State v. Schalow

• Decision Date: 07 January 2020
• Docket Number: No. COA19-215,COA19-215
• Citation: 837 S.E.2d 593
• Parties: STATE of North Carolina, v. Leonard SCHALOW, Defendant.
• Court: North Carolina Court of Appeals

837 S.E.2d 593

STATE of North Carolina,

v.Leonard SCHALOW, Defendant.

No. COA19-215

Court of Appeals of North Carolina.

Filed: January 7, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State-Appellee.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel Shatz, for Defendant-Appellant.

COLLINS, Judge.

Defendant Leonard Schalow appeals from the trial court’s 7 August 2018 order denying his motion to dismiss the charges against him. Defendant contends that the trial court erred by denying his motion to dismiss because: (1) the State violated his rights under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution by bringing the charges against him; (2) the State violated his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution by vindictively prosecuting the charges against him; and (3) the State impermissibly failed to join the charges in his earlier prosecution as required by N.C. Gen. Stat. § 15A-926. Because we conclude that Defendant is entitled to a presumption of prosecutorial vindictiveness that the State has failed to overcome and that the charges brought against him should have been dismissed pursuant to N.C. Gen. Stat. § 15A-926, we reverse and remand.

I. Background

In late February 2014, warrants issued for Defendant’s arrest for the alleged commission of various acts of violence against his wife, Erin Schalow. These warrants found probable cause to arrest Defendant for (1) assault on a female ( N.C. Gen. Stat. § 14-33(C)(2) ), (2) assault inflicting serious injury with a minor present ( N.C. Gen. Stat. § 14-33(D) ), (3) assault with a deadly weapon ( N.C. Gen. Stat. § 14-33(C)(1) ), (4) assault by strangulation ( N.C. Gen. Stat. § 14-32.4(B) ), and (5) assault inflicting serious bodily injury ( N.C. Gen. Stat. § 14-32.4 ).

Defendant was indicted on 10 March 2014 under file number 14 CRS 50887 for "ATTEMPT [sic] FIRST DEGREE MURDER" for "unlawfully, willfully and feloniously ... attempt[ing] to murder and kill Erin Henry Schalow" (the "First Prosecution"). The State subsequently dismissed the other charges pending against Defendant.

Following the empanelment of a jury and the presentation of evidence on the "ATTEMPT [sic] FIRST DEGREE MURDER" charge, the trial court noted that the indictment failed to allege malice aforethought, a required element of attempted first-degree murder under the short-form indictment statute, N.C. Gen. Stat. § 15-144. Over Defendant’s objection that the indictment sufficiently alleged attempted voluntary manslaughter under N.C. Gen. Stat. § 15-144 and that jeopardy had attached once the jury was empaneled, the trial court declared a mistrial and dismissed the indictment as fatally defective.

On 18 May 2015, Defendant was re-indicted under file number 15 CRS 50922, again for "ATTEMPT [sic] FIRST DEGREE MURDER[,]" this time for "unlawfully, willfully and feloniously ... with malice aforethought attempt[ing] to murder and kill Erin Henry Schalow by torture" (the "Second Prosecution"). Defendant moved to dismiss on 22 May 2015 arguing, inter alia , that because jeopardy had attached in the First Prosecution on the dismissed indictment for attempted voluntary manslaughter, the Double Jeopardy Clause prohibited the State from prosecuting him for the greater offense of attempted first-degree murder. Following a hearing, the trial court denied Defendant’s motion. Defendant was subsequently tried, convicted, and sentenced to 157 to 201 months’ imprisonment.

Defendant appealed to this Court. In State v. Schalow , 251 N.C. App. 334, 354, 795 S.E.2d 567, 580 (2016) (" Schalow I "), disc. review improvidently allowed , 370 N.C. 525, 809 S.E.2d 579 (2018), we held that Defendant’s indictment, prosecution, trial, and conviction in the Second Prosecution violated Defendant’s double-jeopardy rights, and accordingly vacated the conviction and underlying indictment.

On 4 January 2017, the State obtained additional indictments against Defendant for 14 counts of felony child abuse ( N.C. Gen. Stat. § 14-318.4(a5) ). The following day, the State petitioned our Supreme Court to review Schalow I . On 9 January 2017, Henderson County District Attorney Greg Newman was quoted in the press saying: "If ... the Supreme Court refuses to take up the case, then I have a plan in place to address that circumstance and will take additional action to see that [Defendant] is held accountable for his actions. ... I will do everything that I can to see that [Defendant] remains in custody for as long as possible."

On 6 March 2018, after our Supreme Court determined discretionary review had been improvidently allowed in Schalow I , Newman was quoted on Facebook as saying that "things do not always go our way, so I will make my adjustments and prosecute [Defendant] again" and that "[Defendant] will not get out of custody, but will instead be sent back to the Henderson County jail where new felony charges await him. My goal is to have [Defendant] receive a comparable sentence to the one originally imposed" in the Second Prosecution. On 19 March 2018, Defendant was indicted for three counts of assault with a deadly weapon with intent to kill inflicting serious injury ( N.C. Gen. Stat. § 14-32(a) ) ("ADWIKISI"), two counts of assault inflicting serious bodily injury ( N.C. Gen. Stat. § 14-32.4(a) ) ("AISBI"), and one count of assault by strangulation ( N.C. Gen. Stat. § 14-32.4(b) ) ("ABS"). Like the charges at issue in the First and Second Prosecutions, the new child abuse and assault charges are all based upon various acts of violence that Defendant allegedly committed against his wife in 2014.

On 19 July 2018, Defendant moved to dismiss the new charges on grounds of, inter alia , double jeopardy, vindictive prosecution, and statutory joinder. Following a hearing, the trial court denied Defendant’s motion. Defendant filed a petition for a writ of certiorari seeking immediate review of the order denying his motion to dismiss, which we allowed.

II. Discussion

Defendant contends that the trial court erred by denying his motion to dismiss because (1) the State violated his double-jeopardy rights by bringing the new charges; (2) the State violated his due-process rights by vindictively prosecuting the new charges against him; and (3) the State impermissibly failed to join the new charges as required by N.C. Gen. Stat. § 15A-926.

A. Vindictive Prosecution

In North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), limited by Alabama v. Smith , 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the United States Supreme Court reviewed the constitutionality of a sentence given upon reconviction to a criminal defendant after the defendant had successfully appealed from his initial conviction. An issue in Pearce was whether, because he was subjected upon reconviction to a greater punishment than that imposed following the first trial, the defendant’s due-process rights under the Fourteenth Amendment to the United States Constitution had been violated. Pearce , 395 U.S. at 723-26, 89 S.Ct. 2072. The Court said that an "imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be ... a violation of due process of law." Id. at 724, 89 S.Ct. 2072. Noting that "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial," the Court held that an increased sentence could not be imposed following retrial unless the sentencing judge made findings in the record providing objective justification for the increased punishment "so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." Id. at 725-26, 89 S.Ct. 2072.

The Court later extended Pearce ’s holding that defendants must be freed from apprehension of retaliation by sentencing judges to retaliation by prosecutors:

A person convicted of an offense is entitled to pursue his statutory right to a trial de novo , without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.

Due process of law requires that such a potential for vindictiveness must not enter into North Carolina’s two-tiered appellate process.

Blackledge v. Perry , 417 U.S. 21, 28, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (internal citation omitted). The Blackledge Court clarified that a defendant need not show that the prosecutor actually acted in bad faith; instead, where the reviewing court determines that "a realistic likelihood of ‘vindictiveness’ " exists, a presumption of vindictiveness may be applied. Id. at 27-29, 94 S.Ct. 2098.

This Court has articulated the test for prosecutorial vindictiveness under Pearce and its progeny as follows:

in cases involving allegations of prosecutorial vindictiveness, a defendant is constitutionally entitled to relief from judgment if he can show through objective evidence that either:

(1) his prosecution was actually motivated by a desire to punish him for doing what the law clearly permits him to do, or

(2) the circumstances surrounding his prosecution are such that a vindictive motive may be presumed and the State has failed to provide affirmative evidence to overcome the presumption.

State v. Wagner , 148 N.C. App. 658, 661, 560 S.E.2d 174, 176 (emphasis omitted), rev’d in part on other grounds , 356 N.C. 599, 572 S.E.2d 777 (2002). Thus, if a defendant shows that his prosecution was motivated by actual vindictiveness or that the presumption of vindictiveness applies and is not overcome by the State, the charges against the defendant and any resulting convictions must be set aside. See Bla...