411.1Motions for Appropriate Relief
- A motion for appropriate relief (or “MAR”) is a motion to correct a purported error in the legal proceedings, and asks the court for relief such as vacating a conviction or ordering a new trial.
- There are statutory limits on both the time when an MAR may be filed, and the alleged errors which may be challenged in it.
- MARs are used primarily by defendants, but the state and the judge are also authorized to use them in certain circumstances, or they can be done by agreement of the parties.
- A hearing on the motion is usually required to resolve material factual disputes, but not for purely legal disputes.
- A district or superior court’s ruling on an MAR can be appealed in some circumstances, subject to statutory limitations.
A motion for appropriate relief, usually referred to as an “MAR,” is a motion filed after a guilty plea, verdict, or sentencing to correct an error that occurred before, during, or after the criminal proceeding. See State v. Handy, 326 N.C. 532 (1990). The statutes governing MARs are found in Article 89 of Chapter 15A (G.S. 15A-1411 through 1422). The purpose of enacting the MAR statutes was to simplify and replace the wide assortment of other motions (arrest judgment, set aside verdict, and so on, but notably not replacing writs of habeas corpus) which were previously used to seek post-conviction relief. See State v. Bush, 307 N.C. 152 (1982); see also the related entry on Writs of Habeas Corpus.
The statutes governing MARs are complex and detailed, and a comprehensive discussion of this type of post-conviction relief is beyond the scope of this entry. For more detailed information, prosecutors should consult the various other "Related Resources" linked with this entry, but a brief summary of the relevant law is provided here for general reference.
Motion for Appropriate Relief by the Defense
- Filed Within 10 Days of Judgment
Under G.S. 15A-1414, the defendant may file an MAR within 10 days of entry of judgment (even if notice of appeal has already been entered) seeking relief for “any error” that occurred during the trial. Alleged errors might include ineffective assistance of counsel, the court’s erroneous failure to dismiss charges, erroneous jury instructions, erroneous rulings on other matters of law, a sentence not supported by evidence, or any other cause which prevented the defendant from receiving a fair and impartial trial. See G.S. 15A-1414(b). MARs filed under this statute may be acted upon by the trial court even if a notice of appeal has already been given. See G.S. 15A-1414(c).
- Filed at Any Time
Under G.S. 15A-1415, the defendant may file an MAR at any time after verdict (except in capital cases, which do have an outer time limit), but may only seek relief based on the specific grounds enumerated by the statute, which include lack of jurisdiction of the trial court, a significant change in the law, the sentence imposed was unauthorized, the conviction was in violation of the constitution, the acts charged did not constitute a violation of a criminal law, and other similar grounds (including ineffective assistance of counsel). See G.S. 15A-1415(b), (e). The defendant may also file an MAR under this statute on the grounds that newly discovered evidence entitles him or her to some relief, as long as the motion is filed within a reasonable time after the discovery of the evidence. See G.S. 15A-1415(c). MARs based on newly discovered evidence must be filed in the appellate division if the case is already on appeal and the trial court has been divested of jurisdiction. See G.S. 15A-1418(a).
Motion for Appropriate Relief by the State
- Filed Within 10 Days of Judgment
After the verdict but not more than 10 days after entry of judgment, the state may seek appropriate relief for any error it would be able to argue on appeal. See G.S. 15A-1416(a). This applies to “appeals” from district to superior court, as well as appeals from superior court to the Court of Appeals. For more information on the grounds which can support an appeal by the state, see the related entry on State’s Right to Appeal.
- Filed at Any Time
At “any time after verdict,” the state may move for appropriate relief to: (i) impose sentence in a case where prayer for judgment was continued, if the grounds for now imposing a sentence are asserted; or (ii) initiate a proceeding authorized under Article 82 (Probation), Article 83 (Imprisonment), or Article 84 (Fines) regarding modification of a sentence. See G.S. 15A-1416(b). If the state seeks to modify a sentence under this statute, then “the procedural provisions of those Article are controlling.” Id.; see, e.g., G.S. 15A-1344 (modification of probation); G.S. 15A-1363 (remission of fines).
Motion for Appropriate Relief by Agreement
G.S. 15A-1420(e) was added in 2012, and it states that nothing in this section is intended to prevent the parties of an action (i.e., the state and the defendant) from entering into an agreement regarding "any aspect, procedural or otherwise" of a motion for appropriate relief. Apparently this statute would allow an MAR on any grounds and at any time, as long as both parties consent. See generally State v. Chevallier, 264 N.C. App. 204 (2019) (noting that alleged error for multiple convictions was not properly argued on appeal and thus was not before the appellate court, but this did not bar defendant seeking relief by other means, including an MAR by agreement).
Why would the state agree to that?
There is very limited appellate case law interpreting this provision, but it might be useful in cases where the state agrees that some relief is appropriate, but the grounds do not fit squarely within the normal statutes. For example, it could be used in a case where the state agrees that the sentence imposed after trial was not supported by the evidence, but more than 10 days have already passed since entry of that judgment. Rather than go through a lengthy and unnecessary appeal process, the state might prefer to consent to an MAR and agree to a new sentencing hearing while the facts of the case are still fresh in the judge’s mind.
Motion for Appropriate Relief by the Court
Pursuant to G.S. 15A-1420(d), the court may grant relief “upon its own motion” at any time that a defendant would be entitled to a motion for appropriate relief. (See Section A, above). The court must give appropriate notice to the parties before acting under this statute. See G.S. 15A-1420(d). Notably, this statute does not have a corresponding authorization that would also allow the court to act on its own motion at any time that the state would be authorized to act (e.g., more than 10 days after judgment and for the purpose of imposing judgment in a case where judgement was previously continued). See G.S. 15A-1416(b).
Procedure and Available Relief
An MAR must be in writing (unless it is made orally, in open court, before the ruling judge, and within 10 days of judgment), state the grounds for the motion, set forth the relief sought, and be timely filed. See G.S. 15A-1420(a). The motion must be filed with the clerk of court in the district where the defendant was indicted, and be served on the district attorney. See G.S. 15A-1420(b1). The clerk must put the matter on the calendar, and promptly bring it to the attention of the senior resident superior or district court judge. See G.S. 15A-1413. The senior judge will assign the MAR to a trial judge for review and appropriate administrative action, which may include dismissal of frivolous motions, appointing counsel, directing the opposing party to file an answer, or scheduling a hearing,. See G.S. 15A-1420. Under G.S. 15A-1420(a)(4), an MAR in district court may not be granted without a signature from the district attorney, indicating that the district attorney has been given an opportunity to consent or object to the motion; however, the motion may be granted even without the district attorney’s signature 10 business days after notice or service of the motion.
When a defendant is represented by counsel on an MAR in superior court, the state is required to make available, to the extent allowed by law, the complete files of law enforcement and prosecutorial agencies involved in the investigation and prosecution of the case. See G.S. 15A-1415(f). Defendant’s trial counsel is likewise required to share his or her “complete files” with counsel for defendant on the MAR, if it is not the same attorney. Id.
If the MAR is not summarily denied by the court on procedural or legal grounds (untimely, frivolous, improper form, issue already resolved in prior MAR, issue could have been raised in previous MAR but defendant failed to do so, etc.), then the court may schedule the matter for hearing. See G.S. 15A-1420(c)(1) (parties usually entitled to a hearing unless MAR is “without merit”). Whether the MAR has “merit” appears to mean that the allegations in the motion, if true, would entitle the defendant to some relief. See State v. Jackson, 220 N.C. App. 1 (2012). But when an MAR presents only issues of law (rather than any genuine and material questions of fact), the court must resolve the motion without a hearing. See G.S. 15A-1420(c)(3); State v. McHone, 348 N.C. 254 (1998). If the court conducts an evidentiary hearing, the defendant has a waivable right to be present. See G.S. 15A-1420(c)(4). The defendant has no right to be present if only questions of law are being argued. See G.S. 15A-1420(c)(3).
The moving party bears the burden of proof in the hearing, which means that the party must establish necessary facts to justify relief by a preponderance of the evidence. See G.S. 15A-1420(c)(5); State v. Howard, 247 N.C. App. 193 (2016). The defendant must show the existence of prejudice in accordance with G.S. 15A-1443 (same standard used for showing prejudice on appeal), or else the relief must be denied. See G.S. 15A-1420(c)(6). The rules of evidence do apply at an MAR hearing. See G.S. 8C-1, Rule 101, Rule 1101; Howard, 247 N.C. App. at 211.
The judge must rule on the motion and enter an order, and if an evidentiary hearing was held, the judge must make findings of fact. See G.S. 15A-1420(c). If the judge decides to grant the MAR, the relief ordered may include any of the following: (i) new trial; (ii) dismissal of charges; (iii) relief sought by the state under G.S. 15A-1416; (iv) referral to the North Carolina Innocence Commission; or (v) any other appropriate relief. See G.S. 15A-1417(a).
Appeal of the Court’s Ruling on MAR
- From District Court
If the district court denies the defendant’s MAR, there is no right to appeal since the defendant is entitled to seek trial de novo in superior court anyway. See G.S. 15A-1422(d).
If the court grants the MAR, and if the relief granted includes a dismissal of charges or vacating a conviction, then the state may appeal through a written motion to the superior court within 10 days, based on the statutory authorization of G.S. 15A-1432(a)(1) (state’s right to appeal from any “decision” or judgment dismissing a charge or count), and the state may also be permitted to appeal through a discretionary writ of certiorari to superior court. See generally State v. Peterson, 228 N.C. App. 339 (2013) (direct appeal); State v. Thomsen, 369 N.C. 22 (2016) (writ of certiorari).
MAR on a felony plea in district court?
If a defendant files an MAR challenging a felony plea that was entered in district court, at least one unpublished decision has concluded that an appeal from that ruling must be made to the Court of Appeals, rather than to superior court as indicated by G.S. 15A-1432. See State v. Baker, 247 N.C. App. 398 (2016) (unpublished). The Baker court reasoned that since a district court judge who hears such a motion is acting "in the same manner as a superior court judge would be authorized to act if the plea had been entered in superior court" pursuant to G.S. 7A-272(d), any "appeals that are authorized in these matters are to the appellate division." Prosecutors who wish to appeal this type of MAR ruling should review Baker and the applicable statutes before deciding where to file the appeal.
- From Superior Court
If the defendant seeks relief through an MAR filed under G.S. 15A-1414 within 10 days of judgment, then appellate review of the ruling on that motion can only be sought as part of a regularly taken appeal. See G.S. 15A-1422(b). If defendant seeks relief more than 10 days after judgment on an MAR filed under G.S. 15A-1415, the avenues to appeal depends on timing. If the time to file an appeal has not yet expired, then review must be sought through a regular appeal. See G.S. 15A-1422(c)(1). If an appeal is already pending, then review of the MAR decision is through that same appeal. See G.S. 15A-1422(c)(2). If the time for filing an appeal has already expired, then review is only available through a writ of certiorari. See G.S. 15A-1422(c)(3).
The three paths to review just described apply regardless of whether the state or defendant prevailed on the MAR. See State v. Stubbs, 368 N.C. 40 (2015) ("given that the General Assembly has placed no limiting language in subsection 15A–1422(c) regarding which party may appeal a ruling on an MAR, we hold that the Court of Appeals has jurisdiction to hear an appeal by the State of an MAR when the defendant has won relief from the trial court"); see also State v. Thomsen, 369 N.C. 22 (2016) (similar ruling applied to MAR granted sua sponte by the court). But the state also has another avenue for seeking review in the Court of Appeals under G.S. 15A-1445, which allows the state to appeal a superior court order dismissing charges or granting a new trial, and therefore it can also appeal the court’s ruling on an MAR which orders such relief. See State v. Peterson, 228 N.C. App. 339 (2013).
If the MAR was filed by the state, by agreement, or upon the court’s own motion (as opposed to an MAR filed by the defense), then the statutes do not provide a clear right to appellate review, but it may still be allowed on a writ of certiorari. See State v. Thomsen, 369 N.C. 22 (2016) (explaining that in the absence of a clear revocation of its general authority, the appellate court has discretion to issue writs of certiorari for the purpose of regulating the proceedings of the trial courts); State v. Ledbetter, 371 N.C. 192 (2018) (holding that the Court of Appeals could issue writ of certiorari without suspending rules for extraordinary circumstances – the default rules control unless a more specific statute restricts jurisdiction for the particular class of cases at issue).
- From Court of Appeals
When the same grounds asserted in an MAR are also being argued as part of a normal appeal filed within 10 days, the denial of the MAR does not affect the right to “assert error on appeal.” See G.S. 15A-1422(e). Therefore, even if the MAR is denied, the disputed issue could potentially still be argued through the normal appellate process up to the N.C. Supreme Court, if otherwise allowed (e.g., based on a dissent or discretionary review). See G.S. 7A-31; G.S. 7A-32.
By statute, the decision of the Court of Appeals on an MAR filed more than 10 days after judgment is “final, and not subject to further review by appeal, certification, writ, motion, or otherwise.” See G.S. 15A-1422(f); G.S. 7A-28; G.S. 7A-31(a). However, the North Carolina Supreme Court has previously held in a similar context that statutes cannot restrict its ability “to exercise jurisdiction to review upon appeal any decision of the courts below,” so presumably it could apply the same standard to North Carolina Rules of Appellate Procedure, Rule 21(e) and consider a petition for writ of certiorari on an MAR. See State v. Ellis, 361 N.C. 200 (2007) (“it is beyond question that a statute cannot restrict this Court's constitutional authority under Article IV, Section 12, Clause 1 of the Constitution of North Carolina to exercise jurisdiction to review upon appeal any decision of the courts below.")