REPRESENTATION IN A CRIMINAL CASE

LeAnn MeltonChief Public Defender for Buncombe County

November 13, 2015

GETTING ON THE COURT APPOINTED LISTS

• GET APPLICATION FROM PUBLIC DEFENDERS OFFICE• GROUND FLOOR – COURTHOUSE• SHARON BROOKS- ADMINISTRATIVE ASSISTANT• PHONE- 828-259-3423• COMMITTEE ON INDIGENT APPOINTMENTS APPROVES APPLICATIONS

-MEETS SEVERAL TIMES A YEAR-ATTORNEY IS NOTIFIED OF DECISION AFTER COMMITTEE MEETS

GETTING ON THE COURT APPOINTED LISTS

PERFORMANCE GUIDELINES FOR INDIGENT DEFENSE REPRESENTATION IN NON-CAPITAL CRIMINAL CASES AT THE TRIAL LEVEL

• http://www.ncids.org/Rules%20&%20Procedures/Performance%20Guidelines/Trial%20Level%20Final%20Performance%20Guidelines.pdf

• GREAT OUTLINE TO GO BY FOR WHAT YOU SHOULD BE DOING IN CRIMINAL CASES

GETTING ON THE COURT APPOINTED LISTS

• LISTS:• List 1: Misdemeanor Cases and Misdemeanor Probation Violations• List 2: Felonies F through I and Felony Probation Violations• List 3: Felonies A through E• List 4: Juvenile Cases: Class 1-3 Misdemeanors, Motions for Contempt• List 5A: Juvenile Cases: Class A1 Misdemeanors, Class F-I Felonies, Probation

Violations• List 5B: Juvenile Cases—Class A-E Felonies• List 6: Special Proceedings Counsel

• Persons alleged to be incompetent under Chapter 35A• Minors requesting a judicial waiver of parental consent to abortion• Disabled adults as defined in Chapter 108A of the North Carolina General Statutes• Respondents in Involuntary Commitment matters

GETTING ON THE COURT APPOINTED LISTS

• LISTS (CONTINUED):

• List 7: Child Support Enforcement Action• List 8A: Parent Representation (ABUSE, NEGLECT, AND DEPENDENCY)• List 8B: Parent Representation (TERMINATION OF PARENTAL RIGHTS)

CLIENT RELATIONSHIPS

• GAINING TRUST• EXTREMELY IMPORTANT FOR GETTING BEST RESULT POSSIBLE FOR CLIENT• LISTENING TO CLIENT’S VERSION OF WHAT HAPPENED• FIRST IMPRESSION IS IMPORTANT• DON’T JUMP TO CONCLUSIONS • LISTEN TO WHAT CLIENT HAS TO SAY• BE RESPECTFUL• MOST CLIENTS WANT TO BE HEARD AND WANT TO BELIEVE YOU CARE• OFFICE HAS HAD CLIENTS WHO HAVE NOT GOTTEN GOOD RESULTS WHO HAVE STILL

BEEN VERY APPRECIATIVE BECAUSE THEY FELT LIKE SOMEONE FOUGHT FOR THEM• OFFICE HAS HAD CLIENTS WHO HAVE GOTTEN GOOD RESULTS WHO WERE NOT

HAPPY BECAUSE THEY FELT LIKE THEIR ATTORNEY DID NOT LISTEN TO THEM OR EXPLAIN TO THEM THE COURT PROCESS

COMMUNICATION• MAKE SURE TO EXPLAIN TO CLIENT WHAT TO EXPECT IN COURT• DON’T ASSUME THAT SOMEONE UNDERSTANDS COURTROOM

PROCEDURES OR RULES

SUGGESTIONS FOR AREAS TO GO OVER WITH CLIENT:

• THEY MAY HAVE TO WAIT ALL DAY IN COURT• THEY MAY HAVE CASE CONTINUED OVER YOUR OBJECTION• THEY CANNOT USE CELL PHONE IN COURTROOM—TURN OFF PHONE • THEY CANNOT TALK IN THE COURTROOM WHILE OTHER CASES ARE BEING HEARD• EXPLAIN PROPER COURTROOM DRESS • YOU MAY NOT BE IN THE COURTROOM WHEN THE CALENDAR IS CALLED• THE STATE’S WITNESSES MAY BE ON STANDBY AND MIGHT NOT BE IN THE

COURTROOM• THE PRESIDING JUDGE WILL MOST LIKELY REMEMBER ANY VIOLATIONS OF THE

COURT RULES WHEN THE CASE IS CALLED FOR TRIAL OR AT SENTENCING

COMMUNICATION

• BEFORE THE INITIAL INTERVIEW WITH CLIENTLearn what the charges are against the client Learn what the elements of the charges are

or have them in front of youKnow what the potential punishments are for the charges

NORTH CAROLINA CRIMES GUIDEBOOKhttp://www.sog.unc.edu/resources/microsites/north-carolina-crimes-guidebook-elements-crimeNORTH CAROLINA SENTENCING HANDBOOKhttp://www.sog.unc.edu/sentencing

CLIENTS IN JAIL

• GO SEE CLIENTS IN CUSTODY QUICKLY AND OFTEN• North Carolina Commission on Indigent Defense Services

Performance Guidelines for Indigent Defense Representation in Non-Capital Criminal Cases at the Trial Level

• “Guideline 2.2 Initial Interview• (a) Counsel shall arrange for an interview with the client as soon as practicable after being

assigned to the client’s case. Absent exceptional circumstances, if the client is in custody, the initial interview should take place within three business days after counsel receives notice of the assignment to the client’s case. If necessary, counsel may arrange for a designee to conduct the initial interview.”

• SUGGESTION: WHENEVER POSSIBLE CONDUCT THE INITIAL INTERVIEW YOURSELF

CLIENTS IN JAIL

• NEED YOUR BAR CARD AND DRIVER’S LICENSE TO SEE CLIENT IN BUNCOMBE COUNTY JAIL

• CURRENTLY YOU ARE ABLE TO SEE CLIENTS ALL DAY IN THE BUNCOME COUNTY JAIL EXCEPT DURING SHIFT CHANGE WHICH IS FROM AROUND 6:30pm to 7:15pm

• IF YOU WOULD LIKE A CONTACT VISIT YOU HAVE TO CALL AHEAD AND SCHEDULE THE MEETING

• REGULAR VISITATION WITH CLIENT (NON CONTACT) DOES NOT HAVE TO BE ARRANGED IN ADVANCE

• VIDEO VISITATION IS AVAILABLE FOR A FEE• https://visitation.buncombecounty.org/app

• BEST NUMBER FOR THE BUNCOMBE JAIL TO CALL IS: 828-250-4571

CLIENTS IN JAIL

• DON’T BRING FOOD OR DRINK INTO THE JAIL

• BETTER TO LEAVE YOUR CELL PHONE IN YOUR CAR OR AT THE OFFICE

• IF YOU GET A LETTER FROM YOUR CLIENT IT IS ALWAYS BEST TO WRITE THEM BACK (JUST LIKE RETURNING PHONE CALLS FROM CLIENTS WHO ARE NOT IN CUSTODY)

• REMIND CLIENTS THAT ALL PHONE CALLS AND NON ATTORNEY VIDEO VISITATION IS RECORDED

PROFESSIONALISM WITH THE COURT• YOUR REPUTATION FOR CANDOR WITH THE COURT MEANS EVERYTHING

• ONCE YOU LOSE YOUR REPUTATION FOR CANDOR WITH THE COURT IT IS EXTREMELY DIFFICULT TO GET IT BACK

• ZEALOUSLY REPRESENT YOUR CLIENTS WITHIN THE BOUNDS OF THE RULES OF PROFESSIONAL CONDUCT

• BE RESPECTFUL OF ALL COURT PERSONNEL-- JUDGE, PROSECUTOR, CLERKS AND BAILIFFS

IMPORTANCE OF INVESTIGATION

• North Carolina Commission on Indigent Defense Services Performance Guidelines for Indigent Defense Representation in Non-Capital Criminal Cases at the Trial Level

“Guideline 4.1 Case Review, Investigation, and Preparation(a) Counsel has a duty to conduct an independent case review and investigation. The client’s admissions or statements to counsel of facts constituting guilt do not necessarily obviate the need for such independent review and investigation. The review and investigation should be conducted as promptly as possible.”

IMPORTANCE OF INVESTIGATION

• LOOKING AT EVIDENCE HELD IN CUSTODY OF LAW ENFORCEMENT

• IN FELONY CASES YOU WILL BE ALLOWED TO LOOK AT THE EVIDENCE HELD BY LAW ENFORCEMENT IN THE CASE

• MOST LIKELY YOU WILL BE ALLOWED TO LOOK AT THE EVIDENCE IN MISDEMEANOR CASES AS WELL

• TAKE PHOTOGRAPHS OF THE EVIDENCE WHILE YOU ARE THERE SO THAT YOU CAN REVIEW LATER

• PHOTOGRAPH THE EVIDENCE BEFORE THE ENVELOPES ARE OPENED AND PHOTOGRAPH THE ENVELOPES AFTER THEY ARE RESEALED

• IT IS ALSO A GREAT OPPORTUNITY TO ASK THE INVESTIGATING DETECTIVE QUESTIONS ABOUT THE CASE

IMPORTANCE OF INVESTIGATION

• TALKING TO WITNESSES• PROSECUTING WITNESSES WILL USUALLY TALK TO YOU BUT THEY DON’T HAVE TO

TALK TO YOU

• BEST TO HAVE SOMEONE WITH YOU WHEN YOU TALK TO A WITNESS OR HAVE AN INVESTIGATOR TALK TO THE WITNESS FOR YOU

• MOST LAW ENFORCEMENT OFFICERS WILL TALK TO YOU

• YOU CAN GET FUNDS IN COURT APPOINTED CASES FOR A PRIVATE INVESTIGATOR

• YOU CAN ALSO GET FUNDS IN RETAINED CASES FOR AN INVESTIGATOR AND OTHER NECESSARY EXPENSES IF YOUR CLIENT IS INDIGENT AND THE COURT APPROVES

IMPORTANCE OF INVESTIGATION

• INFORMATION PUBLICLY AVAILABLE• 911 CALLS• VCAP CIVIL RECORDS SEARCH• ACIS CRIMINAL RECORDS SEARCH• GOOGLE• NEWSPAPERS• FACEBOOK• TWITTER• COURT FILES• JAIL PHONE CALLS- CAN BE OBTAINED BY SUBPEONA

IMPORTANCE OF INVESTIGATION

IMPORTANCE OF INVESTIGATION

IMPORTANCE OF INVESTIGATION

IMPORTANCE OF INVESTIGATION

IMPORTANCE OF INVESTIGATION

• OBTAINING FUNDING FOR EXPERTS• Submit Motion/Proposed Order For Expert and AOC-G-309 form to

Judge• Many of these Requests can be done ex parte• If done ex parte have the Motion/Order and AOC-G-309 placed under seal in

the court file• AOC-G-309 form can be found at:

http://www.ncids.org/Forms&Applications/Text.htm?c=Information for Counsel, Forms And Applications

• Great Overview of Right to Experts in Criminal Cases and Procedure can be found in Chapter Five of NC Defender Manual, Vol. 1, Pretrial

• http://defendermanuals.sog.unc.edu/

IMPORTANCE OF INVESTIGATIONOBTAINING FUNDING FOR EXPERTSHighest Education Level or Field of Expertise Base Hourly Rate High School or Equivalent $30 Associate’s Degree $50 Bachelor’s Degree $70 Master’s Degree $85 Crime Scene and Related Experts (e.g., Accident Reconstruction, Arson, Ballistics,Blood Spatter, Fingerprint, Handwriting, Use of Force) $100CPA/Financial Expert $100 Pharmacy/PharmD $125 Information Technology Experts (e.g., Computers, Telecommunications, Digital Forensics) $150

Ph.D./Psy.D/Other Licensed Doctor (e.g., Doctor of Veterinary Medicine, Doctor of Nursing, Doctor of Dental Medicine) $200 Medical Doctor $250 MD with Specialty (e.g., Psychiatrist, Pathologist) $300

EXPLAINING POSSIBLE OUTCOMES TO CLIENTS• Possible Sentence Outcomes

• Probation• Jail Time (Possibility of Work Release)• Prison Time• Availability of Advance Supervised Release—15A-1340.18• Fines and Costs

• Collateral Consequences• Available Diversion Options• Availability of Expungements• Right to Appeal

EXPLAINING POSSIBLE OUTCOMES TO CLIENTS

• SPECIALTY COURTS• DISTRICT COURT

Sobriety Court - DWINuisance CourtFamily Drug Court (SOAR)Domestic Violence--WednesdaysJuvenile Court—Mondays and Thursdays

• SUPERIOR COURT• Drug Court• Veterans Court

INCAPABLE TO PROCEED CLIENTS AND PROCEDURES• North Carolina Commission on Indigent Defense Services

Performance Guidelines for Indigent Defense Representation in Non-Capital Criminal Cases at the Trial Level

• “Guideline 3.2 Client’s Competence and Capacity to Proceed

(a) When defense counsel has a good faith doubt as to the client’s capacity to proceed in a criminal case, counsel may:(1) file an ex parte motion to obtain the services of a mental health expert and thereby

determine whether to raise the client’s competency before the court; or(2) File a motion questioning the client’s competence to stand trial or enter a plea under G.S.

15A-1001(a) and applicable case law, in which case the court may order a mental health examination at a state mental health facility or by the appropriate local forensic examiner.”

INCAPABLE TO PROCEED CLIENTS AND PROCEDURES (15A-1001 through 15A-1008)• MISDEMEANORS

• LOCAL EVALUATION• SMOKY MTN CENTER ATTN: LATRINA SMITH• EMAIL ORDER TO: LATRINA.SMITH@SMOKYMOUNTAINCENTER.COM

• PHONE: 828-247-6634 Ext. 6104• FAX: 828-247-6606

• FELONIES• CAN DO A LOCAL EVALUATION FIRST OR• HAVE EVALUATED FIRST AT CENTRAL REGIONAL HOSPITAL

INCAPABLE TO PROCEED CLIENTS AND PROCEDURES

§ 15A-1001. No proceedings when defendant mentally incapacitated; exception. (a) No person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings, or to assist in his defense in a rational or reasonable manner. This condition is hereinafter referred to as "incapacity to proceed." (b) This section does not prevent the court from going forward with any motions which can be handled by counsel without the assistance of the defendant. (1973, c. 1286, s. 1.)

AOC-CR-207B

AOC-CR-208B

INCAPABLE TO PROCEED CLIENTS AND PROCEDURES

§ 15A-1003. Referral of incapable defendant for civil commitment proceedings. (a) When a defendant is found to be incapable of proceeding, the presiding judge, upon such additional hearing, if any, as he determines to be necessary, shall determine whether there are reasonable grounds to believe the defendant meets the criteria for involuntary commitment under Part 7 of Article 5 of Chapter 122C of the General Statutes. If the presiding judge finds reasonable grounds to believe that the defendant meets the criteria, he shall make findings of fact and issue a custody order in the same manner, upon the same grounds and with the same effect as an order issued by a clerk or magistrate pursuant to G.S. 122C-261. Proceedings thereafter are in accordance with Part 7 of Article 5 of Chapter 122C of the General Statutes. If the defendant was charged with a violent crime, including a crime involving assault with a deadly weapon, the judge's custody order shall require a law-enforcement officer to take the defendant directly to a 24-hour facility as described in G.S. 122C-252; and the order must indicate that the defendant was charged with a violent crime and that he was found incapable of proceeding. (b) The court may make appropriate orders for the temporary detention of the defendant pending that proceeding. (c) Evidence used at the hearing with regard to capacity to proceed is admissible in the involuntary civil commitment proceedings. (1973, c. 1286, s. 1; 1975, c. 166, s. 20; 1983, c. 380, s. 1; 1985, c. 589, s. 10; 1987, c. 596, s. 5.)

INCAPABLE TO PROCEED CLIENTS AND PROCEDURES

§ 15A-1008. Dismissal of charges. (a) When a defendant lacks capacity to proceed, the court shall dismiss the charges upon the earliest of the following occurrences: (1) When it appears to the satisfaction of the court that the defendant will not gain capacity to proceed. (2) When as a result of incarceration, involuntary commitment to an inpatient facility, or other court-ordered confinement, the defendant has been substantially deprived of his liberty for a period of time equal to or in excess of the maximum term of imprisonment permissible for prior record Level VI for felonies or prior conviction Level III for misdemeanors for the most serious offense charged. (3) Upon the expiration of a period of five years from the date of determination of incapacity to proceed in the case of misdemeanor charges and a period of 10 years in the case of felony charges. (b) A dismissal entered pursuant to subdivision (2) of subsection (a) of this section shall be without leave. (c) A dismissal entered pursuant to subdivision (1) or (3) of subsection (a) of this section shall be issued without prejudice to the refiling of the charges. Upon the defendant becoming capable of proceeding, the prosecutor may reinstitute proceedings dismissed pursuant to subdivision (1) or (3) of subsection (a) of this section by filing written notice with the clerk, with the defendant, and with the defendant's attorney of record. (d) Dismissal of criminal charges pursuant to this section shall be upon motion of the prosecutor or the defendant or upon the court's own motion. (1973, c. 1286, s. 1; 2013-18, s. 5.)

INCAPABLE TO PROCEED CLIENTS AND PROCEDURES• GREAT OVERVIEW OF CAPACITY TO PROCEED AND PROCEDURES CAN

BE FOUND IN CHAPTER TWO OF THE N.C. DEFENDER MANUAL, VOL. 1, PRETRIAL

• http://defendermanuals.sog.unc.edu/defender-manual/2

CRIMINAL LAW MUST HAVE RESOURCESAVAILABLE FOR FREE• NC DEFENDER MANUAL

• Volume 1, PRETRIAL

• Volume 2, TRIAL

http://defendermanuals.sog.unc.edu/

CRIMINAL LAW MUST HAVE RESOURCES AVAILABLE FOR FREE• CRIMINAL LAW BLOG: http://nccriminallaw.sog.unc.edu/• PATTERN JURY INSTRUCTIONS:• http://www.sog.unc.edu/resources/microsites/north-carolina-pattern-jury-

instructions/pattern-jury-instructions-online-library• SENTENCING SMARTPHONE APP:• http://nccriminallaw.sog.unc.edu/sentencing-smartphone-app-available/• ARREST SEARCH AND SEIZURE SMARTPHONE APP:• http://www.sog.unc.edu/resources/tools/asset-arrest-search-and-seizure-electronic-tool• NCGA STATUTES WEB PAGE• North Carolina General Assembly - General Statutes• BRIEF BANK• http://www.ncids.org/Brief%20Bank/Main%20Index.htm?c=Training and Resources,

Brief Bank• PRIOR CRIMINAL CLE MATERIALS ON IDS WEB PAGE• http://www.ncids.org/Defender%20Training/Training%20Index.htm

CRIMINAL LAW MUST HAVE RESOURCES AVAILABLE FOR FREE• JUVENILE WEB PAGE• https://ncjuveniledefender.wordpress.com/?c=Defender%20Offices%20%2

0and%20%20Depts,%20Juvenile%20Defender• FORENSIC RESOURCE PAGE• http://www.ncids.com/forensic/index.shtml?c=Defender Offices and

Depts, Forensic Resources• RAISING ISSUES OF RACE IN NORTH CAROLINA CRIMINAL CASES• http://defendermanuals.sog.unc.edu/• IMMIGRATION CONSQUENCES OF CRIMINAL CONVICTIONS MANUAL

(2008)• http://defendermanuals.sog.unc.edu/

CRIMINAL LAW MUST HAVE RESOURCES AVAILABLE FOR FREE• JUVENILE MANUAL• http://defendermanuals.sog.unc.edu/• INVOLUNTARY COMMITMENT MANUAL• http://defendermanuals.sog.unc.edu/• GUARDIANSHIP MANUAL• http://defendermanuals.sog.unc.edu/• ABUSE, NEGLECT, DEPENDENCY AND TERMINATION OF PARENTAL RIGHTS

MANUAL• http://www.sog.unc.edu/resources/microsites/abuse-neglect-dependency-and-

termination-parental-rights• NORTH CAROLINA SUPERIOR COURT JUDGES’ SUPERIOR COURT BENCHBOOK• http://benchbook.sog.unc.edu/

CRIMINAL LAW MUST HAVE RESOURCES AVAILABLE FOR FREE• COLLATERAL CONSEQUENCES TOOL—C-CAT• http://ccat.sog.unc.edu/• COMMUNITY RESOURCE DATABASE• http://www.ncids.com/cr/default.asp?c=Training and Resources, Community Resource Database• RACE MATERIALS BANK• http://www.ncids.org/racebank/mainlinks.htm?c=Training and Resources, Race Materials Bank• MOTIONS BANK• http://www.ncids.org/MotionsBankNonCap/MotionBankMainLinks.htm?c=Training and

Resources, Motions Bank, Non-Capital• LANGUAGE ACCESS SERVICES• http://www.nccourts.org/LanguageAccess/Default.asp• NC COURTS HOMEPAGE• http://www.nccourts.org/Default.asp

DISCOVERY

• North Carolina Commission on Indigent Defense Services Performance Guidelines for Indigent Defense Representation in Non-Capital Criminal Cases at the Trial Level

“Guideline 4.2 Discovery in Cases Within the Original Jurisdiction of the Superior Court

(a) Counsel has a duty to pursue discovery procedures provided by the applicable rules of criminal procedure within the time periods prescribed by G.S. 15A-902, and to pursue such informal discovery methods as may be available to supplement the factual investigation of the case.”

DISCOVERY• NC GENERAL STATUTES: 15A-901 through 15A-910

• FILE MOTION FOR DISCOVERY IN ALL FELONY CASES BOUND OVER TO SUPERIOR COURT WITHIN 10 WORKING DAYS AFTER

(1) JUDGE FINDS PROBABLE CAUSEOR

(2) PROBABLE CAUSE IS WAIVED

• RECIPROCAL DISCOVERY OBLIGATIONS-15A-905

• ALWAYS FILE MOTION FOR DISCOVERY UNLESS THERE IS A SOUND TACTICAL REASON FOR NOT REQUESTING DISCOVERY

Chapter Four of the N.C. Defender Manual Volume 1- Pretrial Great Overview of Discovery in Criminal Cases in North Carolina

http://defendermanuals.sog.unc.edu/

STRUCTURED SENTENCING ON MISDEMEANORS AND FELONIESN.C. General Statutes:15A-1340.10 through 15A-1340.23

• TRAINING MANUALS CAN BE FOUND AT:• http://www.nccourts.org/Courts/CRS/Councils/spac/Sentencing/Train

ing/Manuals.asp

JAIL CREDIT

• JAIL CERTIFICATION SHEETS IN THE COURTROOM

• NEW LAW EFFECTIVE DECEMBER 1, 2015•

Section 15-196.1. Credits allowed.

The minimum and maximum term of a sentence shall be credited with and diminished by the total amount of time a defendant has spent, committed to or in confinement in any State or local correctional, mental or other institution as a result of the charge that culminated in the sentence or the incident from which the charge arose. The credit provided shall be calculated from the date custody under the charge commenced and shall include credit for all time spent in custody pending trial, trial de novo, appeal, retrial, or pending parole, probation, or post-release supervision revocation hearing: Provided, however, the credit available herein shall not include any time that a defendant has spent in custody as a result of a pending charge while serving a sentence imposed for another offense.

• Great Overview of new rule can be found at the School of Government Criminal Law Blog:• http://nccriminallaw.sog.unc.edu/new-jail-credit-rules-signed-into-law/

PROBATION VIOLATIONSReview Probation Violation Paperwork Prior to Hearing in front of JudgeAsk Probation Officer what their recommendation is going to beJudge is not bound by Probation Officer’s RecommendationSome Possible outcomes:

No Violation FoundProbation TerminatedSplit Sentence- short time period in JailRevocation of SentenceCRVContemptProbation Modified and Sentence Reduced

Great Overview of Probation Violations links:http://www.ncids.org/Defender%20Training/2015NewMisddmeanor/ProbationViolations.pdfhttp://sogpubs.unc.edu/electronicversions/pdfs/aojb1305.pdf

DISTRICT COURT TRIALS AND SUPERIOR COURT TRIALS• DISTRICT COURT TRIALS

• Bench Trials• Ask other criminal defense attorneys what to expect in front of the presiding

Judge

• SUPERIOR COURT TRIALS• Jury Trials• Procedure to waive Jury Trial and have a Bench Trial• http://nccriminallaw.sog.unc.edu/changes-to-jury-waiver-procedures/

RIGHT TO APPEAL-DISTRICT COURT§ 15A-1431. Appeals by defendants from magistrate and district court judge; trial de novo.

(a) A defendant convicted before a magistrate may appeal for trial de novo before a district court judge without a jury.

(b) A defendant convicted in the district court before the judge may appeal to the superior court for trial de novo with a jury as provided by law. Upon the docketing in the superior court of an appeal from a judgment imposed pursuant to a plea arrangement between the State and the defendant, the jurisdiction of the superior court over any misdemeanor dismissed, reduced, or modified pursuant to that plea arrangement shall be the same as was had by the district court prior to the plea arrangement.

(c) Within 10 days of entry of judgment, notice of appeal may be given orally in open court or in writing to the clerk. Within 10 days of entry of judgment, the defendant may withdraw his appeal and comply with the judgment. Upon expiration of the 10-day period, if an appeal has been entered and not withdrawn, the clerk must transfer the case to the appropriate court.

(d) A defendant convicted by a magistrate or district court judge is not barred from appeal because of compliance with the judgment, but notice of appeal after compliance must be given by the defendant in person to the magistrate or judge who heard the case or, if he is not available, notice must be given:

(1) Before a magistrate in the county, in the case of appeals from the magistrate; or

(2) During an open session of district court in the district court district as defined in G.S. 7A-133, in the case of appeals from district court.

The magistrate or district court judge must review the case and fix conditions of pretrial release as appropriate. If a defendant has paid a fine or costs and then appeals, the amount paid must be remitted to the defendant, but the judge, clerk or magistrate to whom notice of appeal is given may order the remission delayed pending the determination of the appeal.

(e) Any order of pretrial release remains in effect pending appeal by the defendant unless the judge modifies the order.

(f) Repealed by Session Laws 2005-339, s. 1, effective August 26, 2005.

(f1) Appeal pursuant to this section stays the execution of all portions of the judgment, including all of the following:

(1) Payment of costs.

(2) Payment of a fine.

(3) Probation or special probation.

(4) Active punishment.

Pursuant to subsection (e) of this section, however, the judge may order any appropriate condition of pretrial release, including confinement in a local confinement facility, pending the trial de novo in superior court.

(g) The defendant may withdraw his appeal at any time prior to calendaring of the case for trial de novo. The case is then automatically remanded to the court from which the appeal was taken, for execution of the judgment.

(h) The defendant may withdraw his appeal after the calendaring of the case for trial de novo only by consent of the court, and with the attachment of costs of that court, unless the costs or any part of the costs are remitted by the court. The case may then be remanded by order of the court to the court from which the appeal was taken for execution of the judgment with any additional court costs that attached and that have not been remitted. (1977, c. 711, s. 1; 1979, c. 758, p. 2; 1979, 2nd Sess., c. 1328, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 72; 1991, c. 63, s. 1; 2005-339, s. 1.)

RIGHT TO APPEAL-SUPERIOR COURT§ 15A-1444. When defendant may appeal; certiorari.

(a) A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered.

(a1) A defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.

(a2) A defendant who has entered a plea of guilty or no contest to a felony or misdemeanor in superior court is entitled to appeal as a matter of right the issue of whether the sentence imposed:

(1) Results from an incorrect finding of the defendant's prior record level under G.S. 15A-1340.14 or the defendant's prior conviction level under G.S. 15A-1340.21;

(2) Contains a type of sentence disposition that is not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant's class of offense and prior record or conviction level; or

(3) Contains a term of imprisonment that is for a duration not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant's class of offense and prior record or conviction level.

(b) Procedures for appeal from the magistrate to the district court are as provided in Article 90, Appeals from Magistrates and from District Court Judges.

(c) Procedures for appeal from the district court to the superior court are as provided in Article 90, Appeals from Magistrates and from District Court Judges.

(d) Procedures for appeal to the appellate division are as provided in this Article, the rules of the appellate division, and Chapter 7A of the General Statutes. The appeal must be perfected and conducted in accordance with the requirements of those provisions.

(e) Except as provided in subsections (a1) and (a2) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari. If an indigent defendant petitions the appellate division for a writ of certiorari, the presiding superior court judge may in his discretion order the preparation of the record and transcript of the proceedings at the expense of the State.

(f) The ruling of the court upon a motion for appropriate relief is subject to review upon appeal or by writ of certiorari as provided in G.S. 15A-1422.

(g) Review by writ of certiorari is available when provided for by this Chapter, by other rules of law, or by rule of the appellate division. (1977, c. 711, s. 1; 1979, c. 760, s. 3; 1981, c. 179, ss. 8, 9; 1993, c. 538, s. 27; 1994, Ex. Sess., c. 24, s. 14(b); 1997-80, s. 4.)

RIGHT TO APPEAL

• EXPLAIN TO CLIENT RIGHT TO APPEAL AND TIME LIMITS

10 DAYS IN DISTRICT COURT TO APPEAL TO SUPERIOR COURT14 DAYS IN SUPERIOR COURT TO APPEAL TO COURT OF APPEALS

-MAKE SURE IN COURT APPOINTED CASES THAT AN APPELLATE ENTRIES IS SIGNED BY THE JUDGE

RIGHT TO APPEAL

Properly Appealing Denial of Motion to Suppress in Superior CourtBefore pleading guilty the defendant must give notice of his intent to appeal

• Pursuant to N.C. General Statute 15A-979 and case law (State v. Brown, 217 N.C. App. 566, 569, 720 S.E.2d 446, 449 (2011))

• Include in the Plea Transcript a statement that the defendant reserves the right to appeal the suppression issue

• Or• Tell the court and the prosecutor in open court and on the record before the plea

negotiations have concluded that the defendant intends to appeal the suppression issue

After defendant pleads guilty and is sentenced give notice of appeal from the judgment

QUESTIONS?

• M. LeAnn Melton• PUBLIC DEFENDER• BUNCOMBE COUNTY COURTHOUSE• GROUND FLOOR• ASHEVILLE, NC 28801-3580• PHONE:828-259-3423 PERSONAL CELL: 828-279-2539• FAX: 828-259-3424• EMAIL: M.LeAnn.Melton@nccourts.org