State v. McDougald, COA21-286

• Docket Number: COA21-286
• Decision Date: 02 August 2022
• Citation: 284 N.C.App. 695,876 S.E.2d 648
• Parties: STATE of North Carolina v. William MCDOUGALD
• Court: North Carolina Court of Appeals

284 N.C.App. 695

876 S.E.2d 648

STATE of North Carolina

v.William MCDOUGALD

No. COA21-286

Court of Appeals of North Carolina.

Filed August 2, 2022

Attorney General Joshua H. Stein, by Assistant Attorney General Nicholas R. Sanders, for the State.

Christopher J. Heaney, for defendant-appellant.

Juvenile Law Center, by Marsha L. Levick, Aryn Williams-Vann, Katrina L. Goodjoint, and Riya Saha Shah, and Phillips Black, Inc., by John R. Mills, for amici curiae.

HAMPSON, Judge.

Factual and Procedural Background

¶ 1 William McDougald (Defendant) appeals from an Order denying his Motion for Appropriate Relief (MAR). Relevant to this appeal, the Record before us tends to reflect the following:

¶ 2 On 12 October 2001, a jury returned a verdict finding Defendant guilty of second-degree kidnapping, misdemeanor breaking or entering, and assault on a female. Defendant had two prior convictions including: a guilty plea to second degree kidnapping, a class E felony, with judgment entered on 16 May 1984 when Defendant was sixteen years old; and a no contest plea to one count of second-degree sexual offense (class H felony), two counts of common law robbery (class D felonies), and one count of armed robbery (a class D felony) with judgment entered on 1 February 1988. Due to these prior felonies, a jury found Defendant guilty of violent habitual felon status on 14 November 2001. On the same day, as required by the violent habitual felon statute, the trial court imposed the mandatory sentence of life without parole (LWOP). Defendant appealed from the Judgment and this Court found no error by Opinion entered on 20 May 2008. See State v. McDougald , 190 N.C. App. 675, 661 S.E.2d 789 (2008) (unpublished).

¶ 3 Subsequently, on 26 June 2017, Defendant filed a MAR in Harnett County Superior Court asserting the mandatory sentence of LWOP for violent habitual felons, as applied to him, violated Defendant's Eighth Amendment rights where one of the predicate violent felony convictions was obtained when Defendant was a juvenile and that the LWOP sentence was disproportionate. On 22 May 2018, Defendant amended his MAR to also include claims of ineffective assistance of trial counsel during plea negotiations and ineffective assistance of appellate counsel. Defendant requested the trial court to vacate his convictions for second-degree kidnapping and violent habitual felon status.

¶ 4 On 9 August 2019, the trial court held a hearing on the MAR including both the Eighth Amendment and ineffective assistance of counsel claims. Prior to the hearing, the parties stipulated the trial court could determine the Eighth Amendment claims as a matter of law without the introduction of evidence. Defendant elected to abandon his claim for ineffective assistance of appellate counsel during the hearing.

¶ 5 In support of his ineffective assistance of trial counsel claim, Defendant called Mark Key (Key), his trial attorney, to testify. Key testified Defendant's file was destroyed as part of a routine purge, and to prepare for this hearing, Key tried to remember "as much as I could" by reviewing the trial transcript and the time sheet Key kept during Defendant's trial. Based on this time sheet from 2001, Key testified he visited Defendant on 25 April 2001 and told Defendant the prosecutor was offering a plea deal in which Defendant would serve a sentence of approximately twelve to thirteen years. At the time of this meeting, Defendant had not yet been indicted for violent habitual felon status; however, the charge was pending. Key testified he did not explain or mention the mandatory punishment of LWOP for the pending violent habitual felon status charge during this meeting. Defendant rejected the plea deal. Thereafter, the State obtained a superseding indictment for violent habitual felon status on 14 May 2001. Key testified he did not meet with Defendant to discuss the potential consequences of a conviction for violent habitual felon status until the morning of the trial on the substantive felonies, 1 October 2001. At this time, Key told Defendant there was a potential punishment of LWOP depending on the outcome of the trial but was "not sure [he] told [Defendant] it was mandatory [LWOP]." Key admitted Defendant might not have understood what he meant.

¶ 6 Defendant also called Attorney Michael G. Howell (Howell) who had almost twenty years of experience representing clients facing the death penalty and LWOP in North Carolina. Howell testified Key's performance was "deficient" because Key failed to "fully explain[ ] to [Defendant] on 25 April 2001 the full ramifications of the plea offer and the rejection of it[,]" including exposure to mandatory LWOP sentence.

¶ 7 On 26 November 2010, the trial court entered an Order denying the MAR. The Order makes the following relevant Findings of Fact:

11. On October 1, 2001, Defendant stated during a colloquy with Judge Bowen before trial began that Mr. Key "on several occasions he [Key] brought-he told me that the DA brought up ... habitual felony charges on me."

12. Defendant further stated during the same colloquy, "First time I seen him (Mr. Key) when I got down here to Superior Court, second time, third time, and fourth time I seen him when I was offered a plea bargain."

13. Defendant further stated on the record on October 1, "Then I came back here, which was today and [Key tells me] ... If you don't go to trial you can take the plea bargain for thirteen years and a half ...."

14. Defendant also stated on the record on October 1, "I'm already facing my life with no parole in prison."

15. At no time during his colloquy with the court on October 1st did Defendant express a desire to accept the plea offer of thirteen and one-half years which had been tendered by the State. There is no credible evidence before the court that Defendant expressed to anyone, including his lawyer or the court, at any time prior to his conviction and final sentencing that he wished to accept such plea offer or any plea offer that was made by the State.

19. On November 14, 2001 the trial court denied Defendant's Motion to Dismiss indictment. Judge Bowen found in the order denying the Motion to Dismiss that "defendant and [his] counsel were well aware of the Violent Habitual Felon indictment ... far in advance of the trial of the underlying felony" on October 1, 2001.

23. Eighteen years have passed since the events at issue. Mr. Key did not have a perfect or complete recollection of all his statements to his client.

25. The Defendant was informed that he was subject to a sentence of life without parole. The credible evidence does not establish the Defendant was not informed by Mr. Key well in advance of the first day of his trial, October 1, 2001, that he faced a mandatory sentence of life imprisonment without parole as a violent habitual felon.

27. The credible evidence does not establish that Defendant lacked a full and informed understanding well in advance of October 1, 2001, of the impact of the violent habitual felon charge, of its potential consequences and of the consequences of rejecting the plea arrangement which had been offered by the State. The credible evidence does not establish that the defense counsel failed to fully, timely, and competently advise Defendant on these issues. The credible evidence does not establish that defense counsel's representation was objectively unreasonable in any way.

28. The prior convictions used to establish Defendant's status as a violent habitual felon were as follows: (1) Second Degree Kidnapping, date of offense March 14, 1984, conviction date May 16, 1984 and (2) Second Degree Sexual Offense, offense date November 3, 1987 and conviction date February 1, 1988.

29. Defendant's date of birth was February 24, 1968. Defendant was sixteen years of age at the time he committed and was convicted of the predicate offense of Second Degree Kidnapping in 1984. Defendant was over the age of eighteen when convicted of the second predicate felony of Second Degree Sexual offense in 1988.

33. The credible evidence does not establish that the frequency, content or timing of attorney Mark Key's communications with Defendant were objectively unreasonable. The credible evidence does not establish that the methods Mr. Key used to communicate with Defendant about his case were objectively unreasonable.

34. The credible evidence does not demonstrate a reasonable probability that but for any error or insufficiency in the frequency, timing, content or methods of communication used by attorney Key with Defendant that the outcome of the case would have been any different or that Defendant would have accepted a plea to a sentence of less than life without parole.

The Order also makes the following relevant Conclusions of Law:

2. Defendant's sentence of life without parole was not imposed for conduct committed before Defendant was eighteen years of age in violation of Graham v. Florida , 560 U.S. 48 [130 S.Ct. 2011, 176 L.Ed.2d 825] (2010), Miller v. Alabama , 132 S. Ct. 2455 (2012), or Montgomery v. Louisiana , 136 S. Ct. 718 (2016). Defendant's sentence did not violate the constitutional prohibitions against mandatory sentences of life without parole for juveniles. Defendant's sentence is therefore not unconstitutional as applied to the Defendant.

3. No inference of disproportionality arises from a comparison of the gravity of the offense and the severity of the sentence in question.

4. As applied to Defendant, a sentence of life without parole is not grossly disproportionate to the conduct punished.

5. Defendant's sentence does not violate the Eighth Amendment to the Constitution of the United States.

7. Defendant has failed to prove, by a preponderance of the evidence, that the performance of his trial counsel, Mark Key, was objectively unreasonable or deficient.

8. In addition, and in the alternative, the Defendant has failed to establish that there is a reasonable probability that but for any unprofessional error committed by Mr. Key the

...