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No Relief from Fair Sentencing

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In a post here Jamie discussed whether a defendant who was sentenced under the Fair Sentencing Act (FSA) can successfully bring a motion for appropriate relief asserting that he or she is entitled to “retroactive” application of the provisions of Structured Sentencing Law (SSL). Jamie posited—correctly as it turns out—that the answer to this question is no. Nevertheless several trial judges have been granting motions for appropriate relief asserting this claim. The N.C. Supreme Court recently weighed in, holding that there is no basis for retroactively applying SSL to FSA offenses.

In State v. Whitehead, the defendant pled guilty to second-degree murder on 29 July 1994. The offense occurred on 25 August 1993. The trial court imposed a life sentence, the maximum aggravated term for second-degree murder, a Class C felony under the FSA. Subsequently, the General Assembly enacted SSL. As compared to the FSA, SSL imposes shorter terms of imprisonment for second-degree murder. In 2010, the defendant filed a motion for appropriate relief seeking to have his sentence modified under SSL. After a hearing, the trial judge concluded that SSL “retroactively” applied to the defendant and modified the defendant’s sentence accordingly. The State’s petitioned the N.C. Supreme Court for writ of certiorari to determine whether the trial judge erred in modifying the defendant’s FSA sentence. Noting that the N.C. Constitution grants it “jurisdiction to review upon appeal any decision of the courts below,” the court exercised its “rarely used general supervisory authority,” and agreed to review the trial court’s ruling.

Turning to the substantive issue, the court determined that the modified sentenced “contravenes the appropriate sentencing statutes.” According to the court, the General Assembly “clearly and unambiguously” provided that the SSL may not be applied retroactively. Specifically it noted the following effective date language in the relevant Session Law:

This act becomes effective October 1, 1994, and applies only to offenses occurring on or after that date. Prosecutions for, or sentences based on, offenses occurring before the effective date of this act are not abated or affected by the repeal or amendment in this act of any statute, and the statutes that would be applicable to those prosecutions or sentences but for the provisions of this act remain applicable to those prosecutions or sentences.

Slip op. at 6 (quoting Ch. 24, sec. 14, 1993 N.C. Sess. Laws (Extra Sess. 1994) at 96). It thus concluded that the trial court erred by applying SSL retroactively to an offense committed before 1 October 1994. Further, the court noted, that same provision expressly states that sentences for offenses occurring before the SSL’s effective date shall not be affected by the Act. Thus, the court concluded, “the FSA remains the applicable law for the defendant’s sentence.”

The court quickly disposed of the defendant’s argument that his FSA sentence violated the Eighth Amendment. It then vacated and remanded for reinstatement of the original judgment.

I have received many questions about this issue over the years. It’s nice to have a final answer.

3 comments on “No Relief from Fair Sentencing

  1. The answer seems to be final as to the retroactivity question. Eighth amendment claims, however, are factually driven and cannot be shut down by this case.

  2. By the by, I thought this issue had already been resolved…I have cited State v. Branch, 134 N.C. App. 637 (N.C. Ct. App. 1999), in several MARs on this very issue. In that case, the defendant had committed two break-ins less than two weeks apart from one another, but was unlucky enough to do so between the cross-over from Fair Sentencing to Structured Sentencing. The court held that his sentences of 10 years for the first offense and 12-15 months for the second offense were not only legal, but that he was required to be sentenced under fair for the first and structured for the second. SCOTUS has also cited this case in its opinion in McNeill v. United States, 131 S. Ct. 2218 (U.S. 2011) and it was directly discussed and agreed with in the prior opinion from United States v. McNeill, 598 F.3d 161, 165 (4th Cir. N.C. 2010).

  3. I need some answers and advice concerning my son who has been incarcerated going on twenty three years. He was sentenced along with my other two children for the same crime. Two of them have been out for some time. They all was charged with 2nd degree murder, ( all under the fair sentencing act. ) They were all kids at that time. Ages 16, 15, &14 respectively. My son who was 15 then is 38 now. What can my family an I do to help him obtain his release since it was under the F S A sentencing. His second degre murder was / is a class C. What would be the appropiare sreps we need to take to help our loved one. Will we need to hire an attorney? An if so, what type of attorney? And if so, how expensive can this be. Lastly, can rhis be done without the help of an attorney. Thank you for any advice and help you can give. God bless!

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