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					No. COA04-488                                        TWENTY-THIRD DISTRICT

                    NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA                )
                                       )            From Wilkes County
             v.                        )            02 CRS 51236, 51754-65
                                       )
JEFFREY KENT WITSCHER                  )

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  DEFENDANT-APPELLANT'S MOTION FOR APPROPRIATE RELIEF
     AND MOTION FOR STAY OF APPELLATE PROCEEDINGS
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NOW COMES Defendant-Appellant Jeffrey Kent Witscher through undersigned

counsel and brings this motion for appropriate relief, which is based in part on

information outside the appellate record. The motion establishes that Mr. Witscher

is entitled to a new sentencing hearing because the prior record level on which his

sentence was imposed was invalid as a matter of law.

      Mr. Witscher’s cases are on appeal to this Court and the record on appeal

has been docketed. Mr. Witscher pled no contest to criminal charges. In superior

court, however, a previous charge against Mr. Witscher that had in fact been

dismissed was counted as a conviction for purposes of determining his prior record

level. The erroneous consideration of this dismissed charge unlawfully moved Mr.

Witscher from Prior Record Level I to Prior Record Level II.
                                          2


      Mr. Witscher moves for appropriate relief pursuant to Article 89 of Chapter

15A of the General Statutes, and specifically G.S. §15A-1415(b)(8), G.S. §15A-

1415(b)(3), and G.S. §15A-1418(a), as well as the Fourteenth Amendment to the

United States Constitution and Article I, §19 of the North Carolina Constitution.

Per G.S. §15A-1418(a), this motion for appropriate relief must be filed in this

Court because the case is on appeal. Defendant-Appellant’s brief is due this day,

June 10, 2004. However, this motion, if granted, will render his appeal moot, as

the relief to which he would be entitled on appeal at most would be a new

sentencing hearing. Therefore, in the interests of judicial economy, defendant-

appellant moves for a stay of the appellate proceedings pending the state’s answer

and the disposition of this motion.

      G.S. §15A-1415(b)(8) states in pertinent part that a defendant may assert as

grounds for appropriate relief that “[t]he sentence imposed was unauthorized at the

time imposed, contained a type of sentence disposition or a term of imprisonment

not authorized for the particular class of offense and prior record or conviction

level was illegally imposed, or is otherwise invalid as a matter of law.” G.S.

§15A-1415(b)(3) permits a defendant to assert as grounds for appropriate relief

that “[t]he conviction was obtained in violation of the Constitution of the United

States or the Constitution of North Carolina.”
                                               3


       G.S. §15A-1420(b)1) mandates that “[a] motion for appropriate relief made

after the entry of judgment must be supported by affidavits or other documentary

evidence if based upon the existence or occurrence of facts which are not

ascertainable from the records and any transcript of the case or which are not

within the knowledge of the judge who hears the motion.” The defendant supports

this motion both with documentary evidence and an affidavit from undersigned

counsel, A pp 13-14, which states in part that all representations and conclusions

made in the MAR are based on information that he either knows to be true or

believes to a reasonable certainty to be true, and which also states that the evidence

necessary to conclusively establish the basis for a new sentencing hearing as

explained below can be produced in an evidentiary hearing if one is deemed

necessary.1

       Defendant shows the following to the Court:

       1.     Mr. Witscher’s case came on to be heard on September 26, 2002

before the Honorable Michael E. Helms during the September 16, 2002 two week

Criminal Session of Wilkes County Superior Court. R p 1. The defendant pled no


1
  A copy of the settled and docketed record on appeal is appended to this MAR beginning at
appendix page 15. It is the last document in the appendix. The initial pages of the appendix are
referenced as A pp x. However, the record is not repaginated to have its page numbers run
consecutively with the initial pages of the appendix. Documents included in the settled record on
appeal will be referenced in the body of the MAR by the original page numbers of the record as
R pp x. The body of the record on appeal includes the transcript of the defendant-appellant’s
sentencing hearing as R pp 30-45.
                                          4


contest to twelve counts of indecent liberties and one count of violating a domestic

violence protection order and received three consecutive sentences of twenty-four

to twenty-nine months. R pp 46-61. He appealed. R pp 62-63.

      2.     The printed Record on Appeal was mailed to the parties on May 11,

2004, some twenty months after sentencing. A p 1.

      3.     The delay in the appellate proceedings was caused by the failure of

the attorney who was initially appointed to represent Mr. Witscher to timely file a

proposed Record on Appeal. As reflected in the settled Record, that lawyer filed a

petition for writ of certiorari to get the appeal back on track. R pp 67-71. This

Court granted the petition and the Office of the Appellate Defender again was

appointed to represent Mr. Witscher. R pp 72-74.

      4.     Thereafter, undersigned counsel become aware that an invalid

conviction was used to compute Mr. Witscher’s prior record level, and that the

information necessary to establish this error was in part outside the appellate

record.

      5.     Appended to this MAR is a copy of the prior record level worksheet

that appears in the Superior Court file in Mr. Witscher’s cases. A pp 2-3. It

reflects a prior record level II based on a “(M) Common law Forgery” with a

Stokes County docket number of “85 CR 001985” and a date of conviction of “10-
                                          5


19-1995” (emphasis added). Mr. Witscher received one prior record level point for

this purported conviction, moving him from prior record level I to prior record

level II.

       6.    Appended to this MAR is a letter to undersigned counsel obtained

from Stokes County Assistant Clerk of Court Sharon Hairston stating that an AOC

microfilm records search she requested concerning Stokes County criminal

convictions in the decade 1980 to 1989 revealed that no criminal case appeared in

Mr. Witscher’s name. Ms. Hairston had related to undersigned counsel in a

telephone conversation before she requested the search that the records for that

time period were stored on microfilm.

       7.    The case number “85 CR 001985” that appears on the prior record

level worksheet is obviously the result of a typographical error by the person or

persons compiling the worksheet.

       8.    There are, however, Stokes County court records relating to a case

brought against Mr. Witscher under the number 95 CR 001985. The social

security number (147-62-3151) and date of birth (11-17-1964) on the warrant in 95

CR 001985, A p 6, is the same as the social security number and date of birth on

the warrants in the cases which are the subject of this motion, R pp 2-15. It is clear

that the Jeffrey K. Witscher in the 1995 Stokes County case is the same person as

in the 2002 cases which are the subject of this motion.
                                           6


      9.     95 CR001985, however, did not result in a conviction. Appended to

this MAR are the following documents obtained from the Stokes County Clerk of

Court all relating to 95 CR 001985:

      a.     Warrant for Arrest for forgery and uttering, served on Mr. Witscher
             on May 30, 1995, the second page of which reflects a misdemeanor
             district court disposition and appeal to superior court on October 19,
             1995. A pp 6-7

      b.     A subsequent indictment in dated December 11, 1995. Ap 8

      c.     A “Lead Document for Microfilming” reflecting a dismissal with
             leave on May 13, 1996. A p 9

      d.     A judgment of bond forfeiture against a bonding company dated
             October 15, 1996, imposed upon the defendant’s failure to appear on
             April 11, 1996. A pp 10-11.

      7.     The significance of these documents is that in 95 CR 001985, Mr.

Witscher was charged by warrant with forgery and uttering. The warrant was

served on May 30, 1995. On October 19, 1995, the defendant entered a guilty plea

in Stokes County District Court to the misdemeanor of “common law forgery” and

received a sentence of probation. On that same day, he appealed the conviction to

Superior Court, although the appeal entries are not signed by the presiding judge.

An indictment in Stokes County case number 95 CRS 1985 was returned two

months later on December 11, 1995 and charged Mr. Witscher with forgery and

uttering. The victim’s name and the offense date in the indictment are the same as

those contained in the warrant and district court dispostion. It is clear that the case
                                          7


was considered to have been appealed by all parties. The superior court case was,

however, dismissed with leave on May 13, 1996 for the defendant’s failure to

appear on April 11, 1996. A pp 9-12. Judgment was entered against the surety on

Mr. Witscher’s bond on October 15, 1996. A pp 10-11.

      9.     Appended to this MAR is a recent printout from the North Carolina

Automated Criminal/Infraction System (ACIS) showing that Stokes case 95 CRS

1985 was dismissed on May 13, 1996 following a District Court disposition on

October 19, 1995. A p 12. Undersigned counsel obtained this printout via his

ACIS access as Appellate Defender.

      10.    The only mention of Mr. Witscher’s prior record in the sentencing

hearing was the following from defense counsel:

      “He has worked full-time since he was fourteen years old. There’s
      never been a day that’s gone by that he hasn’t worked, except for
      some times when he was in trouble, which you can see on his record.

      He is a Level 2 for sentencing purposes, Your Honor.”

R p 40.

      11.    The specifics of Mr. Witscher’s prior record were not aired in open

court, the prosecutor and defense counsel apparently having agreed erroneously

that Mr. Witscher’s prior convictions supported a finding of a prior record level II.

      12.    In sum, Mr. Witscher was sentenced in the current cases under the

influence of a purported prior conviction that in fact was not a conviction, but a
                                              8


dismissal of charges. The error was uncorrected by either the prosecutor or

defense counsel. Where a defendant is sentenced under the influence of an

improper prior record level determination, he must be resentenced. State v.

Vaughn, 130 N.C. App. 456, 503 S.E.2d 110 (1998), aff’d per curiam, 350 N.C.

88, 511 S.E.2d 638 (1999). Accord, G.S. §15A-1415(b)(8).

        13.      Although this Court need not reach the following issue to resolve this

motion, defendant also specifically alleges that the state’s use of an invalid

conviction to aggravate defendant’s sentence when the prosecutor should have

known of the invalidity of the conviction through reasonable diligence was a

violation of defendant’s right to due process of law guaranteed by the Fourteenth

Amendment and Article I, section 19 of the Constitution of North Carolina.

        THEREFORE, defendant-appellant respectfully asserts that the following

relief is appropriate and is in the interest of the conservation of this Court’s

resources:

   1.         A stay of the appellate proceedings pending the state’s answer and the
              resolution of this motion.

   2.         An order directing that Mr. Witscher receive a new sentencing hearing.

   3.         In the event that this Court orders that Mr. Witscher be resentenced, an
              order declaring the appeal moot, as the relief to which he would be
              entitled in the appeal if he prevailed would be a new sentencing hearing.
                                         9


   4.    In the alternative, a remand to the Superior Court of Wilkes County for
         an evidentiary hearing, the results to be transmitted to this Court as
         required by G.S. §15A-1418(c).

This the 10th day of June, 2004.

                                       Respectfully submitted,

                                       __________________________________
                                       Staples Hughes
                                       Appellate Defender
                                       Office of the Appellate Defender
                                       123 West Main Street, Suite 500
                                       Durham, North Carolina 27701
                                       (919) 560-3334
                                       staples.s.hughes@nccourts.org




                         CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing motion for appropriate
relief by mail on the following persons: Jane Rankin Thompson, Assistant
Attorney General, 4265 Brownsboro Road, Suite 115, Winston-Salem, North
Carolina 27101, and Richard Lyle, Assistant District Attorney, 500 Courthouse
Drive, Wilkesboro, North Carolina 28697. Service was accomplished by placing
an envelope containing the copy of the motion in a depository maintained by the
United States Postal Service, first-class postage prepaid.

This the 10th day of June, 2004.


                                       ____________________________________
                                       Staples Hughes

				
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