Case Summaries – N.C. Court of Appeals (August 2, 2022)

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on August 2, 2022. This summary will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

A juvenile-age felony conviction may count towards violent habitual felon status mandating a sentence of life without parole.

State v. McDougald, 2022-NCCOA-526, ___ N.C. App. ___ (Aug. 2, 2022). In this Harnett County case, defendant appealed the denial of his motion for appropriate relief (MAR). The Court of Appeals affirmed the denial of defendant’s MAR and the imposition of life without parole.

Defendant first pleaded guilty to second degree kidnapping, a class E felony, in 1984, when he was sixteen years old. Four years later in 1988, defendant pleaded no contest to second-degree sexual offense (class H felony), common law robbery (class D felony), and armed robbery (class D felony). In 2001, a jury found defendant guilty of second-degree kidnapping, and subsequently of violent habitual felon status due to his prior felonies. The sentence imposed was mandatory life without parole. Defendant appealed that judgment, but the Court of Appeals found no error in State v. McDougald, 190 N.C. App. 675 (2008) (unpublished).

The current MAR at issue was filed in 2017. Defendant asserted two grounds for relief: (1) that defendant’s trial counsel was ineffective during plea negotiations because defendant was not adequately advised that he would receive mandatory life without parole if convicted, and (2) that applying violent habitual felon status due to defendant’s 1984 felony, which was committed when defendant was a juvenile, violated the Eighth Amendment.

The Court of Appeals first examined the ineffective assistance of counsel ground, and found that, although defense counsel’s records were incomplete, and counsel could not recall if he informed defendant that life without parole was mandatory if he was convicted, the evidence showed that counsel did apprise defendant of the desirability of the plea deal, and the possible risk of life without parole if he went to trial. The court found that defense counsel’s performance was not objectionably unreasonable and was not prejudicial to defendant.

Examining the second ground for relief, the court found that applying a felony committed while defendant was a juvenile did not violate the Eighth Amendment, because defendant was receiving a stiffer punishment for the felony committed as an adult, not a life without parole sentence for the initial felony committed while he was a juvenile. The court reviewed and applied “United States Supreme Court precedent, North Carolina Supreme Court precedent, and in the persuasive precedent from other jurisdictions” to determine that “the application of the violent habitual felon statute to Defendant’s conviction of second-degree kidnapping, committed when Defendant was thirty-three years old, did not increase or enhance the sentence Defendant received for his prior second-degree kidnapping conviction, committed when Defendant was sixteen.” Slip Op. at ¶ 27. Because the punishment of life without parole was not imposed for the juvenile conviction, the court found that it did not run afoul of United States Supreme Court precedent forbidding life sentences for juvenile convictions.

The court also established that the punishment of life without parole was not disproportionate for defendant’s second-degree kidnapping conviction, applying State v. Mason, 126 N.C. App. 318 (1997) to affirm the constitutionality of the habitual violent offender statute.

(1) Testimony from deceased witness at civil hearing was admissible under Rule 804(b)(1) and did not violate confrontation clause; (2) defendant did not have a constitutional right to inspect the premises.

State v. Joyner, 2022-NCCOA-525, ___ N.C. App. ___ (Aug. 2, 2022). In this Edgecombe County case, defendant appealed his convictions of obtaining property by false pretenses and exploitation of a disabled or elderly person in a business relationship. The Court of Appeals found no error and affirmed defendant’s convictions.

Defendant approached an 88-year-old woman at her home and offered to assist her with home improvement work. After claiming to perform several tasks and having the homeowner agree to invoices, an investigation determined that defendant did not perform the work he claimed, and he was indicted for the charges in this matter. Before the criminal trial, the elderly homeowner filed for a civil no-contact order against defendant. Defendant did not appear at the hearing and did not cross-examine any witnesses; the no-contact order was entered against defendant at the conclusion of the hearing. Defendant subsequently filed motions attempting to inspect the property in question, and the trial court denied those motions. The homeowner died prior to the criminal trial and the trial court entered an order admitting her testimony from the no-contact civil hearing.

Defendant’s appeal asserted two errors by the trial court: (1) admission of the testimony of the homeowner from the civil hearing, and (2) denial of his motion to inspect the property. The Court of Appeals first considered the admission of testimony and the confrontation clause issues involved, applying the three-prong test articulated in State v. Clark, 165 N.C. App. 279 (2004). The court determined that defendant did have a meaningful opportunity to cross-examine the homeowner in the civil hearing, but he did not take advantage of that opportunity. Because that hearing was on matters substantially similar to the criminal trial, defendant waived his opportunity by not cross-examining the homeowner. The similarity of matters also supported the court’s hearsay analysis, as it found that the testimony was admissible under the exception in North Carolina Rule of Evidence 804(b)(1). The court also found that the admission of the no-contact order did not represent plain error under N.C.G.S. § 1-149 and was not a violation of defendant’s due process rights.

Considering defendant’s second issue, the court explained that there is no general right to discovery in a criminal case, and defendant identified no clear grounds for discovery to be required in this matter. Although State v. Brown, 306 N.C. 151 (1982), provides criminal defendants may have a right to inspect a crime scene under limited circumstances, the court distinguished defendant’s situation from Brown. Specifically, defendant performed the work here himself and was not deprived of the ability to find exculpatory evidence, as he would have firsthand knowledge of the work and locations in question. The court found no right to inspect the property in this case and no error by the trial court in denying defendant’s request.

Defendant was entitled to withdraw plea under N.C.G.S § 15A-1024 after trial court imposed sentence in excess of plea agreement.

State v. Wentz, 2022-NCCOA-528, ___ N.C. App. ___ (Aug. 2, 2022). In this Pasquotank County case, defendant appealed denial of his attempt to withdraw a guilty plea under N.C.G.S § 15A-1024. After reviewing the matter, the Court of Appeals vacated the judgment and remanded.

After a string of break-ins in the Elizabeth City area in 2019, defendant was indicted for breaking and entering, larceny after breaking and entering, possession of stolen goods, larceny of a firearm, possession of a stolen firearm, possession of a firearm by a felon, and being a habitual felon due to three prior felony convictions. Subsequently, defendant agreed to enter an Alford plea to possession of a firearm by a felon, felony breaking and entering, and to admit his status as a habitual felon in exchange for dismissal of the remaining charges. The text of the plea agreement said that the state would not oppose consolidation of the offenses for sentencing, and that defendant would receive a sentence in the 77-to-105-month range.

At the hearing to enter the plea agreement, the trial court declined to consolidate the felonies for sentencing purposes. Hearing that the trial court would not consolidate the offenses, defendant made a motion to withdraw his Alford plea, based upon his understanding that he would receive a sentence of 77 to 105 months. The trial court denied defendant’s motion to withdraw his plea and sentenced him to 77 to 105 months for possession of a firearm by a felon, followed by 67 to 93 months for breaking and entering. On appeal defendant argued that N.C.G.S. § 15A-1024 permitted him to withdraw his plea once the trial court imposed a sentence inconsistent with the plea agreement.

Reviewing the matter, the Court of Appeals found that the two separate sentences imposed were different than the bargained-for sentence of 77 to 105 months in the plea agreement. The court explained that applicable precedent on plea agreements requires “strict adherence” to the terms of the agreement since a defendant is waiving a constitutional right to trial; any change from the negotiated agreement entitles the defendant to relief. Slip Op. at ¶ 14. Here, the trial court declined to consolidate the charges, and imposed a sentence in excess of the negotiated range, entitling defendant to withdraw his plea. The court explained that once the trial court decided to impose a different sentence, they should: “(1) inform the defendant of the decision to impose a sentence other than that provided in the plea agreement; (2) inform the defendant that he can withdraw his plea; and (3) if the defendant chooses to withdraw his plea, grant a continuance until the next session of court.” Slip Op. at ¶ 12, citing State v. Rhodes, 163 N.C. App. 191, 195 (2004). Because in this matter the trial court heard and denied a motion to withdraw the plea, the Court of Appeals vacated and remanded, finding that defendant was no longer bound by the plea agreement.

(1) Rule 404(b) testimony was admissible where alleged sexual assault was sufficiently similar and not too remote in time; (2) trial court improperly considered defendant’s choice of jury trial when imposing consecutive sentences.

State v. Pickens, 2022-NCCOA-527, ___ N.C. App. ___ (Aug. 2, 2022). In this Wake County case, defendant appealed his convictions for first-degree rape of a child and first-degree sexual offense with a child based on error in the admission of testimony regarding a prior alleged assault and in sentencing. The Court of Appeals found no error in the admission of evidence under North Carolina Rule of Evidence 404(b), but improper considerations in sentencing that justified remanding the matter for resentencing.

The State filed a pretrial notice of Rule 404(b) evidence, and defendant countered with a motion in limine to preclude the State from introducing any evidence related to sexual assaults in Durham, NC. At trial, the State offered testimony from the victim in this matter regarding the sexual assaults she experienced in or around August or September of 2015. The State then called the Rule 404(b) witness to testify about an alleged sexual assault by defendant that she experienced in in February of 2015, in Durham. Both the victim and the other witness were students at middle schools where defendant was a teacher. The trial court allowed testimony from the Rule 404(b) witness in front of the jury.

The Court of Appeals considered defendant’s argument that the Rule 404(b) testimony was not similar to the crime charged and was unduly prejudicial, noting that Rule 404(b) is generally an inclusive rule if the evidence is relevant to any issue besides propensity to commit the crime charged. Slip Op. at ¶ 17. Additionally, the court noted that North Carolina precedent regarding the admissibility of Rule 404(b) evidence in sexual assault cases has been “very liberal.” Slip Op. at ¶ 20, quoting State v. White, 331 N.C. 604, 612 (1992). Because the crimes charged in this matter and the assault described by the Rule 404(b) witness were sufficiently similar and not too remote in time, the court found no error in admitting the testimony.

Considering defendant’s second argument regarding sentencing, the court found error due to the trial court’s improper consideration of defendant’s choice to receive a trial by jury. At the sentencing hearing, the trial court addressed defendant regarding the victim and 404(b) witness, saying “[a]nd in truth, they get traumatized again by being here, but it’s absolutely necessary when a defendant pleads not guilty. They didn’t have a choice and you, Mr. Pickens, had a choice.” Slip Op. at ¶ 32. Immediately after this quote, the trial court imposed consecutive sentences. The Court of Appeals found a clear inference that the trial court imposed consecutive sentences because defendant did not plead guilty and went to trial. As such, the court vacated the sentence and remanded for resentencing.

Judge Murphy dissented by separate opinion.