Episode 16: NC Criminal Debrief

[00:00:00.942] [SPEAKER_00] Welcome, everybody, to the North Carolina Criminal Debrief. This is a podcast dedicated to covering criminal law issues in North Carolina and beyond. I'm your host, Phil Dixon. I'm here in the studio with Paul Bonner on the ones and twos, as usual. Tons of stuff to cover, so we're going to jump right in, starting with some new legislation. This session law 2024-37 passed in June, but goes into effect December 1st. So coming up quick. What we've got here is a altogether new crime of sexual extortion that's going to be codified at GS 14-202.7. We have regular extortion already. That's GS 14-118.4. So if you threaten or communicate a threat to another person to obtain really anything of value, that's a Class F felony. But I guess out of concern that perhaps that was not broad enough to encompass the behavior at issue here, the legislators created this new, more specific version, sexual extortion. And that is intentionally threatening to disclose or refusing to delete or remove any private images of the victim or the victim's family in order to compel that victim to act, to either do something or refrain from doing something against their will. in order to obtain either more private images or anything else of value. A new offense, I think, in response to sort of this new conduct of people may have heard the term sextortion. And I think that is really what this is trying to get at. So regular extortion under 14-118.4, that's sort of your classic mob stuff. You know, hey, that's a nice store you got. It'd really be a shame if something were to happen to it. This is a little more nefarious in the sense that there's more sort of personal and private information at issue. It really seems aimed at this behavior of threatening someone to get more images, more private images, or refusing to delete images, threatening to disclose them, in order to make that person do something, not do something, including this providing more images. I think this will work in tandem potentially with a sort of related offense of disclosure of private images. That is just our revenge porn statute. When we talk about private images, we're not just talking about any photo of someone either. We're talking about images that show a person engaged in sexual activity or some kind of sexually explicit nudity. there are different versions of this depending on what's happening if it's an adult it is a class f felony if it's uh but if it's an adult defendant and the victim is a minor or a person with a disability it's a class e felony And note that person with a disability is defined as anyone with a physical or mental disability. They use the definition from the Assault on Disabled Persons Statute, and there they list some examples to include a blind person, a deaf person, someone with just decreased mobility, an intellectual disability, or a mental illness. So if we really think in terms of, you know, any physical or mental disability, including intellectual disability or mental illness, potentially a very broad interpretation of who counts as disabled. But returning to the punishment classifications, if it's a minor that commits this offense, if the defendant is under 18, for the first offense, it is only a class one misdemeanor. But if they do it for a second or subsequent time, they are treated basically just like an adult Class F felony. So again, I referenced this sexual extortion offense as somewhat seems in the vein of the same kind of intent of the law in our disclosure of private images statute. There, with the revenge porn law, that's just threatening to disclose or disclosing private images of somebody with intent to harass them, to coerce them, to scare them, or to cause any financial loss. Here, the difference is, you know, I think you can commit that offense, the disclosure offense, by just meaning to bother somebody, just trying to harass them. Here, we're really focused on this wrongful intent to make them do something and to obtain something of value. The way I read these, they've got different elements, and that means under Blockburger, I think the person could potentially be on the hook for both the sexual extortion and the disclosure of private images. even for the same course of conduct. If all the elements for each offense are met, looks to me like you may be able to pile on these crimes. In the same session law, we have updated several of our sexual exploitation of minor offenses, and related sort of obscenity and providing harmful information to minors, harmful material to minors. There's some changes to the definitions section of the sexual exploitation offenses. And, you know, these are basically our state law child pornography offenses. So GS 14-190.13 was amended. These definitions apply to all of the sexual exploitation offenses and everything in this article. What they're trying to do here basically is to cover the possibility of AI-enhanced artificially artificial intelligence enhanced or created images of a minor. So one, if there are images that are created or modified by artificial intelligence, those are now included within the definition of material, you know, harmful material, whatever that's that's now written in. perhaps redundantly perhaps not they've also said this covers images and representations of actual children identifiable children even if it's not the child so if i've used ai to manipulate the photo of some other person or some other child to make it look like a real child I think that is covered. It could also be completely made up, but made to look like a real child. I think all of that would be covered. So a new definition of identifiable minor. Somewhat disturbingly, we've also got a new definition of a child sex doll. That is what you think it is, a doll. anatomically correct doll made to depict a minor that is designed for sexual stimulation or gratification because apparently this is a thing. Those definitions have been imported into the actual substantive offenses as well. So now, you know, for your first degree exploitation offenses, that's normally like creating, producing child pornography. It includes creating for profit or sale any AI enhanced offenses. images of an identifiable minor or any child sex dolls. Same with the second degree. This covers distribution, purchase, transporting, receiving any of these kinds of material and same thing. We've now swept in the dolls and the AI modified images or AI created images of identifiable minors. Third degree is your possession offense, and same thing. Just as always, these will trigger sex offender registration. There is some question out there, I think, as to what the First Amendment might have to say about this. Folks that follow these cases closely may know the Supreme Court had, the U.S. Supreme Court some years ago, I think back under like Rehnquist, looked at the issue of people drawing images of child pornography or creating animated images of child pornography, and they said, at least for purposes of the federal child pornography statute, we mean actual child pornography. We mean photos of actual children. My notebook drawings or whatever it is don't count. And that's still somehow protected speech. I wonder if the court would take the same view today. And my sense is I tend to view that kind of challenge, that kind of First Amendment challenge to this material. So I view that somewhat skeptically. My sense is that if this doesn't count as obscenity, it counts as child pornography, and whether those are separate categories or all really one, I think that typically falls within the categories of unprotected speech under the First Amendment. But it is worth noting, you know, that the court in the past has held that images that are just made up and drawn, for instance, I think it was drawings or cartoons back then. Those didn't count. So what if it is an AI created image and it's not an identifiable minor? It's not based on an actual child. Who knows? I'm sure to the extent this is out there and being charged after December 1st, we might see that First Amendment challenge get made. But that's all I really have to say about that one. We do note that that same AI adjustment has been made also to the disclosure of private images. So this is where you have created a realistic depiction of another actual person who's engaged in sexual activity or showing their intimate parts where they didn't actually have a private image necessarily, but they have taken an image of a person and now made it to look like they are engaged in sex or in some kind of compromising photo. That now will also be considered falling within the ambit of the disclosure of private images statute. So, you know, even without an intent to obtain something of value of them, if you create that kind of image and you disclose it to other people, ostensibly you will be liable under 14-190A, I think is the statute. So interesting tweaks and a recognition by the state legislature that of the role of artificial intelligence and how it might be used in these private images and sexual exploitation offenses. Something we have talked about for ages on this show is probable cause and cannabis, the sight and odor of cannabis. Well, folks, it looks to me like the Court of Appeals has put this issue to bed. I'm not quite sure if it is for good. As listeners know... This has been a longstanding question. The Court of Appeals for a long time has sort of acknowledged like, hey, this might be a problem. And they've long applied a de facto standard of odor plus. That officer smelled the odor of what they thought was marijuana. But there was also additional factors here. So we haven't had to actually decide whether odor only still remains probable cause. And some trial courts have been granting these motions when the probable cause was based just on odor or sight of suspected marijuana. Of course, you can't tell the difference between hemp or marijuana. That's why I refer to it as cannabis, because cannabis encompasses both things. They first took a stab at really answering this question in a juvenile case. It was NRAJBP. I wrote a blog post about that basically saying, hey, you know, it looks like the Court of Appeals has announced a probable cause based on the odor of cannabis is still a thing. But that opinion got withdrawn by the Court of Appeals within a week or so, and they haven't reissued it so far as I can tell. But since then, we've had a string of decisions, State v. Dobson, State v. Shine, and State v. Little all came out since then, and they have taken this squarely on. All of them have basically said, look, probable cause is a low bar. You don't have to rule out all potentially innocent explanations. That's it. If an officer thinks that they smell marijuana, that's reason to believe that a crime is being committed. To the extent there may be an end still for defenders, in many of these cases, the court has noted, you know, hey, the defendant didn't make any claim that the substance was hemp. And that might change the analysis where somebody is like, no, officer, what you're smelling is hemp. And that's what I wrote about in the piece on the now withdrawn case LBP. We discussed there the idea of odor minus what happens when an officer is faced with the odor of cannabis. But then there's evidence before that officer that indicates, hey, this substance is more likely hemp than marijuana. Does that subtract from the value of the probable cause? These cases are always totality of the circumstances and every little detail matters. You know, little decided at first. And then I think we saw Dobson and Shine and then Rowdy came out real recently. But that's where their takeaway is. Look, that's not going to be enough to prove it's marijuana at trial when the standard is beyond a reasonable doubt. But where the defendant's not raising any argument about it, doesn't say it's doesn't claim it's hemp. Nothing else indicates it's hemp. the odor of cannabis will still provide officers probable cause. This is an interesting thing. I've done a little bit of a survey and you see different rules on this question in different states, including legal states. Like Nevada has legal marijuana, recreational marijuana, but they have a limit on how much you can have. I think three ounces. And the Nevada courts have said, Well, the odor of marijuana that tells an officer that there might be marijuana in the car, that there's probably marijuana in the car. And the officer needs to be able to check to see if the person's within the amount limits. Whereas take Maryland, they've decriminalized marijuana. So it's not legal. It's just not a criminal offense anymore to have a personal amount. And there the courts in Maryland have said you need more than just odor. But it looks like for now, our courts have come down as saying basically nothing has changed. And nothing about the legalization of hemp has changed the probable cause calculus for police officers in the field. Now, we'll note a couple of other points. One, there was a concurrence in one of these recent cases, State v. Rowdy. And I believe it was Judge Arrowood writing in the concurrence who said, Hey, you know what? State Supreme Court, y'all might want to take a look at this. You know, we think this is an important issue to the people of the state. We could use some clarity. You know, the Court of Appeals in part has said, we're kind of bound by precedent. You know, they've been citing 1981 cases from the state Supreme Court to say odor of marijuana equals probable cause. Does that 1981 case that we think of as state be Greenwood? Does that still really hold water in the age of legal hemp? Well, Unless the Supreme Court, the state Supreme Court, decides to take up that issue, the answer is yes. That case law is still good. For now, rowdy, shine, little, all stand for the proposition that the odor of cannabis equals probable cause. Something might be different where there's contradictory evidence. So somebody presents a receipt from the hemp store or there's a product that's in packaging that indicates it's a hemp product and not a marijuana product. Will that change it? I don't know. We'll have to wait and see for that case. But as I wrote in that blog post about LBP, JBP, Presumably, by legalizing hemp, the legislature didn't intend to say, you can use this product, but you give up all your Fourth Amendment rights in doing so. And it would certainly create sort of an absurd result, it seems to me, if the odor of cannabis always provides a probable cause, no matter what the circumstances, because that would mean that officers could raid a hemp store based on the odor of cannabis. And presumably, hemp stores are mostly selling real hemp products, legal hemp products. Reputable stores at least are going to have certificates of analysis and sort of established supply chains where these industry players are invested in following the rules and staying within the law. And under the logic of these opinions, if the odor alone is enough, then those hemp stores are at potentially subject to mass search and seizures and arrests, and then figure it out on the back end. But again, we don't have that case yet where there is this evidence that contradicts the officer's subjective belief that something is marijuana. you know, by showing, hey, no, it's really probably hemp. I'm not sure a bare assertion by a defendant on the street is going to carry the day. But on the other extreme end, you know, a hemp store owner who has documentation that their products are illegal hemp, I think that presents a much different factual scenario that would affect the totality of the circumstances analysis. Other takeaways for defenders on this issue. I mean, if it's not clear, many of these opinions have said it's basically the defendant's burden to make that claim. The officer can assume it's marijuana absent any other evidence. So weird. But, you know, for defendants out there, if they're not claiming it's hemp, the courts are not going to make that argument for them. Little, though, was a tough one for me because they are deciding the case under the old hemp rules. I think all of these cases that we have so far were decided when we were still operating under the Industrial Hemp Act. Well, the Industrial Hemp Act expired in 2022. I don't see how any of the legislative changes would affect the probable cause analysis, but it's worth noting little was going under the old Industrial Hemp Act. Since then, we've upped the definitions, as we've covered on this show before. We've changed our definition of hemp to track the federal definition. We got rid of our industrial hemp commission. We no longer have a state regulatory body devoted to hemp under the USDA pre-harvest and then the FDA post-harvest, at least until you cross the line into criminal conduct like your hemp is really marijuana. Little had this language in it that talked about how, you know, you needed a permit to possess or transport hemp under the Industrial Hemp Act and that there were civil and criminal penalties attached to the cultivation of hemp. And all of this meant that hemp was a highly regulated industry. It was possible that, you know, even if the officer didn't. wasn't sure whether something was hemp or marijuana, it was possible the officer believed, you know, it was possible for there to be illegal hemp. And I really found that to be interesting on a couple of levels because that's just not ever been the case. It's not true that you ever needed a permit to possess hemp or to transport hemp. In fact, the state collected a registry of hemp processors where they like to track who was processing. But that was a voluntary registry. And even processors did not need a permit. The only permit that ever was and still is in existence for this stuff, any kind of license, has been to cultivate it. So I really think the little court misread the law when they said, Oh, you needed a permit to possess this stuff. No such permit was ever issued and has ever existed under state or federal law. Only permits to cultivate. You know, you could read the old definitions of hemp narrowly to say, well, you had to have it had to be grown by a licensed grower. And within this legal limit. But by definition, hemp was not marijuana and hemp was legal. And nothing spelled it out the way it does under current law when we were still under the Industrial Hemp Act that like, hey, you can possess hemp. But it was a pretty clear implication from the whole act that's like, we're going to authorize growers. The purpose of this is to build out an industry and explore the sustainability of an industry based on hemp. And it was sort of assumed that farmers are going to sell the product and distributors and processors are going to, you know, do something with the product and turn it into a marketable good and that it's going to be out there and put into the marketplace. And certainly that's what really happened. I mean, in 2020, there were hemp stores everywhere and hemp was already then a really thriving industry within the state. There were civil and criminal penalties around the cultivation of hemp. They all dealt with the cultivation of hemp. It was like, if you lie on your cultivation permit application, we'll get you for civil and criminal remedies. If you're growing marijuana within your hemp crops, That's going to be a separate problem besides just growing marijuana. Failing to cooperate with an investigation by the Industrial Hemp Commission would incur civil and criminal liability. But again, all of that related to cultivation of hemp. So to say this is a highly regulated industry or it was at the time of 2020, I think that's an overstatement, to put it mildly, because then still like now, we don't have a very robust regulatory scheme around hemp. As we've covered on the show before, there's no such thing as an age limit to purchase or possess hemp. hemp products. There's no standardized quality control. There's no amount limits. I can go buy a gram of hemp or I can go buy 5,000 pounds of hemp. Nothing says, you know, this is only how much you can get. There's no concentration limits either. So I can buy, you know, one milligram Delta-8 gummy or a 5,000 milligram Delta-8 gummy. I'm not sure they actually make them that strong, but the point is there's no concentration limits. There's likewise no place restrictions. So it's not a crime for me to carry a bag of, say, Delta A gummies onto school grounds. I get a surprised reaction from law enforcement officers and prosecutors when I tell them that, that, you know, it's not illegal for a minor to have these products, hemp product. It's not illegal for them to use it. It's not illegal for them to have it at school. It may violate school policies, but we simply don't and never have had any kind of serious regulation around the use or possession of these hemp products. So I'm scratching my head a little bit at that categorization by the little court that this industry was highly regulated in 2020. Certainly it's less regulated now, if anything, because there's no longer a licensed grower permit requirement. All the cultivation angles are covered now by the federal government. You apply to the U.S. Department of Agriculture for a permit. Unless the state Supreme Court takes up Judge Erwood's suggestion from that State v. Rowdy case I mentioned, this is the law now. The silver lining, I guess, for defenders out there handling these cases is I still don't think the state's burden is a whole lot easier when it comes to prosecuting actual marijuana cases. As we covered a couple of episodes back, there's sort of a series of robust challenges you can make on evidentiary grounds. And I'm not going to rehash that here, but I think if you go back to episode 11, I want to say we walked through all the listeners about challenging lay opinion, challenging expert opinion, challenging lab results, and challenging how the lab result gets presented at trial. We touched a little bit more on that last note in the last episode when we talked about Smith v. Arizona and substitute analysts. That is your cannabis update. I'll probably do an updated blog post on that soon, but I just haven't found the time Since I did that one on JBP as soon as it came out and then in that opinion got withdrawn. But looks like that's where we've ultimately landed. And I think my analysis in that blog post on JBP largely still tracks with what we've now subsequently seen in Cheyenne, Rowdy, Little. And I noticed new opinions came out today and they're now not even publishing the opinions on this issue. They're sticking them in the unpublished batches. So I think to the Court of Appeals, this issue is pretty decided on the probable cause front. But those evidence challenges, again, are still ripe grounds for defenders. All right, I next wanted to cover this case, U.S. v. Chantry, out of the Fourth Circuit from maybe a month or three back. Fourth Circuit cases are not binding on North Carolina state courts, but they're often influential and persuasive authority. And this is one that speaks to an issue that just we don't have a single case yet from the North Carolina Appellate Division. It was an issue of first impression in the Fourth Circuit, for that matter. And really a new and evolving area here. And we often see this from the Fourth Circuit. You know, sometimes these brand new technology-based Fourth Amendment challenges, they come up first or they get addressed first in the federal court system. And that's what happened here. Chachere was a bank robbery case. This guy went in pretty quickly, robbed a bank at gunpoint. I think he made off with somewhere around like one or two hundred thousand dollars in cash and police had nothing. They had no leads. Didn't know the first thing about how to identify a suspect. They could tell on the surveillance video that the robber was carrying a Google phone. So they applied for what is known as a geofencing warrant. And these are interesting things. Sort of like a tower dump. I'm not going to talk about those right now, but it's a similar idea. Tower dumps, you know, you're collecting all the information from the phones that have connected to a single tower, single cell tower within a period of time. Geofencing is a related concept where they'll say, hey, give me all the Google phones that were within the space of that bank. In the hour, two hour time frame during which the robbery occurred. And there's a process by which Google, at least formerly, would respond to these warrants. Let's talk about that. So they do this warrant and say, you know, we've got we know the robber was. at the bank between 1 and 3 p.m. We want everybody's Google phone data who was within that area during that time frame. We'll be able to figure it out. And indeed, they did figure it out. But so they send this warrant to Google and Google first sends them the police an anonymized list of everybody within the geofenced area. Law enforcement then has to go through, based on that anonymous data, and cull the list down, sort of submit a shorter list of people they think really might be the person of interest. At step two, Google then provides more detail about the people who made the short list. Now the data that they provide is a wider range of location data going a little bit outside the geofenced area. It's still anonymized at this point. Finally, law enforcement narrows the list down a second time and says, we think we got our guy or we think we got down from, you know, the 200 people we started with. We've got a list now of two or three. And at that point, Google will provide the user account information and say, you know, hey, yes, it's Mr. Chattery. That's whose phone you're looking at. And that's how they got to Mr. Chattery. When they found him, they found evidence, physical evidence linking him to the bank robbery and murder. He ultimately gets convicted or pleads at trial. But he brought this challenge saying that geofencing warrant is a Fourth Amendment violation. It's not particular to me. It's way overbroad. It's sweeping in all these other people's information. I don't think they should be able to do that. The Fourth Circuit ultimately affirmed the trial court's denial of that motion to suppress two to one. They basically said this information, this location data, you had to have the location services function of your Google phone turned on to even get swept up in this. But turns out, at least under the old way Google was doing things, if you turned on location services without restriction, there's lots of settings to it. You can turn it on and off. You can operate it some of the time, but not other times. But if you've got unrestricted location services turned on, Google is tracking all that. They keep it for some undetermined amount of time in the database and they can retrieve it this way and then provide it to law enforcement. And the majority in this Chantry case said, you, Mr. Chantry, you voluntarily shared your data with Google by choosing to turn on those location services. So that's classic third party doctrine, no expectation of privacy and information you voluntarily share with others. This is a great case just for thinking about the Fourth Amendment principles. The majority acknowledges when digital surveillance becomes so pervasive and ongoing, it can rise to the level of a Fourth Amendment search. They pointed to a case some years back from the Fourth Circuit, leaders of a beautiful struggle versus the city of Baltimore. There, the city of Baltimore was flying surveillance airplanes over the city all day, every day on a clear days. And they could monitor everyone in the city. They could basically track anyone, any car, any pedestrian anywhere. with really advanced surveillance planes. This nonprofit group, Leaders of a Beautiful Struggle, sought an injunction to say, hey, that's got to be a Fourth Amendment problem. We're just regular citizens. We don't want to be tracked like that. That was the balance the court was struggling with there. It's like, well, normally you don't have a reasonable expectation of privacy in your public movements. But sort of like we saw in the Carpenter cell phone case, If they're tracking you for a long period of time and able to see sort of into the intimacies of your private life, that does implicate Fourth Amendment concerns and becomes a surge. So ultimately, an en banc court ruled for the plaintiffs in beautiful struggle. There's a big discussion in this Chantry case of beautiful struggle. and the Carpenter cell phone case. But they said, you know, this is not like cell site location data that was at issue in Carpenter. You know, if you've got a SIM card in your phone and it's operating as a phone, it is constantly connecting to the closest tower. And that is cell site location information. That happens whether you turn it on or not. It just is an automatic function of the phone. So it's not something a user would choose to share with the phone company. It happens automatically by virtue of it being a cell phone. And they said, you know, this was really not like that. I mean, first of all, in Carpenter, the U.S. Supreme Court said, you got to have a cell phone nowadays to even function. What choice does someone have? They can't avoid having a cell phone in modern life. And that doesn't mean they give up all reasonable expectation of privacy in their lives. And it was seven days of data at issue in Carpenter. And they called that long term tracking. And the issue was there was just did they need a warrant to do that? And of course, the court ultimately said, yes, you do. But here the court said this is not a search. Unlike Beautiful Struggle, unlike the cell site location data at issue in Carpenter, here we're really talking about two hours of time in a very limited geographic area. That is more like traditional police surveillance, you know. If they're just camped outside your house or place of business in an undercover car and watching you, they're allowed to do that. That doesn't offend the Fourth Amendment. And here, you know, unlike in Carpenter where you got to have a cell phone to exist in the modern world, you don't have to turn on location services to exist in the modern world. And so they said, we don't think you had a reasonable expectation of privacy. You chose to turn this data on. this function of your phone on and to share it unrestricted with Google. No search, therefore no Fourth Amendment violation. Judge Winn is not happy with that and he writes a dissent, a very extended dissent, discussing basically his view that of course this is a search and that the police should get a warrant. But under the majority's logic, they don't even need a warrant at all for this. And I know, you know, the beginning of the opinion talks about this. Between 2017 and 2018, Google saw requests for geofence warrants increase by 1500%. And the following year, 2018 to 2019, it went up another 500%. So 2000% increase over two years. And that was just from 17 to 19. So these are a thing, they're a tool law enforcement is using these days. And for now, in the Fourth Circuit, under the majority's opinion in Chattery, it's not a search. You don't need a warrant at all. But last week or so, in the past 10 days, I'd say, the entire full court, the en banc court of the Fourth Circuit, agreed to rehear this case. So not the end of the story for Mr. Chattery, not necessarily the end of the story on geofencing warrants in the Fourth Circuit. And so far under the opinion as the three-judge panel issued it in Chattery, that tees up a circuit split with the Fifth Circuit. Fifth Circuit had looked at this pretty recently and said, we think it's a search. We don't think the government can ever use geofencing warrants because they're not particularized to a single person. We don't think whatever's in the terms of service that you agree to when you set up your phone, that's not controlling for Fourth Amendment purposes whatsoever. I don't know, a cautionary tale about how to do your location data services with these cell phone companies and something we'll be keeping a close eye on as far as looking out for that en banc opinion in Chaudhry, as well as what other circuits might do. I could see this being the kind of issue that the U.S. Supreme Court might ultimately want to weigh in on. But my colleague Jeff Welty did a blog post about this case, and he noted that after in the wake, I guess during the litigation of this case at some point, Google has now changed its policies on how it deals with geofencing warrants. It's also changed how it collects and stores that location services data so that it's saved by Google for a much shorter period of time. And I think going forward, they're going to encrypt it so that not even they are able to read it, which might obviate the whole issue. Maybe it's moot now. Maybe that just means these geofencing warrants are dead as far as Google is concerned. But something we're keeping an eye on and a really interesting evolving area of technology here. And look out for what's going to happen in that split. For I think what will be our last case this time, I wanted to cover State v. McLean. This was a Court of Appeals decision from August 2024. This deals with the question of when is it proper to give oral notice of appeal? I know appellate procedure is thrilling for all the listeners out there. But this has been a big open question for defense counsel for a long time. Appellate Rule 4 says, you know, you can give oral notice of appeal in a criminal case, but you've got to give it at the time of trial or at the time of plea. And sometimes you see defense attorneys give this oral notice of appeal too soon. Like the jury comes back guilty. The defense lawyer says, we give notice of appeal, judge. Judge says, that's fine. We take your notice. Then goes on to sentence the defendant and pronounce judgment. You know, you're supposed to give it at the time of judgment, right? And you could also give it too late. Like if you come back the following week and try to give oral notice of appeal, it's not enough. You got to do it in writing once the judgment has been entered, if you didn't do it at the time. And there's been this open question of like, how long do I have after the court enters the judgment? and apparently the Court of Appeals was getting all these just-in-case cert petitions. So the appellate defender will get the appeal, they're gonna go up there and argue, hey, the defense lawyer gave proper and timely oral notice of appeal, but just in case you find that notice of appeal was defective for some reason, here's a backup cert petition, we're asking you to grant review in case the notice of appeal is defective. And so McLean clears this up. Before this case was decided, it was really unclear what happens if say, I'm convicted and judgment is entered on a Tuesday morning, And the defense lawyer comes back Tuesday afternoon to give oral notice of appeal or their convicted judgment is entered on a Tuesday. Defense lawyer appears back in before the court in the same session on Thursday and tries to give oral notice of appeal. I would have told you before McLean. And I think the the. sage and cautious approach for a long time has been if you don't give that oral notice of appeal immediately after the pronouncement of judgment, not before the pronouncement of judgment and not two hours after immediately after, then you need to go do a proper written notice of appeal. McLean. And that's what happened here. The defense, you know, defense counsel didn't immediately give notice of appeal, but they came back within the same session and gave that oral notice of appeal. And ultimately, the court said, that's fine. You are good as long as you give notice of appeal during the same session of court. And this is, you know, this is an easy thing to mess up if you are at the end of a long trial or, you know, sometimes your client doesn't immediately tell you, hey, I want to appeal or they want to think about it for an hour or they want to think about it overnight. But the court looked at this question and said, you know, the trial court has authority to modify a judgment during the same session. They can resentence the defendant during the same session. They can modify any of its orders as long as court is still in progress for the week or for the session. If court is still in fieri and to use the Latin term. And the McLean court said the same applies to these oral notice of appeal. If you give oral notice of appeal at any point within the session of court up until the court adjourns, sign and die, you know, with no further day being assigned for resumption of business. That's what the bailiff says at the end of each session. We're adjourned, sign and die. you're good. So a little bit of a safety valve there. What's a session of court? For superior court, it's usually a week. For district court, it's usually a day. There is confusion over the term session of court and term of court, but when we're really being technical, a term of court is usually the six-month assignment of a superior court judge to a district, while the session is usually a week-long period. You can extend the session under GS 15-167 if you need to complete a trial by consent of the parties or if there's a particular authorization for it. Normally in district court, it's just a day. And this raises the specter about what about H&I felonies in district court? There's been a push to roll out more H&I felony plea courts being done in district court level. And I don't think this rule is really going to help. you if you're talking about a felony plea in district court. If the district court is doing felony pleas one day and then back to traffic court or back to family court the next day, that district court session was almost certainly just one day. So you got the day until they adjourn to give that oral notice in district court and felony plea court. But unlike Superior Court, you don't necessarily have until the next day. Might be different where the district court is doing a two-day session of felony plea court, but I'm not sure how frequent that is. The only other heads up I would give defenders here is just to say, you know, you've got till the end of the session in superior court. That doesn't necessarily translate, as many of you know, to the end of the business week. The session might be intended to go Monday to Friday, but business might wrap up Wednesday afternoon. And if that's the case, you only have until then. And if you miss that, you cannot come back next week and give oral notice. You're going to have to give written notice of appeal. So I wrote a blog post on this one as well, clarifying this oral notice of appeal rule. Again, a bit of a safety valve for defenders if they don't immediately know, if they forget to give notice of appeal or if the client doesn't tell them or the client comes back the next day and wants to do it. And it saves you a step if you can just go do oral notice of appeal. But you've got 14 days to do the written notice, and it's not a complicated form. People do mess up the written notice of appeal too all the time, and because of that, we have a template for giving written notice of appeal from the Superior Court to the Court of Appeals. It's also the same thing you would use if you're entering a guilty plea in district court. You go straight to the Court of Appeals. But that's on the IDS, the Indigent Defense Services Motions Bank. You can find a sample notice of appeal. And the folks over at the Office of the Appellate Defender would also be delighted to help you. And that's something I train especially newer attorneys, attorneys new to Superior Court on. If your client wants to give notice of appeal, here are the rules. You've got 14 days. You can give this oral notice. Under McLean, now you can give oral notice at any time during the session. But if you miss the end of the session, do your written notice of appeal. But it's always good practice to ask the court to go ahead and appoint the appellate defender unless your client is not indigent. It's always good to ask the clerk at the time when you're giving notice of appeal to do the appellate entries. You should follow up with the clerk, make sure they actually did the appellate entries, and then call the Office of the Appellate Defender and let them know, hey, I'm giving notice of appeal. Better yet, call them beforehand and say, hey, I'm going to give notice of appeal. Do I need, can I do it orally? Do I need to do it in writing? Do you have a template for me? Again, you can find a template on the IDS Motions Bank under adult criminal non-capital motions, but OAD can give you one as well. Don't forget, it is your obligation as defense trial counsel or plea counsel to inform your client that, client, you have a right to appeal. Here's how you will give notice of appeal. And if the client indicates a desire to appeal, at least within the window of time for which an appeal can be taken, It is your obligation as trial or plea counsel to give that notice of appeal. Now, that's the last thing, you know, then you just got to do your fee app or whatever. You're out after you give notice of appeal. That does not make you the appellate lawyer, but it is squarely your professional and ethical duty to give notice of appeal and to make sure the client knows of their right to appeal. reminder on some of those rules and kind of a, you know, a good case for the defendants here. I think the Court of Appeals was just sick of so many superfluous or what they deemed superfluous cert petitions. Again, I think a helpful thing for defenders when, you know, you're under the stress of a heavy case law caseload and, you know, trying to do a million things at once and maybe don't always have your clients views on an appeal right out the gate. Folks, that's it for today. I'm hoping to get back in the studio soon, but I'm thankful to Paul Bonner for being able to work with me over the past few weeks to record three episodes at a pretty breakneck pace. Big thanks to Paul, as always. Big thanks to Monica Yelverton, my associate director here at the public education team, for her logistical support. Big thanks to my brother David Dixon for composing our theme music. You can find more of his stuff at David Dixon Music on Instagram or Facebook. And thanks to all of you listeners. If you have feedback for me, thoughts, questions, concerns, suggestions on topics to cover, shoot me a note. I'm at Dixon at SOG.UNC.EDU. Again, that's D-I-X-O-N at SOG.UNC.EDU. Look forward to maybe starting season two come 2025. So if I don't talk to you all before the holiday season takes on all of us, then happy holidays to everybody. Thanks. Talk to you soon.