On October 13, 2015, the U.S. Supreme Court will hear oral argument in Montgomery v. Louisiana, a case that presents the question whether Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), applies retroactively to convictions that became final before Miller was decided. In Miller the Court held that under the Eighth Amendment a sentencing scheme that mandates life without parole for defendants less than 18 years old at the time of their crimes is unconstitutional. Miller did not categorically ban a life without parole sentence for juvenile offenders; rather it mandated that the sentencer must consider an offender’s youth and attendant characteristics before imposing such a penalty. Miller applies to all cases that were pending when it was decided as well as to all future cases. Griffith v. Kentucky, 479 U.S. 314 (1987). The question of retroactivity is whether the Miller rule applies to cases that became final before the decision was issued. As I noted in a blog post here, the lower courts are divided on the issue. The Court’s decision in Montgomery might finally resolve it. Continue reading
Tag Archives: retroactivity
Last month the U.S. Supreme Court held that under the Fourth Amendment to the U.S. Constitution, officers can’t search a cell phone as a search incident to arrest. Riley v. California, __ U.S. __, 134 S.Ct. 2473 (2014). For background on those cases, see the blog post here. Since then I’ve had a bunch of calls asking: Does Riley apply retroactively to my trial if the search was done pre-Riley? My answer: Riley applies but it’s not a retroactivity issue.
Under Griffith v. Kentucky, 479 U.S. 314, 328 (1987), new rules apply to all cases that are pending on direct review or yet not final. See Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (citing Griffith, 479 U.S. at 328). As a general rule, a conviction is final when a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari to the U.S. Supreme Court has elapsed or a timely petition for certiorari has been finally denied. See Griffith, 479 U.S. at 321 n.6. For our purposes, that means if the trial hasn’t occurred yet, the case isn’t final and Riley applies. But defense lawyers don’t get too excited! The State will likely argue for application of the good faith exception to the exclusionary rule, an issue Jeff will address in a follow up post.
But back to retroactivity. Retroactivity comes into play when the question is whether the new rule applies to cases that became final before the rule was issued. Thus, retroactivity doesn’t become an issue until the post-conviction stage—in N.C., typically a motion for appropriate relief (MAR). While all of the questions I’ve gotten so far have dealt with pending cases, it’s only a matter of time until the first Riley MAR gets filed. And when that happens, retroactivity will be front and center. Here’s your cheat sheet.
In NC, there are two rules for retroactivity: One for new rules based on federal law (as Riley is) and one for new rules based on state law. For new federal rules, the Teague anti-retroactivity test applies. Teague v. Lane, 489 U.S. 288, 311 (1989) (Teague was a plurality decision that later became a holding of the Court. See Gray v. Netherland, 518 U.S. 152 (1996); Caspari v. Bohlen, 510 U.S. 383 (1994)). Under Teague, a new rule isn’t retroactive unless it’s substantive or it’s a watershed rule of criminal procedure. A substantive rule is one that “narrow[s] the scope of a criminal statute by interpreting its terms” and “place[s] particular conduct or persons covered by the statute beyond the State’s power to punish.” Schriro, 542 U.S. at 352. This exception should cover decisions like Lawrence v. Texas, 539 U.S. 558, 578 (2003), which held that criminalizing consensual adult sodomy was unconstitutional. It’s pretty clear that Riley isn’t a substantive rule.
Nor is Riley likely to fall within the second Teague exception for “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” O’Dell v. Netherland, 521 U.S. 151, 157 (1997) (quotation omitted). The Court has said that it’s “unlikely” that such rules have yet to emerge. Teague, 489 U.S. at 313; Tyler v. Cain, 533 U.S. 656, 666 n.7 (2001); Beard v. Banks, 542 U.S. 406, 417 (2004) (quotation omitted). And although the Court repeatedly has referred to Gideon v. Wainwright, 372 U.S. 335 (1963) (establishing an affirmative right to counsel in all criminal trials for serious offenses), as the type of rule that would fall within this exception, see, e.g., Gray, 518 U.S. at 170, the Court has never once held a rule to fall within this Teague exception. See Beard, 542 U.S. at 417. Meanwhile it has repeatedly rejected arguments that particular rules constitute watershed rules. See, e.g., Whorton v. Bockting, 549 U.S. 406, 416-21 (2007) (Crawford is not a watershed rule of criminal procedure); Schriro, 542 U.S. at 356-58 (same as to Ring rule); Beard, 542 U.S. at 418-20 (same as to Mills rule); O’Dell, 521 U.S. at 167 (same as to Simmons rule); Lambrix v. Singletary, 520 U.S. 518, 539-40 (1997) (no retroactivity for rule of Espinosa v. Florida, 505 U.S. 1079 (1992)); Goeke v. Branch, 514 U.S. 115, 120 (1995) (same as to rule relating to fugitive dismissal); Sawyer v. Smith, 497 U.S. 227, 241-45 (1990) (same as to Caldwell v. Mississippi, 472 U.S. 320 (1985)); Gray, 518 U.S. at 170 (same as to rule concerning notice of evidence to be used against defendant); Caspari, 510 U.S. at 396 (same as to new rule that Double Jeopardy Clause prohibits successive non-capital sentence proceedings); Graham v. Collins, 506 U.S. 461, 477-78 (1993) (same as to rule regarding mitigating evidence in capital sentencing); Gilmore v. Taylor, 508 U.S. 333, 345 (1993) (same as to new rule regarding jury instructions); Butler v. McKellar, 494 U.S. 407, 416 (1990) (same as to Arizona v. Roberson, 486 U.S. 675 (1988)); Saffle v. Parks, 494 U.S. 484, 495 (1990) (same as to rule that a judge in a capital case was barred from telling the jury to avoid any influence of sympathy). Thus, while there is a chance that Riley will be held to be a watershed rule of criminal procedure, most wouldn’t be willing to put a lot of money on that bet.
As noted, Riley was decided under the Fourth Amendment to the U.S. Constitution. The N.C. Supreme Court has expressly adopted the Teague test for determining whether new federal rules apply retroactively in state court MAR proceedings. State v. Zuniga, 336 N.C. 508, 513 (1994). However, should a defendant assert a “Riley claim” under the N.C. Constitution, the retroactivity issue might come out differently. That’s because State v. Rivens, 299 N.C. 385 (1980), sets out the relevant retroactivity test for rules grounded in North Carolina law. See Zuniga, 336 N.C. at 513. Under Rivens, overruling decisions are presumed to operate retroactively unless there is a compelling reason to make them prospective only. See Rivens, 299 N.C. at 390. And that’s clearly a more permissive test than the Teague rule. For more on Rivens retroactivity, see my blog post here.
Almost two years after the United States Supreme Court decided Miller v. Alabama, the question of whether the case applies retroactively to convictions that became final before it was decided continues to be a thorny one for the nation’s courts. Miller held that under the Eighth Amendment a sentencing scheme that mandates life without parole for defendants less than eighteen years old at the time of their crimes is unconstitutional. Miller of course applies to all cases that were pending when it was decided as well as to all future cases. The question of retroactivity is whether the Miller rule applies to cases that became final before the decision was handed down. And that’s not just a theoretical question. After Miller was decided many defendants with old convictions filed post-conviction motions, challenging their sentences under the Eighth Amendment. See, e.g., Diatchenko v. Dist. Attorney for Suffolk Dist., 466 Mass. 655 (2013) (when Miller was decided–thirty years after the defendant’s conviction became final–the defendant filed a post-conviction motion challenging his sentence).
In a nutshell, here’s how the retroactivity issue plays out. In the federal courts, the question of retroactivity is decided under what’s called the Teague test (so named for the seminal U.S. Supreme Court case). Under the Teague test, new constitutional rules are presumed to apply prospectively only, unless one of two exceptions applies. First, if the rule is substantive, it applies retroactively. And second, if the rule is procedural and it constitutes a watershed rule of criminal procedure, it applies retroactively. The United States Supreme Court had never held any rule to be a watershed rule of criminal procedure. As a result, the focus of retroactivity analysis typically is on whether a rule is substantive or procedural. Teague doesn’t limit the authority of the state courts to give broader effect to new federal rules in their own post-conviction proceedings than is required by the Teague test. Danforth v. Minnesota, 552 U.S. 264 (2008). Put simply, the states are free to adopt their own more permissive rules regarding the retroactive application of new federal constitutional rules. North Carolina, like many states, however, applies the Teague test to determine whether new federal constitutional rules apply retroactively in state post-conviction proceedings. This is admittedly a brief summary of a complicated area of the law. If you want more detail about retroactivity in general, I’ve provided it in a paper here—with many case citations.
So back to Miller. The question of Miller’s retroactive application to convictions that became final before it was decided has split the nation’s high courts. To date, three state supreme courts have held that Miller is not retroactive. They include:
- Com. v. Cunningham, 81 A.3d 1 (Pa. 2013).
- Chambers v. State, 831 N.W.2d 311 (Minn. 2013).
- State v. Tate, 130 So. 3d 829 (La. 2013), reh’g denied (Jan. 27, 2014).
Each of these cases applies the same reasoning: Under Teague, Miller is a procedural rule that doesn’t qualify as a watershed rule of criminal procedure. See also In re Morgan, 713 F.3d 1365 (11th Cir. 2013) (holding, in the context of deciding whether the petitioner should be granted permission to file a successive post-conviction petition, that Miller is a procedural rule; admittedly a different analysis but one with very clear Teague overtones).
On the other side are five high court decisions, all finding that Miller is a new substantive rule. They include:
- People v. Davis, __ Ill.__ (Mar. 20, 2014) (available online here).
- State v. Mantich, 287 Neb. 320 (2014).
- Diatchenko v. Dist. Attorney for Suffolk Dist., 466 Mass. 655, 675 (2013).
- State v. Ragland, 836 N.W.2d 107, 122 (Iowa 2013).
- Jones v. State, 122 So. 3d 698 (Miss. 2013), reh’g denied (Sept. 26, 2013).
Additionally, a number of state intermediate appellate courts and lower federal courts have decided the issue. By the looks of it, the issue may be ripe for consideration by the U.S. Supreme Court.
In a bulletin here I wrote about NC’s procedure for post-conviction motions for appropriate relief (MARs). Among other things, that bulletin explains the types of claims that can be raised in a MAR. One of those claims is that “[t]here 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.” G.S. 15A-1415(b)(7). In a recent case, State v. Harwood, the NC Court of Appeals took a restrictive view of this MAR ground.
In Harwood, the defendant pleaded guilty to 19 counts of felon in possession of a firearm. He later filed a MAR seeking to vacate 18 of the 19 counts. In support of his motion he asserted that the court’s decision in State v. Garris, 191 N.C. App. 276 (2008), constituted a significant change in the law that retroactively applied to his case and entitled him to relief. In Garris, the court held that a defendant may be convicted and sentenced only once for simultaneous possession of more than one firearm.
Rejecting the defendant’s argument, the Court of Appeals determined that it didn’t even need to reach the question of whether Garris applied retroactively (a tricky question; if you need information about retroactivity, I discuss the relevant analysis here). Instead, the court concluded that Garris didn’t constitute a “significant change in the law” as contemplated by the MAR statute. It explained:
At the time that this Court decided Garris, no reported decision of this Court or the Supreme Court had addressed the issue of whether the possession of multiple firearms by a convicted felon constituted a single violation or multiple violations . . . . For that reason, our decision in Garris resolved an issue of first impression in this jurisdiction. Instead of working a change in existing North Carolina law, Garris simply announced what North Carolina law had been since the enactment of the relevant version of [G.S] 14-415.1(a). As a result, a decision which merely resolves a previously undecided issue without either actually or implicitly overruling or modifying a prior decision cannot serve as the basis for an award of appropriate relief made pursuant to [G.S.] 15A-1415(b)(7).
Slip op. at 13-15 (citation omitted). Since Garris didn’t effect a significant change in the law, the court held that the trial court lacked jurisdiction to grant relief on the defendant’s MAR. It went on to note that since the relevant law was unsettled at the time of the defendant’s plea, the defendant could have—like the defendant in Garris—gone to trial, contested the issue in superior court and, if unsuccessful, raised the issue on direct appeal.
So what’s the take away? To state a “significant change in law” MAR claim under G.S. 15A-1415(b)(7), a case of first impression won’t cut it; the defendant needs to offer a decision changing the law by, for example, overruling prior cases. Here’s another somewhat ironic point. The Harwood court skirted the state law retroactivity issue by deciding the case on statutory MAR grounds. But the standard the court articulated for the statutory MAR issue seems suspiciously similar to some aspects of the “new rule” analysis under federal retroactivity analysis. And as anyone who has ever dabbled in federal retroactivity knows, the new rule analysis ain’t always easy! If you need information on that, you’re not without a resource—my paper on retroactivity noted above discusses the new rule prong of federal retroactivity analysis.
I previously posted here about the U.S. Supreme Court’s recent decision in Chaidez and its holding that Padilla does not apply retroactively. The Court’s ruling meant that lawful permanent resident Roselva Chaidez failed in her attempt to overturn her pre-Padilla federal convictions on the basis that her lawyer neglected to tell her that they would result in mandatory removal from the country. One might be tempted think that the case is likely to help clear post-conviction dockets nationwide. After all, many cases like Chaidez’s are still in the system and the Court’s holding makes simple work of the retroactivity issue: Motion denied! However, there is something in Chaidez that makes me wonder whether it will lead to a new flood of post-conviction motions. Let me explain.
It has generally been understood that the Sixth Amendment right to counsel applies to direct consequences of a plea but not to collateral consequences. Thus, a lawyer who fails to inform his or her client of a direct consequence of a plea–such as a mandatory minimum sentence–may be found to have rendered ineffective assistance of counsel under the Strickland attorney-error analysis. In contrast, no such claim would lie when the lawyer fails to inform a criminal defendant of a collateral consequence of a plea–such as loss of a professional license. Before Padilla, courts for the most part had been viewing immigration consequences as collateral and thus concluding that if a defense lawyer failed to advise his or her client about such matters, this failure could not constitute ineffective assistance of counsel. Padilla of course changed things. In Padilla, the Court stated that it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland” and went on to conclude that “[w]hether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.” Padilla v. Kentucky, 559 U.S. 356 (2010). It continued:
Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.
Id. Characterizing this ruling in Chaidez, Justice Kagan, writing for the Court, stated that in Padilla “[w]e . . . breach[ed] the previously chink-free wall between direct and collateral consequences” and held that Strickland applied to the petitioner’s claim. Slip Op. at 9.
So that raises a question: Might other chinks appear in the wall? As Justice Kagan notes, there are many other effects of a conviction that are currently viewed as collateral, such as civil commitment, civil forfeiture, sex offender registration, disqualification from public benefits, and disfranchisement. Slip Op. at 6 n.5. Another is satellite-based monitoring for sex offenders. A concurring opinion in Padilla lists still more including ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses. It’s clear that Chaidez provides somewhat of a breather to post-conviction dockets by resolving the question of whether Padilla operates retroactively. What I’m wondering is whether it will spawn a new wave of post-conviction motions, arguing that other collateral consequences—like immigration consequences—are not categorically excluded from Sixth Amendment protection. Time will tell.
The U.S. Supreme Court recently decided Chaidez v. United States, 568 U.S. __ (Feb. 20, 2013), holding that Padilla v. Kentucky, 559 U. S. ___ (2010), isn’t retroactive. Padilla held that criminal defense attorneys must inform non-citizen clients of the risks of deportation arising from guilty pleas. As I noted in a post here, Padilla generated a lot of post-conviction litigation in North Carolina and across the nation. The primary issue in those cases is whether defendants whose convictions became final prior to Padilla could benefit from the Padilla rule. Put another way, the question is whether Padilla applies retroactively.
But back to the recent decision. Chaidez, originally from Mexico, became a lawful permanent resident of the United States in 1977. About 20 years later she pleaded guilty to two counts of federal mail fraud. That conviction became final in 2004. Under federal immigration law these offenses are “aggravated felonies,” subjecting Chaidez to mandatory removal from the country. In 2009, federal authorizes initiated removal proceedings against Chaidez. She then filed a motion to overturn the federal convictions, arguing that her lawyer never told her that she’d be subject to mandatory removal and that this failure constituted ineffective assistance of counsel. While her petition was pending, the U.S. Supreme Court handed down its Padilla decision, agreeing that a failure to inform a non-citizen of mandatory deportation was ineffective assistance of counsel. However, Chaidez’s fraud convictions had become final five years earlier. Thus, Chaidez could only benefit from the decision if it applied retroactively to her convictions. The trial court held that Padilla did not announce a new rule and therefore should apply to Chaidez’s case. It went on to find that her counsel had performed deficiently under Padilla and that she suffered prejudice. As a result it vacated her convictions. The Seventh Circuit reversed. When the case came before the U.S. Supreme Court the only issue was whether Padilla announced a new rule.
The high Court found that Padilla announced a new rule that did not apply retroactively to Chaidez’s case. Chaidez didn’t argue that Padilla fell into one of the two narrow exceptions to the non-retroactivity rule. The first exception to the non-retroactivity rule applies to new substantive—as opposed to procedural—rules. The second applies to watershed rules of criminal procedure. Because the issue of whether Padilla fell into one of those exceptions wasn’t raised, the Court didn’t address it. But defense lawyers shouldn’t hold out much hope on that issue. I can pretty much argue anything (ask my husband of 20 years!) but even I can’t think of a way to frame Padilla as a substantive rule. And as for the watershed rule of criminal procedure exception, don’t place any bets there—the U.S. Supreme Court has never held any new rule to be a watershed rule of criminal procedure. And it has opined that given how developed the criminal law is, such rules are unlikely to emerge.
In any event, our court of appeals gets a gold star. As I discussed here, about a year ago the N.C. Court of Appeals weighed in, concluding that Padilla was a new rule that did not apply retroactively. In Chaidez the U.S. Supreme Court agreed.
Today, I wanted to note two timely and interesting items concerning the United States Supreme Court.
First, the Court just granted certiorari in Chaidez v. United States, a case that presents the issue of whether Padilla v. Kentucky applies retroactively. Padilla, of course, is the case that requires criminal defense attorneys, in some circumstances, to counsel their clients about the immigration consequences of criminal convictions. SCTOUSblog covers the basics of Chaidez here. Remember that the North Carolina Court of Appeals has ruled that Padilla is not retroactive, as discussed here, and that the issue is the subject of a split of authority nationally, as discussed here.
Second, remember Kentucky v. King, the case that essentially demolished the so-called officer-created exigency doctrine? (If you don’t, check out this prior post.) As I noted at the time, the Court did not determine whether the facts of King actually amounted to exigent circumstances — it merely held that the officers did not improperly create any exigency. The case was remanded to the Supreme Court of Kentucky, which reached the more fundamental question and ruled that the circumstances weren’t exigent. More details here at the Volokh Conspiracy.
In a post here, Jeff wrote about the N.C. Court of Appeals decision in Kenton v. Kenton, holding that a consent domestic violence protective order (DVPO) lacking any finding that the defendant committed an act of domestic violence was void ab initio. As it turns out, a number of district court judges have been entering orders similar to those held void under Kenton. Of course, Kenton applies prospectively. However, questions have been raised about whether it applies retroactively to convictions that became final before it was decided. Consider the defendant who was convicted in 2010 of violating a Kenton-like DVPO. An element of that crime is the existence of a valid DVPO. Can the defendant now file a motion for appropriate relief (MAR) asserting that the protective order was invalid under Kenton and thus that he or she is entitled to relief? The answer depends on whether Kenton applies retroactively to the defendant’s case.
As I discuss in more detail here, the retroactivity analysis for new federal rules is known as the Teague test. Kenton, however, was grounded in North Carolina law, not federal law. When a new rule is grounded in North Carolina law, the relevant retroactivity rule is that articulated in State v. Rivens, 299 N.C. 385 (1980). See State v. Zuniga, 336 N.C. 508, 513 (1994). Under Rivens, new rules are presumed to operate retroactively unless there is a compelling reason to make them prospective only.
Thus, the first question in the retroactivity analysis is this: Is Kenton a new rule? If a rule isn’t new there is no retroactivity issue because the rule doesn’t change existing law. There isn’t a lot of guidance in the North Carolina case law about how to resolve this issue. Under the federal Teague test, a rule is “new” if reasonable jurists could differ as to whether precedent compelled the new rule. Federal law says that answering this question requires an examination of appellate precedent as well as institutionalized practice over a period of years. Under this approach Kenton arguably is not a new rule. The Kenton opinion expressly concluded that the precedent set by Bryant v. Williams, 161 N.C. App. 444 (2003), controlled. Slip Op. at 6 (“[W]e must conclude the precedent set by Bryant is controlling in this case.”). That’s pretty compelling evidence that the rule is not new (whether Bryant was a new rule is a separate question). On the other hand, there seems to be evidence of an institutionalized practice of judges entering Kenton-like orders, thereby suggesting that reasonable jurists disagreed on whether Kenton was mandated by Bryant. In Jeff’s post, for example, 89 blog readers answered his survey, indicating that judges have been entering Kenton-like DVPOs in their districts. Thus, this aspect of the analysis may not be so clear cut.
If Kenton is a new rule, under Rivens it operates retroactively unless there are compelling reasons to make it prospective only. Note that this standard is very different than the federal Teague test which starts from a presumption of non-retroactivity. Cases have clarified that for purposes of determining whether compelling reasons exist for prospective application only, the court must look to the “purpose and effect of the new rule and whether retroactive application will further or retard its operation” as well as “the reliance placed upon the old rule and the effect on the administration of justice of a retrospective application.” Faucette v. Zimmerman, 79 N.C. App. 265, 271 (1986) (civil case applying Rivens). State v. Honeycutt, 46 N.C. App. 588 (1980), decided only months after Rivens—but not citing that case—found reasons for prospective-only application of a new evidence rule. In Honeycutt, the defendant filed a MAR asserting that after his case was decided, the N.C. Supreme Court decided State v. Haywood, 295 N.C. 709 (1978), changing the law regarding the admissibility of declarations against penal interest. For more than a century, the North Carolina courts had ruled that declarations against penal interest were inadmissible for any purpose. Then, in Haywood, the Court held that such declarations may be admitted under certain conditions. The defendant asserted that although he had litigated this evidentiary issue in his case and lost, he was entitled to retroactive application of the new rule. The superior court judge agreed and ordered a new trial. The State appealed, contending that the new rule should have prospective application only. The Honeycutt court agreed, reasoning that retroactive application “could easily disrupt the orderly administration of [the] criminal law.” See Honeycutt, 46 N.C. App. at 591 (quotation omitted). The court found this conclusion bolstered by its belief that the change in evidentiary law did not “rise to the magnitude of a constitutional reform,” which “most likely would mandate retroactivity.” Id. at 591-92. But as noted above Honeycutt did not cite Rivens, a fact that’s significant because it’s not clear that Honeycutt honored the Rivens presumption of retroactivity. By contrast, however, is State v. Funderbunk, 56 N.C. App. 119 (1982), a case that did cite Rivens. In Funderbunk the court found no compelling reason why a decision modifying the common law rule of general disqualification in criminal proceedings of the testimony of a defendant’s spouse involving communications between the spouse and the defendant should not apply retroactively.
It can be argued that like the rule in Honeycutt, retroactive application of Kenton DVPO rule “could easily disrupt the orderly administration of [the] criminal law” and does not “rise to the magnitude of a constitutional reform.” On the other hand, Honeycutt didn’t cite Rivens and it’s not clear that Honeycutt is entirely consistent with the Rivens rule. Additionally, any retroactive application of a new rule will cause some disruption to the “orderly administration of [the] criminal law;” a blind application of this exception would swallow the Rivens rule. Considering the dearth of cases applying Rivens, the issue seems open. If you have thoughts as to how it should be resolved with respect to Kenton, please share them.
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.
In a post here, a former colleague [editor’s note: the post has my picture on it but as the byline notes, it was written by Sejal Zota] wrote about Padilla v. Kentucky, 130 S. Ct. 1473 (Mar. 31, 2010), a U.S. Supreme Court decision dealing with ineffective assistance of counsel in connection with advice regarding the immigration consequences of a plea. In Padilla, after pleading guilty to a charge of transporting a large amount of marijuana, the defendant, a lawful permanent resident of the United States for more than forty years, faced deportation. He challenged his plea, arguing that his counsel rendered ineffective assistance by failing to inform him that the plea would result in mandatory deportation and by incorrectly informing him that he did not have to worry about his immigration status because he had been in the country for a long time. The Court concluded that when, as in the present case, “the deportation consequence [of a plea] is truly clear,” counsel must correctly inform the defendant of this consequence. However, the Court continued, where deportation consequences of a plea are “unclear or uncertain [t]he duty of the private practitioner . . . is more limited.” It continued: “When the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” The Court declined to rule whether the defendant was prejudiced by his lawyer’s deficient conduct.
I followed up on that post with one here dealing with the question of whether Padilla was retroactive to convictions that became final before it was decided. In that post, I noted that at the time there were no N.C. decisions on point and that courts in other jurisdictions were split on the issue. We now have N.C. law on point. In State v. Alshaif, the N.C. Court of Appeals recently held that Padilla does not apply retroactively. In Alshaif, the defendant, a lawful permanent resident of the United States, pleaded guilty to assault with a deadly weapon inflicting serious injury (AWDWISI) and was sentenced accordingly. This occurred in February of 2007, more than three years before Padilla was decided by the U.S. Supreme Court. In October of 2010, the defendant filed a motion for appropriate relief (MAR) arguing that his guilty plea was not knowing, voluntary, and intelligent because he received ineffective assistance by trial counsel, Mr. Branch. Apparently, the defendant met with Branch several times and informed Branch of his lawful permanent resident status. According to the defendant, Branch never advised the defendant of the immigration consequences of a conviction for AWDWISI. Instead, Branch advised the defendant to plead guilty to the offense. After the defendant completed his sentence, he was arrested by U.S. Department of Homeland Security agents and was served with a notice to appear at removal proceedings. As it turned out, the conviction for AWDWISI made the defendant deportable and ineligible to re-seek permanent residency. In his MAR, the defendant asserted that Branch was ineffective under Padilla. The trial court denied the MAR and the court of appeals granted certiorari.
When determining whether a federal rule applies retroactively, the relevant analysis is the Teague test. Applying that test, the court of appeals first determined that although Padilla was grounded in existing law, it announced a new rule. It reasoned: “Prior to Padilla, neither our state courts nor federal courts had interpreted [the law] as requiring counsel to advise a client of the immigration consequences of a guilty plea.” The court then went on to quickly determine that the rule was procedural and not substantive. Finally, it concluded that the new rule did not fall into the narrow non-retroactivity exception for watershed rules of criminal procedure. This latter conclusion is hardly surprising given that the U.S. Supreme Court has never found that exception to apply.
So what does this mean? It means that for cases that had not been initiated or were not final when Padilla was decided by the U.S. Supreme Court the holding of Padilla applies. But for cases that became final before the Padilla decision was issued—like Alshaif’s—the new rule does not apply.