In a bulletin here I wrote about NC’s procedure for post-conviction motions for appropriate relief (MARs). Among other things, that bulletin explains the types of claims that can be raised in a MAR. One of those claims is that “[t]here 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.” G.S. 15A-1415(b)(7). In a recent case, State v. Harwood, the NC Court of Appeals took a restrictive view of this MAR ground.
In Harwood, the defendant pleaded guilty to 19 counts of felon in possession of a firearm. He later filed a MAR seeking to vacate 18 of the 19 counts. In support of his motion he asserted that the court’s decision in State v. Garris, 191 N.C. App. 276 (2008), constituted a significant change in the law that retroactively applied to his case and entitled him to relief. In Garris, the court held that a defendant may be convicted and sentenced only once for simultaneous possession of more than one firearm.
Rejecting the defendant’s argument, the Court of Appeals determined that it didn’t even need to reach the question of whether Garris applied retroactively (a tricky question; if you need information about retroactivity, I discuss the relevant analysis here). Instead, the court concluded that Garris didn’t constitute a “significant change in the law” as contemplated by the MAR statute. It explained:
At the time that this Court decided Garris, no reported decision of this Court or the Supreme Court had addressed the issue of whether the possession of multiple firearms by a convicted felon constituted a single violation or multiple violations . . . . For that reason, our decision in Garris resolved an issue of first impression in this jurisdiction. Instead of working a change in existing North Carolina law, Garris simply announced what North Carolina law had been since the enactment of the relevant version of [G.S] 14-415.1(a). As a result, a decision which merely resolves a previously undecided issue without either actually or implicitly overruling or modifying a prior decision cannot serve as the basis for an award of appropriate relief made pursuant to [G.S.] 15A-1415(b)(7).
Slip op. at 13-15 (citation omitted). Since Garris didn’t effect a significant change in the law, the court held that the trial court lacked jurisdiction to grant relief on the defendant’s MAR. It went on to note that since the relevant law was unsettled at the time of the defendant’s plea, the defendant could have—like the defendant in Garris—gone to trial, contested the issue in superior court and, if unsuccessful, raised the issue on direct appeal.
So what’s the take away? To state a “significant change in law” MAR claim under G.S. 15A-1415(b)(7), a case of first impression won’t cut it; the defendant needs to offer a decision changing the law by, for example, overruling prior cases. Here’s another somewhat ironic point. The Harwood court skirted the state law retroactivity issue by deciding the case on statutory MAR grounds. But the standard the court articulated for the statutory MAR issue seems suspiciously similar to some aspects of the “new rule” analysis under federal retroactivity analysis. And as anyone who has ever dabbled in federal retroactivity knows, the new rule analysis ain’t always easy! If you need information on that, you’re not without a resource—my paper on retroactivity noted above discusses the new rule prong of federal retroactivity analysis.