State of North Carolina              In the General Court of Justice

____________ County            Superior Court Criminal Division

Case No. 

State of North Carolina                           


              v.                                                                                    Motion For Appropriate Relief



              NOW COMES the Defendant, ____________, pursuant to N.C. Gen. Stat. § 15A-1415, and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and moves that an Order be entered vacating his convictions in the above captioned case number.  In support of this Motion the Defendant shows as follows:


  1. The Defendant, ____________________, is an inmate in the custody of the North Carolina Department of Correction following a conviction in the above captioned case number. 
  2. The Defendant was indicted for felonious larceny, felonious possession of stolen goods, and being a habitual felon.  Ex. A – B.  The charges arose out of an incident at the Target, Inc. store. 
  3. The Defendant pleaded not guilty to the charges.
  4. Prior to trial the State announced that it would only be proceeding on the lesser included offenses of attempted larceny and attempted possession of stolen goods.  Judge __________ presided over the trial. 
  5. At the close of the State’s evidence, Judge __________ requested that the State opt between the attempted larceny and attempted possession of stolen goods charges.  The State chose to proceed on attempted larceny and the Court dismissed the felonious possession of stolen goods charge.  Ex. C. 
  6. The Defendant testified on his own behalf.  His sister and a Target employee also testified during the defense evidence.
  7. The jury convicted the Defendant of attempted felonious larceny and habitual felon. 
  8. Judge ________ then sentenced the Defendant to 116-143 months in the Department of Corrections.  Ex. D.
  9. At the conclusion of his trial, the Defendant entered notice of appeal.
  10. On May 18, 2004, the North Carolina Court of Appeals found no error in the Defendant’s trial or sentence.  State v. Helton, 164 N.C.App. 412, 595 S.E.2d 813 (2004) (unpublished).  The Supreme Court dismissed the appeal from the Court of Appeals and denied discretionary review.  State v. Helton, 610 S.E.2d 380 (N.C. 2005). 

Legal Claims

Claim I

The Defendant’s Constitutional right to an impartial judge was violated when the judge participated in plea

negotiations and then presided over the Defendant’s trial and sentencing.

  1. Prior to the beginning of jury selection, the Defendant’s counsel and the assistant district attorney approached the bench to discuss a plea.  Ex. E (T. p. 11).  After the counsel discussed the plea offer with the Defendant, the Defendant rejected it.  Ex. E (T. p 12).   In recording the rejection of the plea offer, defense counsel stated, “Mr. Helton has rejected the Court’s offer and chooses to go to trial.”  Ex. E (T. p 12, ll 5-6). 
  2. The record does not reflect the offer that was made to the Defendant.
  3. The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”
  4. “It is fundamental to due process that every defendant be tried ‘before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.’ [Citations omitted.]”  State v. Wright, 172 N.C.App. 464, 469, 616 S.E.2d 366, 369 (2005)(emphasis in original); see also Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437 (1927). 
  5. The constitutional guarantee to an impartial judge extends beyond the requirement that, in fact, the presiding judge must be fair and impartial.  “[T]he requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest sacrifice could carry it on without danger of injustice.”  Tumey, 273 U.S. at 532.
  6. Rather, the guarantee of an impartial judge includes a defendant’s right to have a judge who operates under a procedure which instills the appearance, as well as the fact, of impartiality.   “Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused, denies the latter due process of law.”  Id.
  7. The facts at trial showed that all property had been recovered by the victim, Target, Inc., and that the value of the goods was not more than $1,108.99.
  8. The minimum value of stolen goods needed to constitute felonious larceny is $1,000.  N.C. Gen. Stat. § 14-72.  The Defendant was convicted of attempted larceny.  Ex. D.  The Defendant was also convicted of being a habitual felon.  Ex. D.
  9. He was sentenced to the highest sentence allowed in the presumptive range for a Class C offense at his prior record level despite the fact that the goods were only valued at slightly more than the value needed to constitute a felony and that the goods were fully recovered. 
  10. The Defendant contends that because Judge ________ actively participated in the plea bargaining process he should not have been the one to preside over the Defendant’s trial or to sentence the Defendant because there was an appearance that the court had a personal interest in the outcome of his case. 
  11. The Defendant does not object to a trial judge’s participation in the plea bargaining process.  The plea bargaining process is much like mediation in a civil case where it is proper for judges to participate in mediation so long as they have no further involvement in the case.  See North Carolina Court of Appeals Mediation Instructions, available at (“If the parties choose to use a Current Judge, that judge…will not participate in any other capacity in the appeal of the case.”).
  12. The Defendant contends that an apt analogy can be drawn from Rule 408 of the Rules of Evidence applicable to the trial of cases.  Rule 408 provides,

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or evidence of statements made in compromise negotiations is likewise not admissible.

  1. The fundamental premise behind the prohibition of offers of compromise and settlement being introduced in civil trials is that the jury would then have a natural inclination to treat the settlement offer as either a floor or ceiling with respect to their verdict.
  2. The Defendant contends this is the same reason that under N.C. Gen. Stat. § 15A-1023, a defendant is entitled to a continuance if the judge rejects a plea offer containing a sentencing agreement.  See also State v. Wallace, 345 N.C. 462, 480 S.E.2d 673 (1997).
  3. The Defendant contends that the judge’s involvement in plea bargaining and his sentence to the maximum possible sentence available for his prior record level as a habitual felon demonstrate that the trial judge did not remain impartial in appearance and should not have been permitted to participate in plea bargaining and then preside over the trial.
  4. Allowing Judge __________ to oversee the Defendant’s trial and to sentence him violated the Defendant’s right to due process under the United States Constitution.

Claim II

The Defendant’s convictions were obtained in violation of his Sixth and Fourteenth Amendment rights to effective assistance of counsel.

  1. The Defendant contends that he did not receive proper assistance of counsel at trial because his counsel failed to object to the assistant district attorney’s questions during the Defendant’s testimony or to ask any additional questions of the Defendant to attempt to restore his credibility.
  2. There are three topics about which the Defendant was questioned that his attorney should have objected to: (1) questions related to Defendant’s imprisonment and prior detention at the Target store (2) impeachment of the Defendant using his prior convictions from the early 1980s, and (3) questions about what the Defendant had told his attorney.
  3. To establish ineffective assistance of counsel, defendant must prove that his counsel's performance was deficient and that his case was prejudiced by his counsel's alleged deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, reh'g denied, 467 U.S. 1267, 82 L.Ed.2d 864 (1984); State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985).
  4. The Defendant testified on direct examination that on the date in question he had gone to Target to purchase a computer and a TV as Christmas presents.  Because he had no job, his sister was going to pay for the items.  He believed she was going to meet him at the store.  After finding the items, the Defendant went to the front of the store to look for his sister’s van.  He pushed his cart through the first set of doors in order to see if she was outside smoking a cigarette.  At that time, he was taken into custody by store security.  He admitted that in the past he had been convicted of stealing.  Ex. F (Transcript of Defendant’s testimony). 
  5. At no point during cross examination did the Defendant’s attorney object to any question asked by the Assistant District Attorney (“ADA”) even when the questions ventured into subjects that should not have been discussed in front of the jury.
  6. The Assistant District Attorney asked the Defendant if he had a job and after the Defendant answered that he did not the following exchange occurred:

Q:  In fact, you just got out of prison in September of that year, didn’t you?

A.              Yes, sir, I did.  September the 1st as a matter of fact. 

Q.              What were you in prison for?

A.              For obtaining property under false pretense.

Q.              Obtaining property by false pretense, which is basically you got property illegally by lying about it.  That’s false pretense is telling a lie, right?

A.                False pretense, whatever it is, yeah.

Q.              So you committed some kind of fraud or lie to somebody to get something.  What did you get?

A.              What did I get? It was an – I believe a T.V.

Q.              A T.V.?

A.              I believe a 19-inch T.V., yes.

Q.              And, in fact, you had been in Target store about a year earlier, hadn’t you, and got – this man seen you before, hadn’t you? You dealt with him?

A.              No.

Q.              You didn’t get charged with that?

Ex. F, T. p.118-19.

  1. The Defendant contends that his counsel should have objected to the question regarding his being in prison and to whether he was charged with a crime involving Target in the past. 
  2. The United States Supreme Court has cautioned against using prior conviction evidence stating that “the risk that a jury will convict for crimes other than those charged-or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment-creates a prejudicial effect that outweighs ordinary relevance.”  Old Chief v. U.S., 519 U.S. 172, 181, 117 S.Ct. 644, 650 (1997). 
  3. The ADA’s questions went beyond mere impeachment by the use of a prior conviction and into the facts of that case and the punishment inflicted.
  4. Further, the ADA began to ask about charges and not prior convictions.  “[T]he general rule regarding evidence of prior charges and indictments is that ‘[a]ccusations that [a witness] has committed other extrinsic crimes are generally inadmissible even if evidence that [the witness] actually committed the crimes would have been admissible.’ [Citations omitted.]”  State v. Johnson, 128 N.C.App. 361, 369, 496 S.E.2d 805, 810 (1998).
  5. Further, it is well established that the facts surrounding a prior conviction usually are inadmissible.  “The permissible scope of inquiry into prior convictions for impeachment purposes is restricted ... to the name of the crime, the time and place of the convictions, and the punishment imposed.” State v. Lynch, 334 N.C. 402, 409, 432 S.E.2d 349, 352 (1993).  The questions surrounding the nature and circumstances of the Defendant’s prior convictions were objectionable. 
  6. The ADA proceeded to question the Defendant regarding other prior convictions, including convictions dating back to the early 1980’s. 
  7. Under Rule 609 of the North Carolina Rules of Evidence, “For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.”  However, Rule 609(b) provides a time limit on the convictions which may be used. 

Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

  1. Despite the age of the convictions, the Defendant’s counsel did not object to their admission.  The North Carolina Court of Appeals has recognized that several factors should be considered before a conviction older than ten years is admitted.

“[T]he following considerations [are] factors to be addressed by the trial court when determining if conviction evidence more than ten years old should be admitted: (a) the impeachment value of the prior crime, (b) the remoteness of the prior crime, and (c) the centrality of the defendant's credibility.” State v. Shelly, 176 N.C.App. 575, 582-83, 627 S.E.2d 287, 294 (2006) (citing State v. Holston, 134 N.C.App. 599, 606, 518 S.E.2d 216, 222 (1999)). This Court has also noted that:

[A]ppropriate findings should address (a) whether the old convictions involved crimes of dishonesty, (b) whether the old convictions demonstrated a “continuous pattern of behavior,” and (c) whether the crimes that were the subject of the old convictions were “of a different type from that for which defendant was being tried.”

Id. at 583, 627 S.E.2d at 295 (quoting Hensley, 77 N.C.App. [192] at 195, 334 S.E.2d [783] at 785 [1985]).

State v. Muhammad, 651 S.E.2d 569, 575 (2007).

  1. No notice that the older convictions would be used was given.  As defense counsel did not object to the questions, the trial court was not called on to consider these factors prior to the jury hearing about the old convictions. 
  2. While the Defendant has a long record, he should not have been convicted merely because the jury was given information to show he was a bad person with a bad record.  The State used multiple convictions to impeach him and went so far as to ask the Defendant, “Sort of hard to remember them all, isn’t it?” when the Defendant stated that he did not recall a conviction from 1980.  Ex. F, T. p 124.  Still, defense counsel did not object.
  3. The Defendant testified on direct and reiterated on cross that he believed the computer was on sale at the time.  When questioning the Defendant about whether he went back to verify the price, the ADA asked, “Did you tell your lawyer back then…Did you ever tell them?”  When the Defendant answered he did not, the ADA followed up by asking “You didn’t tell your lawyer?”  Ex. F, T. p 128. 
  4. The Defendant contends that this information was privileged and that counsel should have objected to the question to ask the Defendant if he wanted to waive the privilege and answer the ADA’s questions.
  5. The Defendant contends that it was objectively unreasonable not to object to this line of questioning because it was clearly protected by privilege. 
  6. The Defendant contends that there are other times throughout his cross examination that the ADA made statements that were objectionable but no objections were made.  These include instances where the ADA was not asking questions but was making statements to the Defendant.  See Ex. F, T. p 128, l. 7(“Sir, you saw the video. You never looked at it.”), T. p 127, l. 3 (“Yeah, you did.”).
  7. At the crux of this case was the value of the goods and whether the jury believed the Defendant’s version of the day’s events, after the cross examination the jury was left with the impression that the Defendant was a thief and a liar who was not to be believed. 
  8. The Defendant’s counsel did not ask any redirect questions to rehabilitate the Defendant’s credibility, which was central to the case.
  9. The Defendant contends that the adversarial process of a trial broke down during his testimony because his attorney failed to act as an advocate for him.  Taking the testimony as a whole demonstrates that counsel failed to act as an advocate and allowed the State to introduce evidence that undercut the defense theory of the case that the value of the goods was insufficient to prove a felony.
  10. There is a reasonable probability that had counsel objected to some of the ADA’s questions, the objections would have been sustained.  If the jury had not heard all of the damaging evidence about the Defendant, there is a reasonable probability that the Defendant would not have been convicted of felony offenses because his testimony regarding the price would have been more credible. 
  11. To the extent that this claim of ineffective assistance of counsel should have been raised on direct appeal, the Defendant contends that he did not receive effective assistance of appellate counsel.


The Defendant’s sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.

  1. The Defendant was sentenced to 116-149 months for attempted larceny as a habitual felon. 
  2. Attempted larceny is a Class I felony which carries a maximum sentence of 12-15 months if there is no habitual felon enhancement.  It is classified as the lowest level of felony that the State recognizes.
  3. It is clearly established federal constitutional law that the Eighth Amendment contains a proportionality component in the noncapital context.  Harmelin v. Michigan, 501 U.S. 957 (1991); Ewing v. California, 538 U.S. 11, 123 S.Ct 1179 (2003). 
  4. The purpose of disproportionality review is to measure “the relationship between the nature and number of offenses committed and the severity of the punishment inflicted upon the offender.”  Rummel v. Estelle, 455 U.S. 263, 288, 100 S.Ct. 1133, 1147 (1980). 
  5. The United States Supreme Court stated that the inquiry on whether a defendant’s sentence is disproportionate “focuses on whether, a person deserves such punishment, not on whether punishment would serve a utilitarian goal.”  Id.
  6. The habitual felon indictment alleged that the Defendant had been previously convicted of larceny three times.  Ex. B.
  7. In Ewing v. California, 538 U.S. 11, 123 S.Ct 1179 (2003), the United States Supreme Court addressed whether a sentence imposed under California’s recidivist enhancement constituted cruel and unusual punishment. 
  8. In Ewing, the defendant stole three golf clubs valued at approximately $1,200.  Id. at 18, 123 S.Ct. at 1184.  Ewing was sentenced to 25 years to life.  Id. at 20, 123 S.Ct. at 1185.
  9. The Ewing Court recounted the history of the gross disproportionality principle and noted that in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001 (1983), the Court explained that three factors may be relevant to a determination of whether a sentence is so disproportionate that it violates the Eighth Amendment: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Id., at 292, 103 S.Ct. 3001.” 

Ewing, 538 U.S. at 22, 123 S.Ct. at 1186.

  1. In Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680 (1991), Justice Kennedy’s concurrence set out the framework for how a sentence should be analyzed to determine if it is grossly disproportionate.  His opinion explained that the second two factors from Solem were not always necessary.

A better reading of our cases leads to the conclusion that intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality

Id., 501 U.S. at 1006 (emphasis added).   

  1. The majority of the Supreme Court adopted Justice Kennedy’s framework to analyze the Eighth Amendment implications of Ewing’s sentence. [1]  The Court stated, “We first address the gravity of the offense compared to the harshness of the penalty.”  Ewing, 538 U.S. at 28, 123 S.Ct. at 1189.  The Court stated that this analysis also had to consider his prior felony convictions.  Id., 123 S.Ct. at 1190. 
  2. After comparing Ewing’s sentence with his multiple convictions for violent or serious crimes including robbery and burglary, the Court concluded that the sentence did not violate the Eighth Amendment. [2]  Id. at 30-31,123 S.Ct. at 1190. 
  3. In this case, the Defendant was convicted of an attempt to steal approximately $1,100 worth of goods from Target, Inc.   His prior record consists of property crimes with one misdemeanor marijuana charge.  Ex. G.  The highest class of felony he was convicted of is a Class H. 
  4. Due to the enhancement based on the Defendant’s prior larceny convictions, he was sentenced to a minimum term of over nine years.  The Defendant contends that such a sentence supports an inference of gross disproportionality and that an intrajurisdictional and interjurisdictional analysis is appropriate.  
  5. The Defendant is aware that the North Carolina appellate courts have previously stated that habitual felon enhancements do not constitute cruel and unusual punishment.  See State v. Gibson, 175 N.C.App. 223, 226, 622 S.E.2d 729, 731 (2005); State v. Hensley, 156 N.C.App. 634, 636, 577 S.E.2d 417, 419, disc. rev. denied, 357 N.C. 167, 581 S.E.2d 64 (2003). However, the Defendant contends that “no penalty is per se constitutional” and that an individualized analysis of the sentence and the crime are required.  Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009 (1983).
  6. The Defendant also recognizes that the sentence imposed is authorized by law and that “North Carolina courts have consistently held that when a punishment does not exceed the limits fixed by statute, the punishment cannot be classified as cruel and unusual in a constitutional sense.”  State v. Stinnent, 129 N.C.App.192, 200, 497 S.E.2d 696, 701, disc. rev. denied, 348 N.C. 508, 510 S.E.2d 669, cert. denied, 525 U.S. 1008, 199 S.Ct. 526 (1998).
  7. However, mere authorization of a punishment under the law does not isolate it from an Eighth Amendment challenge as “the Eighth Amendment is a restraint upon the exercise of legislative power.”  Gregg v. Georgia, 428 U.S. 153, 174, 96 S.Ct. 2909, 2925 (1976).  The Gregg Court noted,

Although legislative measures adopted by the people's chosen representatives provide one important means of ascertaining contemporary values, it is evident that legislative judgments alone cannot be determinative of Eighth Amendment standards since that Amendment was intended to safeguard individuals from the abuse of legislative power… Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), illustrates the proposition that penal laws enacted by state legislatures may violate the Eighth Amendment because “in the light of contemporary human knowledge” they “would doubtless be universally thought to be an infliction of cruel and unusual punishment.” Id., at 666, 82 S.Ct., at 1420.

Gregg, 428 U.S. at 174, 96 S.Ct. at 2925. n. 19; See also Furman v. Georgia, 408 U.S. 238, 313-314, 92 S.Ct. 2726, 2764 (1972), White, J. concurring (“Judicial review, by definition, often involves a conflict between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to us in no different posture. It seems conceded by all that the Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment and that there are punishments that the Amendment would bar whether legislatively approved or not.”).

  1. The Defendant contends that while the habitual felon act is intended to serve the “utilitarian” goal of increasing punishment for recidivists, he does not deserve to spend 116 months in prison because for his attempted larceny charge.  In light of the facts and circumstances of his case, the 116 month sentence is sufficient to cross the threshold needed to justify further inquiry into her sentence.  The Defendant requests this Court find that there is an inference of gross disproportionality and allow briefing on the interjurisdictional and intrajurisdictional comparisons of the crime and punishment.

WHEREFORE, the Defendant requests as follows:

  1. That his convictions and/or sentence be vacated;
  2. That additional briefing be allowed on Claim III, if the Court determines that the Defendant has met the threshold test;
  3. That an evidentiary hearing be allowed;
  4. That these matters be placed on the Superior Court docket; and
  5. Any other relief the Court deems just and proper.

                                          Respectfully submitted, this the ___ day of ________, 20____.


                                        Attorney for Defendant