411.1Motions for Appropriate Relief

I. Antecedents & Definitions

Most modern collateral remedies can be traced to the common law writs of habeas corpus and coram nobis.  7 Wayne R. LaFave, et al., Criminal Procedure § 28.1(a) (4th ed. 2023).  Habeas corpus was a separate civil action challenging the custodian’s right to detain the petitioner.  As a remedy for detention upon conviction of a crime, the writ historically had very limited utility.  Id.; see also id. at § 28.1(b).  The writ of coram nobis was also viewed as an independent civil action.  It was brough before the court that rendered judgment and sought a new trial on the basis of some error of fact, which would have affected the outcome.  Id. at § 28.1(a), see also id. at § 28.1(c).

Article 89 of Chapter 15A, governing motions for appropriate relief, dates from 1977.  See G.S. 15A-1411 – 1422.  According to the Official Commentary, the motion for appropriate relief (MAR) provides a single, unified procedure for raising at the trial level errors which are asserted to have been made during the trial.  G.S. Ch. 15A, Art. 89 cmt.  Hence, a motion for appropriate relief is “a post-verdict motion (or a post-sentencing motion where there is no verdict) made to correct errors occurring prior to, during, and after a criminal trial.”  State v. Handy, 326 N.C. 532, 535, 391 S.E.2d 159, 160–61 (1990).  According to our Supreme Court, the MAR was intended “to replace motions in arrest of judgment, motions to set aside the verdict, motions for new trial, post-conviction proceedings, coram nobis and all other post-trial motions,” except habeas corpus.  State v. Bush, 307 N.C. 152, 165–66, 297 S.E.2d 563, 572 (1982); cf. G.S. § 15A-1411(c).

An MAR is “a motion in the original cause and not a new proceeding.”  G.S. 15A-1411(b). The availability of relief by MAR is not a bar to relief by writ of habeas corpus.  Id. at (c).  Further, a claim of factual innocence asserted through the North Carolina Innocence Inquiry Commission does not constitute an MAR and does not impact rights or relief provided for in Article 89.  Id. at (d); cf. G.S. 15A-1417(a)(3a) (innocence claims may be referred to Innocence Commission).

II. Formal Requirements

In general, an MAR must (1) be in writing (see below for oral MAR), (2) state grounds for relief, (3) set forth relief sought, (4) be supported by affidavit, and (5) if made in superior court by an attorney, contain a certification (see below).  G.S. 15A-1420(a)(1).  The MAR must be filed with the clerk of court in the district where the defendant was indicted and served on the district attorney (and the Attorney General in capital cases).  G.S. 15A-1420(b1)(1).  A written MAR must be filed and served in the manner provided by G.S. 15A-951(b) & (c).  G.S. 15A-1420(a)(2).

1. Oral MAR.  An oral MAR is permitted if it is made (1) in open court, (2) before the presiding trial judge, (3) before the end of the session if made in superior court, and (4) within ten days after entry of judgment.  G.S. 15A-1420(a)(1)a.; see also State v. Williams, 227 N.C. App. 209, 214, 741 S.E.2d 486, 489 (2013).

2. Certification. The attorney must certify in writing that there is a sound legal basis for the motion and that it is being made in good faith; that the attorney has notified the district attorney’s office and the attorney who initially represented the defendant of the MAR; and that the attorney has reviewed the trial transcript of made a good faith determination that such review is unnecessary.  G.S. 15A-1420 (a)(1)c1.  An MAR made by an attorney in superior court may not be granted absent this certification.  G.S. 15A-1420(a)(5); cf. State v. Behar, No. COA19-1158 (N.C. Ct. App. Nov. 17, 2020) (unpublished) (failure to file certification supported denial of MAR).

3. District Court MAR.  An oral or written MAR may not be granted in district court without the signature of the district attorney, indicating that the State has had an opportunity to consent or object to the motion.  G.S. 15A-1420(a)(4).  The court may, however, grant an MAR without the district attorney’s signature 10 business days after the district attorney has been notified in open court of the MAR or served as provided by G.S. 15A-951(c).  Id.

III. There are Two Types of MARs

A. Filed Within 10 Days of Judgment

1. Defendant’s MAR.  After the verdict but not more than ten days after entry of judgment, the defendant may by MAR seek relief for any error committed during or prior to trial.  G.S. 15A-1414(a).  A claim that the sentence imposed is not supported by evidence must be made within ten days and addressed to the sentencing judge.  G.S. 15A-1414(b)(4); State v. Espinoza-Valenzuela, 203 N.C. App. 485, 496, 692 S.E.2d 145, 154 (2010).  An MAR made within ten days of judgment may be made and acted upon in the trial court whether or not notice of appeal has been given.  G.S. 15A-1414(c); see State v. Hallum, 246 N.C. App. 658, 783 S.E.2d 294, 303 (2016) (trial court retained jurisdiction over judgment challenged by MAR despite notice of appeal).

2. State’s MAR.  After the verdict but not more than 10 days after entry of judgment, the State may by MAR seek relief from any error which it may assert upon appeal.  G.S. 15A-1416(a); cf. State’s Right to Appeal.

3. Timing.  The ten-day period begins upon entry of judgment.  Entry of judgment occurs when sentence is pronounced.  G.S. 15A-101(4a); Handy, 326 N.C. at 535.  In a capital case, the pronouncement of the recommendation by the sentencing phase jury constitutes entry of judgment.  Id. at 536 n.1.  The Court of Appeals excludes Saturday and Sunday.  See State v. Craver, 70 N.C. App. 555, 560, 320 S.E.2d 431, 434 (1984).

B. Filed Beyond 10 Days of Judgment

1. Defendant’s MAR.  The following chart contains “the only grounds” which the defendant may assert by MAR made more than ten days after entry of judgment.  G.S. 15A-1415; see also State v. Harwood, 228 N.C. App. 478, 484, 746 S.E.2d 445, 450 (2013) (trial court lacks jurisdiction over MAR claim which does not fall within categories specified).

a. Jurisdictional claims.  This provision allows a defendant to challenge a pleading as fatally defective.  See State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981).

b. Constitutional Claims.  This covers claims of ineffective assistance of trial counsel.  See State v. House, 340 N.C. 187, 196-97, 456 S.E.2d. 292, 297 (1995).  Or claims that a guilty plea was not knowing and voluntary.  See State v. Fennell, 51 N.C. App. 460, 462, 276 S.E.2d 499, 501 (1981).  This also allows a defendant to argue that his sentence violated the Eighth Amendment.  See State v. Wilkerson, 232 N.C. App. 482, 491, 753 S.E.2d 829, 836 (2014).

c. Retroactivity Claims.  “[T]his statute provides a procedural device to be used when other decisions or statutes impose the requirement of retroactivity, it does not create such a requirement.”  G.S. 15A-1415 cmt.  For statute, look to effective date; presumption is against retroactivity.  State v. Green, 350 N.C. 400, 404, 514 S.E.2d 724, 727, cert. denied, 527 U.S. 1066, 144 led2d 840 (1999).  For federal case, apply Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334 (1989).  For state case, apply State v. Rivens, 299 N.C. 385, 261 S.E. 2d 867 (1980).

d. Newly Discovered Evidence Claims.  This section codifies the rule developed by caselaw for granting a new trial for newly discovered evidence.  See State v. Rhodes, 366 N.C. 532, 536, 743 S.E.2d 37, 39 (2013) (it must appear by affidavit that (1) the witness will give new evidence; (2) the new evidence is probably true; (3) the new evidence is material, competent and relevant; (4) due diligence was used and proper means were employed to procure the testimony at trial; (5) the new evidence is not merely cumulative or corroborative; (6) the new evidence does not merely tend to contradict, impeach or discredit the testimony of a former witness; and (7) the new evidence is of such a nature that a different result will probably be reached at a new trial).

e. Recanted testimony.  A defendant may be allowed a new trial on the basis of recanted testimony if: (1) the court is reasonably well satisfied that the testimony given by a material witness is false, and (2) there is a reasonable possibility that, had the false testimony not been admitted, a different result would have been reached at the trial.  State v. Britt, 320 N.C. 705, 715, 360 S.E.2d 660, 665 (1987).

2. State’s MAR.  At any time after verdict, the State may make an MAR for (1) the imposition of sentence when prayer for judgment was continued and grounds for imposition of sentence are asserted; or (2) the initiation of any a proceeding authorized under Article 82 (Probation), Article 83 (Imprisonment), or Article 84 (Fines) regarding modification of a sentence.  G.S. 15A-1416(b).

3. Court’s own motion / by consent.  At any time that a defendant would be entitled to relief by MAR, the court may grant such relief upon its own motion.  G.S. 15A-1420(d).  The court must cause appropriate notice to be given to the parties.  Id.  Nothing in this section shall prevent the parties from entering into an agreement for appropriate relief, including an agreement as to any aspect, procedural or otherwise, of an MAR.  G.S. 15A-1420(e). 

4. Capital MARs.  In a capital case, an MAR must be filed within 120 days from the latest of the following: (1) the court’s judgment was entered and the defendant failed to appeal, (2) an appellate court has issued its mandate and the time for seeking review before the United States Supreme Court has expired, (3) the United States Supreme Court has denied review of the decision of the North Carolina Supreme Court, (4) the United States Supreme Court has denied review of the decision of the North Carolina Court of Appeals, (5) the United States Supreme Court allowed review but left the conviction and sentence undisturbed, or (6) the appointment of postconviction counsel for an indigent capital defendant.  G.S. 15A-1415(a).

IV. Frivolity Review, Right to Counsel, State’s Answer, & Postconviction Discovery

1. Frivolity.  The judge shall conduct an initial review of the MAR.  If the judge determines that the claims are frivolous, “the judge shall deny the motion.”  G.S. 15A-1420(b1)(3).  Frivolous means without merit.  Non-meritorious or frivolous claims are those that are not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.  State v. Lane, 271 N.C. App. 307, 320, 844 S.E.2d 32, 43 (2020).

2. Counsel.  In general, a defendant has no constitutional right to postconviction counsel.  Pennsylvania v. Finley, 481 U.S. 551 (1987).  By statute, an indigent person is entitled to counsel for an MAR if (1) appointment of counsel is authorized by Chapter 15A and (2) the defendant has been convicted of a felony, has been fined five hundred dollars ($500.00) or more, or has been sentenced to a term of imprisonment.  G.S. 7A-451(a)(3).  If an MAR (1) presents sufficient information to warrant a hearing or (2) the interests of justice so require, the judge shall appoint counsel for an indigent defendant who is not represented by counsel.  G.S. 15A-1420(b1)(3).  Appointed counsel shall review the MAR and either adopt the MAR or file an amended MAR.  Id.

3. Answer.  After postconviction counsel files an MAR or amended MAR, or a determination is made that the petitioner is proceeding without counsel, the judge may direct the State to file an answer.  Should the State contend that the defendant is not entitled to relief as a matter of law, the State may request leave to file a limited answer so alleging.  G.S. 15A-1420(b1)(3).

4. Discovery.  The State, to the extent allowed by law, shall make available the complete files of all law enforcement and prosecutorial agencies involved in the investigation or prosecution of the defendant.  If the State reasonably believes that allowing inspection 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, the court finds the files could not assist the defendant in investigating, preparing, or presenting an MAR, the court in its discretion may allow the State to withhold that portion of the files.  G.S. 15A-1415(f); cf. State v. Sexton, 352 N.C. 336, 342, 532 S.E.2d 179, 182 (2000) (“Attorney General's files do not fall within the purview of N.C.G.S. § 15A–1415(f).”).

V. Procedural Bars

G.S. 15A-1419 creates a mandatory procedural bar to deter the filing of redundant and repetitive MARs.  Subsection (a) prescribes grounds for the denial of an MAR, and subsection (b) requires denial (“shall deny the motion”) unless the defendant can show good cause and actual prejudice or a fundamental miscarriage of justice.  Each of these latter terms is statutorily defined.

A. Grounds for Denial

The following are grounds for the denial of an MAR:

(1) Upon a previous MAR, the defendant was in a position adequately to raise the ground or issue but did not do so. (This subdivision does not apply when the previous MAR was made within 10 days of judgment or during the pendency of the direct appeal.) 

(2) The ground or issue was previously determined on the merits of an appeal from the judgment or upon a previous motion or proceeding in state or federal court (unless since that time there has been a change in law and retroactive application is required).

(3) Upon a previous appeal the defendant was in a position adequately to raise the ground or issue but did not do so.

(4) The defendant failed to file a timely MAR as required by G.S. 15A-1415(a) (capital case).

G.S. 15A-1419(a).  The court shall deny the MAR under these circumstances, unless the defendant can demonstrate (1) good cause for excusing these grounds and actual prejudice, or (2) that failure to consider the claim will result in a fundamental miscarriage of justice.  G.S. 15A-1419(b).

B. Good Cause/ Actual Prejudice. 

Good cause may be shown only if the defendant establishes by a preponderance of the evidence that his failure to raise the claim was (1) the result of State action in violation of the state or federal constitution, including ineffective assistance of trial or appellate counsel; (2) the result of the recognition of a new state or federal right which is retroactively applicable; or (3) based on a factual predicate that could not have been discovered through the exercise of reasonable diligence.  G.S. 15A-1419(c).  “A trial attorney’s ignorance of a claim, inadvertence, or tactical decision to withhold a claim may not constitute good cause, nor may a claim of ineffective assistance of prior postconviction counsel constitute good cause.”  Id.  Actual prejudice may be shown only if the defendant establishes by a preponderance of the evidence (1) that an error occurred at trial or sentencing and (2) that, but for the error, there is a reasonable probability of a different result.  Id. at (d).

C. Fundamental Miscarriage of Justice. 

A fundamental miscarriage of justice results only if:

(1) the defendant shows that, but for the error, no reasonable fact finder would have found the defendant guilty; or

(2) the defendant shows that, in light of newly discovered evidence, no reasonable juror would have found the defendant guilty.

G.S. 15A-1419(e).  For most claims, the defendant must show error more likely than not affected the verdict.  This is the familiar preponderance-of-evidence standard.  (The reference to a finding of guilt may preclude a defendant who raises only sentencing claims from showing a fundamental miscarriage of justice.)  For newly discovered evidence claims, the defendant must show by clear and convincing evidence that the newly discovered evidence would have affected the verdict.  In capital cases, a fundamental miscarriage of justice can be established when the defendant shows by clear and convincing evidence that, but for the error or in light of the newly discovered evidence, no reasonable fact finder would have found the defendant eligible for the death penalty.  G.S. 15A-1419(e).

VI. Evidentiary Hearings

Any party is entitled to a hearing unless the court determines the MAR is without merit.  G.S. 15A-1420(c)(1).  This language suggests that a party is entitled to a hearing even if the court concludes that the MAR will prevail.  In other words, the nonmovant is entitled to be heard before the MAR is granted.  An MAR is meritless if (1) there are no disputed issues of fact, and the claim must fail as a matter of law, (2) assuming all disputed issues of fact are resolved in the movant’s favor, the claim must fail as a matter of law, or (3) the defendant cannot show prejudice or the error is harmless beyond a reasonable doubt.   An MAR may also be denied without a hearing based on procedural default, G.S. 15A-1419, or failure to comply with formal requirements, G.S. 15A-1420.

A. Summary denial 

When the MAR presents only questions of law and it is clear the defendant is not entitled to prevail, the motion is meritless and may be dismissed without any hearing.  State v. McHone, 348 N.C. 254, 258, 499 S.E.2d 761, 763 (1998).  When the facts are in dispute, but the trial court can determine that the defendant is not entitled to prevail even upon the facts asserted, the motion is meritless and may be denied without any hearing on questions of law or fact.  Id.  The MAR court is entitled summarily to dismiss claims that are irrelevant (e.g., claims that even if proven true, would not entitle the defendant to relief) and claims that are without any apparent evidentiary basis (e.g., unsupported assertions).  State v. Allen, 378 N.C. 286, 297, 861 S.E.2d 273, 282 (2021).  The trial court does not err by summarily denying an MAR not supported by affidavit or other documentary evidence.  See State v. Payne, 312 N.C. 647, 668, 325 S.E.2d 205, 219 (1985); State v. Rhue, 150 N.C. App. 280, 290, 563 S.E.2d 72, 79 (2002).

Summary denial is improper when allegations, if true, would entitle the defendant to relief.  See Allen, 378 N.C. at 297, 861 S.E.2d at 281 (“When the factual allegations would entitle the defendant to relief if true, and the defendant’s filings provide some evidentiary basis for the allegations, then the MAR court must conduct an evidentiary hearing”); see also State v. Jackson, 220 N.C. App. 1, 6, 727 S.E.2d 322, 328 (2012).

B. Evidentiary Hearing  

The court must determine whether an evidentiary hearing is required to resolve questions of fact.  G.S. 15A-1420(c)(1).  An evidentiary hearing is not required when the MAR is made pursuant to G.S. 15A-1414 (i.e., within ten days of judgment), but the court may hold an evidentiary hearing if it is appropriate to resolve questions of fact.  G.S. 15A-1420(c)(2). The court must determine the MAR without an evidentiary hearing when the motion and supporting and opposing information present only questions of law.  G.S. 15A-1420(c)(3).  The defendant has no right to be present at a hearing where only questions of law are to be argued.  Id.

If the court cannot rule upon the MAR without hearing evidence, it must conduct a hearing for the taking of evidence.  G.S. 15A-1420(c)(4).  The rules of evidence apply at an evidentiary hearing on an MAR.  State v. Howard, 247 N.C. App. 193, 211, 783 S.E.2d 786, 798 (2016).

As a general matter, unless an MAR presents only questions of law, the motion’s principal purpose is to obtain an evidentiary hearing.  Howard, 247 N.C. App. at 208, 783 S.E.2d at 797.  Accordingly, the trial court errs by granting an MAR absent an evidentiary hearing where resolution of the claims depends on credibility determinations which cannot be made unless evidence and witnesses are actually before the trial court.  Id. at 211, 783 S.E.2d at 798.

C. Burdens

If an evidentiary hearing is held, the moving party has the burden of proving by a preponderance of the evidence every fact essential to support the MAR.  G.S. 15A-1420(c)(5); State v. Howard, 247 N.C. App. 193, 207, 783 S.E.2d 786, 796 (2016).  A defendant who seeks relief by MAR must show the existence of the asserted ground for relief.  G.S. 15A-1420(c)(6).  Relief must be denied unless prejudice appears, in accordance with G.S. 15A-1443.  G.S. 15A-1420(c)(6); cf. State v. Bush, 307 N.C. 152, 167, 297 S.E.2d 563, 573 (1982) (“Even after a showing by the defendant that the asserted ground for relief existed, the Superior Court was still required . . . to deny him any relief unless prejudice appears[.]”). 

For nonconstitutional errors, the defendant is prejudiced when there is a reasonable possibility that, but for the error, a different result would have been reached at trial.  For constitutional errors, a violation is presumed to be prejudicial unless the court finds it was harmless beyond a reasonable doubt.  The burden is on the State to show harmlessness.  G.S. 15A-1443.

VII. The Trial Court’s Order

The court must rule on the MAR and enter its order.  G.S. 15A-1420(c)(7).

1. Findings.  If the court conducts an evidentiary hearing, it must make findings of fact.  G.S. 15A-1420(c)(4).  The trial court should base its determinations only upon competent evidence.  Howard, 247 N.C. App. at 211, 783 S.E.2d at 798.

2. Conclusions.  When the MAR is based upon an asserted violation of the defendant’s constitutional rights, the court must make “conclusions of law and a statement of the reasons for its determination to the extent required . . . to indicate whether the defendant has had a full and fair hearing on the merits of the grounds so asserted.”  G.S. 15A-1420(c)(7); cf. State v. McHone, 348 N.C. 254, 257, 499 S.E.2d 761, 762 (1998) (“summary denial without conclusions and a statement of the trial court's reasoning is not proper where the defendant bases his motion upon an asserted violation of his constitutional rights.”).

3. Future Gatekeeping.  G.S. 15A-1419 does not give a trial court the authority to enter a gatekeeping order declaring in advance that a defendant may not, in the future, file an MAR; the determination regarding the merits of any future MARs must be decided based on that MAR.  State v. Blake, 275 N.C. App. 699, 714, 853 S.E.2d 838, 848 (2020).

VIII. Appellate Review

A. Within 10 Days of Judgment

The grant or denial of relief pursuant to G.S. 15A-1414 (i.e., defendant’s MAR made within ten days of judgment) is subject to appellate review only in an appeal regularly taken.  G.S. 15A-1422(b); see also State v. Thomsen, 369 N.C. 22, 26, 789 S.E.2d 639, 643 (2016) (this may preclude appellate review by writ of certiorari).  The Court of Appeals has held that a defendant must give separate notice of appeal from the denial of an MAR made within ten days of judgment.  See State v. Slaughter, 285 N.C. App. 529, 533, 878 S.E.2d 163, 166 (2022); State v. Hagans, 188 N.C. App. 799, 806, 656 S.E.2d 704, 709 (2008).

B. Beyond 10 Days of Judgment

The court’s grant or denial of relief sought pursuant to G.S. 15A-1415 is subject to review (1) if the time for appeal from the conviction has not expired, by appeal, (2) if an appeal is pending when the ruling is entered, in that appeal, (3) if the time for appeal has expired and no appeal is pending, by writ of certiorari.  G.S. 15A-1422(c).  In other words, if the time for appeal from the judgment of conviction has expired and no appeal is pending, the defendant lacks a statutory right to appeal from the denial of his MAR.  E.g., State v. Morgan, 118 N.C. App. 461, 463, 455 S.E.2d 490, 491 (1995); State v. Harris, 115 N.C. App. 42, 46, 444 S.E.2d 226, 228 (1994).

1. From District Court.  There is no right to appeal from the denial of an MAR when the movant is entitled to a trial de novo upon appeal.  G.S. 15A-1422(d).

2. State’s appeal.  Notwithstanding G.S. 15A-1422(c), the State has a statutory right to appeal when the court grants a motion for a new trial on the basis of newly discovered evidence.  G.S. 15A-1432(a)(2) (appeal from district court); 15A-1445(a)(2) (appeal from superior court); see also State v. Carver, 277 N.C. App. 89, 95, 857 S.E.2d 539, 544 (2021) (State lacked right to appeal relief granted based on newly discovered evidence and ineffective assistance of counsel); State v. Peterson, 228 N.C. App. 339 (2013).

C. MARs During Appeal

1. MAR in the Appellate Division.  When a case is in the appellate division for review, an MAR under G.S. 15A-1415 must be made in the appellate division.  G.S. 15A-1418(a).  The appellate court must decide whether it is necessary to remand the matter to the trial court for taking evidence or conducting other proceedings.  Id. at (b).  The order of remand must provide that the time periods for perfecting or proceeding with the appeal are tolled and direct that the order of the trial court with regard to the MAR be transmitted to the appellate division so that it may proceed with the appeal or enter an appropriate order terminating it.  Id. at (c).

2. MAR in the trial court after appeal taken.  The trial court lacks jurisdiction to rule on an MAR after the trial court’s jurisdiction is divested and while appeal is pending.  State v. Williams, 177 N.C. App. 725, 731, 630 S.E.2d 216, 221 (2006).