Wednesday, November 19, 2008

NC Court of Appeals Decisions (11.18.08)

NC Court of Appeals Criminal Decisions

Discussion of Reversals or Other Interesting Issues

State v. Foster, (08-466). Defense counsel wrongly told a client that the maximum (minimum) punishment she could face at trial was 70 months, when it was actually 140 months, if the two charges were run consecutively (as they ultimately were). Court dismissed without prejudice the IAC claim, based on an inadequate record, with leave to file a MAR.

State v. Lee, (08-122). Appeal of sentence. Trial court found Defendant was a level III offender based on 5 class A1 or 1 misdemeanors on his record. Included in this was a NJ conviction for possession of a controlled substance on school property. Defendant appealed on grounds that state failed to establish that the NJ conviction was substantially similar to a corresponding NC offense (see N.C. Gen. Stat. § 15A-1340.14(e)). The Defendant signed a stipulation that it was substantially similar as part of the plea, but this is ineffective, because this is a question of law that must be resolved by the trial court. The stipulation is not adequate proof that the offenses are substantially similar. Case remanded for re-sentencing.

State v. Ramos, (07-994). Conviction for damaging a computer network reversed because trial court failed to instruct jury that it must determine that the Defendant "willfully" deleted files. (Tyson dissented from this decision).

State v. Smith, (08-533). Defendant pleaded guilty to possession with intent to sell of cocaine and habitual felon status. The plea agreement included the right to appeal pre-trial motions. One of those motions was about his habitual felon status--which the court of appeals has no jurisdiction to hear. As such, Defendant did not receive the benefit of his bargained for plea. The plea is vacated and the case is remanded for trial below.

No reversals, no terribly interesting arguments in:

State v. Alston, (08-230) - Sufficiency of Evidence; Constructive possession (note: dissenting opinion by Elmore on grounds that many other persons had access to house where drugs were found and there was insufficient evidence that the Defendant had constructive possession thereof).

State v. Washington, (08-217) - Right to investigatory stop; probable cause to arrest based on resist; obstruct/delay offense; whether encounter with officers was consensual

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