The Newsletter of North Carolina Prisoner Legal Services, Inc.

Volume II, Issue 2, June 2002

NCPLS
LEGAL AND PROFESSIONAL SERVICES:
GETTING WHAT YOU PAY
By James W. Carter, Managing Attorney

Inmates often write to NCPLS asking for information about legal
services from private attorneys and
organizations. Sometimes we’re
asked if we know anyone who
might be able to represent the inmate, and others just want to know
if we have any information
about a particular person
or organization. But recently, we’ve received a
number of complaints that
inmates have paid for services that
they haven’t received.
The December 2000 issue of
ACCESS reported that we were
receiving complaints regarding an
Ohio-based operation known as
National Legal Professional Association (NLPA). At the time, the
State Bar of North Carolina was
formally investigating such a
complaint (State Bar File No.
00AP0053). Since then, the State
Bar took NLPA to court and an
injunction was issued which barred
the firm from operating in North
Carolina. (In North Carolina, it is
illegal for a non-lawyer to act as a
lawyer. NC Gen. Stat. §84-4. It
is even against the law for a nonlawyer to tell others that he is
competent to give legal advice or
counsel, to prepare legal documents, or to otherwise act as a
licensed attorney. Id.)
We are now receiving inquiries
about two other organizations.

ACCESS
FOR

First, we have been asked what we
know about a group called Nationwide Criminal Justice Consulting
Services operating out of West
Virginia. Nationwide’s founder and
chief consultant is Grover C. Jones,
Jr. The group’s advertisement lists
Mr. Jones as a former state prose-

(State Bar File No. 01AP0034)
because the State Bar does not
regulate such services. However,
that complaint was referred to the
district attorney for investigation
and possible criminal prosecution.
Additionally, the Consumer
Protection Section of the Attorney

cutor and a criminal lawyer. However, no information is provided as
to whether or where Mr. Jones is
currently licensed to practice law.
The advertisements state that
Nationwide is not a law firm and
that they provide only non-legal
assistance as outlined in their
brochure. We have contacted the
North Carolina State Bar regarding
Nationwide and we learned that the
Bar has initiated an investigation
(State Bar File No. – 02AP0039).

General’s Office is investigating
RDM.

We have also received complaints
about RDM Legal Research
Services out of Mt. Airy, North
Carolina. The State Bar has
reviewed three complaints against
RDM. Two letters of caution were
issued to RDM for providing unauthorized post-conviction legal
advice to inmates (State Bar File
Nos. 00AP0073 and 00AP0081).
Another complaint that RDM
rendered fraudulent financial
investment services was dismissed

We will follow these investigations
and, in future editions of ACCESS,
we will advise you of any significant developments. In the meantime, remember that people who
are incarcerated in this state can
get legal advice and assistance

(Continued on page 5)
Inside this Issue:

Legal and Professional Services:
Getting What You Pay For
The Right to Counsel:
Alabama v. Shelton
IMPACT Credit? The North Carolina
Supreme Court Will Decide
Hamilton v. NC Dept. of Correction
96-CVS-6321
Eight Inmates Dead in Jail Fire
Sentence Reduction Credits
State Budget Cuts: Prisons and
Criminal Justice
Ex-Post Facto Laws
Vote

1
2
3
4
4
5
6
8
9

NCPLS ACCESS

Page 2

ACCESS is a publication of North Caro-

lina 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
33,000 prisoners and 14,000 pre-trial
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
Senator Frank W. Ballance, Jr.
Jim Blackburn
James A. Crouch, Esq.
Professor Adrienne Fox
Professor Grady Jessup
Paul M. Green, Esq.
Melinda Lawrence, Esq.
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Michelle Robertson
Lou Ann Vincent, C.P.A.
Professor Ronald F. Wright
Fred Williams, Esq.

THE RIGHT TO COUNSEL: ALABAMA V. SHELTON
By Tracy Wilkinson, Staff Attorney

It has long been established that a
defendant has a sixth amendment
right to counsel in all felony trials,
regardless of the punishment imposed upon conviction. Gideon v.
Wainwright, 372 U.S. 335 (1963).
In Arsinger v. Hamil, 407 U.S.
25 (1972), the Supreme Court
extended the right to counsel to all
indigent misdemeanor defendants
faced with the possibility of a
jail sentence. On the other hand,
when an indigent defendant will
not be sentenced to imprisonment,
the state is not required to appoint
counsel for him, even if the crime
is one for which imprisonment is
authorized. Scott v. Illinois, 440
U.S. 367 (1979).
In the most recent Supreme Court
case dealing with this issue, the
court ruled that a defendant has a
sixth amendment right to counsel
at a misdemeanor trial when the
defendant could be sentenced upon
conviction to a term of imprisonment, even when the sentence was
suspended. Alabama v. Shelton,

Executive Director
Michael S. Hamden, Esq.
Editor
Patricia Sanders, CLA
Photographer
Billy Sanders, CLAS
Articles, ideas and suggestions are
welcome: tsanders@ncpls.org

Volume II, Issue 2, June 2002

Tracy Wilkinson, NCPLS Staff Attorney

535 U.S. __ (2002). The state
argued that appointed counsel
was not constitutionally required
because the defendant faced only
a misdemeanor charge, and upon
conviction, defendant’s sentence
had been suspended and he had
been placed on probation. However, when the defendant violated
the terms of his probation, his sentence was activated and he faced
imprisonment, even though he had
not had the benefit of counsel. The
Supreme Court rejected the state’s
argument. In proceedings where
counsel has not been provided, a
judge may order a fine, impose
court costs, or require the defendant to pay restitution. But unless
the defendant was represented by
counsel, or properly waived counsel, a judge cannot constitutionally
impose even a suspended term of
imprisonment. If a term of imprisonment is to be imposed upon
defendant’s conviction, suspended
or otherwise, the sixth amendment
right to counsel applies. Id.
(Continued on page 10)

NCPLS ACCESS

VolumeII, Issue 2, June 2002

Page 3

IMPACT CREDIT?

THE NORTH CAROLINA SUPREME COURT WILL DECIDE
By Senior Attorneys Kari L. Hamel & Susan H. Pollitt

The North Carolina Legislature
amended the wording of N.C.
Gen. Stat. §15A-1343.1 and the
changes took effect on December 1,
1998. The Intensive Motivational
Program of Alternative
Correctional Treatment (IMPACT)
was redesignated as a residential
program within the meaning of
N.C. Gen. Stat. §15A-1340.11(8).

pants in IMPACT are not entitled
to credit against their activated
sentence. Hearst appealed the
decision to the North Carolina
Supreme Court. State v. Hearst,
147 N.C. App 298, 555 S.E.2d
357 (2001), Review or Rehearing
granted, Appeal dismissed in part:
2002 N.C. LEXIS 26 (January 31,
2002).

Both before and after the amendment, NCPLS requested and
successfully obtained credit toward
active sentences for the number of
days participants spent at the boot
camp.

Mr. Hearst’s counsel, William
Leslie, a Buncombe County Assistant Public Defender, invited
NCPLS to appear in the case
as amicus curiae (friend of the
court). Understanding the importance of this issue to many of our

argued the case on May 15. Ms.
Hamel urged the Court to overturn
the appellate opinion based on
N.C. Gen. Stat. §15-196.1, which
requires that a defendant’s sentence be reduced by the amount of
time the defendant spent “in any
State or local correctional, mental
or other institution as a result of
the charge that culminated in the
sentence.” IMPACT is a State
institution, and the Legislature’s
decision to call IMPACT a residential program did not change its
restrictive character or the constitutional and statutory principles
that govern sentence reduction
credits.

NORTH CAROLINA SUPREME COURT BUILDING, RALEIGH, NORTH CAROLINA

However, on November 20, 2001,
the North Carolina Court of
Appeals issued a decision in State
v. Hearst, holding that the legislative amendment meant that partici-

clients, NCPLS agreed. With the
permission of the North Carolina
Supreme Court, NCPLS Attorneys
Susan Pollitt and Kari Hamel filed
a brief in the case, and Ms. Hamel

The Court is expected to rule on
the case in the near future. The
outcome will be reported in a
future edition of ACCESS.

NCPLS ACCESS

Page 4

Volume II, Issue 2, June 2002

HAMILTON V. NC DEPT. OF CORRECTION
96-CVS-6321

In recent editions of ACCESS, we
have reported on the progress of
the Hamilton Case through the
courts. In Hamilton, Attorney
Winifred H. Dillon challenged the
practice of DOC to alter judgment
and commitment orders that did
not conform to state law. (There
are 10 categories of crimes in
which consecutive sentences are
required by law: 1st and 2nd degree
burglary under the Fair Sentencing Act; armed robbery under the
Fair Sentencing Act; habitual felon;
violent habitual felon; habitual
impaired driving; repeated felony
with a deadly weapon; trafficking controlled substances; 1st and
2nd degree sexual exploitation of a
minor; promoting and participating
in prostitution of a minor; and possession of drugs in jail or prison. In
cases where concurrent sentences
were imposed rather than statutorily
mandated consecutive sentences,
DOC disregarded the judgment
and entered the sentence on their
records as consecutive. Similarly,
in cases where CYO status was

granted contrary to statute, the
DOC refused to afford the inmate
the benefits of CYO status.)
Readers may recall that on 3 July
2000, the Superior Court found
DOC’s practice was illegal. The
decision was appealed, and on
20 November 2001, the Court of
Appeals affirmed the lower court.
The State then asked the North
Carolina Supreme Court to review
the case. On 7 March 2002, the
State Supreme Court dismissed the
appeal. Consequently, the opinion
of the Court of Appeals is the final
word. “[T]he Department of Correction has no authority to record a
defendant-inmate’s clearly erroneous sentence in a manner which
makes the sentence conform to
state statute . . ..” “A defendantinmate’s sentence must be recorded
in his combined record as specifically stated in the judgment and
commitment.” “[W]e hold that
the [trial court’s] order . . . directs
DOC to provide appropriate relief
to all affected inmates, present and

future.” Hamilton, et al. v. Theodis Beck and Judy Sills (Formerly
Franklin Freeman and Hazel
Keith), COA00-1470, slip op. pp. 6
& 7.
It has been difficult to identify
all of the inmates who will benefit from this ruling because the
Department of Correction did not
keep records of the sentences that
were altered. Last year, NCPLS
worked with DOC to identify
approximately 3,000 inmates who
might have been affected. A notice
was sent to each inmate, describing the problem and how to correct
it. NCPLS received more than
500 inquiries from inmates and
responded to each by providing
further information and advice, as
well as legal representation to all
inmates who had meritorious cases.
DOC is now engaged in a more
comprehensive effort to identify
every affected inmate, and NCPLS
stands ready to provide legal advice
and assistance to all those affected.

EIGHT INMATES DEAD IN JAIL FIRE
On Friday evening, May 3, smoke
began billowing from a storage
shed connected to the Mitchell
County Jail in Bakersville, North
Carolina. At 10:05 p.m., the jailer
on duty dialed 911. “Get the fire
department here right away! The
jail’s on fire! Hurry!” The jailer
managed to release nine inmates
confined on the ground floor.
Unfortunately, she could not reach
one man in a holding cell next to
the storage room, or seven others
confined in a cell on the upper level
of the jail.

By 10:48, responding paramedics
had pronounced the eight inmates
dead. The apparent cause was
smoke inhalation. A defective
heater is the suspected cause of the
fire. It has been sent to a private
laboratory for analysis.
The two-story jail was constructed
in the mid-50’s and passed an
inspection in November 2001. The
jail reportedly complied with all
fire safety regulations, but manual
locks on the cell doors made it
impossible to release inmates from

a remote location, such as a control
booth or the front desk.
The sorrowful event left the community in a state of shock. On
Saturday, in memory of those who
died, family and neighbors returned
to the site to leave flowers with
those placed the night before by
a firefighter. The dead included
Edmond Banks, Jason Jack Boston,
Jessie Allen Davis, Joey Robert
Grindstaff, Danny Mark Johnson,
Tywain Neal, Jeremiah Presnell,
and Mark Halen Thomas.

NCPLS ACCESS

VolumeII, Issue 2, June 2002

Page 5

GETTING WHAT YOU PAY FOR

(Continued from page 1)
from NCPLS. These services are
without cost to people in custody
of the Department of Correction.
NCPLS provides information, legal
advice, and in meritorious cases,
representation in court, all without
charging you or your family a fee.

Sometimes our clients want second
opinions, and others simply prefer
to hire a lawyer. If you are interested in paying for legal services,
it’s a good idea to ask friends and
family for recommendations. Ask
what kind of work the lawyer does,
how well the lawyer communicated
with the client, and what kinds of
results the lawyer achieved. It
should go without saying that you
will need a lawyer who is licensed
to practice in North Carolina, and
one that is in good standing with
the North Carolina State Bar. (You

can check with the State Bar about
such matters.)
When looking for a lawyer, be
cautious when someone promises
a good result. In legal proceedings, little is certain. There’s an old
saying: “If something sounds to
good to be true, it probably is.”
Once you decide to hire a lawyer,
insist on a written agreement that
sets out the work the lawyer will
do for you, when the work will be
done, and how much it will cost.
(The scope of employment and the
fee should be discussed with the
lawyer directly and not with the
lawyer’s staff.) The agreement
should be written in a clear manner,
using words you understand. It
should be organized and captioned
so it is easy to read. If you do not
understand the agreement, don’t

sign it. Instead, ask the lawyer to
revise it, or revise it yourself to
reflect the reason you’ve hired the
lawyer and the terms of the agreement. Both parties must initial all
hand-written changes to a typed
agreement. Don’t be talked out of
a written agreement. If the lawyer
doesn’t deliver and you want to
complain or get your money back,
you have the burden of proving the
specific details. That will be much
simpler if you have the agreement
in writing.
A little care in selecting a lawyer
can make a big difference, so take
the time to make a good decision.
It’s always easier to keep your
money in your own pocket than to
try to get it out of someone else’s.

SENTENCE REDUCTION CREDITS

By James W. Carter, Managing Attorney

In the November 2001 issue of
ACCESS, we reported that the
General Assembly amended N.C.
Gen. Stat. §15A-1355 allowing the
DOC to award credits to reduce the
sentences of inmates who suffer
from medical conditions or physical
disabilities that prevent their
assignment to work or program
activities.
Under earlier law and regulations,
credit can be earned to reduce the
maximum term of felony sentences
(N.C. Gen. Stat. §15A-1340.13(d))
and misdemeanor sentences (N.C.
Gen. Stat. §15A-1340.20). The

new law, which took effect on
September 26, 2001, broadens
DOC’s authority to award sentence
reduction credits. Under the new
law, DOC may develop rules about
how the credit will be awarded
to inmates who are medically or
physically impaired, and what
they must do to receive the credit.
(However, the law does not require
DOC to award such credits.)

are finalized and we have reviewed
them, we will know who will be
covered and how such credit can
be earned.

In the meantime, if you believe you
can perform a job or participate in
a rehabilitation program to earn
sentence reduction credits, we
suggest that you work with your
case manager. We will continue
to monitor the DOC rule-making
We checked with DOC officials,
process and report any additional
who report that rules are being
information we learn in future
developed. However, officials were editions of ACCESS.
unable to tell us when the process
will be completed. Once the rules

Page 6

NCPLS ACCESS

Volume II, Issue 2, June 2002

STATE BUDGET CUTS: PRISONS AND CRIMINAL JUSTICE

By Billy Sanders, CLAS*

Governor Michael Easley has
proposed a budget to the General
Assembly that includes numerous
proposals impacting the state’s
justice system. Several of those
proposals would result in an
increase in the prison population,
according to a study conducted by
the North Carolina Sentencing and
Policy Advisory Commission.
The proposed budgets cuts eliminate electronic house arrest, the
Intensive Motivational Program of
Alternative Correctional Treatment
(IMPACT), and the Criminal
Justice Partnership Act, all of
which provide important services
that allow judges to impose inter-

in three ways; community sanctions, intermediate sanctions, and
active punishment (imprisonment).
(There are sixty “cells” in the
sentencing grid, nineteen of which
authorize a judge to impose an
intermediate sanction. Eligibility
for a sanction short of imprisonment depends on the seriousness
of the felony (designated by
offense class) and the offenders’
criminal history (prior record
level). The proposed budget cuts
would eliminate three of the five
programs that can be utilized as a
part of an intermediate punishment.
The only remaining intermediate
punishments would be intensive

his sentence in custody. The remainder of the sentence is suspended and is served on probation.
Intensive probation involves close
supervision of a probationer by a
team consisting of an Intensive
Case Officer and a Surveillance
Officer. A person on intensive probation is typically subject to a mandatory curfew (usually 7:00 p.m. to
6:00 a.m., although hours may vary
for employment, treatment, and/
or school schedules), and a combination of other requirements and
restrictions, such as warrantless
searches, substance abuse screening and treatment, electronic monitoring, and vocational training.

THE NORTH CAROLINA GENERAL ASSEMBLY

mediate sanctions that divert
offenders from prison.
Under Structured Sentencing,
felony convictions can be punished

probation and special probation.
Special probation (also referred to
as a “split sentence”) requires an
offender spend up to six months of

If the Governor’s budget proposals
are adopted, the five existing intermediate sentencing alternatives
(Continued on page 7)

VolumeII, Issue 2, June 2002
(Continued from page 6)

would be reduced to only these two
sanctions. Judges would have to
decide whether to impose special
probation (a “split sentence”) or
intensive probation. In many cases,
such limited options might result in
a decision to move away from an
intermediate sanction in favor of an
active prison sentence. The strain
placed on already taxed intensive
supervision teams will often make
incarceration more likely.
There are presently 361 intensive
supervision teams. (In November
2001, state budget cuts eliminated
two intensive supervision teams.)
While the optimum workload is 25
cases per team, teams presently average 27 cases. However, the proposed budget makes no provision
for any additional officers, although
the availability of only one other
intermediate sanction means that
the number of people sentenced
to intensive probation will almost
certainly increase significantly.

NCPLS ACCESS

Page 7

STATE BUDGET CUTS
sanctions received active sentences
instead. Under this scenario, the
prison population would have
increased by 1,070. In the second
year, 1,372 prison beds would
have been required. At an average
daily cost of $65.29 per inmate,
this represents an increased cost of
$89,577.88. Compare that amount
to the amount the state would
expend for intensive probation
($12.69 per offender, per day, for a
total of $17,410.68), or for house
arrest ($7.16 per offender, per day,
for a total of $9,823.52).
The Sentencing Commission also
considered a model premised on the
assumption that the targeted intermediate sanctions were un-availble

what dubious -- the absence of
other alternatives can be expected
to result in more frequent imposition of split sentences or active
terms of imprisonment, both would
result in higher rates of incarceration and a growing prison population.) Under this scenario, only a
portion of those who were eligible
for intermediate sanctions would
have been sent to prison, but the
prison population would have
increased by 335 inmates the first
year, and 411 the second year.
Although costs vary depending on
custody level and other factors, the
DOC estimates the average annual
cost of incarceration at about
$23,830 per inmate. Some studies

Though the judicial response to
such changes is difficult to predict,
it is probable that more offenders
will be sentenced to active incarceration, spending time in county
jails and the state prison system.
But no matter how judges respond,
the proposed budget cuts will increase the prison population. The
Sentencing and Policy Advisory
Commission (Sentencing Commission) prepared two models to
measure how the changes might
impact prison population. Both
models were premised on statistics
for fiscal year 2000/2001. One
model assumed that offenders
who were eligible for intermediate

THE NORTH CAROLINA GENERAL ASSEMBLY

during 2000/2001. A further assumption was that the two remaining intermediate sanctions (special
probation and intensive probation)
would have been im-posed with the
same frequency and in the same
circumstances, based on offense
class and prior record level. (This
second assumption seems some-

have the cost as high as $75,000
per year.
The Sentencing and Policy Advisory Commission’s report on the
impact of these budget cuts suggests that, at a minimum, the savings generated by the proposed cuts
(Continued on page 8)

NCPLS ACCESS

Page 8

Volume II, Issue 2, June 2002

STATE BUDGET CUTS

(Continued from page 7)

will be less than the costs of incarcerating the additional criminal
defendants who might otherwise
have been placed on intermediate
punishment. In other ways, the
cost could be much greater to the
state of North Carolina.
In the late 1980’s and early 1990’s,
the prison population in North Carolina had spiraled out of control,
necessitating numerous legislative
emergency responses that resulted
in a “revolving door” prison system
in which many inmates served only
a fraction of the sentence originally
imposed. NCPLS litigated several
cases challenging overcrowded
prison conditions. State officials
enacted a “cap” to limit the prison
population in hopes of avoiding a
federal takeover of portions of the
prison system. After embarking on
an expensive campaign to construct
additional prisons, and with the
enactment of the Structured Sentencing Act in 1994, the Legislature
brought the problem under control.
Structured Sentencing is a model

for criminal justice that has been
recognized and replicated all over
the United States.
The proposed budget cuts, if adopted, would depict a serious backward step that could return the state
of North Carolina to a costly prison
system that is unconstituionally
overcrowded, and a criminal justice
system in which the public lacks
confidence. Structured Sentencing
establishes a system for the rational
use of correctional re-sources, punishng crime in light of the seriousness of the offense and criminal
history of the offender. Without
effecive community and intermediate punishments, greater reliance
will be placed upon incarceration,
even when a lesser sanction may
be more productive (for the people
of North Carolina, the victims of
crimes, and for offenders). As a
result, the Structured Sentencing
initiative will fail and the system
will collapse under the weight of
over-reliance on incarceration.

Many agencies of government, and
many valuable and important government services may fall to the
budget axe this year. However, few
cuts would have a more profound
adverse impact on public policy,
and fewer still would be so costly
to North Carolina’s citizens. The
elimination of community and
intermediate sanctions threatens
the viability of Structured Sentencing and will inevitably result in
additional costly prison construction. While these cuts may seem
to improve budgetary projections
in the short-term, they simply defer
expenses that will be more costly
and less efficacious when the bill
comes due (beginning early in the
next fiscal year). These proposed
budget cuts may be penny-wise,
but they are pound-foolish. Ultimately, it is the taxpayers of the
state of North Carolina who will
have to pay the bill.
* [Editor’s Note: Billy Sanders serves as a
Commissioner on the Sentencing Commission
and is employed by NCPLS as a Certified Legal
Assistant Specialist.]

EX-POST FACTO LAWS
By James W. Carter, Managing Attorney

A question many of our clients ask
is whether their sentences or convictions violate the constitutional
protections against ex-post facto
laws. The purpose of this article is
to provide some general information about the prohibition against
ex post facto laws found in both the
United States and North Carolina
Constitutions. United States Constitution, Art. I. §§9 and 10; North
Carolina Constitution, Art. I §16.

People generally assume the prohibition against ex post facto laws
only protects against the infliction
of punishment for an act that was
not defined as a crime when it was
committed. However, the U.S.
Supreme Court has held that the
protection of the ex post facto
clauses extends to laws that:
1) punish conduct which was not
defined as a crime at the time;

2) make a crime more serious than
it was when committed;
3) inflict a greater punishment than
the law allowed when the crime
was committed; and
4) changes the rules of evidence so
less proof is required to convict the
defendant than was required when
the offense was committed
(Continued on page 11)

VolumeII, Issue 2, June 2002

Through the electoral process,
citizens choose their political representatives and shape governmental
policy on many issues. Voting is
perhaps the single most important
responsibility of citizenship.
PRE-TRIAL DETAINEES
& MISDEMEANANTS
In North Carolina, being
convicted of a misdemeanor does not mean
you lose your right to
vote. You can even vote
while serving your sentence. Follow these steps
and you can vote in the
next election.
Step 1 - Register to Vote
* If you’re not already
registered to vote, you
can register by mail.
Write or call your
County Board of Elections and request a mailin voter registration
form.

NCPLS ACCESS

VOTE!

It must be received 25 days before
the election.
Step 2 - Vote
* If you’ll be released before election day, you vote at your assigned

Page 9

* To vote by absentee ballot, you
must send a signed, written request
to the County Board of Elections
50 days before election day. Written requests must be received no
later than the Tuesday before election day.
The request must be signed
by you or a near relative. It
must include your name and
address as they appear on
the registration records, and
the address where the ballot
is to be mailed. It is helpful
to include your birth date,
your near relative’s address,
and their relationship to
you.
* If the Board of Elections
determines you are qualified
to vote, they’ll mail a ballot
to you after they receive
your written request.
* After you receive the
ballot and mark your votes,
mail it back to the County
Board of Elections. The
County Board of Elections
must receive your ballot
5:00 p.m. the day before
election day in order to be
counted.

* When completing the
registration form, you
can use your home
address (if you know
Sculpture of George Washington by Antonio Canova,
where you‘ll be living
NC State Capitol
after serving your senFORMER FELONS
tence) or the prison address as your polling place or by absentee ballot.
People convicted of a felony in
permanent address. You should use If you’re still incarcerated elecion
North Carolina lose their citizenthe prison address for your mailing day, you vote by absentee ballot.
ship rights, including the right
address.
* You can register to vote and
to vote. However, these rights
are automatically restored when
* You’ll receive information in the request an absentee ballot at the
mail telling you which precinct you same time. If you do, be sure both a person completes his sentence
are mailed early enough to arrive
(including parole), is unconditionvote in and where to go to vote.
at the County Board of Elections
ally pardoned, or completes the
no later than 25 days before the
conditions of a conditional pardon.
* Mail the completed form to the
election.
local County Board of Elections.
(Continued on page 10)

NCPLS ACCESS

Page 10

ALABAMA V. SHELTON

VOTE!

(Continued from page 2)

(Continued from page 9)

If your felony sentence is completed, or you have been pardoned,
you’re eligible to vote in this state.
In order to vote in North Carolina
elections, follow the steps below:
Step 1 - Register to Vote
* Former
convicted
felons
must
register
to vote
even if
you were
registered
before
your conviction.
You can
register
at any
time after
completing your
sentence.
* You can
register
by writing
or calling your
County
Board of
Elections
to request
a mail-in voter registration form.
* For the address section of the
registration form, use your permanent home address.
* Mail the completed form to your
local County Board of Elections at
least 25 days before the election.

Volume II, Issue 2, June 2002

* You’ll receive information from
the County Board of Elections telling you which precinct you vote in
and where to go to vote.
Step 2 - Vote
* You can
vote at
your designated
polling
place
or by
absentee
ballot.
* For
directions on
how to
vote by
absentee
ballot,
see Step
2 above.

Alabama v. Shelton leaves a few
unanswered questions. For example, although the Court ruled that
the suspended sentence imposed in
this case could not be activated, it
did not reverse the conviction. One
would assume that the conviction
was invalid, but the Court left the
question open. For that reason,
it is unclear whether uncounseled
prior convictions in which a term
of imprisonment was imposed may
be used to prove an element of a
subsequently charged offense, to
impeach a defendant at trial, or to
calculate prior record levels under
structured sentencing schemes.
There are also questions about
whether the Court announced a
new rule of constitutional law in
Shelton, or whether the case will
be given retroactive application to
invalidate prior misdemeanor convictions obtained without counsel.

For additional
information on
voter
registration,
absentee
ballots,
or locating your County Board of Elections, contact:
State Board of Elections
P.O. Box 27255
Raleigh, NC 27611-7255
(919) 733-7173
http:/www.sboe.state.nc.us

You may contact NCPLS for advice
and legal assistance regarding your
right to vote, as well as any other
matters that arise in connection
with the conditions in which you
are incarcerated.

VolumeII, Issue 2, June 2002
(Continued from page 8)

Rogers v. Tennessee, 532 U.S. 451,
456 (2001), citing, Calder v. Bull,
3 Dallas 386, 390 (1978) (seriatim
opinion of Chase, J).
In determining if a law is ex post
facto, the U.S. Supreme Court has
stated that two critical elements
must be present. First, the law
must be retrospective, that is, it
must apply to an offense that occurred before the law was enacted.
And second, the law must disadvantage the defendant. Weaver v.
Graham, 450 U.S. 24, 29 (1981).
A common question is whether the
Structured Sentencing Act (SSA),
which superceded the Fair Sentencing Act (FSA), was a violation of
the constitutional protection against
ex post facto laws. The question
arises in two forms.
First, consider the inmate who
committed a felony breaking and
entering (a Class H felony) on
January 1, 1994, and convicted
on January 1, 1995. The inmate
was sentenced under the FSA and
received the maximum sentence of
10 years. On October 1, 1994, the
SSA took effect and provided that
the maximum sentence for felony
breaking and entering was 25 to 30
months (2 years and one month,
to 2 years and six months). The
inmate asks whether his 10-year
FSA sentence violates the ex post
facto clause.

NCPLS ACCESS

Page 11

EX-POST FACTO LAWS
The answer to no. Proof of a violation of the ex post facto clause
requires a showing that the challenged law was applied to events
that occurred before the law was
enacted. In the above situation, the
FSA was the law in effect at the
time the crime was committed, and
is the law that must be used for
sentencing. This is true, even
though the trial was conducted and
the inmate was convicted and sentenced after the SSA took effect.
The second way an ex post facto
question most commonly arises has
to do with sentence reduction credits. An inmate convicted under the
FSA receives day-for-day good
time credit to reduce his sentence.
However, an inmate sentenced
under the SSA does not receive
day-for-day good time credit.
Inmates convicted under the SSA
often wonder if SSA’s elimination
of day-for-day good time credit
violates the ex-post facto clause.
Again, the answer is no. When the
offense was committed after SSA
became effective, the SSA controls. Because SSA’s elimination
of good time credit is applied to
offenses committed after the law
was enacted, it does not violate the
ex post facto principle.
With all of this, you may be wondering when the ex post facto prohibition might ever apply. In the
situation above, suppose the facts
were the same except that the of-

fense was committed before October 1, 1994, when FSA was the
law. Let’s assume that the inmate
earned day-for-day good time
credit on his FSA sentence until
SSA was enacted. After SSA was
enacted, assume the Department of
Correction (DOC) refused to credit
any more day-for-day good time
credit against the FSA sentence.
In this situation, the inmate would
have been subjected to a violation
of the ex post facto clause. The
inmate could show that the new
law [the SSA], which eliminated
day-for-day good time credit, was
being applied to a conviction that
occurred before the new law [the
SSA] was enacted. Also, the inmate could show that the loss of
day-for-day good time credit was a
disadvantage to him because he
would spend more time in prison.
In such a case, the prohibition
against ex post facto laws would
require the DOC to award all of
the good time credit to which the
inmate is entitled under the FSA.
We hope that this will help you to
understand the prohibition against
ex post facto laws. But, please
remember that this is general information and not intended as legal
advice in your particular case. If
you believe you were sentenced in
violation of the ex post facto
clause, write to us. We will consider your specific situation and let
you know whether there is a legal
basis to challenge the sentence.

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

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

North Carolina Prisoner Legal Services, Inc.
224 S. Dawson Street
PO Box 25397
Raleigh, NC 27611