[00:00:00.925] [UNKNOWN] Bye.
[00:00:13.074] [SPEAKER_00] Welcome to episode three of the North Carolina Criminal Debrief podcast. This is a podcast dedicated to covering criminal law developments in North Carolina and beyond. I'm Phil Dixon, the defender educator and a faculty member here at the UNC School of Government in Chapel Hill. Big thank you to Paul Bonner for his technical wizardry in the studio. Thanks also goes out to Monica Yelverton, associate director of programs and services for the public defense education team here at the school for all of her logistical support. And a final shout out goes to my brother, David Dixon, for composing our theme music. Other work by him can be found on Facebook or Instagram under David Dixon Music. If you're enjoying the podcast, please subscribe and share it. If you have questions, comments, or ideas for topics you'd like to see covered, shoot me an email. I can be reached at dixon at sog.unc.edu, and that is spelled D-I-X-O-N. Starting with my pet issue, cannabis law. Hemp has been excluded from the definition of marijuana, more or less consistent with federal law, and laws permitting the cultivation of hemp and its industry were set to expire June 30th of this year, 2022. There was some question on whether or not these laws were going to be renewed and certainly questions about what was going to happen to the industry in the state if they were not. The legislature waited until the very last minute, but on June 29th they did pass SB 455. This law amends the definition of marijuana that's found in General Statutes Chapter 90, Section 87, Subsection 16 to exclude hemp and hemp products from the definition of marijuana permanently. It adds definitions of hemp and hemp products to the statute under subsections 13a and 13b. Notably, the definition of hemp in the state now is fully consistent with the federal definition in that it now includes all derivatives, extracts, cannabinoids, isomers, and the like. As long as the Delta 9 THC content is under point three percent, three tenths of a percent, it's a legal product assuming it's sourced from hemp. The state definition previously did not have that derivative extracts isomers language and it also previously stated that in order to qualify as hemp it had to be grown by a North Carolina licensed grower. Now on that last point, the North Carolina licensed grower requirement, I can't say I ever really saw that enforced and I'm not sure that it could be enforced consistent with federal law and the fact that the products are authorized by federal law to be in interstate commerce. But in any event, that requirement to the extent it existed is no more. There is no longer any North Carolina licensed grower requirement in the definition. I think the more significant change is that addition of the extracts derivatives language. With that, there is a, I think, stronger argument that these more exotic products like Delta 8 THC or Delta 10 THC, other hemp derived products, many of which are intoxicating, there's a stronger argument that these products are legal. So long as the delta 9 THC content is below 0.3 and it's sourced from hemp, these things seem to fall under the definition of hemp derivatives or isomers and other cannabinoids. This was a big question before and I've written about this on the criminal law blog before in an article entitled Delta-8 THC and Beyond. And we discussed in that post the difference between the state and federal definitions at the time and discussed the argument that things like Delta-8 THC might qualify as a controlled substance analog or a sort of designer drug. or possibly as a synthetic or isolated THC. I think it's clear that the legislature intended to maintain the status quo, which is that these products sourced from hemp are legal. My opinion there is further reinforced by the amendment to 9094, that's GS chapter 90, section 94, the definition of Schedule VI substances. Schedule VI, of course, includes marijuana and THC. Previously, that law, 1994, banned, quote, THCs, tetrahydrocannabinols. And it did so without limitation and without providing any exception for hemp-sourced THC, or distinguishing between Delta-9-THC and other types of THC. Now, with this new amended definition, it says, we include THCs in the definition of Schedule VI, except those that are sourced from hemp or from hemp products. So that's a really interesting development. I know the hemp industry folks were very happy to see this, even though if it did come down to a game of chicken with the legislature at the last minute. Still no action from the courts or legislature on how these legal hemp and THC products affect marijuana enforcement in the state. Of course, something I regularly talk about and have written a lot about on the blog is The question of whether or not the sight or odor of marijuana remains probable cause of a crime and whether officers can still identify marijuana just by sight with a lay opinion as opposed to an expert analysis or lab. There are cases at the Court of Appeals on these issues and we will be sure to cover them when they do issue a decision finally. Still no action similarly on any version of legal marijuana, I guess as long as we're not counting these hemp products as marijuana. No action there on medicinal or otherwise, but these changes that we've just discussed, they keep the hemp industry alive for now and apparently maintain the existence of these intoxicating hemp products that are out there. They are everywhere from Manny O to Murphy. If you haven't seen them, you will. I was just out having a drink downtown the other evening in Chapel Hill and a bike rickshaw pulled up and they were selling from the bike all kinds of hemp sourced THC products, you know, the edibles, the vapes, extracts. There are new ones out there that I hadn't even heard about like THC-O, THC-V, HHC and others. I'm sure we will see continued proliferation of these products. and how that works in terms of enforcing the law marijuana prohibition and prohibition on impaired driving remains yet to be seen. So stay tuned and we will keep you posted as that developments. I next wanted to move on to some U.S. Supreme Court decisions. Of course, the biggie since we last broadcast was Dobbs. Dobbs versus Jackson Women's Health Organization. That case overruled Roe v. Wade, basically eliminating any federal right to abortion and sending that issue back to the states. That act triggered bans of abortion in many states that had a trigger law, basically saying if Roe falls, abortion immediately becomes illegal in the state. Many other states are passing lots of restrictions on the procedure and providers. This is not necessarily criminal per se for North Carolina, at least at this point, but I think we will see an increase in prosecutions about surrounding abortion providers and potentially the women obtaining them or people otherwise assisting people in obtaining abortions. Certainly in other states, North Carolina did not have a trigger law whereby the procedure is automatically outlawed, but we do have some laws on the books about it. Generally speaking, our laws say that abortion is illegal up to 20 weeks. After 20 weeks, there needs to be some kind of medical justification for it. We will have to see what happens when the legislature gets back in session, whether they take this up. Certainly any restrictions are likely to be challenged in court. We have seen recently the Attorney General in conflict with the legislature over an existing injunction on some of our abortion laws that the Fourth Circuit issued. That injunction remains in place for the time being but likely is no longer supported by law given the Supreme Court's holding in Dobbs. And you know there's some question of whether even though the federal constitution apparently no longer protects a woman's right to to choose, There is a question of whether that kind of protection might be found under the state constitution. So as these issues return to the state, if and when North Carolina takes any movement to further restrict abortion rights in the states, we will likely see that issue get up in the appellate division and land before the state Supreme Court. And you can be sure that will be one of the questions. What if any, protections for a woman's right to choose can be found in the state constitution. And as a corollary, to what extent can this behavior be criminalized? My colleague Jeff Welty did a great blog post thinking through some of these implications. It's called Abortion and Criminal Law After Dobbs. That's on the North Carolina Criminal Law blog. I encourage you to check it out. This is really just an issue to keep an eye on. I'm sure most of our listeners have heard about it, but I may have more to say about this as it starts developing. But that is, of course, the big news from the US Supreme Court. The other biggie was North Carolina's, sorry excuse me, New York State Rifle and Pistol Association versus Bruin. This is a case that struck down New York's law that required a special need in order to obtain a carry concealed license and the court said that that was a violation of the Second Amendment. Basically, this opinion says, look, some restrictions on carrying in public will be okay, like sensitive places such as schools, but the court really rejected a blanket restriction on carrying arms for self-defense in public and really rejects the idea that local or state officials are going to have very much discretion in deciding who gets a permit or who doesn't. We, again, don't have an immediate impact in North Carolina. We are already a shall issue state, which means if you qualify, you meet the conditions needed to get a gun permit or carry concealed permit, a purchase permit or carry concealed permit. You qualify. If you're not disqualified and you meet the other requirements, you get it. There really is no discretion at the local or state level to deny someone as long as they aren't otherwise barred. But for states that had a discretionary permit scheme like New York, these may issue permit states, It's a big change and it's sure to spurn more litigation over the proper scope of gun regulations and so just wanted to flag that. It's another issue to keep an eye on. We've seen you know in the past decade the Second Amendment rights really become very robust and it seems the majority of the current Supreme Court is going to continue that trend. So just something to keep an eye on. We will likely see more litigation on this, if not in North Carolina, certainly around the country. There are plenty of other really interesting cases. I'm not sure if I'd call this a blockbuster term, but there was a lot going on. Among other things, we had a Federal Circuit Court of Appeals who had struck down the death sentence for the Boston Marathon bomber. The Supreme Court reinstated, reversed and reinstated that death verdict. There was also an interesting case on tribal jurisdiction. We saw a decision in a case regarding the proper scope of civil remedies for Miranda, which is to say there is not one. An interesting case on non-citizens when they are in immigration detention. They are not entitled to a bond hearing. So all of these are big and important cases and things that I encourage readers to check out on their own. But the last one I wanted to mention in particular before moving on was a federal habeas case that was decided by the US Supreme Court recently. This is Shin v. Ramirez. And just as for a little context, federal habeas corpus is the last stop for review of a state case on post-conviction. You got your trial or plea resulting in a conviction. The person has a direct appeal. If that's denied, then they would pursue state post-conviction proceedings, which in North Carolina is a motion for appropriate relief. If that post-conviction proceeding doesn't shake out the way they want, they can try to appeal that or seek review in the appellate division of the state post-conviction court decision. After that, it's federal habeas and any appeal from the decision of the federal district court deciding the habeas petition. At the federal habeas stage, the court generally is not allowed to hear new claims that were not raised in state court. If it's not raised in the state post-conviction court, it is procedurally barred in federal habeas. Now, here's a way to overcome that bar. You can try showing that there is good cause for the default and that the petitioner would suffer prejudice. But in an old case called Coleman, the Supreme Court has held that the negligence or some oversight by a post-conviction attorney does not count as cause. That was the rule until 2012, but in 2012 the Supreme Court decided a case called Martinez v. Ryan, and there it said that ineffective assistance of counsel by post-conviction counsel can, in certain circumstances, provide cause to excuse that procedural default. where post-conviction is the first opportunity to raise the ineffective assistance of trial counsel claim, or where no counsel for post-conviction is provided at all, the ineffectiveness of post-conviction counsel may provide cause to excuse any procedural default. That's a lot, right? But Martinez says... Martinez claims, rather, require showing that post-conviction counsel was ineffective, that there was a substantial claim for ineffective assistance of trial counsel that post-conviction counsel missed. They should have raised it, but they failed to. Then, under Martinez, the federal habeas court can hear that procedurally defaulted IAC claim, ineffective assistance of counsel claim. Now that's been the law since 2012. After Shen v. Ramirez, it is technically still the law, but this decision effectively guts the holding of Martinez. A person in a Martinez claim situation can still raise their defaulted IAC claim, but under Shen they are not entitled to a hearing in federal court. So I don't know what that looks like. They are entitled to raise their claim on the cold record, but they are not entitled to any evidentiary hearing in federal court to develop that record. The majority pointed to the fact that there is no constitutional right to counsel at the post-conviction stage and felt it was appropriate to attribute any error by post-conviction counsel to the defendant. This makes it, I think, all the more important to really examine the record when you're handling a post-conviction case or looking at your stuff on post-conviction. You really need to examine the possibility that there was ineffective assistance of counsel at the trial level, and that claim needs to be identified, raised, and fully developed at the state post-conviction level, along with any other post-conviction claims. I see it a lot from my position here at the School of Government where inmates file a pro se MAR and miss potential claims or have a jailhouse lawyer or family member trying to write out an MAR. And I would have cautioned against that practice anyways. It is important to have competent post-conviction counsel that's experienced and knows what they're doing. This is a tricky area. There are ways to get procedurally defaulted just at the state court level. But with the Shen v. Mermirez decision, errors by post-conviction counsel are really going to probably be permanent. now and it's going to be unlikely unless that ineffective assistance claim appears in the cold record you're not you're going to be stuck with whatever you raised and at your MAR so watch out and I really I really caution I urge caution at the idea of rushing on an MAR or doing it without competent counsel I would note that this was along party lines. All three liberals were dissenting with Sotomayor writing for the dissent and she called this decision, I quote, perverse, illogical, and a hollowing out of Martinez. All right, on to a little bit better news for criminal defendants. That's it for the U.S. Supreme Court, but I wanted to talk about our own state high court and some recent decisions there. We recently got two important cases on juvenile life without parole sentences. State v. Connor and State v. Kelleher. These have been bouncing around for a little while in the Court of Appeals and finally made it up to the Supreme Court. And yeah, good news for juvenile defendants. I wanna again start with a little background. This has to do with the Miller line of cases. Back in 2012, the US Supreme Court decided Miller v. Alabama. and that case held that mandatory life without parole or LWOP sentences for juveniles were unconstitutional as cruel and unusual punishment under the Eighth Amendment. Now it's only mandatory LWOP. The court does not rule out the idea that life without parole may be appropriate for some juveniles, but a mandatory life without parole sentence violates the Eighth Amendment. That was the holding in Miller. Montgomery v. Louisiana came along a few years later in 2016, making the Miller Rule retroactive. So this meant all the people that were convicted when they were a juvenile under age 18 of first-degree murder and had been sentenced to life without parole, they got re-sentenced. In both of these cases, Connor and Keller involved Miller re-sentencings. In 2020, a newly constituted court had another bite at the Miller rule in Jones. And there the court said, You don't need any special finding that a juvenile is incorrigible or you know can't be can't be rehabilitated. You don't have to make that specific finding to comply with Miller and the Eighth Amendment. States need only provide a discretionary sentencing scheme whereby they can look at the characteristics of the juvenile offender and make a decision whether the possibility of parole is appropriate or not. That was a Justice Kavanaugh opinion. That was, I think, a worrisome decision for a lot of people in the camp of trying to advance the Miller Rule. And lots of questions about what that meant on the ground. I mean, was this really a rollback of some of the Miller rights or... Are they simply saying no special finding is required? And tons of questions remained on the ground. You know, courts were doing all sorts of things in these cases in North Carolina and around the country. You know, again, life without parole is an option, but that's often, you know, the court said in Miller, I believe it was Miller, that that's going to be the rare case, you know, of the incorrigible, unrehabilitable juvenile. So, while LWOP is an option, I don't think we're seeing that happen a lot, but there have been lots of questions and lots of splits of authority around the country on how this works for multiple offenses, consecutive terms, doesn't matter if it's more than one crime. You know, at what point does a term of years sentence really become a de facto life sentence? You know, is five consecutive 20-year terms okay just because it's not entitled a life without parole sentence? Well, we got answers to some of those questions in these two cases. In Connor, State v. Connor, we had a 15-year-old who was convicted of murder one and first-degree rape of his aunt. After a Miller re-sentencing, the judge determined he was not incorrigible and gave him life with parole, which means an opportunity to seek parole at 25 years. But the judge imposed a consecutive 20-year minimum sentence for the rape on top of the 25-year minimum for the murder. So Mr. Connor received a total minimum 45 years in jail before he would be parole eligible. The Supreme Court found that this violated Miller and the Eighth Amendment and it violated the state constitutional parallel found in Article I, Section 27, which bans cruel or unusual punishment. The court pegged the max time around 40 years, at 40 years, excuse me, if the juvenile is not incorrigible, irredeemable, and life without parole is not justified, they need an opportunity for release by 40 years. At 40 years, that's a de facto life sentence. And the court got there by looking at both you know the the retirement age in the state and how you know how likely it is that a person will have a meaningful opportunity to contribute to society and to enjoy life after their sentence as well as looking at the U.S. sentencing guidelines for for federal court which pegs a de facto life sentence at around 39 plus years. Similarly, we saw in Kelleher, this was a 17-year-old. He had two counts of first-degree murder, and after a military sentencing, again, the trial court found that he was not irredeemable, but imposed two consecutive life with parole sentences, 25 years each, meaning 50 years before Mr. Kelleher would become eligible for parole. And again, keep in mind in both of these cases, we're just talking about parole eligibility. There's no guarantee that the person will be released. It's simply that they have an opportunity to be released. The North Carolina Supreme Court held that this too was a de facto life sentence. They noted, it's not about the number of crimes, it's about the nature of the juvenile offender. Kelleher's is really interesting in that they specifically overruled an earlier case that said state constitutional protections in this area are no more, no more broad than the Eighth Amendment. Well, you know, the Eighth Amendment prohibits cruel and unusual punishment. Our state constitution provides that no cruel or unusual punishment. And so the argument had been kicking around in these cases that the state constitution, the wording of the state constitutional protections is more broad and that carried the day here. Now, I will say the court was careful to cabin the decision to juvenile cases and went out of its way to say no application to adult cases, but that 40-year cap before someone has to be given an opportunity to seek parole, that's firmly established now, and it's a really big deal for this category of offenders. These are huge wins by Kathy Vanderberg and David Andrews, both of the Office of the Appellate Defender. Kudos to those and everyone else who worked on this issue. I know there is some ongoing effort, both here and across the country, to extend some of these Miller Rules to people past the age of 17, getting into 18, 19, 20, but so far, and at least under Kelleher, this is going to just apply to those juvenile cases. That is it for this episode, y'all. Thanks for listening. Please email me with any questions, comments, concerns, or if you have topics you'd like to see covered. Again, I can be reached at dixon, that's d-i-x-o-n, at sog.unc.edu. Thanks.
