Here I go again (perhaps on my own) with another update on the state of implied consent after Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013). These updates occur more often than teeth-cleanings and may be awaited with the same degree of anticipation. But given that there’s a split of authority developing between the states, and North Carolina courts have not yet weighed in, I think these are developments worth following.
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Padilla Comes to North Carolina
The title I gave this post is actually not quite accurate. Five years ago, in its 2010 decision in Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court established that criminal defense attorneys have an obligation, as part of the Sixth Amendment guarantee of effective assistance of counsel, to advise noncitizen clients about the immigration consequences of the criminal charges against them. In its recent decision in State v. Nkiam, ___ N.C. App. ___ (Nov. 3, 2015), temp. stay allowed, ___ N.C. ___ (Nov. 23, 2015), the North Carolina Court of Appeals found that the defendant’s counsel failed to meet this obligation. Although Nkiam seems like a straightforward application of Padilla, it has caught people’s attention because it is the first North Carolina appellate decision to address the merits of a Padilla claim of ineffective assistance of counsel. (In previous cases, the North Carolina Court of Appeals found it unnecessary to address the merits of the defendant’s claim, holding that Padilla did not apply retroactively and did not afford relief to a person whose conviction was final before Padilla was decided. State v. Alshaif, 219 N.C. App. 162 (2012); accord Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103 (2012).)
Mail Regulation in the Jail
Handling mail to and from inmates is a challenge for jail administrators. Of course they want to enable inmates to handle their legitimate business (including pending legal matters) and maintain family and community ties. On the other hand, they must be on guard against contraband or inappropriate materials coming into the jail, or inmates participating in crimes or planning an escape from within. Inmates have a constitutional right to communicate with others and to access the courts, but those rights are limited by the jail’s obligation to preserve security, good order, and discipline. This post collects some of the basic legal principles that should be incorporated into the jail’s policy on mail regulation. By state administrative regulation, every jail must have a written policy on handling inmate mail.
News Roundup
Most of the office chatter around the SOG this week concerned the new lawsuit challenging the recently-enacted retention election procedure for North Carolina Supreme Court Justices. The basic question is whether that procedure satisfies the state constitution’s requirement that justices be elected. The Fayetteville Observer has more information here. But that wasn’t the only interesting story of the week.
Was Rosa Parks Convicted?
Sixty years ago today, Rosa Parks was arrested for failing to give up her seat on a Montgomery, Alabama city bus to a white passenger. Thinking about her courage, the arrest, and the changes that it helped bring about, I realized that I didn’t know what became of the charges against her. I was surprised by the answer, and thought I’d share it with others.
New Sentencing Handbook Available
The 2015-2016 edition of the North Carolina Sentencing Handbook with Felony, Misdemeanor, and DWI Sentencing Grids is available from the School of Government. Like previous editions, it contains instructions on felony sentencing, misdemeanor sentencing, and DWI sentencing; the sentencing grids themselves; and various appendices that may be helpful in your work.
Are Daily Fantasy Sports Gambling?
Tomorrow is Thanksgiving, and Thanksgiving means football, and football nowadays means an endless parade of advertisements for DraftKings, FanDuel, and other daily fantasy sports businesses. This post asks the obvious question: are these contests illegal gambling?
The 300-Foot Rule Goes to Church
Last week the court of appeals decided another case involving the sex offender premises restriction in G.S. 14-208.18. The defendant was convicted of being within 300 feet of a church preschool.
News Roundup
This week, the mighty fell. Locally, Dana Cope, the former director of the State Employees Association of North Carolina, pled guilty to spending $570,000 of the Association’s money on personal expenses, like landscaping, flying lessons, a trip to China, a home theater system, clothing, and much more. During his court appearance, Cope acknowledged “I am a thief.” He received a sentence of 58 to 82 months in prison. WRAL has the story here. Nationally, Subway spokesman Jared Fogle was sentenced to 15.5 years in federal prison after admitting he possessed child pornography and had sex with minors. The sentence exceeded prosecutors’ recommendation of 12.5 years. Fogle will also pay $1.4 million in restitution. Reuters has the details here.
Recent Changes to the Pretrial Release Statutes
In the 2015 legislative session, the General Assembly made two significant changes to the pretrial release statutes: (1) it effectively repealed a “bond doubling” provision for defendants rearrested while on pretrial release, and (2) it expanded the scope of the 48-hour rule for domestic violence cases to include dating couples.