§ 15A‑1415. Grounds forappropriate relief which may be asserted by defendant after verdict; limitationas to time.
(a) At any time afterverdict, a noncapital defendant by motion may seek appropriate relief upon anyof the grounds enumerated in this section. In a capital case, a postconvictionmotion for appropriate relief shall be filed within 120 days from the latest ofthe following:
(1) The court's judgmenthas been filed, but the defendant failed to perfect a timely appeal;
(2) The mandate issuedby a court of the appellate division on direct appeal pursuant to N.C.R. App.P. 32(b) and the time for filing a petition for writ of certiorari to theUnited States Supreme Court has expired without a petition being filed;
(3) The United StatesSupreme Court denied a timely petition for writ of certiorari of the decisionon direct appeal by the Supreme Court of North Carolina;
(4) Following the denialof discretionary review by the Supreme Court of North Carolina, the UnitedStates Supreme Court denied a timely petition for writ of certiorari seekingreview of the decision on direct appeal by the North Carolina Court of Appeals;
(5) The United StatesSupreme Court granted the defendant's or the State's timely petition for writof certiorari of the decision on direct appeal by the Supreme Court of NorthCarolina or North Carolina Court of Appeals, but subsequently left thedefendant's conviction and sentence undisturbed; or
(6) The appointment ofpostconviction counsel for an indigent capital defendant.
(b) The following arethe only grounds which the defendant may assert by a motion for appropriaterelief made more than 10 days after entry of judgment:
(1) The acts charged inthe criminal pleading did not at the time they were committed constitute aviolation of criminal law.
(2) The trial courtlacked jurisdiction over the person of the defendant or over the subjectmatter.
(3) The conviction wasobtained in violation of the Constitution of the United States or theConstitution of North Carolina.
(4) The defendant wasconvicted or sentenced under a statute that was in violation of theConstitution of the United States or the Constitution of North Carolina.
(5) The conduct forwhich the defendant was prosecuted was protected by the Constitution of theUnited States or the Constitution of North Carolina.
(6) Repealed by SessionLaws 1995 (Regular Session, 1996), c. 719, s. 1, effective June 21, 1996.
(7) There has been asignificant change in law, either substantive or procedural, applied in theproceedings leading to the defendant's conviction or sentence, and retroactiveapplication of the changed legal standard is required.
(8) The sentence imposedwas unauthorized at the time imposed, contained a type of sentence dispositionor a term of imprisonment not authorized for the particular class of offenseand prior record or conviction level was illegally imposed, or is otherwiseinvalid as a matter of law. However, a motion for appropriate relief on thegrounds that the sentence imposed on the defendant is not supported by evidenceintroduced at the trial and sentencing hearing must be made before thesentencing judge.
(9) The defendant is inconfinement and is entitled to release because his sentence has been fullyserved.
(c) Notwithstanding thetime limitations herein, a defendant at any time after verdict may by a motionfor appropriate relief, raise the ground that evidence is available which wasunknown or unavailable to the defendant at the time of trial, which could notwith due diligence have been discovered or made available at that time,including recanted testimony, and which has a direct and material bearing uponthe defendant's eligibility for the death penalty or the defendant's guilt orinnocence. A motion based upon such newly discovered evidence must be filedwithin a reasonable time of its discovery.
(d) For good causeshown, the defendant may be granted an extension of time to file the motion forappropriate relief. The presumptive length of an extension of time under thissubsection is up to 30 days, but can be longer if the court finds extraordinarycircumstances.
(e) Where a defendantalleges ineffective assistance of prior trial or appellate counsel as a groundfor the illegality of his conviction or sentence, he shall be deemed to waivethe attorney‑client privilege with respect to both oral and writtencommunications between such counsel and the defendant to the extent thedefendant's prior counsel reasonably believes such communications are necessaryto defend against the allegations of ineffectiveness. This waiver of theattorney‑client privilege shall be automatic upon the filing of themotion for appropriate relief alleging ineffective assistance of prior counsel,and the superior court need not enter an order waiving the privilege.
(f) In the case of adefendant who is represented by counsel in postconviction proceedings insuperior court, the defendant's prior trial or appellate counsel shall makeavailable to the defendant's counsel their complete files relating to the caseof the defendant. The State, to the extent allowed by law, shall make availableto the defendant's counsel the complete files of all law enforcement andprosecutorial agencies involved in the investigation of the crimes committed orthe prosecution of the defendant. If the State has a reasonable belief thatallowing inspection of any portion of the files by counsel for the defendantwould not be in the interest of justice, the State may submit for inspection bythe court those portions of the files so identified. If upon examination of thefiles, the court finds that the files could not assist the defendant ininvestigating, preparing, or presenting a motion for appropriate relief, thecourt in its discretion may allow the State to withhold that portion of thefiles.
(g) The defendant mayfile amendments to a motion for appropriate relief at least 30 days prior tothe commencement of a hearing on the merits of the claims asserted in themotion or at any time before the date for the hearing has been set, whicheveris later. Where the defendant has filed an amendment to a motion forappropriate relief, the State shall, upon request, be granted a continuance of30 days before the date of hearing. After such hearing has begun, the defendantmay file amendments only to conform the motion to evidence adduced at thehearing, or to raise claims based on such evidence. (1977, c. 711, s. 1; 1981,c. 179, s. 7; 1993, c. 538, s. 25; 1994, Ex. Sess., c. 24, s. 14(b); 1995 (Reg.Sess., 1996), c. 719, s. 1; 2009‑517, s. 2.)
§ 15A‑1415. Grounds forappropriate relief which may be asserted by defendant after verdict; limitationas to time.
(a) At any time afterverdict, a noncapital defendant by motion may seek appropriate relief upon anyof the grounds enumerated in this section. In a capital case, a postconvictionmotion for appropriate relief shall be filed within 120 days from the latest ofthe following:
(1) The court's judgmenthas been filed, but the defendant failed to perfect a timely appeal;
(2) The mandate issuedby a court of the appellate division on direct appeal pursuant to N.C.R. App.P. 32(b) and the time for filing a petition for writ of certiorari to theUnited States Supreme Court has expired without a petition being filed;
(3) The United StatesSupreme Court denied a timely petition for writ of certiorari of the decisionon direct appeal by the Supreme Court of North Carolina;
(4) Following the denialof discretionary review by the Supreme Court of North Carolina, the UnitedStates Supreme Court denied a timely petition for writ of certiorari seekingreview of the decision on direct appeal by the North Carolina Court of Appeals;
(5) The United StatesSupreme Court granted the defendant's or the State's timely petition for writof certiorari of the decision on direct appeal by the Supreme Court of NorthCarolina or North Carolina Court of Appeals, but subsequently left thedefendant's conviction and sentence undisturbed; or
(6) The appointment ofpostconviction counsel for an indigent capital defendant.
(b) The following arethe only grounds which the defendant may assert by a motion for appropriaterelief made more than 10 days after entry of judgment:
(1) The acts charged inthe criminal pleading did not at the time they were committed constitute aviolation of criminal law.
(2) The trial courtlacked jurisdiction over the person of the defendant or over the subjectmatter.
(3) The conviction wasobtained in violation of the Constitution of the United States or theConstitution of North Carolina.
(4) The defendant wasconvicted or sentenced under a statute that was in violation of theConstitution of the United States or the Constitution of North Carolina.
(5) The conduct forwhich the defendant was prosecuted was protected by the Constitution of theUnited States or the Constitution of North Carolina.
(6) Repealed by SessionLaws 1995 (Regular Session, 1996), c. 719, s. 1, effective June 21, 1996.
(7) There has been asignificant change in law, either substantive or procedural, applied in theproceedings leading to the defendant's conviction or sentence, and retroactiveapplication of the changed legal standard is required.
(8) The sentence imposedwas unauthorized at the time imposed, contained a type of sentence dispositionor a term of imprisonment not authorized for the particular class of offenseand prior record or conviction level was illegally imposed, or is otherwiseinvalid as a matter of law. However, a motion for appropriate relief on thegrounds that the sentence imposed on the defendant is not supported by evidenceintroduced at the trial and sentencing hearing must be made before thesentencing judge.
(9) The defendant is inconfinement and is entitled to release because his sentence has been fullyserved.
(c) Notwithstanding thetime limitations herein, a defendant at any time after verdict may by a motionfor appropriate relief, raise the ground that evidence is available which wasunknown or unavailable to the defendant at the time of trial, which could notwith due diligence have been discovered or made available at that time,including recanted testimony, and which has a direct and material bearing uponthe defendant's eligibility for the death penalty or the defendant's guilt orinnocence. A motion based upon such newly discovered evidence must be filedwithin a reasonable time of its discovery.
(d) For good causeshown, the defendant may be granted an extension of time to file the motion forappropriate relief. The presumptive length of an extension of time under thissubsection is up to 30 days, but can be longer if the court finds extraordinarycircumstances.
(e) Where a defendantalleges ineffective assistance of prior trial or appellate counsel as a groundfor the illegality of his conviction or sentence, he shall be deemed to waivethe attorney‑client privilege with respect to both oral and writtencommunications between such counsel and the defendant to the extent thedefendant's prior counsel reasonably believes such communications are necessaryto defend against the allegations of ineffectiveness. This waiver of theattorney‑client privilege shall be automatic upon the filing of themotion for appropriate relief alleging ineffective assistance of prior counsel,and the superior court need not enter an order waiving the privilege.
(f) In the case of adefendant who is represented by counsel in postconviction proceedings insuperior court, the defendant's prior trial or appellate counsel shall makeavailable to the defendant's counsel their complete files relating to the caseof the defendant. The State, to the extent allowed by law, shall make availableto the defendant's counsel the complete files of all law enforcement andprosecutorial agencies involved in the investigation of the crimes committed orthe prosecution of the defendant. If the State has a reasonable belief thatallowing inspection of any portion of the files by counsel for the defendantwould not be in the interest of justice, the State may submit for inspection bythe court those portions of the files so identified. If upon examination of thefiles, the court finds that the files could not assist the defendant ininvestigating, preparing, or presenting a motion for appropriate relief, thecourt in its discretion may allow the State to withhold that portion of thefiles.
(g) The defendant mayfile amendments to a motion for appropriate relief at least 30 days prior tothe commencement of a hearing on the merits of the claims asserted in themotion or at any time before the date for the hearing has been set, whicheveris later. Where the defendant has filed an amendment to a motion forappropriate relief, the State shall, upon request, be granted a continuance of30 days before the date of hearing. After such hearing has begun, the defendantmay file amendments only to conform the motion to evidence adduced at thehearing, or to raise claims based on such evidence. (1977, c. 711, s. 1; 1981,c. 179, s. 7; 1993, c. 538, s. 25; 1994, Ex. Sess., c. 24, s. 14(b); 1995 (Reg.Sess., 1996), c. 719, s. 1; 2009‑517, s. 2.)
§ 15A‑1415. Grounds forappropriate relief which may be asserted by defendant after verdict; limitationas to time.
(a) At any time afterverdict, a noncapital defendant by motion may seek appropriate relief upon anyof the grounds enumerated in this section. In a capital case, a postconvictionmotion for appropriate relief shall be filed within 120 days from the latest ofthe following:
(1) The court's judgmenthas been filed, but the defendant failed to perfect a timely appeal;
(2) The mandate issuedby a court of the appellate division on direct appeal pursuant to N.C.R. App.P. 32(b) and the time for filing a petition for writ of certiorari to theUnited States Supreme Court has expired without a petition being filed;
(3) The United StatesSupreme Court denied a timely petition for writ of certiorari of the decisionon direct appeal by the Supreme Court of North Carolina;
(4) Following the denialof discretionary review by the Supreme Court of North Carolina, the UnitedStates Supreme Court denied a timely petition for writ of certiorari seekingreview of the decision on direct appeal by the North Carolina Court of Appeals;
(5) The United StatesSupreme Court granted the defendant's or the State's timely petition for writof certiorari of the decision on direct appeal by the Supreme Court of NorthCarolina or North Carolina Court of Appeals, but subsequently left thedefendant's conviction and sentence undisturbed; or
(6) The appointment ofpostconviction counsel for an indigent capital defendant.
(b) The following arethe only grounds which the defendant may assert by a motion for appropriaterelief made more than 10 days after entry of judgment:
(1) The acts charged inthe criminal pleading did not at the time they were committed constitute aviolation of criminal law.
(2) The trial courtlacked jurisdiction over the person of the defendant or over the subjectmatter.
(3) The conviction wasobtained in violation of the Constitution of the United States or theConstitution of North Carolina.
(4) The defendant wasconvicted or sentenced under a statute that was in violation of theConstitution of the United States or the Constitution of North Carolina.
(5) The conduct forwhich the defendant was prosecuted was protected by the Constitution of theUnited States or the Constitution of North Carolina.
(6) Repealed by SessionLaws 1995 (Regular Session, 1996), c. 719, s. 1, effective June 21, 1996.
(7) There has been asignificant change in law, either substantive or procedural, applied in theproceedings leading to the defendant's conviction or sentence, and retroactiveapplication of the changed legal standard is required.
(8) The sentence imposedwas unauthorized at the time imposed, contained a type of sentence dispositionor a term of imprisonment not authorized for the particular class of offenseand prior record or conviction level was illegally imposed, or is otherwiseinvalid as a matter of law. However, a motion for appropriate relief on thegrounds that the sentence imposed on the defendant is not supported by evidenceintroduced at the trial and sentencing hearing must be made before thesentencing judge.
(9) The defendant is inconfinement and is entitled to release because his sentence has been fullyserved.
(c) Notwithstanding thetime limitations herein, a defendant at any time after verdict may by a motionfor appropriate relief, raise the ground that evidence is available which wasunknown or unavailable to the defendant at the time of trial, which could notwith due diligence have been discovered or made available at that time,including recanted testimony, and which has a direct and material bearing uponthe defendant's eligibility for the death penalty or the defendant's guilt orinnocence. A motion based upon such newly discovered evidence must be filedwithin a reasonable time of its discovery.
(d) For good causeshown, the defendant may be granted an extension of time to file the motion forappropriate relief. The presumptive length of an extension of time under thissubsection is up to 30 days, but can be longer if the court finds extraordinarycircumstances.
(e) Where a defendantalleges ineffective assistance of prior trial or appellate counsel as a groundfor the illegality of his conviction or sentence, he shall be deemed to waivethe attorney‑client privilege with respect to both oral and writtencommunications between such counsel and the defendant to the extent thedefendant's prior counsel reasonably believes such communications are necessaryto defend against the allegations of ineffectiveness. This waiver of theattorney‑client privilege shall be automatic upon the filing of themotion for appropriate relief alleging ineffective assistance of prior counsel,and the superior court need not enter an order waiving the privilege.
(f) In the case of adefendant who is represented by counsel in postconviction proceedings insuperior court, the defendant's prior trial or appellate counsel shall makeavailable to the defendant's counsel their complete files relating to the caseof the defendant. The State, to the extent allowed by law, shall make availableto the defendant's counsel the complete files of all law enforcement andprosecutorial agencies involved in the investigation of the crimes committed orthe prosecution of the defendant. If the State has a reasonable belief thatallowing inspection of any portion of the files by counsel for the defendantwould not be in the interest of justice, the State may submit for inspection bythe court those portions of the files so identified. If upon examination of thefiles, the court finds that the files could not assist the defendant ininvestigating, preparing, or presenting a motion for appropriate relief, thecourt in its discretion may allow the State to withhold that portion of thefiles.
(g) The defendant mayfile amendments to a motion for appropriate relief at least 30 days prior tothe commencement of a hearing on the merits of the claims asserted in themotion or at any time before the date for the hearing has been set, whicheveris later. Where the defendant has filed an amendment to a motion forappropriate relief, the State shall, upon request, be granted a continuance of30 days before the date of hearing. After such hearing has begun, the defendantmay file amendments only to conform the motion to evidence adduced at thehearing, or to raise claims based on such evidence. (1977, c. 711, s. 1; 1981,c. 179, s. 7; 1993, c. 538, s. 25; 1994, Ex. Sess., c. 24, s. 14(b); 1995 (Reg.Sess., 1996), c. 719, s. 1; 2009‑517, s. 2.)
