The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume III, Issue 1, March 2003

ACCESS

CHALLENGING A CONVICTION -CAN YOU RECEIVE A GREATER SENTENCE?
BY SENIOR ATTORNEY KRISTIN D. PARKS

On December 20, 2002, the North
Carolina Supreme Court issued an
opinion in State of North Carolina
v. Wagner, 356 N.C. 599, 572
S.E.2d 777 (2002). The Court
ruled that
“a defendant whose
sentence
has been
successfully
challenged
cannot
receive a
more
severe sentence for
the same
offense or
conduct on
remand.” Attorney Clarke Fischer
of Winston-Salem represented
the defendant-inmate. NCPLS
appeared in the case as amicus
curiae (friend of the court), filing a
brief and participating in oral argument on behalf of the defendant.

offender. The Superior Court
agreed and found that the plea
bargain was a product of “mutual
mistake.” The court set aside the
defendant’s plea and conviction.

prior sentence less the portion of
the prior sentence previously
served.

Notwithstanding the statute, both
the Superior Court
and the
North Carolina Court
of Appeals
found that
this defendant could
receive a
sentence of
more than
twice what
had previously been
The North Carolina Supreme Court Justices
imposed.
The prosecutor subsequently
indicted defendant on charges of (i) The State argued that §15A-1335
attempt to possess cocaine, (ii)
should not apply because this case
being an habitual felon, and a new
(Continued on Page 2)
charge, (iii) felonious possession of
drug paraphernalia. Following a
In this Issue:
jury trial, the defendant was conChallenging A Conviction - Can You Receive
victed and received two, consecuA Greater Sentence?
1
In this case, the defendant entered a tive sentences of 135-171 months.
Update On R.D.M. Legal Research
2
North
Carolina
Supreme
Court
Rules
In
guilty plea to attempted possession
Work Release/Worker’s Compensation Case
3
of cocaine as an habitual felon for a N.C. Gen. Stat. §15A-1335 proIneffective Assistance of Counsel:
Parker v. York
4
vides:
sentence of 101-131 months. The
North Carolina FAMM Gears-Up For Action
5
When a conviction or sentence
sentence was based on a prior recIMPACT Update: People Still Entering Prison
imposed in superior court has
ord level VI under the Structured
Without Credit for Time Spent At IMPACT
6
Sentence Reduction Credits For Inmates
been set aside on direct review
Sentencing Act. The defendant
“Medically Unfit” To Participate In
or collateral attack, the court
subsequently filed a Motion for
Rehabilitative Activities
7
New Litigation
8
may not impose a new sentence
Appropriate Relief (MAR), claimNCPLS Assistant Director Named
10
for the same offense, or conduct, Tips on Corresponding With NCPLS
ing that he should actually have
11
which is more severe than the
been sentenced as a level V

NCPLS ACCESS

Page 2

ACCESS is a publication of North
Carolina Prisoner Legal Services,
Inc. Established in 1978, NCPLS is a
non-profit, public service organization.
The program is governed by a Board of
Directors who are designated by various
organizations and institutions, including
the North Carolina Bar Association, the
North Carolina Association of Black
Lawyers, the North Carolina Association of Women Attorneys, and law
school deans at UNC, Duke, NCCU,
Wake Forest and Campbell.
NCPLS serves a population of more
than 33,500 prisoners and 14,000 pretrial detainees, providing information
and advice concerning legal rights and
responsibilities, discouraging frivolous
litigation, working toward administrative resolutions of legitimate problems,
and providing representation in all State
and federal courts to ensure humane
conditions of confinement and to challenge illegal convictions and sentences.
Board of Directors
President, Gary Presnell
Jim Blackburn
James A. Crouch, Esq.
Paul M. Green, Esq.
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Michelle Robertson
Lou Ann Vincent, C.P.A.
Fred Williams, Esq.
Professor Ronald F. Wright
Executive Director
Michael S. Hamden, Esq.
Editor
Patricia Sanders, CLA
ACCESS is published four (4) times
a year. Articles, ideas and suggestions
are welcome: tsanders@ncpls.org

Volume III, Issue 1, March 2003

CHALLENGING A CONVICTION -(CONTINUED)
(Continued from page 1)

involved a guilty plea, rather than a
jury verdict. The North Carolina
Supreme Court found that distinction of no consequence. According
to the Court, a sentence for the
same offense that exceeded the
original sentence violated the statute. State v. Wagner, 356 N.C. at
602, 572 S.E.2d at 779.
The Wagner case provides important protection to defendants who
successfully challenge errors in
their cases. However, some questions remain, even after Wagner.
For example, it is not clear how
courts will view cases in which the
State has obtained a conviction on
charges previously dismissed as

part of plea agreement that was
subsequently overturned. Would a
lengthier sentence resulting from
conviction upon previously dismissed charges comport with
§15A-1335? (In Wagner, defendant’s indictment and conviction
for felonious possession of drug
paraphernalia was not supported by
any statute – there is no such crime
under North Carolina law. The trial
court’s lack of jurisdiction therefore made the conviction void. It is
not clear whether the result would
be the same if the charged crime
were supported by statute.) The
answer to that question, and others,
will have to await further developments in the courts.

UPDATE ON R.D.M.
LEGAL RESEARCH
In our June 2002 issue of Access,
we reported that the Attorney General’s (AG) Office, Consumer Protection Section, was investigating
R.D.M. Legal Research. The AG
filed an action in the Wake County
Superior Court alleging that the
practices of R.D.M. violated the
North Carolina Unfair and Deceptive Trade Practices Act, N.C.
Gen. Stat. §75-1.1. State of North
Carolina v. Richard D. Mears d/b/a
R.D.M. Legal Research, 02 CVS
8415 (Wake Co., June 2002).
The State filed a complaint alleging that R.D.M. solicited fees from
inmates and their families to secure
clemency or pardons within a specific period of time. The complaint
further alleges that, after the fees

were collected, the inmates were
not released by the date specified
and were not refunded their money.
On February 18, 2002, the AG
argued for summary judgment before the Honorable Superior Court
Judge W. Osmond Smith, III.
On March 5, 2003, Judge Smith
entered an Order Granting Partial
Summary Judgment and a Permanent Injunction against Richard D.
Mears, doing business as R.D.M.
Legal Research. The trial court
found that the State was entitled to
summary judgment with respect to
liability under the North Carolina
Unfair and Deceptive Trade Practices Act. The court permanently
(Continued on page 9)

NCPLS ACCESS

Volume III, Issue 1, March 2003

Page 3

NORTH CAROLINA SUPREME COURT
RULES IN
WORK RELEASE/WORKERS’ COMPENSATION CASE
BY SENIOR ATTORNEY LINDA B. WEISEL

On February 3, 2003, the North
Carolina Supreme Court heard oral
arguments in the case of Harris v.
Thompson Contractors and United
States Fidelity, No. 122P002 (NC
S.Ct. 2002). This case deals with
the important issue of an inmate’s
eligibility for workers’ compensation if the inmate is injured on
a work release job for a private
employer. Gastonia Attorneys
Joseph B. Roberts, III, and Scott
W. Roberts argued the case for the
plaintiff, a former inmate. Charlotte Attorney Lawrence J.
Goldman argued the case
for the employer.

release jobs are not being worked
by the State, but are working to
further the business of the private
employer for whom they are working. The plaintiff’s attorneys further argued that the work release
policies of North Carolina require
private businesses to compensate
an injured inmate employee in the
same manner the employer would
compensate any non-inmate
employee of the business.
On February 28, 2003, the North
Carolina Supreme Court
affirmed the unanimous
decision by the North
Carolina Court of
Appeals in favor
of the inmateemployee. This
victory will
benefit literally
thousands of inmates
as they develop marketable skills and learn the
discipline required to succeed
in the transition to life in free
society.

.".INMAIES .
. .,ATWORK:·,

As previously
reported in
ACCESS, two
amicus (friend
of the court) briefs
were filed in support
of the plaintiff. One
amicus brief was filed by
NCPLS Director Michael
Hamden and Senior Attorney
Linda Weisel. The other amicus
brief was filed by the Attorney
General’s Office on behalf of the
N.C. Department of Correction.

.

-.

.

'.

.

. . Work ReleaSe'and .' .' .

. ·wor*ers':ConlllonsatiO.n.
.""
".

The employer’s attorney argued
that former inmate Harris was
being worked by the State when
he was injured on his work release
job for a private employer and that
he is not entitled to full recovery
under the Workers’ Compensation
Act. The plaintiff’s attorneys
argued that inmates on work

;

,"

.-

,-

.'

Additional advantages to the
citizens of North Carolina are (1)
that inmates are able to pay taxes,
restitution, and court costs, (2)
the Department of Correction is
able to recover some of the costs
of housing work release inmates,
and (3) private employers have an
enthusiastic and committed pool of
employees upon which to draw to
further their businesses.

NCPLS ACCESS

Page 4

Volume III, Issue 1, March 2003

INEFFECTIVE ASSISTANCE OF COUNSEL: PARKER V. YORK
BY SENIOR ATTORNEYS KRISTIN D. PARKS & SUSAN H. POLLITT

On December 10, 2002, NCPLS
won a petition for federal habeas
corpus in the case of Parker v.
York, No. 5:01-HC-736-BO. Chief
United States District Court Judge
Terrence W. Boyle of the Eastern
District of North
Carolina issued
an Order finding
that Parker’s
attorney provided ineffective
assistance of
counsel. Judge
Boyle vacated
~
and set aside Mr.
•
Parker’s conviction and ordered
Mr. Parker’s
unconditional
release from custody unless the
State retried him
within 90
days. Mr. Parker
filed his petition
for the writ of
habeas corpus
on his own.
Judge Boyle
appointed
NCPLS to
respond to the
State’s Motion
for Summary
Judgment. The State’s motion was
denied and an evidentiary hearing
was ordered. The hearing was conducted in October 2002 in Raleigh.

Ii"

'.

Claims of ineffective assistance are
often difficult to win on habeas
review. Such claims require satisfying a two-pronged test that
requires a showing of deficient performance by the attorney, and that
this deficient performance preju-

diced the defendant. Strickland v.
Washington, 466 U.S. 668 (1984).
To establish deficient performance,
a petitioner must show that counsel
made errors so serious that he was
not functioning as the “counsel”

indulge a strong presumption that
counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the
defendant must overcome the
presumption that, under the circumstances, the
challenged action
might be considered sound trial
strategy.” Id. at
694-695.

At the hearing in
the Parker case,
nih w.QlIrl
strong expert
FEDERAl BUIUlING
testimony was
lJifllD SlAIlS COlInIQlll
provided by
Raleigh Attorney
Thomas Manning concerning
the standards of
criminal defense
practice. NCPLS
also put on evidence of several
eyewitnesses
who would have
testified that Mr.
Parker was in
Alabama at the
time of the robbery in GoldsThe Federal Courthouse, Raleigh, NC
boro, North
Carolina. The
guaranteed under the Sixth Amend- attorney failed to arrange for the
ment. Strickland, 466 U.S. at 687. witnesses to appear at the trial.
With respect to the prejudice prong, Several of the witnesses appeared
Strickland held that a defendant
at the evidentiary hearing, and
must show “that there is a reasonothers submitted affidavits. This
able probability that, but for
evidence was sufficiently persuacounsel’s unprofessional errors,
sive to overcome the strong prethe result of the proceeding would
sumption that an attorney’s conduct
have been different.” Id. at 694.
is within a wide range of reasonHowever, a court’s review of an
able professional assistance.
attorney’s performance is highly
deferential. “[A] court must
(Continued on page 9)

Volume III, Issue 1, March 2003

NCPLS ACCESS

Page 5

NORTH CAROLINA FAMM GEARS-UP FOR ACTION
Members of North Carolina
Families Against Mandatory
Minimums (NC-FAMM) are
gearing up for a day of lobbying
in Raleigh on March 19, 2003.
Their goals are to: (1) win support for bills replacing mandatory minimum drug sentences
with sentencing guidelines; (2)
give judges greater discretion
in imposing sentences; and (3)
modify the State’s harsh sentences for defendants charged as
“habitual felons.”
“FAMM’s North Carolina sentencing reform campaign is desperately
needed,” said LaFonda Jones,
FAMM’s NC Project Director.
Before joining NC-FAMM, Jones
was a FAMM coordinator in
Fayetteville, NC. Since taking on
the duties of Project Director, Jones
has been building support by
speaking to groups across the State.
“Leaders of many grassroots organizations are excited that FAMM is
focusing on the habitual felon
issue,” Jones said. For example,
the State Chapter of the NAACP is
making this issue one of its top
legislative priorities because of its
disproportionate impact on people
of color, Jones reports. That organization is expected to be one of
those that will join FAMM members to lobby legislators.
Mandatory Sentences Override
State Guidelines
North Carolina has long been
hailed for innovative sentencing
policies. Its sentencing guidelines,
similar to the federal system, have
helped to keep the prison population in line with prison capacity.

But so-called “tough on crime”
mandatory penalties that override
the guidelines and lengthen sentences are leading to a prison overcrowding crisis at the same time
the state’s budget is in the worst
shape since the Great Depression.
The “habitual felon” statute is the
best example. Prosecutors can
charge a defendant with three prior
felonies that have not been used to
calculate a prior record level as the
basis for an “habitual felon” indictment. Habitual felons must be
sentenced at the fourth-most severe
guideline level, requiring minimum
sentences of 5 to 14 years. Yet,
the felony that can trigger habitual
felon status is often comparatively
minor, nonviolent conduct, frequently carrying a penalty of less
than a year in prison.
It appears that the vast majority of
defendants charged as habitual
felons are untreated addicts committing low-level crimes. Habitual
felons make up almost one-tenth of
the state’s prison population approximately 3,200 prisoners and there are enough new habitual
felon convictions per year to fill a
medium-size prison. Statewide,
73% of all convicted habitual
felons are African American.

North Carolina’s mandatory drug
trafficking sentences also override the sentencing guidelines.
Prosecutors may bring charges
for each of a number of elements
in an offense (transporting, possessing, manufacturing, selling/
delivering and conspiracy), even
though all the charges are related
to the same quantity of drugs.
The sentence for each count may
be required to be served consecutively to other sentences, leading to
extremely long sentences.
A “Smart on Crime” Solution
“FAMM’s campaign could not
come at a better time,” said Jones.
“North Carolina’s budget crisis is
threatening public education, jobs
and critical health services. At the
same time, the Legislature is planning to spend millions more to
build new prisons.
“If the Legislature would enact
modest reforms -- allow nonviolent
offenders convicted of drug trafficking to be sentenced under the
guidelines, and reform the habitual
felon statute -- pressure on both
bed space and the budget would be
greatly reduced without jeopardizing public safety,” Jones said.
FAMM has retained Randolph
Cloud, a seasoned North Carolina lobbyist who also represents
substance abuse and mental health
treatment providers. Bruce Cunningham, a defense attorney in
private practice, is providing pro
bono legal assistance and heads
FAMM’s North Carolina volunteer
legal team.
(Continued on page 9)

Page 6

NCPLS ACCESS

Volume III, Issue 1, March 2003

IMPACT UPDATE:
PEOPLE STILL ENTERING PRISON
WITHOUT CREDIT FOR TIME SPENT AT IMPACT
BY SENIOR ATTORNEYS KARI L. HAMEL AND SUSAN H. POLLITT

In August 2002, the North Carolina
Supreme Court ruled that time
people spent in IMPACT (Intensive
Motivational Program of Alternative Correctional Treatment) must
be credited against their activated
sentence. State v. Hearst, 356 N.C.
132, 567 S.E.2d 124 (N.C. 2002).
NCPLS participated as a friend of
the court in that case. After the
Supreme Court’s ruling, we have
been working hard to make sure
people receive the credit to which
they are entitled. The DOC has
helped by providing lists of people
in prison who also went to
IMPACT.
Only a judge can award credit for
IMPACT. When an inmate
requests our help, we verify his
participation in IMPACT and determine if the credit that he may
have already received includes
credit for
IMPACT. During
our investigation,
we have discovered that some
inmates are entitled to additional
jail credit, as well.
NCPLS then
writes to the clerk
of court requesting an order for
the additional
time. Usually, our
effort results in an
Order Providing

Credit Against Service of Sentence,
which is sent by the clerk of court
to Combined Records in Raleigh.
In August 2002, we received names
of more than 650 inmates in the
DOC who participated in IMPACT.
We prioritized the list by identifying those inmates who would be
released immediately if they got
their IMPACT credit. We are
pleased to report that we helped
get 63 people immediately released
from prison. We have also gotten
IMPACT credit for an additional
125 more people who will now be
released from prison at an earlier
date.
In December 2002, we asked the
DOC for another list of people
who participated in IMPACT and
entered the DOC after August
2002. The DOC was cooperative,

providing a list of more than 100
names, which included people who
would be entitled to immediate
release upon receiving the
IMPACT credit. Again, we prioritized the work by release date. We
are pleased to report that we have
gotten, or expect to get IMPACT
awards for an additional 30 people.
To date, courts throughout North
Carolina have ordered more than
15,000 days of credit be applied
toward inmates’ sentences.
NCPLS and DOC agree that no
inmate should spend a single day in
prison beyond the lawful term of
incarceration. Working with the
DOC, NCPLS has been able to
identify and get relief for a number
of our clients.
If you entered the DOC after
December 20, 2002, you participated in
IMPACT, and
you believe you
did not receive
credit for the
time you spent
in IMPACT,
you should write
to us to request
assistance. In
order to obtain
the greatest
possible benefit
from that credit,
you should act
immediately.

The Paralegals of NCPLS
(Not picturerd, Bruce Creecy, Sharon Robertson & Billy Sanders)

Volume III, Issue 1, March 2003

NCPLS ACCESS

Page 7

SENTENCE REDUCTION CREDITS FOR
INMATES “MEDICALLY UNFIT”
TO PARTICIPATE IN REHABILITATIVE ACTIVITIES
On September 26, 2001, the North
Carolina Legislature enacted an
amendment to N.C. Gen. Stat.
15A-1355(d), which allows the
Department of Correction to award
earned time credits to inmates
serving sentences under the Structured Sentencing Act who are
classified as “medically unfit.” The
DOC recently published regulations under the statute. See DOC
Policy and Procedure Manual, 5
NC Administrative Code Section
2B.0116. The policy took effect 3
February 2003. Qualifying inmates
are entitled to credit from that date,
forward.
“Inmates in the custody of the
Department of Correction who
suffer from medical conditions or
physical disabilities that prevent
their assignment to work release or
other rehabilitative activities may,
consistent with rules of the Department of Correction, earn credit
based upon good behavior or other
criteria determined by the Department that may be used to reduce
their maximum terms of imprisonment . . ..” N.C. Gen. Stat.
§1355(d).
For inmates determined to be
“medically unfit,” the regulations
provide four days of sentence
reduction credits per month. To be
classified medically unfit, the medical authority must determine that
the person cannot engage in any
available work or program assign-

ment due to a medical or mental
health problem, or a physical disability.
“[S]tructured sentence inmates designated as an Acuity Level IV by a
Department of Correction medical
authority . . .” will be considered
“medically unfit.” An Acuity Level
IV inmate is one who may require
constant medical intervention in a
hospital or other medical facility.”
Examples of Acuity Level IV
inmates include those persons who
are wheelchair-bound and require
complete assistance; persons
isolated for contagious diseases;
people who require feeding tubes;
and pregnancy. Other conditions
may provide grounds for a finding
of medical unfitness, in the discretion of health care authorities.
Once an inmate is designated as
medically unfit, the person will
continue in that status until a medical authority determines that the
health condition or disability no
longer prevents assignment to work
or other activities.
Many inmates will not be designated medically unfit. These
include: (1) persons who are able
to participate in appropriate work
or other assignments but refuse to
work or participate; (2) persons
whose medical or mental health
condition is the result of selfinjury; and (3) persons on segregation status (including MCON,
ICON, and HCON).

If an individual has limitations that
prevent assignment to some, but
not all work or program activities,
he will not be designated as medically unfit. Instead, an assignment
should be given that is appropriate
to the inmate’s health condition or
physical disability. Sentence
reduction credits will be earned
based on the particular assignment.
If you believe that you are eligible
for sentence reduction credits
under this policy but do not know
whether you are receiving credits,
you should first check with your
case manager. If you are not designated as medically unfit and you
believe you should be, you should
sign up to see the unit physician.
Explain your medical or mental
health problems, or your disability,
and ask to be designated as medically unfit. If the health authority
determines that you are not eligible
to be designated as medically unfit,
ask what assignments or programs
would be appropriate in light of
your health problems or disability.
Then take that information back to
your case manager and ask for any
available assignment that you can
perform.
If you are not designated as medically unfit but you believe the
decision was wrong, or if you are
unable to get an appropriate work
or program assignment, you can
raise your concerns through the
grievance procedure.

Page 8

NCPLS ACCESS

NEW LITIGATION

Volume III, Issue 1, March 2003

BY ASSISTANT DIRECTOR JAMES W. CARTER

Sentence Reduction Credits
Should Apply Upon Revocation
of Post-Release Supervision
NCPLS Senior Attorneys Susan H.
Pollitt and James W. Carter filed a
class action complaint and a motion
for class certification in the Wake
County Superior Court on December 20, 2002. In Reep v. Beck, et.
al, 02-CVS-16880, Plaintiffs allege
that the Department of Correction
fails to apply any excessive sentence reduction
credits an inmate
may have earned
while previously
incarcerated to
his post-release
sentence if,
and when, it is
revoked. Plaintiffs contend that
the application
of those credits
is required by
North Carolina
statutes.
Inmates convicted under
Structured
Sentencing
of a Class B1
through E felony
are released from
prison on postrelease supervision. During their
initial period of confinement, they
can earn sentence reduction credits
that are not applied to their active
sentence because doing so would
reduce their minimum sentence
below what they are required to
serve by law. If they fail to meet
the conditions of their post-release
supervision, a revocation will result

and they will be returned to prison.
Upon their return, the Plaintiffs
in Reep allege that the earned, but
previously unapplied, credit should
then be applied to reduce the remaining portion of their maximum
sentence.
On February 18, 2003, the parties
appeared in superior court to argue
Plaintiffs’ class certification
motion. On February 27, 2003, the
Honorable Evelyn W. Hill, Supe-

unapplied sentence reduction credit
to his post-release sentence. Since
Plaintiff could not show injury, the
court found that Mr. Reep’s claim
was moot and dismissed the action.
Plaintiffs have 30 days to decide
whether to appeal the court’s ruling
to the North Carolina Court of
Appeals.
Sentence Reduction Credits
Should Apply to Class C Life
Terms

Class C Life
sentences are
“indeterminate,” in the
sense that
they do not
specify a date
on which the
sentenced
inmate will be
released from
prison. The
Department
of Correction
has
taken the
position that,
since there is
no projected
The North Carolina Supreme Court and
release date,
Court of Appeals are Side-By-Side
sentence
reduction
rior Court Judge of Wake County
credits cannot be applied. That
entered an Order of Dismissal of
postion has been challenged in two
the Class Action Complaint. The
companion cases. Teasley v. Beck,
court found that Mr. Reep received and Bates v. Beck, No. 105P03 (NC
an additional sentence which is
S.Ct. 2003). At a hearing in Seplonger than his nine-month sentember 2001, Superior Court Judge
tence for violating the terms of his Donald W. Stephens observed that
post-release supervision. Therethe law requires the application of
fore, he cannot show any injury by
(Continued on page 11)
the failure to apply the earned, but

Volume III, Issue 1, March 2003

NCPLS ACCESS

UPDATE ON R.D.M.
(CONTINUED)

Because additional claims may be
pending, the Order provides that
the court shall consider and determine the validity and extent of
other victims’ claims, and
defendant’s additional restitution
obligations to them, based upon
written affidavits and supporting
documents filed by June 1, 2003.
Any claims that have not yet been

PARKER V. YORK
(CONTINUED)
(Continued from page 4)

(Continued from page 2)

barred the defendant from offering
or contracting to assist any party in
securing an inmate’s release fromprison, transfer to another prison,
or enrollment in any special program. The court ordered that all of
the defendant’s contracts for early
release or enrollment in M.A.P.P.
contracts be cancelled, and that the
defendant make restitution of all
uncontested sums collected from
consumers who were parties to the
cancelled contracts. Restitution is
to be paid to the AG’s Office and
will be paid to the victims on a pro
rata basis as soon as practicable.

Page 9

presented to the Attorney General’s
Office should be sent to the attention of David N. Kirkman,
Assistant Attorney General, Consumer Protection Division, NC
Dept. of Justice, P.O. Box 629,
Raleigh, NC 27602. Victims who
wish to have their claims considered by Judge Smith should communicate with Mr. Kirkman at least
one month before the June 1, 2003,
deadline set by the court.
The court’s Order also provides
that any person who has pursued,
or wants to pursue, a private legal
action against the defendant may
do so and will not be prejudiced by
the Order. However, such victims
must promptly file a written notice
in this case advising the court, the
plaintiff, and the defendant of the
intention to pursue private civil
remedies against the defendant.
Upon the filing of this notice, that
party will no longer be entitled to
restitution from this proceeding.

The court found that the defense
attorney conducted an incomplete
investigation and presented a
poorly prepared case when a strong
alibi defense was available. The
court found that, under prevailing
professional norms, defense counsel’s representation fell below an
objective standard of reasonableness. The court concluded that
there was a reasonable probability
that, but for counsel’s errors, the
result of the proceeding would have
been different. Following the entry
of the court’s Order, Mr. Parker
was released on bond. The State
ultimately decided that it would not
attempt to retry him on the charges.
After the court’s appointment, with
only two weeks to prepare for the
evidentiary hearing, NCPLS Senior
Attorneys Susan H. Pollitt and
Kristin D. Parks represented Mr.
Parker in the habeas proceeding
that won his release.

FAMM (CONTINUED)
(Continued from page 5)

FAMM is working closely with
North Carolina’s legal community,
the NC Chapter of the NAACP, the
Carolina Justice Policy Project,
treatment providers, and other
state-based advocates. FAMM will
support some of the North Carolina
Sentencing Commission proposals
designed to make the guidelines
fairer and reduce the number of
new prison beds needed.

Jones expressed appreciation for
guidance and support received
from the Office of the Appellate
Defender and NCPLS, and special
thanks to the staff of the North
Carolina Sentencing Commission for “their gracious assistance
in answering questions about the
impact of mandatory sentencing
policies.”

FRIJlf1J

----

1612 k Str•• t N.W.. SlJit. 700
............&I00.O.c. 200(16

Page 10

NCPLS ACCESS

Volume III, Issue 1, March 2003

NCPLS ASSISTANT DIRECTOR NAMED

To further improve program operations, NCPLS has created the new
position of “Assistant Director.”
After almost 25 years of continuous service, NCPLS has grown to
a staff of 35. The management of
the program involves fund-raising
to secure the resources necessary
to carry on the work of the program; reporting to and supporting
the work of the Board of Directors; the administration of program
and human resources; overseeing
business operations, including
the acquisition and maintenance
of materials, supplies and equipment; the supervision of staff and
case work; and the development of
policies and procedures designed
to better serve our clients. These
tasks have become more complex
and time-consuming as the program has evolved to keep pace with
the needs and demands of an everincreasing population of inmates.
To help meet these challenges,
James W. Carter has been promoted
to fill the newly-created position of
Assistant Director. After 20 years
of management experience at IBM,
Mr. Carter attended UNC law
school where he earned a juris doctorate degree. After successfully
completing the Bar exam and meeting all other requirements, he was
licensed to practice law in North
Carolina in March 1998. After a
short stint as a lawyer in the
Halifax County District Attorney’s
Office, he came to work for

____________________________

. . . outstanding
legal skills and
an exceptional
level of commitment to NCPLS
and our clients.
____________________________

NCPLS in 1999. Since then, Mr.
Carter has demonstrated outstanding legal skills and an exceptional
level of commitment to NCPLS
and our clients. For example,
in three separate habeas corpus
actions brought in the Eastern
District of North Carolina, Mr.
Carter proved violations of the
Double Jeopardy Clause and
secured the immediate release of
all three clients. Bates v. Jackson,
5:98-HC-915-BR(2) (October 19,
2000); Fields v. Chavis, 5:00-HC9-BR(3) (January 29, 2001); and
Milligan v. McDade, 5:00-HC-8-H
(February 15, 2001). Additionally,
on his own initiative, Mr. Carter
conducted a nine-month study of
NCPLS’s operations and recom-

mended changes that led to significant structural improvements,
including the institution of the
Intake Team and the Case Acceptance Committee. In December
2002, Mr. Carter earned promotion
to the position of Senior Attorney.
In January 2003, he agreed to take
on the additional responsibilities of
Assistant Director.
Commenting on his new responsibilities, Mr. Carter stated, “I hope
to build on the NCPLS tradition of
service to our clients by focusing
on the way we do business, by providing additional support to the
advocates who deliver those services, and by identifying opportunities to further improve the services
we offer.”
Everyone at NCPLS extends their
congratulations and wishes Mr.
Carter every success as he meets
this new challenge.

Assistant Director James W. Carter

NCPLS ACCESS

Volume III, Issue 1, March 2003

NEW LITIGATION
(CONTINUED)
(Continued from page 8)

sentence reduction credits to an
inmate’s aggregate parole eligibility date, citing Robbins v. Freeman,
127 N.C. App. 162, 487 S.E.2d
771, affirmed per curiam, 347 N.C.
664, 496 S.E.2d 375 (1998). The
trial court granted a declaratory
judgment that Plaintiffs’ parole
eligibility dates on their Class C
life sentences should be reduced
by gain and merit time earned by
or awarded to Plaintiffs. Teasley &
Bates, 99-CVS-11631 (Wake Co.,
Sept. 18, 2002).
Defendants filed Notice of Appeal
to the North Carolina Court of
Appeals, which reversed the lower
court’s Order. Teasley & Bates,
No. COA02-212 (NC Ct.App. Dec.
31, 2002). Plaintiffs-Appellants’
Petition for Rehearing was denied
by the Court of Appeals on January
30, 2003, and a Petition for Discretionary Review was filed with the
North Carolina Supreme Court on
February 11, 2003. On February
25, 2003, NCPLS filed a motion to
appear in the case as a “friend of
the court.”
In its motion, NCPLS argued that
the resolution of this case will have
far-reaching effects on inmate opportunities for custody promotion,

participation in programs, and
eligibility for eventual parole.
Since 1999, NCPLS has been
involved in litigation seeking a
definitive judicial ruling on the
rights of persons serving Class C
life sentences to have their parole
eligibility dates moved forward by
the application of gain and meritorious time. See, for example, Vest
v. Easley, 145 N.C. App. 70, 549
S.E.2d 568 (2001) (plaintiff’s
claims mooted by eligibility for
parole without regard to sentence
reduction credits). Indeed, NCPLS
is currently litigating the questions
presented in this case in an action
in Wake County Superior Court
on behalf of five inmates seeking
a declaration of rights. Vereen,
Cannon, Fisher, Grubb and
Langley v. Beck, Baker, Buck and
Dunn, 01-CVS-15053 (Wake Co.
Superior Ct.). Thus, NCPLS has
significant familiarity with these
issues and can provide a perspective that may assist the Court in
resolving the dispute.
The Supreme Court’s decision on
NCPLS’s motion, as well as the
ultimate disposition of the case,
will be reported in future editions
of ACCESS.

Page 11

TIPS ON CORRESPONDING
WITH NCPLS
NCPLS receives hundreds of letters
from inmates each week. The following steps make it easier for us
to provide better service.
1. Put your OPUS number on all
your correspondence. Some
inmates have the same name, but
OPUS numbers are unique. Using
your OPUS number helps your
mail get into the file for the staff
member handling your request.
2. Try to write as clearly as possible, especially when writing your
name, the name of any witnesses to
an incident, or the staff member(s)
about whom you are complaining.
3. If you are known by another
name (an alias), particularly if you
corresponded with NCPLS under
that name, please let us know.
4. It would help us to know if you
have any problems with reading or
writing, including whether anyone
else is writing the letter for you.
5. Try to be specific when describing your problem(s). Broad claims
that your rights have been violated, without facts to support your
claims, cannot be investigated.
6. If you have grieved an issue,
let us know. In most cases, we
will need to see copies of any
grievance(s) you have filed concerning your problem. We will
also need to see all the responses
and appeal results. Remember that
NCPLS is not the place to file the
DC-410 grievance forms. These
forms must be submitted to the
staff at your unit or, in the case
of a confidential grievance, to the
Director of Prisons. Our office will
not forward grievances for inmates.

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.
224 South Dawson Street
P.O. Box 25397
Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: psanders@ncpls.org

Visit our website at:
http://www.ncpls.org