Ncpls Access Newsletter October 2008
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The Newsletter of North Carolina Prisoner Legal Services, Inc. NCPLS Volume VIII, Issue 3, October 2008 ACCESS The Facts Regarding a Convicted Felon’s Voting Rights in North Carolina By NCPLS Staff Attorney Michael G. Avery There are many myths and mis- eral Statute §163-59 specifically Although a convicted felon does understandings surrounding a provides that “any person adjudged lose his or her right to vote in North convicted felon’s right to vote. guilty of a felony against this State Carolina, the loss is only temporary Unfortunately, many believe that or the United States, or adjudged and is automatically restored upon having a felony record the completion of incarceration, absolutely prohibits one probation or parole. Other from participation in the than registering to vote, a electoral process. Considresponsibility which all citizens ering the historic presidenmust do in order to vote, there is tial race currently taking no specific process to endure or place, it is of the utmost paperwork to complete to have importance that those with one’s voting rights restored. a felony record understand the differences between fact and fiction. guilty of a felony in another state In this Issue: that also would be a felony if it had The U.S. Constitution is silent with been committed in this State, [shall The Facts Regarding a Convicted Felon’s Voting Rights in North regard to whether a person connot be allowed to vote] unless that Carolina 1 victed of a felony loses the right person shall be first restored to the to vote. As a result, the decision is rights of citizenship in the manner NCPLS Welcomes New Board of left up to the individual States as to Directors 2 prescribed by law. whether and to what extent a felon’s Safe and Humane Jails Project right to vote is restricted. The dif- In order to have one’s citizenship The Receives Grant and Completes ferences can range from a lifetime rights restored, North Carolina Mental Health Information Manual 3 prohibition to no restrictions what- General Statute §13-1 provides that soever, including granting felons any person convicted of a crime, What North Carolina Bar v. Nifong Was Not 4 the right to vote while incarcerated, whereby the rights of citizenship all depending upon which State are forfeited, shall have such rights State Habeas Petition Challenging Nonexistent Charge Wins Client’s one resides. Source: Legal Action automatically restored upon the Release 5 Center. “After Prison: Roadblocks . . . unconditional discharge of an to Re-Entry—A Report on State inmate by the State Department of Proof of Citizenship Gains Release for NCPLS Clients & Cancellation of Legal Barriers Facing People with Correction or the North Carolina Detainer 5 Criminal Records.” New York, Department of Correction, of a NY: Legal Action Center, 2004 probationer by the State Department NCPLS Secures Compensation for Injured Inmates 6 North Carolina is one of eighteen of Correction, or of a parolee by states which prohibits people from the Department of Correction; or Criminal Conviction and Gun Ownership 7 voting while they are incarcerated, of a defendant under a suspended on parole, or serving probationary sentence by the court. NCPLS Client Receives Major Sentence Reduction 10 sentences. North Carolina Gen- NCPLS ACCESS Page 2 ACCESS is a publication of North Carolina Prisoner Legal Services, Inc. Established in 1978, NCPLS is a non-profit, public service organization. The program is governed by a Board of Directors who are designated by various organizations and institutions, including the North Carolina Bar Association, the Academy of Trial Lawyers, the ACLU of North Carolina, and the Office of Indigent Defense Services. NCPLS serves a population of more than 38,600 prisoners and 14,000 pretrial detainees (with about 250,000 annual admissions), providing information, advice, and representation in all State and federal courts to ensure humane conditions of confinement and to challenge illegal convictions and sentences. Executive Director J. Phillip Griffin Editor Ken Butler Publisher Mike Pearson Please Note: ACCESS is published four (4) times a year. Articles, ideas and suggestions are welcome. Contact: ncpls@ncpls.org Volume VIII, Issue 3, October 2008 NCPLS Welcomes New Board of Directors The Board of Directors for NCPLS has recently been reconstituted, following discussions between the Office of Indigent Defense Services (IDS) and the managing staff of NCPLS. NCPLS is pleased to recognize the following individuals who have offered to give their time and service to our program by acting as Directors: Ronald Steven Douglas, Assistant Dean NCCU School of Law. Dean Douglas is the current Chairman of the Board of Directors. Defender for Wake County. He is a 1995 graduate of the University of Miami School of Law. Mr. Klinkosum is an active participant in the N.C. Advocates for Justice and is the author of the North Carolina Criminal Defense Motions Manual. Carlos Mahoney – Mr. Mahoney is an attorney in Durham with the firm of Glenn, Mills, Fisher and Mahoney. He is a 1999 graduate of the UNC School of Law. He most recently served as counsel for Erick Daniels who was wrongfully convicted in Durham for armed robbery. On September 20, 2008, after hearing evidence presented by Mr. Mahoney, Judge Orlando Hudson threw out Mr. Daniels’ conviction and ordered his release from prison. Keith Faulkner - Mr. Faulker is the Executive Associate Dean for Administrative and Academic Affairs Norman Adrian Wiggins School of Law at Campbell University. He was appointed by the North Carolina Bar Association as its representative to the Board. Elaine M. Gordon – Ms. Gordon is a staff attorney for the N.C. Center Katherine Parker – Ms. Parker is the for Death Penalty Litigation. The Executive Director of the ACLU of CDPL is a non-profit law firm North Carolina. She is also the located in Durham, N.C., which Chair of the Civil Rights Section provides both direct representaof the N.C. Advocates for Justice tion to inmates on North Carolina’s (formerly the North Carolina Acad- death row, and consultation to attoremy of Trial Lawyers). She serves neys working in the field of capital as the ACLU’s representative on the punishment litigation. Board. Darryl Hunt – Mr. Hunt was conBrad Bannon – Mr. Bannon is an victed for a 1984 rape/murder in attorney in Raleigh with the firm of Winston-Salem, N.C. He spent Cheshire, Parker, Schneider, Bryan nearly 20 years in prison before & Vitale and a 1997 graduate of the finally being exonerated and freed. Campbell Law School. He is per- Following his release, he founded haps best known for his recent suc- the Darryl Hunt Project for Freecess as one of the defense attorneys dom and Justice. He speaks around in the Duke Lacrosse case. the country on issues related to wrongful convictions and offender Maitri “Mike” Klinkosum – Mr. (Continued on Page 6) Klinkosum is an Assistant Public Volume VIII, Issue 3, October 2008 NCPLS ACCESS Page 3 The Safe and Humane Jails Project Receives Grant and Completes Mental Health Information Manual By NCPLS Staff Attorney Michele Luecking-Sunman The Safe and Humane Jails Project is community services, and while what we hope will be a continucontinually searching for new ways states cut their budgets for mental ing conversation in identifying and to ensure that North Carolina’s jails hospitals, they did not make com- treating those with mental illness in are safer and more humane. In 2007 mensurate increases in their bud- jails. In October we will attend the the Project applied for and received gets for community-based mental North Carolina Jail Administrator’s a grant from the North Carolina Bar health services. The share of state Conference to discuss the manual Foundation to write a manual to spending devoted to mental health with the attendees and continue the instruct Jail Administrators and their actually dropped by 15 percent from dialogue. We hope the manual will staff on the law and best practices in 1990 to 1997.2 assist officials in carrying out their dealing with men and women who duties and ultimately benefit men have mental illnesses in jails. The Because of the problems plaguing and women housed in county jails manual, Identifying and Treating community mental health systems who need access to mental health People with Mental Illness in and the limitations on public fund- services. North Carolina’s Jails: A Practi- ing for mental health services,3 cal Approach, was completed this many people who need publicly (Footnotes) 1 summer and was mailed to every financed mental health services Richard Lamb and Linda Weinberger, “Persons With Severe Mental Illness Jail Administrator in the state. cannot obtain them until they are in Jails and Prisons: A Review,” in an acute psychotic state and are Psychiatric Services, vol. 49, pp. As we prepared to write the manual deemed to be a danger to them- 483-492, 1998. In Richard Lamb and we traveled the state and spoke with selves or others.4 Persons with Leona Bachrach, “Some Perspectives jail administrators, nurses, mental mental illness who have prior crimi- on Deinstitutionalization,” Psychiatric health professionals and inmates. nal records or histories of violence Services, August 2001, vol. 52, no. 8, the authors estimated the number of occupied We reached out to organizations have exceptional difficulty getting state hospital beds had fallen as low as 21 both similar to and different from access to treatment, as many mental per 100,000. our own and made countless phone health programs simply will not 2 Bazelon Center for Mental Health Law. Under Court Order: What the calls to people who might have an accept them. Community Integration Mandate Means idea about how to confront one of the most daunting problems facing To confront these issues we endeav- for People with Mental Illnesses (1999). See American Bar Association, Section of jails today, how to identify and treat ored to make the manual as brief Criminal Justice, Report to the House of people with mental illness who and as user friendly as possible. It Delegates, p.3. come to be housed in a corrections is comprised of seven chapters and 3 For example, federal funding of setting. includes information about how community-based mental health services jails have come to house those with is greatly diffused, spread across The problems surrounding this issue mental illnesses, the legal require- numerous mandatory and discretionary programs. Within Medicaid, communityare large. Beginning in the early ments jails must meet in treating based mental health services run through 1960s, states began to downsize mental illness, the law that is spe- more than six separate optional service and close their public mental health cific to North Carolina, programs categories. Moreover, the complicated hospitals in response to social and in North Carolina, model projects federal scheme relies on numerous state legal reforms. Between 1955 and across the country, specific warning and local funding streams. The inevitable 1998, the rate of persons in mental signs for suicide, funding opportu- result is a complex, confusing patchwork of programs, with fragmented services hospitals declined from 339 to 29 nities and contact information for at the community level - a system that is per one hundred thousand persons.1 local and national organizations that especially difficult for Medicaid recipients Following this “deinstitutionaliza- deal with mental health issues. with mental illness. See NAMI, Medicaid tion,” the federal government did (Continued on Page 4) not provide ongoing funding for This manual is the beginning of NCPLS ACCESS Page 4 Volume VIII, Issue 3, October 2008 The Safe and Humane Jails Project Receives Grant and Completes Mental Health Information Manual (Continued) (Continued from Page 3) Funding of Mental Illness Treatment, http://www.nami.org/Content/ ContentGroups/Policy/Issues_Spotlights/ Medicaid_Funding_of_Mental_illness_ Treatment1.htm, accessed on January 4, 2008. 4 Because of the restricted access to community services, the phenomenon of “mercy arrests” has arisen in which police officers arrest manifestly psychotic individuals because they know that it is easier to channel them into treatment once they enter the criminal justice system than it is to find them hospital space, or even counseling at a community service institution. What North Carolina Bar v. Nifong Was Not By Katherine E. Jean “withheld” evidence by not presenting the defendant’s alibi evidence or the defendant’s side of the story to the jury. Since the trial of North Carolina State Bar v. Nifong in June of 2007, the Office of Counsel has received scores of letters from convicted criminal defendants claiming they were “Nifonged” and demanding that We also receive complaints from the State Bar secure their immediate inmates saying they were “Nifonged” release from prison. because the prosecutor had an improper motive to prosecute them. One such complaint came from a man who was arrested while commit- These are just a few of the ways in ting a robbery which was captured which the Nifong case is invoked in on videotape. He was prosecuted support of propositions for which many years ago in far western North it does not stand. Nifong was not Carolina by someone other than about whether there was sufficient Mike Nifong. The prosecutor made evidence to justify prosecuting the no statements to the media. DNA Duke lacrosse defendants. When we did not play a role in his trial. There filed the complaint on December 28, was no allegation of discovery abuses 2006, and the amended complaint or lying to the court. So how was on January 24, 2007, we had no way he “Nifonged?” Just like the Duke of knowing what the evidence at an lacrosse defendants, he said, he is eventual criminal trial might be. The innocent. attorney general did not declare the lacrosse defendants innocent until We also receive complaints April 11, 2007, two months before from inmates who say they were the disciplinary trial began. We were “Nifonged” because the prosecutor not, as so many erroneously believe, “withheld evidence.” When we look asking the Disciplinary Hearing behind this allegation, it often turns Commission to interpose its judgout the inmate is not complaining ment for that of a judge who might that the prosecutor failed to turn allow the criminal case to go to a over discoverable evidence. He is jury. complaining that the prosecutor Nor were we asking the DHC to substitute its judgment for that of a jury that might have found guilt beyond a reasonable doubt. Nifong was not charged with failure to present both sides of the case to a jury. There was never an occasion in the criminal case to present evidence to a finder of fact. Furthermore, the Rules of Professional Conduct do not require a prosecutor to present a defendant’s alibi evidence or other story to the jury. The defendant can do that by presenting his own witnesses or testifying in his own behalf. The State Bar did not charge Nifong with having an improper motive for the prosecution. Certainly, the State Bar presented substantial evidence that Nifong’s motive for pursuing charges against the Duke lacrosse defendants was to bolster his prospects in a close election. However, that evidence was not offered to prove a separate rule violation; it was offered to explain why Nifong engaged in conduct that otherwise seemed inexplicable. After a five day trial, the DHC found (Continued on Page 6) Volume VIII, Issue 3, October 2008 NCPLS ACCESS Page 5 State Habeas Petition Challenging Nonexistent Charge Wins Client’s Release On September 22, 2008, the N.C. Court of Appeals allowed the petition for writ of habeas corpus filed by NCPLS staff attorney Hoang Lam on behalf of inmate Sammie Love. Moreover, the appellate court ordered Mr. Love’s immediate release from custody. Mr. Love had been indicted on July 8, 1996 of several drug charges based on allegations that a minor had sold cocaine for him. On October 24, 1996, he stood trial, without counsel, and testified that he was innocent. He was convicted by a jury of a misdemeanor and the following three felonies: (1) trafficking, (2) conspiracy to traffic, and (3) employing a minor to traffick by possession. He received three consecutive sentences: 35 to 42 months for trafficking, 35 to 42 months for the felony conspiracy and the misdemeanor charge, and 90 to 117 months for the third felony, employing a minor to traffick by possession. He was unsuccessful in attempting to obtain relief through direct appeal, motions for appropriate relief, petitions to the state appellate courts, through federal habeas relief. of 90 to 117 months. Upon review of the case, NCPLS attorneys concluded that the applicable law did not criminalize the act of employing a minor to traffick in cocaine by possession, thus making his last sentence unlawful. N.C. Gen. Stat. § 90-95.4. The illegality of his conviction and sentence had not previously been raised in his prior appeal, motions, and petitions. Although the State filed a response opposing the habeas petition by NCPLS and Mr. Love, the State did When he wrote to NCPLS this not appeal the court’s order allowyear asking for review of his case, ing the petition and mandating his he had served more than 11 years release. As a result, Mr. Love was and was serving his last sentence immediately released. Proof of Citizenship Gains Release for NCPLS Clients & Cancellation of Detainer By NCPLS Staff Attorney Hoang Lam Through NCPLS representation, two North Carolina inmates were recently able to prove their U.S. citizenship, acquired through their parents. In one case, an inmate who completed his North Carolina sentence had been placed in immigration detention in Georgia for two months, and was scheduled for deportation to Germany where he had been born out-of-wedlock. Unbeknownst to the immigration authorities, the inmate’s father is a U.S. citizen and legitimated the inmate through a subsequent marriage to the inmate’s mother. Upon receiving that inmate’s request for assistance, we collected documents from his parents, drafted affidavits, and presented the case to Immigration and Customs Enforcement (ICE). Within one day of our communication with ICE, the client was released and his pending deportation proceedings were later terminated. In the second case, the inmate was born in Canada to a U.S. citizen mother. However, ICE placed an immigration detainer on the inmate. Although the inmate was eligible for parole and had entered a MAPP contract, the N.C. Department of Correction revoked the contract because of the immigration detainer. We again presented the case to ICE with supporting documents, and the detainer was cancelled. As a result, the client now has the chance to work out another MAPP contract, under which he might eventually secure his release. NCPLS ACCESS Page 6 Volume VIII, Issue 3, October 2008 NCPLS Secures Compensation for Injured Inmates NCPLS staff attorneys recently succeeded in obtaining financial compensation for two clients. In July we were able to settle a case alleging the use of excessive force case against an inmate. Our client suffered a broken leg after force was used against him by prison guards. The case had previously gone to trial in the Eastern District Federal Court and resulted in a mistrial with one juror holding out for our client. We were able to mediate the case after the mistrial and our client settled his case for $12,000. Full Commission of the North Carolina Industrial Commission. Our client suffered stab wounds after two unauthorized inmates were let into his cell and assaulted him. The client was awarded $5,000 by the Industrial Commission. In August we received word that we were successful in an appeal to the NCPLS Welcomes New Board of Directors (Continued) (Continued from Page 2) re-entry. His case was the subject of an award winning film “The Trials of Darryl Hunt.” Christine Mumma – Ms. Mumma is the Executive Director of the North Carolina Center on Actual Innocence. She represented former News & Observer’s 2007 Tar Heel DOC inmate Dwayne Dail in of the Year. obtaining exoneration and release from a rape conviction for which he had spent 18 years in prison. She has been a leading force in seeking to reduce wrongful convictions in North Carolina and was named the What North Carolina Bar v. Nifong Was Not (Continued) (Continued from Page 4) and concluded that Nifong violated multiple Rules of Professional Conduct by making improper statements to the media, failing to comply with obligations imposed on him by statute and court order to provide discovery, and lying to the court. For this misconduct, Nifong was disbarred. That is what North Carolina State Bar v. Nifong was about. Katherine Jean is counsel and assistant executive director of the North Carolina State Bar. This article originally appeared in the Fall 2008 issue of the North Carolina State Bar Journal. It is reprinted here with the permission of the author and the State Bar. Volume VIII, Issue 3, October 2008 NCPLS ACCESS Page 7 Criminal Conviction and Gun Ownership NCPLS receives many letters from inmates who are concerned about the legal disabilities that they face after release from confinement. One such area concerns restrictions on the ownership or possession of firearms. The ability of a person convicted of criminal offenses to purchase, own, or possess firearms is subject to limitation by both state and federal law. In the past, there were significant differences between the two types of restriction. However, during the past 20 years, North Carolina has been increasingly limiting the rights of offenders to possess firearms to more closely mirror federal restrictions. Federal Restrictions The Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 197 and the Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (GCA68) established broad federal regulation of the interstate trade in firearms, particularly handguns. The Gun Control Act established a list of “prohibited persons” for firearm ownership/ possession purposes, stating that: It shall be unlawful for any person (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year; (2) who is a fugitive from justice; (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act By NCPLS Staff Attorney Ken Butler (21 U.S.C. 802)); (4) who has been adjudicated as a mental defective or who has been committed to a mental institution; intimate partner or child that would reasonably be expected to cause bodily injury, to ship or transport in interstate or (5) who, being an alien, is illegally foreign commerce, or possess in or or unlawfully in the United States; affecting commerce, any firearm (6) who has been discharged or ammunition; or to receive any from the Armed Forces under firearm or ammunition which has been shipped or transported in dishonorable conditions; interstate or foreign commerce. (7) who, having been a citizen of 18 U.S.C. §922(g). In addition the United States, has renounced his to these restrictions, 18 U.S.C. § citizenship; or 922(n) provides makes it unlawful for any person currently under (8) who is subject to a court order indictment for a crime punishable that -by imprisonment greater than one (A) was issued after a year to ship, transport, or receive hearing of which such any firearm or ammunition in interperson received actual state or foreign commerce. notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such State Restrictions North Carolina’s Felony Firearms Act, (NCFFA) became effective on October 1, 1971. The original statute, codified at N.C.G.S. §14415.2, prohibited possession of a firearm by any person previously convicted of a crime punishable by imprisonment of more than two years, but contained an exception for those felons whose civil rights had been restored. Britt v. State 185 N.C.App. 610, 612, 649 S.E.2d 402, 404 (2007). This initial version was repealed in 1975, and the NCFFA was amended and recodified at § 14-415.1, where it remains today. This second version of the law also did not completely ban firearm ownership by persons previously con(Continued on Page 8) Page 8 NCPLS ACCESS Volume VIII, Issue 3, October 2008 Criminal Conviction and Gun Ownership (Continued) (Continued from Page 7) victed of criminal offenses. First, not all crimes resulted in deprivation of the right of gun ownership. The NCFFA specified that the ban applied to those felonies which fell under certain enumerated section of the General Statutes; common law robbery and maiming; and violations of the laws of other states or the federal government which were substantially similar to the North Carolina laws previously listed and which were punishable by more than two years imprisonment. Even for persons who fell within the target statutes, the prohibition only banned the purchase, ownership or possession of any “handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches, or any weapon of mass death and destruction as defined in G.S. 14-288.8(c), within five years from the date of such conviction, or the unconditional discharge from a correctional institution, or termination of a suspended sentence, probation, or parole upon such conviction, whichever is later. N.C.G.S. § 14415.1(a) (1986). Furthermore, the NCFFA stated that “[n]othing in this subsection would prohibit the right of any person to have possession of a firearm within his own home or on his lawful place of business.” Id. Violation of this statute was initially a Class I felony. However, by the effective date of the Structured Sentencing Act, October 1, 1994, it had been raised to a Class H felony. N.C.G.S. § 14-415.1 (1994). ness. In 2004, the NCFFA was further One year later, the penalty had amended and its restriction of fireagain been raised, now to a Class arm ownership / possession was Under this version, G felony. Furthermore, instead of expanded. which took effect December 1, 2004, setting out specific sections of the criminal law which would work a disentitlement, the amended act extended its effect to “[f]elony convictions in North Carolina that occur before, on, or after December 1, 1995,” and comparable convictions from other states or the federal government that were punishable by a prison term exceeding one year. N.C. G.S. § 14-415.1 (1995). The 1995 law still focused on possession or ownership of handguns, and other firearms with a barrel less than eighteen inches, or an overall length of less than twentysix inches. Significantly this version of the NCFFA did not allow for a restoration of gun ownership rights within a five year period after unconditional discharge from imprisonment, parole, or probation. It did, however, retain the right of an individual to keep a gun in his or her home or lawful place of busi- It shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction as defined in G.S. 14-288.8(c). For the purposes of this section, a firearm is (i) any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, or its frame or receiver, or (ii) any firearm muffler or firearm silencer. N.C.G.S. § 14-415.1(a) (2004). This version eliminated the provision allowing for firearm possession in a home or place of business. In 2006, the General Assembly further amended the NCFFA to create an exception for the ownership / possession of “antique firearms.” (Continued on Page 9) Volume VIII, Issue 3, October 2008 NCPLS ACCESS Page 9 Criminal Conviction and Gun Ownership (Continued) (Continued from Page 8) nally related to a legitimate state Under the relevant statutes: a) The term “antique firearm” means any of the following: (1) Any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured on or before 1898. (2) Any replica of any firearm described in subdivision (1) of this subsection if the replica is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition. (3) Any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder substitute, and which cannot use fixed ammunition. (b) For purposes of this section, the term “antique firearm” shall not include any weapon which: (1) Incorporates a firearm frame or receiver. (2) Is converted into a muzzle loading weapon. (3) Is a muzzle loading weapon that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. vidual or group of persons without a trial.) To date, all such challenges have been unsuccessful. See State v. Tanner, 39 N.C. App. 668, 251 S.E.2d 705, appeal dismissed review denied, 297 N.C. 303, 254 S.E.2d 924 (1979) (no equal protection violation where there is a reasonable basis for classification); State v. Johnson, 169 N.C. App. 301, 610 S.E.2d 739, appeal dismissed review denied, 359 N.C. 855, 619 S.E.2d 855 (2005)(challenge to 1995 version of NCFFA. Held that the statute does not violate due process or the prohibitions against ex post facto and bills of attainder). interest, namely the protection of the health, safety and welfare of citizens. Britt, 185 N.C. App. at 614, 649 S.E. 2d at 406. The majority rejected the plaintiff’s contention that the 2004 version of the NCFFA swept too broadly by imposing a permanent and total ban on the possession of any type of firearms, other than antiques. It upheld the statute against plaintiff’s claims of due process, equal protection, ex post facto and bill of attainder. Significantly, Judge Elmore dissented and stated that he would find the 2004 amendments to be unconstitutional. Judge Elmore noted that in earlier cases, interpreting prior versions of the NCFFA, the Court of Appeals had held that the statute was a reasonable regulatory measure, as evidenced by the fact that the law focused only on the types of weapons that were easily concealable and therefore posed greater risk to the public. Furthermore, the earlier statutes contained exceptions for the possession of firearms at one’s home or business. In Judge Elmore’s mind, the newer amendments’ total ban crossed the line from permissible regulation into unconstitutional punishment, which would violate ex post facto and constitute a bill of attainder. Judge Elmore also found that the new statute’s total ban deprived plaintiff of his constitutional right to bear arms without due process where it was not a “reasonable” regulation. Id. 185 N.C. App. at 621, 649 S.E. 2d at 410. Because of Judge Elmore’s dissent, the plaintiff had a right to The most recent such challenge has been Britt v. State of North Carolina, 185 N.C. App. 610, 649 S.E.2d 402 (2007). Rather than being a criminal prosecution, the Britt case was an action for declaratory judgment. The plaintiff had been convicted of possession with intent to sell and deliver a controlled substance in 1979. He had completed his sentence in 1982 and, under the then applicable version of N.C.G.S. § 14-415.1, had his right to possess firearms restored by operation of law. However, the 2004 version of the statute had completely removed this previously restored right. The plaintiff sought to have this version N.C.G.S. § 14-409.11 of the statute declared unconstitutional on a variety of grounds, The NCFFA has been periodically including due process, equal protecchallenged on a variety of consti- tion, ex post facto and as a bill of tutional grounds. These include attainder. claims that the act violates equal protection, due process, the protec- The case was heard before a threetion against ex post facto laws, or judge panel of the N.C. Court of that it constitutes an impermissible Appeals. The panel majority conbill of attainder (a legislative act cluded that § 14-415.1 was ratio- (Continued on Page 10) which punishes a particular indi- NCPLS ACCESS Page 10 Volume VIII, Issue 3, October 2008 Criminal Conviction and Gun Ownership (Continued) (Continued from Page 9) appeal the decision to the North Carolina Supreme Court. The case was appealed, and has been the subject of oral argument. A decision, however, has not yet been handed down by the state Supreme Court. Conclusion As can be seen from the preceding discussion, state and federal laws now impose a complete ban on the private ownership or possession of firearms. The 2004 amendments to the NCFFA even encompasses those types of sporting weapons, rifles and shotguns, previously permitted under earlier versions. Unless the North Carolina Supreme Court uses the Britt case to limit the scope of N.C.G.S. § 14-415.1, ex-felons should make it a priority to get rid of any firearms that might be considered in their possession. Of course, the Britt decision would apply only to North Carolina’s state firearms laws and would not affect any liability under federal law. NCPLS Client Receives Major Sentence Reduction By NCPLS Staff Attorney Nicholas C. Woomer-Deters A motion for appropriate relief even a minor felony. A habitual or more times within the last ten (MAR) filed by NCPLS in June felon indictment needs to list at years (eight years under older ver2008, has resulted in a major sen- least three consecutive prior felony sions of the law). In this case, the tence reduction for one of our cli- convictions of the defendant. Typi- client successfully challenged one ents. The client was serving two cally, the state will indict a defen- of the three prior DWI convictions consecutive sentences totaling 207 dant as a habitual felon using only used to establish him as an Habitual to 258 months for Felony Speeding three prior felony convictions — Impaired Driver by arguing that his to Elude Arrest, Habitual Impaired this allows the state to use any other conviction had been obtained withDriving, and for having attained prior felony convictions to enhance out his have had access to an attorHabitual Felon status. However, prior record level. However, in this ney. With one of the three necessary after the MAR was granted in case, the state used six prior felony prior DWI convictions vacated, the September his total sentence was convictions to indict the client as an MAR argued that the client’s conreduced to 144 to 177 months. habitual felon; then the state used viction for Habitual DWI also had Additionally, one of the client’s some of these same prior felony to be vacated and that he had to be convictions was reduced to a level convictions to enhance his prior resentenced for misdemeanor DWI. one Driving While Impaired (DWI) record level all the way up to level charge, which makes him eligible VI (the highest level). In reality, the Against all expectations, the client’s for parole. client should have been sentenced MAR was unopposed by the Disat a prior record level of IV. trict Attorney’s office in Guilford The MAR filed by NCPLS raised County and he was resentenced two issues. First, the client’s prior The second issue that was raised accordingly. Prior to resentencing, record level was incorrectly calcu- was the fact that the client was the client had a 2017 release date; lated because offenses used in his actually innocent of one of the it is now likely he will be released habitual felon indictment were also Habitual Impaired Driving counts well before 2010. used to enhance his prior record as a matter of law. To be convicted level, which is illegal under North of Habitual Impaired Driving, a Carolina law. When a defendant defendant needs to have committed is indicted as a habitual felon, Driving While Impaired while also he can receive a major sentence having been previously convicted enhancement if he it convicted of of Driving While Impaired three Volume VIII, Issue 3, October 2008 NCPLS ACCESS FREE LEGAL INFORMATION CLINIC Sponsored by North Carolina Prisoner Legal Services, Inc., SATURDAY OCTOBER 18, 2008 10:00 AM –12:00 PM North Carolina Prisoner Legal Services 1110 Wake Forest Road Raleigh, NC 919-856-2200 (Route 1 and 3 CAT Bus Lines) Free legal consultations about civil legal matters governed by N.C. law will be offered at this clinic for people who have been formerly incarcerated or, for organizations that serve the formerly incarcerated community. Volunteers will be available to provide general information about legal issues or refer you to an agency or organization that can provide the information you need. The volunteers cannot offer to represent you but, if you are eligible, you may be referred to one of the legal or social service agencies in the Raleigh area to seek additional assistance and/or representation. Please bring all of the documents concerning your legal problem to the Clinic For additional information and assistance, please visit www.lawhelp.org/nc. Page 11 THE NEWSLETTER OF NORTH CAROLINA PRISONER LEGAL SERVICES, INC. 1110 Wake Forest Road P.O. Box 25397 Raleigh, NC 27611 Phone: (919) 856-2200 Fax: (919) 856-2223 Email: ncpls@ncpls.org Visit our website at: http://www.ncpls.org