Last month, the Supreme Court of North Carolina decided State v. Stubbs, an important case regarding appellate review of orders granting motions for appropriate relief. Continue reading
Tag Archives: starkey
Some inmates are serving long sentences for older crimes that would receive a much shorter sentence under today’s law. It is clear at this point that they cannot have today’s law applied to them retroactively, as Jessie discussed in this prior post. That’s true for inmates who received longer sentences under Fair Sentencing, State v. Whitehead, 365 N.C. 444 (2012), or earlier versions of Structured Sentencing, State v. Lee__ N.C. App. __, 745 S.E.2d 73 (2013). And it is so because the legislature has always made changes to the sentencing law apply prospectively.
That’s all well and good as a matter of legislative intent, but do those inmates have a constitutional argument that their sentences violate the Eighth Amendment’s prohibition on cruel and unusual punishment? After all, the amendment is informed by the “evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97 (1976). Does a downward change in the way the legislature punishes an offense demonstrate an evolved standard? Two recent cases conclude it does not.
In State v. Stubbs, __ N.C. App. __, 754 S.E.2d 174 (2014), the defendant received a life sentence for a second-degree burglary committed in 1973. He filed an MAR arguing that after almost forty years in prison, he had already served “nearly ten times the length of time that any defendant could be ordered to serve today.” (The maximum possible sentence today for second-degree burglary, a Class G felony, is 47 months.) The trial judge agreed, granted the motion, and resentenced the defendant to 30 years, which made him due for immediate release. The State filed a petition for a writ of certiorari with the court of appeals.
A divided court of appeals reversed, concluding that the trial judge applied the wrong test to determine whether the sentence violated the Eighth Amendment. A prison sentence does not become cruel and unusual by virtue of ordinary disproportionality. Rather, it must be grossly disproportionate. Harmelin v. Michigan, 501 U.S. 957 (1991) (Kennedy, J., concurring). After a quick review of the leading cases—Hamerlin, 501 U.S. at 961 (upholding a life sentence for possession of 650 grams of cocaine; Ewing v. California (upholding a sentence of 25 years to life for felony grand theft under California’s three strikes law)—the court concluded that Stubbs’ sentence did not meet that high standard.
The court also rejected the Mr. Stubbs’ argument that the Supreme Court’s more recent guidance in Graham v. Florida, 560 U.S. 48 (2010) (discussed here), dictated a different result. In Graham the Court barred sentences of life without parole for non-homicide offenses committed by defendants under 18 at the time of their offense. Mr. Stubbs was 17 years old at the time of his burglary, but he was not sentenced to life without parole. Rather, as a life-sentenced inmate from 1973 he was eligible for parole after 10 years. In fact, he was paroled in 2008. But his parole was revoked and he was returned to prison after a DWI conviction in 2010. With that in mind, the court of appeals determined that Stubbs did have a “meaningful opportunity to obtain release,” and that his sentence was therefore not unconstitutional under Graham.
The second case is State v. Wilkerson, __ N.C. App. __, 753 S.E.2d 829 (2014). In Wilkerson the defendant was originally sentenced in 1991 to a total of 50 years on 10 felonies (one second-degree burglary and several larceny, breaking or entering, and stolen property crimes). He was 16 at the time of the crimes and had no criminal record. Mr. Wilkerson filed an MAR in 2012 arguing that his 50-year sentence was grossly disproportionate to the sentence a first-time offender could receive for the same crimes today. (By my estimation the maximum possible consecutive sentence for the same crimes today would be around 17 years.) The trial court granted the motion and resentenced Mr. Wilkerson to 21 years, which was the time he had already served. As in Stubbs the state petitioned the court of appeals for a writ of certiorari.
And as in Stubbs the court of appeals reversed. The appellate court held that the trial court erred by first comparing the sentence the defendant received with the sentence a person would receive for the same crimes committed today. The proper first step in the analysis, the court said, is to weigh the gravity of the offense and the severity of the sentence—and that step must be completed “without taking subsequent sentencing amendments into account.” Only when that threshold test gives rise to an inference of gross disproportionality should you continue to the step of comparing the defendant’s sentence with the sentences of other offenders. Harmelin, 501 U.S. at 1005. The court concluded that under the proper analytical framework the trial court never would have made it past step one in Wilkerson’s case. Yes, the defendant was young and his crimes were nonviolent. But there were still 10 felony convictions, one of which (the burglary) was “particularly serious.” With that in mind the court of appeals found “no basis for concluding that this is one of the ‘exceedingly rare noncapital cases’ in which the sentence imposed is ‘grossly disproportionate’ to the crimes.”
Stubbs and Wilkerson reaffirm something we already knew: it’s hard to succeed on an Eighth Amendment claim. Recent Supreme Court cases like Graham and Miller v. Alabama (discussed here) may have broadened our understanding of “cruel and unusual,” but they don’t appear to have started a full-blown Eighth Amendment revolution. Occasionally our appellate courts have said things like “as long as the judge sentences within the limits established by the legislature, the Eighth Amendment is not offended.” State v. Streeter, 146 N.C. App. 594 (2001). That probably goes a little too far (at some extreme, the Constitutional obviously trumps the General Statutes), but it’s still true to say that a sentence will be found to violate the Eighth Amendment “only in exceedingly unusual non-capital cases.” State v. Ysaguire, 309 N.C. 780 (1983).
Finally, these cases also raised—and perhaps resolved—an important procedural question about the court of appeals’ jurisdiction to issue a writ of certiorari related to a trial court order granting a motion for appropriate relief. Rule 21 of the Rules of Appellate Procedure mentions only orders denying MARs, and a prior case, State v. Starkey, 177 N.C. App. 264 (2006) (discussed here by Jeff) appeared to limit the state’s ability to obtain review. Obviously both the Wilkerson and Stubbs courts saw things differently, as they issued the writ and reversed the new sentences. Wilkerson expressly distinguished Starkey. 753 S.E.2d at 833 (“As a result, however, of the fact that Starkey conflicts with several decisions of the Supreme Court that authorize review of trial court decisions granting motions for appropriate relief filed by a defendant, our decision in Starkey does not stand as an obstacle to the allowance of the State’s certiorari petition.”). This post is far too long so I’ll leave it at that for now, but it’s a topic worth revisiting soon.
Category: Sentencing, Uncategorized | Tags: cruel and unusual, Eighth Amendment, graham, miller, Sentencing, starkey, supreme court
I’ve been asked a couple of times recently whether the state can obtain appellate review of a judge’s order granting a defendant’s motion for appropriate relief, or MAR. The questions have come up in the context of superior court proceedings, so that’s what this post will address. The answer might be different for district court cases, as Jessie Smith notes in this paper.
The crucial, and confusing, case in this area of law is State v. Starkey, 177 N.C. App. 264 (2006). In Starkey, the defendant was charged with possession of a miniscule amount of cocaine and with being a habitual felon. He was convicted, and the trial judge sentenced him to 70 to 93 months. The judge then sua sponte granted his own MAR, finding the sentence unconstitutionally harsh, and resentenced the defendant to 8 to 10 months. The state sought to review the judge’s order by (1) appeal and (2) petition for a writ of certiorari.
The court of appeals first analyzed the state’s right to appeal. The court treated the MAR as if it had been made under G.S. 15A-1414, which allows virtually any error to be the subject of a defendant’s MAR so long as the motion is filed within 10 days of the entry of judgment. Technically, this wasn’t correct, since the MAR at issue in Starkey was the court’s motion, not the defendant’s, but since this post is concerned with MARs filed by defendants, that doesn’t matter. The court noted that G.S. 15A-1422(b) governs appeals in proceedings concerning MARs filed under G.S. 15A-1414. That subsection provides that “[t]he grant or denial of relief sought pursuant to G.S. 15A-1414 is subject to appellate review only in an appeal regularly taken.”
The court stated that an appeal “regularly taken,” as applied to appeals by the state, means an appeal under G.S. 15A-1445. Fair enough, since that’s the section captioned “Appeal by the State.” Further, the court stated that “it is the underlying judgment and not the order granting [the MAR] from which the State must have the right to take an appeal.” I’m not so sure that’s right. As authority for that statement, the court cited State v. Howard, 70 N.C. App. 487 (1984). In Howard, a defendant filed an MAR and won a new trial, but was denied outright dismissal. He tried to appeal the trial court’s refusal to dismiss, but the court of appeals ruled that he couldn’t because (a) the order denying dismissal was interlocutory until after the new trial took place, and (b) G.S. 15A-1444, which governs a defendant’s right to appeal, expressly states that a defendant may appeal when “final judgment has been entered.” Note that there’s no similar “final judgment” language in G.S. 15A-1445. In fact, G.S. 15A-1445 explicitly allows at least some appeals that are interlocutory in nature: G.S. 15A-1445(a)(2) provides for appeals “[u]pon the granting of a motion for a new trial on the ground of newly discovered . . . evidence.” And the law generally allows interlocutory appeals by the state more freely than by the defense because double jeopardy often prevents appeals by the state after an acquittal. Because appeals by the state under G.S. 15A-1445 are so different from appeals by the defendant under G.S. 15A-1444, I’m not sure that Howard really support’s the court’s conclusion in Starkey that G.S. 15A-1445 doesn’t encompass appeals of orders granting MARs.
Whether it does or doesn’t, of course, Starkey is the law on this point. And interpreting an appeal “regularly taken” to mean an appeal of the underlying judgment, not of the order granting the MAR, the Starkey court found that the state had no right to an appeal regularly taken because the underlying judgment – the original one that imposed a sentence of 70 to 93 months – did not dismiss charges, grant a new trial, or impose an unlawful sentence, which are the only grounds for appeal by the state as provided in G.S. 15A-1445.
The court next analyzed the state’s right to seek review through a petition for a writ of certiorari. Such writs are governed by N.C. R. App. P. 21, which states that a writ may issue:
to permit review of the judgments and orders of trial tribunals when [1] the right to prosecute an appeal has been lost by failure to take timely action, or [2] when no right of appeal from an interlocutory order exists, or [3] for review pursuant to G.S. 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.
The state conceded, and the court of appeals found, that none of those three conditions obtained. The court also declined to exercise its authority to suspend its own rules. Concluding that the state had neither a right to appeal nor a right to certiorari review, the court dismissed the state’s appeal. Judge Hunter’s concurrence emphasized that the trial judge’s order contradicted settled Eighth Amendment law, and suggested that the state supreme court could review the order under that court’s general supervisory authority. See generally State v. Norris, 360 N.C. 507 (2006). However, the supreme court declined to review the case. Starkey has since been applied in the factually identical case of State v. Griffin, 2011 WL 3890856 (N.C. Ct. App., Sept. 6, 2011) (unpublished) (following Starkey and dismissing the state’s appeal; rejecting the state’s argument that in Griffin it sought to appeal the second judgment rather than the order granting the MAR).
Although the state conceded in Starkey that none of the conditions of Rule 21 were present, it may be otherwise in cases where a judge grants an MAR and orders a new trial or a new sentencing hearing, as opposed to entering a final order such as a new judgment, as was apparently done in Starkey, or a dismissal. The argument would be that the order granting a new trial or a new sentencing hearing is an interlocutory order from which there is no right of appeal, and so meets the second condition for certiorari review.
So where does that leave us? Here’s my short summary.
For MARs filed pursuant to G.S. 15A-1414 (almost any grounds, within 10 days after entry of judgment):
- The state may appeal an order granting a new trial on the ground of newly discovered evidence, under G.S. 15A-1445(a)(2)
- The state may seek certiorari review of an order granting a new trial or a new sentencing hearing on any other ground, under N.C. R. App. P 21
- The state cannot obtain review of an order dismissing charges or imposing a new sentence, under Starkey, except perhaps somehow under the supreme court’s general supervisory power
For MARs filed pursuant to G.S. 15A-1415 (limited grounds, any time after entry of judgment except in capital cases):
Remember that Starkey analyzed G.S. 15A-1422(b), while appeals in MAR proceedings under G.S. 15A-1415 are governed by G.S. 15A-1422(c). That subsection provides that rulings on MARs may be reviewed:
(1) If the time for appeal from the conviction has not expired, by appeal.
(2) If an appeal is pending when the ruling is entered, in that appeal.
(3) If the time for appeal has expired and no appeal is pending, by writ of certiorari.
The absence of the “regularly taken” language in G.S. 15A-1422(c) might at first seem to open the door to a broader right of appeal. But in fact, MARs filed under G.S. 15A-1415 are usually filed after an unsuccessful appeal, or instead of one, so neither (1) nor (2) will typically apply. In the end, I think the rules are generally the same as they are for MARs filed under G.S. 15A-1414:
- The state may appeal an order granting a new trial on the ground of newly discovered evidence, under G.S. 15A-1445(a)(2)
- The state may seek certiorari review of an order granting a new trial or a new sentencing hearing on any other ground, under N.C. R. App. P 21
- The state cannot obtain review of an order dismissing charges or imposing a new sentence, under Starkey, except perhaps somehow under the supreme court’s general supervisory power
I’m sorry for the long post. As I noted at the beginning, this is a confusing area of the law. I hope that I’ve untangled it correctly.
