I get asked a lot of questions about motions for appropriate relief (MARs). One common scenario is: Defendant was convicted of Crime X years ago and the sentence has been fully served. Defendant now faces a habitual charge or status based on the prior conviction or maybe the prior conviction has elevated Defendant’s sentence for a later crime in state or federal court. The question I get asked is: Can Defendant now file a MAR to challenge the original conviction?
The answer is: Maybe. There is no statute of limitations for non-capital MARs. Such a MAR can be filed one year after verdict, five years after verdict, or even twenty years after verdict. However, if the motion is filed more than ten days after entry of judgment, the defendant is limited in terms of the types of claims that may be asserted in the MAR. When the MAR is made within ten days of entry of judgment, it can assert any error. G.S. 15A-1414. But once that ten-day period expires, the only claims that can be asserted are the nine claims listed in G.S. 15A-1415. Specifically, a MAR filed more than ten days after entry of judgment may assert a claim:
(1) That the acts charged did not, at the time they were committed, constitute a violation of criminal law.
(2) That the trial court lacked jurisdiction over the defendant or the subject matter.
(3) That the conviction was obtained in violation of the United States or North Carolina constitutions.
(4) That the defendant was convicted or sentenced under a statute that violated the United States or North Carolina constitutions.
(5) That the conduct for which the defendant was prosecuted was protected by the United States or North Carolina constitutions.
(6) That there 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.
(7) That the sentence imposed was unauthorized at the time imposed; contained a type of disposition or a term of imprisonment not authorized for the class of offense and prior record or conviction level; was illegally imposed; or is otherwise invalid as a matter of law.
(8) That the defendant is confined and is entitled to release because the sentence has been fully served.
(9) Of newly discovered evidence. A motion asserting such a claim must be filed within a reasonable time of its discovery. The statute requires a defendant to allege the discovery of new evidence that was unknown or unavailable at the time of trial and could not with due diligence have been discovered or made available at that time, including recanted testimony. The defendant must show that the evidence has a direct and material bearing upon his or her eligibility for the death penalty or guilt or innocence.
Also, if the defendant previously has filed a MAR or pursued a direct appeal, the procedural default rules contained in G.S. 15A-1419 may preclude consideration of the claim on the merits.