State v. White, No. 86

Docket NºNo. 86
Citation274 N.C. 220, 162 S.E.2d 473
Case DateAugust 23, 1968
CourtUnited States State Supreme Court of North Carolina

Page 473

162 S.E.2d 473
274 N.C. 220
STATE,
v.
David Edward WHITE, Francis Paul White and William Harris Nichols.
No. 86.
Supreme Court of North Carolina.
Aug. 23, 1968.

T. W. Bruton, Atty. Gen., Theodore C. Brown, Jr., and Ralph A. White, Jr., Staff Attorneys, Raleigh, for the State.

Gaylord & Singleton, Greenville, for defendant appellees.

SHARP, Justice.

The State, as well as a prisoner, may petition for certiorari to review a final judgment in proceedings under the Post-Conviction Hearing Act (Act) G.S. § 15--217--G.S. § 15--222. State v. Merritt, [274 N.C. 226] 264 N.C. 716, 142 S.E.2d 687; State v. Burell, 254 N.C. 317, 119 S.E.2d 3; G.S. § 15--222. See N.C.Sess.Laws 1967, Ch. 523.

In this proceeding, petitioners sought and obtained post-conviction review upon the allegation that the trial judge had erroneously admitted evidence obtained by an unlawful search and seizure. One of the three petitioners (Nichols) had appealed his conviction to this Court without assigning the admission of the evidence as error; the other two did not appeal. Post-conviction review was had entirely upon the transcript of the original trial, and one superior court judge has purported to grant petitioners a new trial for errors assertedly committed by another--errors which were properly reviewable upon appeal. At the threshold therefore, we are confronted with this basic question: May petitioners attack their conviction in a post-conviction proceeding upon the asserted ground that the trial court admitted evidence which had been illegally obtained in violation of the Fourth Amendment to the United States Constitution?

This Court has consistently held that proceedings under the Act are not a substitute or an alternative to direct appeal. Branch v. State, 269 N.C. 642, 153 S.E.2d 343; State v. Graves, 251 N.C. 550, 112 S.E.2d 85; State v. Wheeler, 249 N.C. 187, 105 S.E.2d 615; State v. Cruse, 238 N.C. 53, 76 S.E.2d 320; Miller v. State, 237 N.C. 29, 74 S.E.2d 513. Since July 1965, when the Act was rewritten, G.S. § 15--217 has provided: 'The remedy herein provided is not a substitute for nor does it affect any remedies which are incident to the proceedings in the trial court, or any remedy of direct review of the sentence or conviction, but, except as otherwise provided in this article, it comprehends and takes the place of all other common-law and statutory remedies which have heretofore been available for challenging the validity of incarceration under

Page 477

sentence of death or imprisonment, and shall be used exclusively in lieu thereof.'

In the first proceeding under the Act to come before this Court, Miller v. State, 237 N.C. 29, 74 S.E.2d 513 (1953), Ervin, J., pointed out that it did not license a collateral attack upon any ruling which could have properly been presented by a direct appeal from the judgment pronounced in the original trial: 'It is not designed to add to the law's delays by giving an accused two days in court where one is sufficient for the doing of substantial justice under fundamental law. It is not devised to confer upon an accused, who is defended by counsel of his own selection or competent counsel appointed by the court, a legal privilege, at his own election, to have his rights arising under the common law and the statutes adjudicated at a time of the State's choosing in the original criminal action, [274 N.C. 227] and his rights arising under the constitutions of his State and Nation adjudicated at a subsequent time of his own choosing in another proceeding. It is enacted to provide an adequate and available post-trial remedy for persons imprisoned under judicial decrees who suffered substantial and unadjudicated deprivations of their constitutional rights in the original criminal actions resulting in their convictions because they were prevented from claiming such constitutional rights in the original criminal actions by factors beyond their control.' Id. at 51, 74 S.E.2d at 528--529.

In State v. Cruse, 238 N.C. 53, 76 S.E.2d 320 (1953), Devin, J., again emphasized that the Act did not 'afford to a person heretofore convicted of crime the right to present to this Court assignments of error in the trial in which he was convicted and from which he did not appeal. * * * The statute provides a procedure by which a person convicted of crime may thereafter obtain a hearing upon the question whether he was denied due process of law. It affords an opportunity to inquire into the constitutional integrity of his conviction.' Id. at 58, 76 S.E.2d at 323.

In State v. Wheeler, 249 N.C. 187, 105 S.E.2d 615 (1958), this Court reversed a judgment of the Superior Court in post-conviction proceedings which denied a new trial to petitioners, who were 'without counsel or witnesses' at the trial in which they were convicted and sentenced. In noting that the purpose of the Act was to redress the deprivation of constitutional rights such as those, the Court--speaking through Higgins, J.--said, 'The Post Conviction Hearing Act is not a substitute for appeal. It cannot be used to raise the question whether errors were committed in the course of the trial. The inquiry is limited to a determination whether the petitioners were denied the right to be represented by counsel, to have witnesses, and a fair opportunity to prepare and to present their defense. * * *' Id. at 191--192, 105 S.E.2d at 620; accord, State v. Graves, supra.

In State v. Wilson, 269 N.C. 297, 152 S.E.2d 223, an indigent, unable to perfect his appeal because of inability to pay counsel, filed a petition for a post-conviction hearing under the Act upon grounds which should have been asserted upon appeal. The hearing judge correctly disposed of the petition by directing counsel to apply to this Court for certiorari. We granted the petition, and--upon appeal--ordered a new trial. Similarly, in State v. Roux, 263 N.C. 149, 139 S.E.2d 189, counsel for petitioner in post-conviction proceedings was directed to apply to this Court for certiorari to review the petitioner's trial when it was manifested that petitioner, an indigent without counsel, had withdrawn his appeal because he did [274 N.C. 228] not know that 'he had a constitutional right to have the State provide him with means to secure a full appellate review of his trial * * *.' Id. at 157, 139 S.E.2d at 195. Accord, State v. Staten, 271 N.C. 600, 157 S.E.2d 225.

The Act as now written incorporates habeas corpus, Coram nobis, and any other common law or statutory remedy under which a prisoner may collaterally attack his sentence (G.S. § 15--217, Ch. 352, Sess.Laws

Page 478

1965). Thus, a petitioner sentenced upon a plea of guilty to a crime not charged in the bill of indictment, received his discharge in...

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22 practice notes
  • Cole v. Stevenson, No. 78-6211
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 5, 1980
    ...3, 1977, basing its holding on Cole's failure to raise the issue on direct appeal. See North Carolina Code § 15-217; State v. White, 274 N.C. 220, 162 S.E.2d 473 (1958). 3 The North Page 1058 Carolina Supreme Court denied certiorari. Cole then filed his petition for habeas corpus in the fed......
  • Smith v. Dixon, Nos. 91-4011
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 21, 1994
    ...v. Abernathy, 36 N.C.App. 527, 531-32, 244 S.E.2d 696, 699 (same), disc. rev. denied, 295 N.C. 552, 248 S.E.2d 730 (1978); State v. White, 274 N.C. 220, 226, 162 S.E.2d 473, 477 (1968) (noting that defendant not entitled to raise error for first time in a post-conviction proceeding unless f......
  • Reed v. Ross, No. 83-218
    • United States
    • United States Supreme Court
    • June 27, 1984
    ...be raised for the first time in postconviction proceedings. State v. Abernathy, 36 N.C.App. 527, 244 S.E.2d 696 (1978); State v. White, 274 N.C. 220, 162 S.E.2d 473 (1968). See 704 F.2d 705 (CA4 1983); Cole v. Stevenson, 620 F.2d 1055, 1057-1059 (CA4 1980). Respondent argues that the North ......
  • Cole v. Stevenson, No. 77-0351-HC.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 14, 1978
    ...malice, federal habeas corpus review is precluded by his failure to raise the issue on appeal as required by state law. State v. White, 274 N.C. 220, 162 S.E.2d 473 (1968) and Hankerson, supra, 432 U.S. at 244 n.8, 97 S.Ct. 2339 are cited for the proposition that a failure to comply with st......
  • Request a trial to view additional results
22 cases
  • Cole v. Stevenson, No. 78-6211
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 5, 1980
    ...3, 1977, basing its holding on Cole's failure to raise the issue on direct appeal. See North Carolina Code § 15-217; State v. White, 274 N.C. 220, 162 S.E.2d 473 (1958). 3 The North Page 1058 Carolina Supreme Court denied certiorari. Cole then filed his petition for habeas corpus in the fed......
  • Smith v. Dixon, Nos. 91-4011
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 21, 1994
    ...v. Abernathy, 36 N.C.App. 527, 531-32, 244 S.E.2d 696, 699 (same), disc. rev. denied, 295 N.C. 552, 248 S.E.2d 730 (1978); State v. White, 274 N.C. 220, 226, 162 S.E.2d 473, 477 (1968) (noting that defendant not entitled to raise error for first time in a post-conviction proceeding unless f......
  • Reed v. Ross, No. 83-218
    • United States
    • United States Supreme Court
    • June 27, 1984
    ...be raised for the first time in postconviction proceedings. State v. Abernathy, 36 N.C.App. 527, 244 S.E.2d 696 (1978); State v. White, 274 N.C. 220, 162 S.E.2d 473 (1968). See 704 F.2d 705 (CA4 1983); Cole v. Stevenson, 620 F.2d 1055, 1057-1059 (CA4 1980). Respondent argues that the North ......
  • Cole v. Stevenson, No. 77-0351-HC.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 14, 1978
    ...malice, federal habeas corpus review is precluded by his failure to raise the issue on appeal as required by state law. State v. White, 274 N.C. 220, 162 S.E.2d 473 (1968) and Hankerson, supra, 432 U.S. at 244 n.8, 97 S.Ct. 2339 are cited for the proposition that a failure to comply with st......
  • Request a trial to view additional results

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