North Carolina Lawyers Weekly

Sep 19, 2013

Criminal Practice – Guilty Plea – Appeals – Transfer Order

State v. Tinney Defendant’s plea agreement purported to preserve for appellate review the transfer of his case from juvenile to superior court. Before defendant entered his guilty plea, both the prosecutor and the trial judge informed him that, as the case law stood, pleading guilty would mean he could not get appellate review of the transfer order.

Oct 4, 2012

Criminal Practice – Petition for Writ of Certiorari – Guilty Plea – Stolen Weapon & Drug Possession

State v. Rouson A traffic stop and subsequent search did not violate defendant’s rights under the Fourth Amendment. The trial court found that the vehicle held five men, and the backseat passengers (including defendant) failed to follow the officers’ instructions to keep their hands on the back of the front seat where the officers could see them. When defendant got out of the vehicle [...]

Jul 25, 2012

Criminal Practice – Guilty Plea – Appeal Waiver – Sentencing

U.S. v. Davis A defendant who was incorrectly advised that he faced a 10-year maximum sentence on a firearm charge, instead of the correct 15-year mandatory minimum for a career offender, did not knowingly and intelligently waive his right to appeal in his plea agreement; the 4th Circuit declines to enforce the appeal waiver but nevertheless affirms the enhanced sentence.

Jul 19, 2012

Criminal Practice – Assault on a Handicapped Person – Guilty Plea – Factual Basis – Indictment

State v. Collins The prosecutor’s statements that the victim (defendant’s mother) “is 80 years of age” and “is crippled in her knees with arthritis and requires a crutch to walk” and that defendant “told his mother that he would kill her and cut her heart out,” “grabbed the victim,” and “slung her across the room twice and then hit her with her crutch” provided a s[...]

Apr 25, 2012

Criminal Practice – Guilty Plea – Attempted Withdrawal – Loss of Government Benefits — Fraud

U.S. v. Nicholson A former mail carrier cannot withdraw his guilty plea to a charge of fraudulently obtaining workers’ comp benefits under the Federal Employment Compensation Act after he learned the plea would cause a loss of government benefits; the 4th Circuit says the trial court did not violate Fed. R. Crim. P. 11 by not advising defendant of the potential loss of benefits.

Mar 14, 2012

Criminal – Sentencing – Appeals – Guilty Plea – ‘Any Sentence’ – Waiver

U.S. v. Thornsbury A convicted felon pleading guilty to possession of ammunition, who waived his right to appeal “any sentence,” cannot seek to have his sentence on the firearm charge reduced in light of his assistance to the government in prosecuting an unrelated case, and the 4th Circuit dismisses this appeal of the district court’s denial of the government’s motion for a senten[...]

Feb 24, 2012

Criminal Practice – Constitutional – Ineffective Assistance Claim – Guilty Plea – Immigration Consequences – Padilla – No Retroactive Application

State v. Alshaif Although Padilla v. Kentucky, 176 L. Ed. 2d 284 (2010), held that a criminal defense attorney must inform his client of any immigration consequences of a guilty plea, that was not the rule at the time defense counsel in this case advised defendant to plead guilty to assault with a deadly weapon inflicting serious injury.

Dec 9, 2011

Criminal Practice – Guilty Plea – Aggravating Factors – Aggravated Sentence – Restitution – Vacated

State v. Rico Even though the parties’ plea agreement included a sentence in the aggravated range, defendant’s original aggravated sentence was invalid as a matter of law because the trial judge imposed the sentence simply because it was called for by the plea agreement. The judge failed to make any findings as to aggravating factors and failed to exercise his discretion in determinin[...]

Nov 2, 2011

Criminal Practice – Appeals – Certiorari – Guilty Plea – Benefit of Bargain

State v. Demaio Defendant’s challenge that his guilty plea was improperly accepted because it was not the product of informed choice and did not provide him the benefit of his bargain is a procedural challenge to the guilty plea for which he may petition this court for writ of certiorari under State v. Bolinger, 320 N.C. 596, 359 S.E.2d 459 (1987). Defendant properly petitioned this cou[...]

May 26, 2011

Criminal Practice – Constitutional – Appointed Counsel – Denial of New Counsel – Guilty Plea – Voluntary

U.S. v. Smith Although a defendant charged with racketeering and drug conspiracy feared his lawyer would "sabotage" his defense after they argued over challenging defendant's prior convictions, and although the district court erred in telling defendant "one lawyer is your free limit," the district court's denial of new counsel did not render defendant's guilty plea involuntary.

Mar 18, 2011

Criminal Practice – Guilty Plea – Motion to Withdraw – Post-Sentencing

State v. Shropshire. (Lawyers Weekly No. 11-07-0280, 6 pp.) (Linda Stephens, J.) Appealed from Mecklenburg County Superior Court. (Christopher M. Collier, J.) N.C. App. Click here for the full text […]

Mar 18, 2011

Criminal Practice – Guilty Plea – Knowing & Voluntary – Satellite-Based Monitoring – ‘Aggravated Offense’ – Sexual Offense

State v. Santos. (Lawyers Weekly No. 11-07-0279, 11 pp.) (Wanda G. Bryant, J.) Appealed from Hoke County Superior Court. (Richard T. Brown, J.) N.C. App. Click here for the full […]