, except as to the material which is admitted into evidence.
(g)	Any amendment to a motion for appropriate relief must be filed with prior leave of the superior court upon a showing of good cause for having failed to raise the grounds for relief in the original motion.  An amendment, if any, must be filed within 30 days of the date the original motion for appropriate relief is filed, and if untimely, the superior court shall not grant leave to amend. Nothing in this section shall prohibit the court from granting leave to amend the motion based upon evidence discovered after the motion for appropriate relief is filed."
Sec. 2.  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 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."
Sec. 3.  G.S. 15-217.1 is recodified as G.S. 15A-1420(b1).
Sec. 4.  G.S. 15A-1420, as amended by Section 3 of this act, 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; 
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.  In capital cases, the hearing shall be held within 60 days of the filing of the State's answer and may be continued only for good cause shown.
(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 motion of either party, the judge may in his discretion direct the attorneys for the parties to appear before him for a conference on issues to be presented at the hearing.
(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(d).
(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. 5.  G.S. 15-194 reads as rewritten:
"§ 15-194. Time for execution.
In sentencing a capital defendant to a death sentence pursuant to G.S. 15A-2000(b), the sentencing judge need not specify the date and time the execution is to be carried out by the Department of Correction. The warden of the State penitentiary at Raleigh shall immediately schedule a date for the execution of the original death sentence not less than 30 days nor more than 45 days from the date of receiving notification of any one of the following:
(1)	The United States Supreme Court has filed an opinion upholding the sentence of death following completion of the initial State and federal postconviction proceedings, if any;
(2)	The mandate issued by the Supreme Court of North Carolina on direct appeal pursuant to N.C.R.App.P.32(b) affirming the capital defendant's death sentence and the time for filing a petition for certiorari to the United States Supreme Court has expired without a petition being filed;
(3)	The capital defendant, if indigent, failed to timely seek the appointment of counsel pursuant to G.S. 7A-451(c), or failed to file a timely motion for appropriate relief as required by G.S. 15A-1415(a);
(4)	The superior court denied the capital defendant's motion for appropriate relief, but the capital defendant failed to file a timely petition for writ of certiorari to the Supreme Court of North Carolina pursuant to N.C.R.App.P. 21(f);
(5)	The Supreme Court of North Carolina denied the capital defendant's petition for writ of certiorari pursuant to N.C.R.App.P 21(f), or, if certiorari was granted, upheld the capital defendant's death sentence, but the capital defendant failed to file a timely petition for writ of certiorari to the United States Supreme Court; or
(6)	Following State postconviction proceedings, if any, the capital defendant failed to file a timely petition for writ of habeas corpus in the appropriate federal district court, or failed to timely appeal or petition an adverse habeas corpus decision to the United States Court of Appeals for the Fourth Circuit or the United States Supreme Court.
The warden shall send a certified copy of the document fixing the date to the clerk of superior court of the county in which the case was tried or, if venue was changed, in which the defendant was indicted. The certified copy shall be recorded in the minutes of the court. The warden shall also send certified copies to the capital defendant, the capital defendant's attorney, the district attorney who prosecuted the case and the Attorney General of North Carolina."
Sec. 6.  G.S. 15A-1441 reads as rewritten:
"§ 15A-1441.  Correction of errors by appellate division.
Errors of law may be corrected upon appellate review as provided in this Article, except that review of capital cases shall be given priority on direct appeal and in State postconviction proceedings."
Sec. 7.  G.S. 15A-1443 reads as rewritten:
"§ 15A-1443.  Existence and showing of prejudice.
(a)	On direct appeal a defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.
(b)	On direct appeal a violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.
(c)	A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct. 
(d)	On State postconviction review of a motion for appropriate relief, the defendant shall bear the burden of showing the existence of the asserted ground for relief, and that he was prejudiced thereby.  In order to show prejudice from a federal or State constitutional error found on State postconviction review, the defendant must prove that, viewing the record as a whole, the error had a substantial and injurious effect or influence in determining the jury's verdict. Where the matter is evenly balanced as to the harmlessness of the error, the error must be treated as if it had a substantial and injurious effect or influence in determining the jury's verdict."
Sec. 8.  G.S. 7A-451 is amended by adding the following subsections:
"( c)	In any capital case, an indigent defendant who is under a sentence of death may apply to the superior court of the district where the defendant was indicted for the appointment of counsel to represent the defendant in preparing, filing, and litigating a motion for appropriate relief.  The application for the appointment of such postconviction counsel may be made while the petition for certiorari to the United States Supreme Court is pending and shall be made no later than 10 days from the latest of the following:
(1)	The mandate has been issued by the Supreme Court of North Carolina on direct appeal pursuant to N.C.R.App.P.32(b) and the time for filing a petition for certiorari to the United States Supreme Court has expired without a petition being filed;
(2)	The United States Supreme Court denied a timely petition for certiorari of the decision on direct appeal by the Supreme Court of North Carolina; or
(3)	The United States Supreme Court granted the defendant's or the State's timely petition for certiorari of the decision on direct appeal by the Supreme Court of North Carolina, but subsequently left the defendant's death sentence undisturbed.
If there is not a criminal or mixed session of superior court scheduled for that district, the application must be made no later than 10 days from the beginning of the next criminal or mixed session of superior court in the district. Upon application by the defendant, the superior court shall enter an order (i)	appointing counsel and, if the circumstances of the case warrant, one associate counsel to represent the defendant upon a finding that the defendant is indigent and accepts the appointment of counsel, or is unable competently to decide whether to accept or reject the appointment of counsel; (ii) finding, after a hearing if necessary, that the defendant rejected the offer of counsel and made the decision with an understanding of its legal consequences; or (iii) denying the appointment of counsel upon a finding that the defendant is not indigent.
(d)	The appointment of counsel as provided in subsection (c) of this section and the procedure for compensation shall comply with the Rules and Regulations Relating to the Appointment of Counsel for Indigent Defendants pursuant to G.S. 7A-459.
(e)	No counsel appointed pursuant to subsection (c) of this section  shall have previously represented the defendant at trial or on direct appeal in the case for which the appointment is made unless the defendant expressly requests continued representation and understandingly waives future allegations of ineffective assistance of counsel."
Sec. 9. This act becomes effective October 1, 1995. Section 5 of this act applies to death sentences rendered by a trial court on or after that date. The remaining sections of this act apply to cases in which, on or after October 1, 1995, the direct appeal to the State appellate courts and subsequent review of the decision on direct appeal have been completed or the time for such appeals has expired.