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Criminal Practice – Constitutional – Attorneys — Ineffective Assistance – Legislative Intent – Second Degree Rape & Statutory Rape

State v. Banks (Lawyers Weekly No. 13-07-0123, 11 pp.) (Ann Marie Calabria, J.) Appealed from Rowan County Superior Court (Anna Mills Wagoner, J.) N.C. App.

Holding: Three months before defendant was sentenced, this court ruled in State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886 (2007), that separate punishments for the offenses of statutory rape and first degree rape (based on a single act of intercourse) are prohibited by legislative intent. The logical implication of Ridgeway was that defendant could not have been properly punished for both statutory rape and second degree rape based upon a single act of sexual intercourse. Thus, an objectively reasonable attorney would have raised an objection to defendant’s judgment and sentence. Moreover, since the consecutive judgments imposed against defendant were impermissible, defendant was clearly prejudiced by his counsel’s failure to raise the issue before the trial court. Accordingly, we conclude that defendant received ineffective assistance of counsel.

We reverse the trial court’s order denying defendant’s motion for appropriate relief. On remand, the trial court must arrest judgment on either defendant’s statutory rape conviction or his second degree rape conviction.

 


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