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 [...]
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