Grounds to file a Motion for Appropriate Relief
What charges qualify for a Motion for Appropriate Relief?
Although a Motion for Appropriate Relief can be filed after serious felony convictions this article will focus on MAR by consent which usually involves lower-level crimes such as infractions and misdemeanors. Examples of convictions where the prosecutor may consent to a MAR are:
Deadline to file a Motion for Appropriate Relief in NC
There is a 10-day window for certain grounds and an unlimited time limit for other grounds. As this blog article is focused on MAR by Consent the time limits are not really applicable. Either the DA is agreeable to reopening the case or not. That being said, if you are within the 10-day window of conviction you should speak with an attorney immediately to preserve all your options.
How much does it cost to file a Motion for Appropriate Relief?
There is no filing fee to file a Motion for Appropriate Relief in North Carolina. Attorney fees can vary dramatically based on the complexity of the matter and nature of the charges.
Why file a Motion for Appropriate Relief?
The purpose of filing a Motion for Appropriate Relief is usually to strike a guilty plea or conviction that is either preventing you from getting a driving license or obtaining employment due to a criminal record. A successful motion might result in your attorney working out a deal to strike your guilty plea to speeding that revoked your license and instead plea to non-moving violation such as improper equipment that will unrevoked your license. Another example might be to strike a plea to simple possession of marijuana where the DA agrees to a dismissal after you complete a drug awareness class.
What are the risks of filing a Motion for Appropriate Relief?
One of the most important considerations of filing a MAR is to understand your end goal. Just setting aside the guilty plea does not accomplish much if you risk being convicted again. Usually in a consent MAR your attorney will have either worked out a dismissal or a plea to a lower charge in advance of filing a Motion for Appropriate Relief.
When is a Motion for Appropriate Relief not appropriate?
Although a Motion for Appropriate Relief can be filed even after serious felony convictions the DA is rarely ever going to consent to such relief in these situations. The chances of the DA agreeing to a MAR for serious convictions such as murder, armed robbery, rape, or even DWI are near zero. You should always speak with an attorney before filing any Motion with the court so as to not prejudice your chance of appeal.
Do I need an attorney to file a Motion for Appropriate Relief?
No attorney is required to file a Motion for Appropriate Relief and the AOC even provides a sample form (see below) for pro-se defendants to file as their own attorney. That being said, it would be strongly advisable to speak with an attorney before filing a Motion for Appropriate Relief as they are not routinely granted for pro-se litigants. Also, even if your motion is granted that does not mean the State will not immediately attempt to prosecute you again which could result in having to pay court fees twice for the same offense.
§ 15A-1414. Motion by defendant for appropriate relief made within 10 days after verdict.
(a) After the verdict but not more than 10 days after entry of judgment, the defendant by motion may seek appropriate relief for any error committed during or prior to the trial.
(b) Unless included in G.S. 15A-1415, all errors, including but not limited to the following, must be asserted within 10 days after entry of judgment:
(1) Any error of law, including the following:
a. The court erroneously failed to dismiss the charge prior to trial pursuant to G.S. 15A-954.
b. The court's ruling was contrary to law with regard to motions made before or during the trial, or with regard to the admission or exclusion of evidence.
c. The evidence, at the close of all the evidence, was insufficient to justify submission of the case to the jury, whether or not a motion so asserting was made before verdict.
d. The court erroneously instructed the jury.
(2) The verdict is contrary to the weight of the evidence.
(3) For any other cause the defendant did not receive a fair and impartial trial.
(4) The sentence imposed on the defendant is not supported by evidence introduced at the trial and sentencing hearing. This motion must be addressed to the sentencing judge.
(c) The motion may be made and acted upon in the trial court whether or not notice of appeal has been given. (1977, c. 711, s. 1; 1979, c. 760, s. 3; 1981, c. 179, s. 6.)
§ 15A-1415. Grounds for appropriate relief which may be asserted by defendant after verdict; limitation as to time.
(a) At any time after verdict, a noncapital defendant by motion may seek appropriate relief upon any of the grounds enumerated in this section. In a capital case, a postconviction motion for appropriate relief shall be filed within 120 days from the latest of the following:
(1) The court's judgment has been filed, but the defendant failed to perfect a timely appeal;
(2) The mandate issued by a court of the appellate division on direct appeal pursuant to N.C.R. App. P. 32(b) and the time for filing a petition for writ of certiorari to the United States Supreme Court has expired without a petition being filed;
(3) The United States Supreme Court denied a timely petition for writ of certiorari of the decision on direct appeal by the Supreme Court of North Carolina;
(4) Following the denial of discretionary review by the Supreme Court of North Carolina, the United States Supreme Court denied a timely petition for writ of certiorari seeking review of the decision on direct appeal by the North Carolina Court of Appeals;
(5) The United States Supreme Court granted the defendant's or the State's timely petition for writ of certiorari of the decision on direct appeal by the Supreme Court of North Carolina or North Carolina Court of Appeals, but subsequently left the defendant's conviction and sentence undisturbed; or
(6) The appointment of postconviction counsel for an indigent capital defendant.
(b) The following are the only grounds which the defendant may assert by a motion for appropriate relief made more than 10 days after entry of judgment:
(1) The acts charged in the criminal pleading did not at the time they were committed constitute a violation of criminal law.
(2) The trial court lacked jurisdiction over the person of the defendant or over the subject matter.
(3) The conviction was obtained in violation of the Constitution of the United States or the Constitution of North Carolina.
(4) The defendant was convicted or sentenced under a statute that was in violation of the Constitution of the United States or the Constitution of North Carolina.
(5) The conduct for which the defendant was prosecuted was protected by the Constitution of the United States or the Constitution of North Carolina.
(6) Repealed by Session Laws 1995 (Regular Session, 1996), c. 719, s. 1, effective June 21, 1996.
(7) There has been a significant change in law, either substantive or procedural, applied in the proceedings leading to the defendant's conviction or sentence, and retroactive application of the changed legal standard is required.
(8) The sentence imposed was unauthorized at the time imposed, contained a type of sentence disposition or a term of imprisonment not authorized for the particular class of offense and prior record or conviction level was illegally imposed, or is otherwise invalid as a matter of law. However, a motion for appropriate relief on the grounds that the sentence imposed on the defendant is not supported by evidence introduced at the trial and sentencing hearing must be made before the sentencing judge.
(9) The defendant is in confinement and is entitled to release because his sentence has been fully served.
(10) The defendant was convicted of a nonviolent offense as defined in G.S. 15A-145.9; the defendant's participation in the offense was a result of having been a victim of human trafficking under G.S. 14-43.11, sexual servitude under G.S. 14-43.13, or the federal Trafficking Victims Protection Act (22 U.S.C. § 7102(13)); and the defendant seeks to have the conviction vacated.
(c) Notwithstanding the time limitations herein, a defendant at any time after verdict may by a motion for appropriate relief, raise the ground that evidence is available which was unknown or unavailable to the defendant at the time of trial, which could not with due diligence have been discovered or made available at that time, including recanted testimony, and which has a direct and material bearing upon the defendant's eligibility for the death penalty or the defendant's guilt or innocence. A motion based upon such newly discovered evidence must be filed within a reasonable time of its discovery.
(d) For good cause shown, the defendant may be granted an extension of time to file the motion for appropriate relief. The presumptive length of an extension of time under this subsection is up to 30 days, but can be longer if the court finds extraordinary circumstances.
(e) Where a defendant alleges ineffective assistance of prior trial or appellate counsel as a ground for the illegality of his conviction or sentence, he shall be deemed to waive the attorney-client privilege with respect to both oral and written communications between such counsel and the defendant to the extent the defendant's prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness. This waiver of the attorney-client privilege shall be automatic upon the filing of the motion for appropriate relief alleging ineffective assistance of prior counsel, and the superior court need not enter an order waiving the privilege.
(f) In the case of a defendant who is represented by counsel in postconviction proceedings in superior court, the defendant's prior trial or appellate counsel shall make available to the defendant's counsel their complete files relating to the case of the defendant. The State, to the extent allowed by law, shall make available to the defendant's counsel the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. If the State has a reasonable belief that allowing inspection of any portion of the files by counsel for the defendant would not be in the interest of justice, the State may submit for inspection by the court those portions of the files so identified. If upon examination of the files, the court finds that the files could not assist the defendant in investigating, preparing, or presenting a motion for appropriate relief, the court in its discretion may allow the State to withhold that portion of the files.
(g) The defendant may file amendments to a motion for appropriate relief at least 30 days prior to the commencement of a hearing on the merits of the claims asserted in the motion or at any time before the date for the hearing has been set, whichever is later. Where the defendant has filed an amendment to a motion for appropriate relief, the State shall, upon request, be granted a continuance of 30 days before the date of hearing. After such hearing has begun, the defendant may file amendments only to conform the motion to evidence adduced at the hearing, or to raise claims based on such evidence. (1977, c. 711, s. 1; 1981, c. 179, s. 7; 1993, c. 538, s. 25; 1994, Ex. Sess., c. 24, s. 14(b); 1995 (Reg. Sess., 1996), c. 719, s. 1; 2009-517, s. 2; 2013-368, s. 9; 2019-158, s. 5(a).)