Heard February 17, 2014
Counsel Amended January 7, 2015.
N.C. Court of Appeals. No. 12-531. Ann Marie Calabria, Judge.
Amy Kunstling IreneMs., Primary Attorney, Assistant Attorney General, N.C. DEPARTMENT OF JUSTICE, Raleigh, NC for Plaintiff-Appellant - State of North Carolina.
Allison StandardMs., Primary Attorney, Attorney at Law, Raleigh NC, for Defendant-Appellee - Banks, Edy Charles (Jr.).
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, __ N.C.App. __, 736 S.E.2d 843 (2013), reversing and remanding an order denying defendant's motion for appropriate relief entered on 5 December 2011 by Judge Anna Mills Wagoner in Superior Court, Rowan County. Heard in the Supreme Court on 17 February 2014.
[367 N.C. 653] BEASLEY, Justice.
Petitioner Edy Charles Banks, Jr., in his motion for appropriate relief (MAR), claims that he received ineffective assistance of counsel (IAC) when his trial counsel failed to object on double jeopardy grounds to his being sentenced by the trial court for both statutory rape and second-degree rape when the convictions were predicated on a single act of sexual intercourse with the victim. We conclude that defendant was properly convicted of both statutory rape and second-degree rape committed during a single act of sexual intercourse and that separate punishments for each offense are appropriate. Consequently, defendant could not have been prejudiced by ineffective assistance of counsel when a double jeopardy argument would have been unsuccessful at trial. We, therefore, reverse the decision of the Court of Appeals.
In 2007 Banks was convicted of statutory rape of a fifteen-year-old child, second-degree rape of a mentally disabled person, and taking indecent liberties with a child. The evidence presented in support of these convictions tended to show that on 4 May 2005, Banks engaged in a single act of vaginal intercourse with J.L., a juvenile who suffers from various mental disorders and is mildly to moderately mentally disabled. At the time of the incident, Banks was twenty-nine years old and J.L. was fifteen years old. The trial court sentenced Banks to a presumptive-range term of 240 to 297 months of imprisonment for the statutory rape conviction. The trial court consolidated the second-degree rape and indecent liberties convictions into one judgment and sentenced Banks to a consecutive, presumptive-range term of 73 to 97 months of imprisonment. Banks's convictions were subsequently upheld on direct appeal. See State v. Banks, 201 N.C.App. 591, 689 S.E.2d 245, 2009 WL 4931757 (unpublished).
On 2 September 2011, Banks filed an MAR in Superior Court, Rowan County, asserting that his
convictions of statutory rape and second degree rape for the same act violate the protection against double jeopardy in the Fifth Amendment to the United States Constitution and the North Carolina Constitution's law of the land provision in Article 1, Section 19. [367 N.C. 654] Trial counsel's failure to raise this claim at trial constitutes ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and the North Carolina Constitution, Article 1, Sections 19 and 23.
The trial court, without conducting an evidentiary hearing on Banks's IAC claim, entered an order on 5 December 2011 denying Banks's MAR. The court applied the test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). The test, established as a means to identify " 'congressional intent to impose separate sanctions for . . . offenses arising in the course of a single act or transaction,'" Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275, 281 (1981) (citations omitted), requires the trial court to consider " whether each provision requires proof of a fact which the other does not," Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309 (citations omitted). Applying this test, the trial court determined that statutory rape and second-degree rape " constitute separate and distinct crimes" and that " there is no clear legislative intent to prohibit multiple ...