The Court of Appeals had subject-matter jurisdiction to review, pursuant to the State’s petition for writ of certiorari, a trial court’s grant of its own motion for appropriate relief (MAR). The defendant pleaded guilty to rape of a child by an adult offender and to sexual offense with a child by an adult offender, both felonies with mandatory minimum sentences of 300 months. Pursuant to a plea arrangement, the trial court consolidated the convictions for judgment and imposed a single active sentence of 300 to 420 months. The trial court then immediately granted its own MAR and vacated the judgment and sentence. It concluded that, as applied to the defendant, the mandatory sentence violated the Eighth Amendment; the court resentenced the defendant to 144 to 233 months. The State petitioned the Court of Appeals for a writ of certiorari to review the trial court’s MAR order. The defendant responded, arguing that under State v. Starkey, 177 N.C. App. 264, the court of appeals lacked subject-matter jurisdiction to review a trial court’s sua sponte grant of a MAR. The Court of Appeals allowed the State’s petition and issued the writ. The Court of Appeals found no Eighth Amendment violation, vacated the defendant’s sentence and the trial court’s order granting appropriate relief, and remanded the case for a new sentencing hearing. See State v. Thomsen, ___ N.C. App. ___, ___, 776 S.E.2d 41, 48 (2015). Before the supreme court, the parties disagreed on whether the trial court’s sua sponte motion was pursuant to G.S. 15A-1415(b) (defendant’s MAR) or G.S. 15A-1420(d) (trial court’s sua sponte MAR). The court found it unnecessary to resolve this dispute, holding first that if the MAR was made under G.S. 15A-1415, State v. Stubbs, 368 N.C. 40, 42-43, authorized review by way of certiorari. Alternatively, if the MAR was made pursuant to G.S. 1420(d), G.S. 7A-32(c) gives the Court of Appeals jurisdiction to review a lower court judgment by writ of certiorari, unless a more specific statute restricts jurisdiction. Here, no such specific statute exists. It went on to hold that to the extent Starkey was inconsistent with this holding it was overruled. 

The defendant was tried and convicted of first-degree murder in Gaston County. The evidence of the case largely consisted of mixtures of “touch” DNA profiles found on the victim’s car along with circumstantial evidence based on the defendant’s presence in the area at the time of the murder. The verdict was affirmed on direct appeal. The defendant later filed a motion for appropriate relief (“MAR”) alleging his innocence based on new evidence, as well as claims for ineffective assistance of counsel and discovery violations. The MAR court conducted an extensive hearing on the motion. Evidence showed that the defendant’s trial counsel was aware of the defendant’s significant medical and psychological issues, some of which may have been relevant to the defendant’s ability to commit the crime. Trial counsel obtained authorization and funding for a psychological evaluation that never occurred and failed to obtain the defendant’s medical records. Trial counsel also obtained the services of a DNA expert for use at trial but failed to review the expert’s professional background or previous testimony. The expert informed trial counsel that the State’s science was “good” and advised counsel not to interview the prosecution’s DNA expert. Defense counsel did not obtain a final report from the expert and failed to question the State’s DNA expert with questions recommended by the defense expert.

At the MAR hearing, the defense presented a new DNA expert who testified that the SBI policies of interpreting mixture DNA at the time were “subjective,” outdated, and inaccurate based on current accepted practices. According to this expert, the DNA mixture relied upon by the State at trial could not be used for “any reliable matching” and that the defendant’s DNA profile was not a match. The trial court granted the MAR and ordered a new trial based on ineffective assistance of counsel stemming from trial counsel’s failure to investigate the defendant’s medical and psychological conditions, as well as trial counsel’s failure to properly prepare to meet the state’s DNA evidence. The post-conviction court also found that the defendant was entitled to a new trial based on new evidence stemming from the evolution of DNA science since the time of trial, finding that changes in the science rendered the State’s DNA evidence at trial “doubtful at best.” The State appealed.

The State generally does not have the right to appeal a defendant’s successful MAR. An exception exists for an MAR granted based on new evidence. In that case, the State may directly appeal, “but only on questions of law.” G.S. 15A-1445(a)(2). Where there is no appeal of right, the State may petition for writ of certiorari to obtain review of the trial court’s grant of the MAR. G.S. 15A-1422(c)(3). Here, the State argued that it was entitled to appeal the entire MAR order, since the order was based in part on new evidence. The Court of Appeals disagreed. Where a right to appeal exists as to one ground of an order and not others, the appealing party is generally limited to arguing only the issue from which the appeal of right lies. “[A] right to appeal those other issues exists only if this Court finds those issues ‘inextricably intertwined with the issues before this Court as of right.’” Carver Slip op. at 9 (citation omitted). Here, the issues of new evidence and ineffective assistance were not “inextricably intertwined.” According to the court:

The newly discovered evidence claim is based on evidence that was unavailable to the defendant at the time of trial. The ineffective assistance claim is based on other, separate evidence that the trial court found to be available to the defendant had his counsel exercised due diligence. Thus, these two claims are based on entirely separate facts and legal issues. Id. at 10.

Further, the exception for a State’s direct appeal of the grant of an MAR based on newly discovered evidence is limited by the “only on questions of law” language in G.S. 15A-1445(a)(2). The State’s argument that it can appeal all issues in the order ignored this limitation.

Finally, even after the defendant moved to dismiss the appeal for lack of appellate jurisdiction, the State failed to file a petition for writ of certiorari. The State’s appeal of the ineffective assistance of counsel claim was therefore dismissed for lack of jurisdiction. The appeal of the new evidence claim was rendered moot as a result, leaving the trial court’s order intact.

The State could appeal the trial court’s order granting the defendant’s MAR. 

Under G.S. 15A-1445, the State could appeal the trial court’s order granting the defendant’s MAR on the basis of newly discovered evidence. 

On the State’s petition for writ of certiorari, the court reversed the trial court and held that no significant change in the law pertaining to the admissibility of expert opinions in child sexual abuse cases had occurred and thus that the defendant was not entitled to relief under G.S. 15A-1415(b)(7) (in a motion for appropriate relief, a defendant may assert a claim that there has been a significant change in law applied in the proceedings leading to the defendant's conviction or sentence, and retroactive application of the changed legal standard is required). Contrary to the trial court’s findings and conclusions, State v. Stancil, 355 N.C. 266 (2002),was not a significant change in the law, but merely an application of the court’s existing case law on expert opinion evidence requiring that in order for an expert to testify that abuse occurred, there must be physical findings consistent with abuse. 

(1) Because the defendant’s motion for appropriate relief (MAR) alleging ineffective assistance of counsel in this sexual assault case raised disputed issues of fact, the trial court erred by failing to conduct an evidentiary hearing before denying relief. The defendant claimed that counsel was ineffective by failing to, among other things, obtain a qualified medical expert to rebut testimony by a sexual abuse nurse examiner and failing to properly cross-examine the State’s witnesses. The defendant’s motion was supported by an affidavit from counsel admitting the alleged errors and stating that none were strategic decisions. The court concluded that these failures “could have had a substantial impact on the jury’s verdict” and thus the defendant was entitled to an evidentiary hearing. The case was one of “he said, she said,” with no physical evidence of rape. The absence of any signs of violence provided defense counsel an opportunity to contradict the victim’s allegations with a medical expert, an opportunity he failed to take. Additionally, trial counsel failed to expose, through cross-examination, the fact that investigators failed to collect key evidence. For example, they did not test, collect, or even ask the victim about a used condom and condom wrapper found in the bedroom. Given counsel’s admission that his conduct was not the product of a strategic decision, an evidentiary hearing was required. (2) With respect to the defendant’s claim that the trial court erred by denying his motion before providing him with post-conviction discovery pursuant to G.S. 15A-1415(f), the court remanded for the trial court to address whether the State had complied with its post-conviction discovery obligations.

At the MAR hearing, the trial court properly excluded the State’s expert witness, who did not testify at the original trial. The court viewed the State’s position as “trying to collaterally establish that the jury would have reached the same verdict based on evidence not introduced at trial.” It concluded that the trial court properly excluded this evidence:

Defendant’s newly discovered evidence concerned Agent Deaver, arguably, the State’s most important expert witness. Thus, the State could have offered its own evidence regarding Agent Deaver’s qualifications, lack of bias, or the validity of his experiments and conclusions. Furthermore, the State was properly allowed to argue that the evidence at trial was so overwhelming that the newly discovered evidence would have no probable impact on the jury’s verdict. However, the State may not try to minimize the impact of this newly discovered evidence by introducing evidence not available to the jury at the time of trial. Thus, the trial court did not err in prohibiting the introduction of this evidence at the MAR hearing.

The trial court did not abuse its discretion by denying the defendant’s motion for appropriate relief (MAR) made under G.S. 15A-1414 without first holding an evidentiary hearing. Given that the defendant’s MAR claims pertained only to mitigating sentencing factors and the defendant had been sentenced in the presumptive range, the trial judge could properly conclude that the MAR was without merit and that the defendant was not entitled to an evidentiary hearing.

With one justice taking no part in consideration of the case and with the other members of the court equally divided, the court affirmed, without opinion, a ruling by the trial court on the defendant’s motion for appropriate relief. The case was before the court on writ of certiorari to review the trial court’s order. The question presented, as stated in the defendant’s appellate brief, was: “Whether the trial court erred in finding in a capitally-charged case that failing to disclose exculpatory SBI reports, testifying falsely as to what evidence was brought to the SBI and failing to preserve irreplaceable biological evidence did not violate due process?”

The defendant was convicted of statutory rape and sex offense in Rockingham County. That verdict was affirmed on appeal in an unpublished decision, and the defendant sought post-conviction relief. He filed a motion for appropriate relief (“MAR”) and a request for post-conviction discovery, arguing that his trial counsel was ineffective in failing to obtain Department of Social Services (“DSS”) records on the victim from Rockingham and Guilford counties. Specifically, the MAR stated that the DSS records would establish multiple prior false accusations by the victim. The trial court denied the request for discovery and denied the MAR. The Court of Appeals granted certiorari and reversed, ordering the trial court to obtain the DSS records and to conduct an in camera review. The State provided what it alleged to be the complete DSS files relating to the case to the trial court. Reviewing those records, the trial court found that the files did not contain information relevant to the defendant’s case. It also found that the records were incomplete and that the court was unable to complete its review without additional files. The trial court ordered Rockingham DSS (and later Guilford County DSS) to produce records on the victim from three specific time frames. The defendant complained to the trial court that limiting the order to these specific ranges of time was too narrow and would miss relevant records (including the records of the accusation against the defendant himself), but the trial court did not alter its order. When the trial judge ultimately obtained the ordered records and reviewed them, it found the information was not likely to have impacted the verdict and was therefore not material. The motion for post-conviction discovery of the DSS records was consequently denied for a second time. The Court of Appeals granted certiorari again and again reversed and remanded.

The court agreed with the defendant that the trial court improperly limited the scope of the request for DSS records. The defendant’s original request was for DSS records of prior accusations by the victim. While the Court of Appeals order remanding the case for an in camera review of the records mentioned specific time frames as examples, its order was not limited to those time frames and encompassed any and all relevant records. On remand a second time, the trial court was ordered to conduct an in camera review of any DSS records pertaining to prior accusations of abuse by the victim. The court declined to review the DSS records sealed in the file before the trial court has had an opportunity to complete a full review of the relevant records. It noted that the defendant would be entitled to a new trial if the records are deemed material.

Judge Arrowood sat on the panel initially remanding the case and dissented. He believed that the trial court had complied with the original remand order and would have affirmed the trial court’s order denying post-conviction discovery.

In this child sexual assault case, the court reversed the trial court’s order denying the defendant’s Motion for Appropriate Relief (MAR) seeking a new trial for ineffective assistance of counsel related to opinion testimony by the State’s expert. The defendant was convicted of sexual offenses against Kim. On appeal the defendant argued that the trial court should have granted his MAR based on ineffective assistance of both trial and appellate counsel regarding expert opinion testimony that the victim had in fact been sexually abused.

(1) The court began by concluding that the testimony offered by the State’s expert that Kim had, in fact, been sexually abused was inadmissible. The court reiterated the rule that where there is no physical evidence of abuse, an expert may not opine that sexual abuse has in fact occurred. In this case the State offered no physical evidence that Kim had been sexually abused. On direct examination the State’s expert testified consistent with governing law. On cross-examination, however, the expert expressed the opinion that Kim “had been sexually abused.” And on redirect the State’s expert again opined that Kim had been sexually abused. In the absence of physical evidence of sexual abuse, the expert’s testimony was inadmissible.

(2) The court went on to hold, however, that because the defendant failed to raise the issue on direct appeal, his claim that trial counsel was ineffective by failing to move to strike the expert’s opinion that victim Kim had in fact been sexually abused was procedurally defaulted. The record from the direct appeal was sufficient for the court to determine in that proceeding that trial counsel provided ineffective assistance of counsel. Defense counsel failed to object to testimony that was “clearly inadmissible” and the court could not “fathom any trial strategy or tactic which would involve allowing such opinion testimony to remain unchallenged.” And in fact, the trial transcript reveals that allowing the testimony to remain unchallenged was not part of any trial strategy. Moreover trial counsel’s failure to object to the opinion testimony was prejudicial. Because the “cold record” on direct appeal was sufficient for the court to rule on the ineffective assistance of counsel claim, the MAR claim was procedurally barred under G.S. 15A-1419(a)(3).

(3) The court continued, however, by holding that the defendant was denied effective assistance of appellate counsel in his first appeal when appellate counsel failed to argue that it was error to allow the expert’s testimony that Kim had, in fact, been sexually abused. The court noted that the ineffective assistance of appellate counsel claim was not procedurally barred. And, applying the Strickland attorney error standard, the court held that appellate counsel’s failure to raise the issue on direct appeal constituted ineffective assistance of counsel. The court thus reversed and remanded for entry of an order granting the defendant’s MAR.

One judge on the panel concurred with the majority “that appellate counsel was ineffective”; concurred in result only with the majority’s conclusion that the claim regarding trial counsel’s ineffectiveness was procedurally barred; but, concluding that the defendant was not prejudiced by the expert’s testimony, dissented from the remainder of the opinion.

(1) On remand from the state Supreme Court, the court rejected the defendant’s argument that the trial court erred by concluding that he was procedurally barred from reasserting in his MAR a dual representation conflict of interest ineffective assistance of counsel claim with respect to attorney Smallwood. Because this court on direct appeal addressed the merits and rejected this claim, the trial court properly concluded that it was procedurally defaulted under G.S. 15A-1419(a)(2) (claim previously determined on the merits).

(2) The court then turned to the defendant’s claim that he received ineffective assistance of counsel from attorney Warmack at the evidentiary remand hearing because Warmack had a dual representation conflict arising from having previously represented codefendant Swain. The court held that the trial court erred by finding that this claim was procedurally barred under G.S. 15A-1419(a)(3) (failure to raise on appeal), reasoning that the defendant was not in a position to adequately raise the claim on direct appeal. The court further found that the record was insufficient to establish that the defendant knowingly, intelligently, and voluntarily waived Warmack’s potential conflict and that the trial court erred by concluding otherwise.

In this Brunswick County case, the defendant appealed from an order denying his motion for appropriate relief (“MAR”) filed after his conviction for robbery with a firearm and related offenses. The defendant argued on appeal that the trial court erred by (1) denying his MAR because law enforcement’s loss of an eyewitness statement was a Brady violation; (2) denying his MAR because the State presented false testimony, (3) failing to hold an evidentiary hearing on his claims, and (4) barring the defendant from filing future MARs.

(1) The Court of Appeals affirmed the trial court’s ruling deny the defendant’s due process claim under Brady v. Maryland, 373 U.S. 83 (1963), that the State suppressed favorable evidence. Noting that to establish a Brady violation, the defendant must show that the suppressed evidence was material, the Court of Appeals concluded that the lost statement from an eyewitness did not meet this standard. Central to the Court’s conclusion was trial counsel’s ability to cross-examine the witness about inconsistencies in his statements and to impeach him with other testimony.

(2) The Court of Appeals affirmed the trial court’s ruling denying the defendant’s due process claim under Napue v. Illinois, 360 U.S .264 (1959), that the State knowingly presented false evidence. The Court concluded that the record did not support the defendant’s contention that the State knew testimony from one of the eyewitness victims was false as opposed to simply inconsistent with other testimony.

(3) The Court of Appeals determined that the trial court erred by failing to grant an evidentiary hearing on the defendant’s IAC claims as the defendant stated facts that, if true, would entitle him to relief. Focusing its analysis on defendant’s claim that trial counsel failed to investigate a known alibi witness – defendant’s son, who claimed to have been with him the morning of the crime – the Court noted that the record did not reveal whether defendant’s trial counsel made a strategic decision not to investigate this alibi witness. The Court reasoned that this factual issue could only be appropriately resolved at an evidentiary hearing.

(4) The Court of Appeals vacated the trial court’s ruling that the defendant’s failure to assert other grounds in his MAR “shall be treated in the future as a BAR to any other motions for appropriate relief [in this case].” The Court relied upon its holding in State v. Blake, 275 N.C. App. 699 (2020), that G.S. 15A-1419 does not authorize a trial court to bar MAR claims in advance and that gatekeeper orders normally are entered only when a defendant has previously asserted numerous frivolous claims. The Court noted that the current case was not one in which the defendant had filed many frivolous MARs asserting the same claims.

Judge Murphy concurred, with the exception of a sole paragraph discussing precedent from other jurisdictions related to whether an attorney’s representation is deficient for failing to contact and interview prospective alibi witnesses. Judge Griffin concurred by separate opinion, expressing his disagreement with North Carolina Supreme Court precedent requiring an evidentiary hearing on the defendant’s IAC claim, which he said was not supported by statute and allowed a petitioning party to take away the gatekeeping function of the trial judge.