North Carolina Criminal Law NC Criminal Law

You can’t always get what you want

But if you try sometimes you might find

You get what you need

–The Rolling Stones

It’s generally understood that a criminal defendant can’t invalidate an old conviction in connection with proceedings on new charges. This is known as the anti-collateral attack rule. Suppose for example that a defendant is charged with habitual impaired driving. That offense requires the State to prove that the defendant has prior impaired driving convictions. The anti-collateral attack rule means that the defendant can’t — in the habitual impaired driving proceeding — seek to invalidate one of those priors, on say constitutional grounds. Under the anti-collateral attack rule, if the defendant wants to invalidate a prior on those grounds, the proper procedure is by way of a post-conviction motion for appropriate relief (MAR). However, as illustrated by the recent court of appeals case, State v. Blocker, the defendant might be able to suppress use of that prior in the habitual impaired driving case, and in that way get what he needs: a defense to the habitual impaired driving charge. Let me explain.

In Blocker, the defendant was indicted on robbery charges and entered an Alford plea. Following entry of her plea, but before sentencing, the defendant filed a motion under G.S. 15A-980 seeking to suppress, for purposes of sentencing, a 2007 conviction that she alleged was obtained in violation of her right to counsel. Specifically, the defendant alleged that she was indigent and did not knowingly and voluntarily waive counsel when she pled guilty to the 2007 conviction. This constituted a “Boykin claim,” a shorthand for referring to a challenge to the knowing, voluntary, and intelligent nature of a plea. Finding the motion to be an impermissible collateral attack that only could be raised by way of a MAR, the trial court summarily denied the defendant’s motion and pronounced sentence. The defendant appealed and the court of appeals found error.

The court of appeals determined that under G.S. 15A-980 a defendant may contest a trial court’s use of a prior conviction at a sentencing hearing on new charges. G.S. 15A-980 deals with the suppression of prior convictions obtained in violation of the right to counsel. Subsection (a) provides:

(a) A defendant has the right to suppress the use of a prior conviction that was obtained in violation of his right to counsel if its use by the State is to impeach the defendant or if its use will:

(1) Increase the degree of crime of which the defendant would be guilty; or

(2) Result in a sentence of imprisonment that otherwise would not be imposed; or

(3) Result in a lengthened sentence of imprisonment.

Applying the statute, the court determined that the trial court’s summary denial of the defendant’s motion on grounds that it constituted an impermissible collateral attack was erroneous. The court noted that although the defendant could not use G.S. 15A-980 to overturn her prior conviction on Boykin grounds, she could use the statute to suppress use of the conviction in the current case.

Note that while the defendant in Blocker sought to suppress the conviction under G.S. 15A-980 because it would have lengthened her sentence, the statute applies in broader range of contexts. By its terms it allows a defendant to “suppress the use of a prior conviction” obtained in violation of his right to counsel whenever:

• the State will use the prior conviction to impeach the defendant;
• its use will increase the degree of crime of which the defendant would be guilty;
• its use will result in a sentence of imprisonment that otherwise would not be imposed; or
• its use will result in a lengthened sentence of imprisonment.

The first scenario—use of the prior for impeachment—would arise, for example, when the State seeks to impeach the defendant under Rule 609 with the prior. The second scenario—using the prior to increase the degree of crime—would apply, for example, when the defendant is charged with a second offense under G.S. 14-56.1 (Breaking into a Coin- or Currency-Operated Machine); for this crime, a first offense is a Class 1 misdemeanor but a second offense is a Class I felony. The third scenario—use of prior conviction to get an active sentence—would apply, for example, when the prior increases prior record level so as to move the defendant into an “active only” block on the sentencing grid. The fourth scenario—use of the prior to get a lengthened sentence—would apply, for example, when the prior increases the defendant’s prior record level.

Keep in mind, however, that notwithstanding this broad potential application, G.S. 15A-980 only allows the defendant to raise one type of Boykin claim: a denial of the right to counsel. Furthermore only a very specific type of denial of counsel claim can be asserted. The statute specifies that when a defendant seeks to suppress a prior on this basis, the defendant bears the burden of proving (by a preponderance) that at the time of the prior conviction he or she was indigent, had no counsel, and had not waived his right to counsel. G.S. 15A-980(c). But in the limited circumstances when the claim can be established, the defendant just might get what he needs: suppression of the conviction in the current case.