A 2013 Rollback of State Procedural Protections for Defendants

Most folks who are involved in appellate litigation and post-conviction motions know about G.S. 15A-1335. For those who don’t, it is a N.C. statute providing that when a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, that is more severe than the prior sentence less the portion of the prior sentence previously served. G.S. 15A-1335 generally embodies the rule of North Carolina v. Pearce, 395 U.S. 711 (1969), but is more restrictive than the rule set out in that case. Pearce involved two cases, one of which originated in North Carolina. In the North Carolina case, the defendant was convicted in state court and sentenced to prison for twelve to fifteen years. Later, the defendant initiated a post-conviction proceeding and obtained a new trial. The defendant then was retried, convicted, and sentenced to an eight-year term in prison. When the eight-year term was added to the time the defendant already spent in prison, it resulted in a sentence greater than the one initially imposed. The defendant challenged the more severe sentence on constitutional grounds. The Court held that penalizing a defendant for having successfully pursued a right of appeal or collateral attack violates due process. Id. at 724. It continued, stating that due process “requires that vindictiveness against a defendant for having successfully attacked [a] first conviction must play no [...]