State v. Kinch, 434A84
| Citation | 314 N.C. 99, 331 S.E.2d 665 |
| Case Date | July 03, 1985 |
| Court | United States State Supreme Court of North Carolina |
Page 665
v.
Donald Melvin KINCH.
[314 N.C. 100] Lacy H. Thornburg, Atty. Gen. by Marilyn Rich Mudge, Asst. Atty. Gen., for the State.
R. Allen Lytch, Dunn, for defendant.
Page 666
MARTIN, Justice.
Defendant was convicted of rape in the first degree pursuant to N.C.G.S. 14-27.2(a)(2)(a). From the judgment of life imprisonment, he appealed to this Court. The record on appeal and transcript were duly filed. On 16 April 1985, defendant's counsel filed a brief on behalf of defendant.
In the record on appeal defendant's counsel made three assignments of error: denial of defendant's (1) motion to dismiss for insufficiency of the evidence, N.C.G.S. 15A-1227(a)(2); (2) motion to dismiss, N.C.G.S. 15A-1227(a)(3); and (3) motion for appropriate relief after verdict, N.C.G.S. 15A-1411. These three assignments of error are referred to in the brief filed by defendant's counsel.
Defendant's counsel does not argue any of the assignments of error in his brief. In the brief we find:
[314 N.C. 101] The attorney for the defendant respectfully asks that the Court review the record on appeal for possible prejudicial error since the defendant has been convicted of first degree rape and sentenced to life imprisonment. State v. Poplin, 304 N.C. 185, 282 S.E.2d 420 (1981); State v. McLean, 282 N.C. 147, 191 S.E.2d 598 (1972).
The attorney for the defendant abandons the three assignments of error. After careful review, he finds the assignments of error to be without merit, however, due to the seriousness of the offense, the defendant respectfully asks the Court to review the record for any prejudicial error.
On 23 May 1985 defendant's counsel wrote the following letter to defendant:
Mr. Donald M. Kinch
1300 Western Blvd.
Raleigh, North Carolina 27606
Re: Appeal of State vs. Donald M. Kinch No. 434A84 (1985)
Dear Donald:
As I advised you in my letter of April 15, 1985, I filed a brief on your behalf with the Supreme Court of North Carolina requesting that they review the record and determine whether any prejudicial error occurred at your trial. In earlier correspondence I told you that I was preparing the record on appeal and that in my professional opinion, there was no error.
In accordance with the decision in Anders v. California 386 US 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967), a United States Supreme Court case, I must also advise you that you may file written arguments directly with the Supreme Court of North Carolina yourself within the time period the court will continue to have the case under review.
To assist you in preparation of any arguments you might wish to submit, enclosed are copies of the court reporter's transcript of your trial, the record on appeal, the brief filed [314 N.C. 102] on your behalf, and the State's brief. The address to which you should send any written arguments is:
J. Gregory Wallace
Clerk of Supreme Court of North Carolina
P.O. Box 1841
Raleigh, North Carolina 27611
If you choose to file additional arguments, you must do so immediately.
Please acknowledge receipt of this letter from me by signing the enclosed copy by the "X" and returning it in the enclosed self-addressed envelope.
If you have any questions please contact me.
Yours very truly,
s/R. ALLEN LYTCH
R. Allen Lytch
Thereafter defendant filed a pro se brief.
We hold that defendant's counsel has fully complied with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). He stated in his brief that he found no merit in the assignments of error and requested this Court to review the record for any prejudicial error. This is tantamount to a conclusion that the appeal is wholly frivolous. Counsel has filed a
Page 667
brief referring to the three assignments of error that might arguably support the appeal. A copy of the brief was furnished defendant, as well as copies of the record, transcript, and the state's brief. Defendant filed a pro se brief of twenty pages which is before this Court. Additionally, defendant's counsel appeared before this Court for oral argument of this appeal and made himself available for questions by the Court.Pursuant to Anders, this Court must now determine from a full examination of all the proceedings whether the appeal is wholly frivolous. 1 In carrying out this duty, we will review the [314 N.C. 103] legal points appearing in the record, transcript, and briefs, not for the purpose of determining their merits (if any) but to determine whether they are wholly frivolous. Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.
In order to review any such legal points, a brief review of the facts is necessary.
At trial the state's evidence tended to show that on Friday night, 7 January 1984, the defendant was out drinking at various nightspots in Dunn, North Carolina; he then returned to his home, where he and his girl friend had an argument. As a result of the argument, the defendant left his home with his shotgun about 2:00 a.m. and went to the home of the prosecutrix, Anna Adel Monk, a sixty-four-year-old widow who lives alone at 608 East Pope Street, Dunn. The defendant stood outside the home of Mrs. Monk and began calling her by name. She came to the door, and when she recognized the defendant, she opened the door. The defendant was upset and claimed he was in trouble and someone was shooting at him. Mrs. Monk knew...
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State v. Fair, 506A99.
...dismiss those claims without prejudice to the defendant's right to reassert them during a subsequent MAR proceeding. See State v. Kinch, 314 N.C. 99, 106, 331 S.E.2d 665, 669 (1985) ("We cannot properly determine this issue on this direct appeal because an evidentiary hearing on this questi......
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State v. Morgan, 182A00.
...354 N.C. 131, 166-67, 557 S.E.2d 500, 524-25 (2001), cert. denied, 535 U.S. 1114, 122 S.Ct. 2332, 153 L.Ed.2d 162 (2002); State v. Kinch, 314 N.C. 99, 106, 331 S.E.2d 665, 669 PROPORTIONALITY REVIEW We now consider (1) whether the aggravating circumstances are supported by the record in thi......
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State v. Hyatt, 402A00.
...without prejudice to his right to reassert this claim during a subsequent motion for appropriate relief proceeding. See State v. Kinch, 314 N.C. 99, 106, 331 S.E.2d 665, 669 (1985). Regarding defendant's second IAC claim—that defense counsel failed to rehabilitate jurors who expressed equiv......
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Green v. French, 5:96-HC-676-BR.
...assistance challenges were entertained on postconviction review despite a failure to raise the issue on direct appeal. See State v. Kinch, 314 N.C. 99, 331 S.E.2d 665, 669 (1985); State v. Dockery, 78 N.C.App. 190, 336 S.E.2d 719 (1985). Thus, the Fourth Circuit has recognized that § 1419(a......
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Andrew B., In re, G017193
...... Under Wende procedures that have long been mainstays of the Court of Appeal throughout the state, we dispensed with full briefing on behalf of the other parties (the Orange County Social Services ...Kinch (1985) 314 N.C. 99 [331 S.E.2d 665, 666-667], italics added.) . NORTH DAKOTA: ......
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Smith v. Dixon, s. 91-4011
...need for evidentiary development of these claims); State v. Vickers, 306 N.C. 90, 291 S.E.2d 599, 603 (1982); cf. State v. Kinch, 314 N.C. 99, 331 S.E.2d 665, 669 (1985). Accordingly, allegations of ineffective assistance usually would not be subject to summary denial under § 15A-1419(a). S......
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Smith v. Dixon, s. 91-4011
...... Smith v. Dixon, 766 F.Supp. 1370 (E.D.N.C.1991). The State of North Carolina, through the warden of the prison where Smith is incarcerated, appealed this ...Vickers, 306 N.C. 90, 94, 291 S.E.2d 599, 603 (1982); cf. State v. Kinch, 314 N.C. 99, 106, 331 S.E.2d 665, 669 (1985). Accordingly, allegations of ineffective assistance ......
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State v. Morgan
...State v. Fair, 354 N.C. 131, 166-67, 557 S.E.2d 500, 524-25 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002); State v. Kinch, 314 N.C. 99, 106, 331 S.E.2d 665, 669 PROPORTIONALITY REVIEW We now consider (1) whether the aggravating circumstances are supported by the record in th......