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Counsel’s Unconsented-to Admission to Elements Isn’t a Harbison Error

In State v. Harbison, 315 N.C. 175 (1985), the North Carolina Supreme Court held that when defense counsel admits the defendant’s guilt to the jury without the defendant’s consent per se ineffective assistance of counsel occurs. The Harbison Court reasoned that when counsel admits guilt without consent, it is essentially the same as entering a guilty plea on the defendant’s behalf without the defendant’s consent. It concluded: “ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s consent.” Id. at 180. Continue reading

News Roundup

Late last week President Donald Trump signed three Executive Orders that a White House blog post says are intended to “fight crime, gangs, and drugs; restore law and order; and support the dedicated men and women of law enforcement.”  A press release from the White House says that one of the orders directs Attorney General Jeff Sessions to develop a strategy to more effectively prosecute people who commit crimes against law enforcement officers; that the second order establishes a task force led by Sessions to reduce crime and restore public safety in American communities; and that the third focuses energy and resources on dismantling drug cartels and other transnational criminal organizations.  Keep reading for more news.

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2017 Cost Waiver Reports Available

The Administrative Office of the Courts recently submitted two reports on criminal cost waivers to the General Assembly. The first report covers court cost waivers under G.S. 7A-304(a). The other is about costs remitted upon remand from superior court to district court under G.S. 15A-1431(h). Both reports sort waivers by district or county and by individual judge. Continue reading

The Role of Race—and Brain Science—in Pedestrian Fatalities

A pedestrian enters a crosswalk. A car approaches. Does the race of the pedestrian influence whether the driver stops the car or continues to drive through the crosswalk? Continue reading

Fourth Circuit Sets Out Authority to Frisk When a State’s Law Permits Possession of Concealed Firearm

The Fourth Circuit Court of Appeals, on a rehearing of a case en banc, held in United States v. Robinson, 2017 WL 280727 (Jan. 23, 2017), that an officer had the authority to conduct a frisk of a lawfully-stopped person whom the officer reasonably believed to be armed with a concealed firearm, regardless of whether the person may have been legally entitled to carry the firearm. This post discusses the ruling and its possible influence in the development of the law of frisk in North Carolina state courts. [For those who received my summary of this case as a subscriber to the criminal law listserv, this is the same summary but with the addition of an analysis and comment section at the end of this post.] Continue reading

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Proving a Minor’s Sexual Purpose for Sexual Assault Crimes

A recent Court of Appeals opinion turned on a point of law that sometimes trips up folks in sexual assault cases: When a juvenile is alleged to have committed a sexual assault requiring proof of a sexual purpose, the State has to prove more than the act itself. Continue reading

News Roundup

The Durham Herald-Sun reports that the long saga of the Michael Peterson murder case may conclude later this month with a plea bargain. As the Herald-Sun article recounts, Peterson was incarcerated for eight years after being convicted in 2003 of murdering his wife, Kathleen Peterson. He was granted a new trial in 2011 based on a court’s finding that former SBI analyst Duane Deaver had given misleading and false testimony at the original trial. The Herald-Sun article does not have details of the agreement, but a report from WRAL says that Peterson will enter an Alford plea to voluntary manslaughter. Keep reading for more news.

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2017 Sentencing Commission Statistical Report Available

It’s a chilly, blustery day in Chapel Hill, but I see signs of spring. The days are getting a little longer. College basketball season kicks into high gear tonight. And there are only four days until pitchers and catchers report. But one of my favorite signs that we’ve completed another trip around the sun and are starting to tilt toward it has also arrived: the North Carolina Sentencing and Policy Advisory Commission has issued its annual Statistical Report for Felonies and Misdemeanors. Continue reading

State v. Parisi Answers DWI Procedural Riddle

Criminal procedure aficionados, close your red books and riddle me this:

A district court judge in a DWI case preliminarily grants a defendant’s motion to suppress. The State appeals to superior court. The superior court affirms the district court’s determination and remands the case for entry of an order suppressing the evidence and dismissing the charges. The district court enters the order. Does the State have the right to appeal?

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Court of Appeals Rejects Habitual Felon Sentence Based on Enhanced Sentence for Misdemeanor Possession of Marijuana

Suppose a person is convicted of the misdemeanor of possessing more than 1/2 ounce but no more than 1 1/2 ounces of marijuana, a Class 1 misdemeanor under G.S. 90-95(d)(4). Suppose further that the person was convicted previously for an offense under North Carolina’s Controlled Substances Act. Based on this prior conviction, the person may be “punished as a Class I felon” under G.S. 90-95(e)(3). May the State also use that felony punishment as the current felony for the purpose of prosecuting the person as a habitual felon? If so, the punishment would increase four more classes—from a Class I to a Class E felony—under the habitual felon sentencing scheme in G.S. 14-7.6. Continue reading

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