in the Court of Appeals 17 September 2019.
by Defendant from order entered 7 August 2018 by Judge W.
Robert Bell in Henderson County Nos. 16-CRS-901-07,
18-CRS-133-38 Superior Court.
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.
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
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).
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.
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
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'
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.
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
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.
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.
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. §
North Carolina v. Pearce, 395 U.S. 711 (1969),
limited by Alabama v. Smith, 490 U.S. 794 (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. 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.
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.
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
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 (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.
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 ...