ex post facto clause in North Carolina

2020The central concern of the Ex Post Facto Clause is “the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Lynce v. Mathis, 519 U.S. 433, 441 , 117 S. Ct. 891 , 895–96 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 30 , 101 S. Ct. 960, 965 (1981)); see also Dobbert, 432 U.S. at 297 , 97 S. Ct. at 2300 (“The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.”)

2020The central concern of the Ex Post Facto Clause is “the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Lynce v. Mathis, 519 U.S. 433, 441 , 117 S. Ct. 891 , 895–96 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 30 , 101 S. Ct. 960, 965 (1981)); see also Dobbert, 432 U.S. at 297 , 97 S. Ct. at 2300 (“The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.”)

2010See Smith v. Doe, 538 U.S. 84, 92 (2003) (stating that an ex post facto analysis begins by considering whether “the intention of the legislature was to impose punishment” (citing Kansas v. Hendricks, 521 U.S. 346, 361 (1997))).

2010An ex post facto analysis begins with determining whether the express or implicit "intention of the legislature was to impose punishment," and if so, "that ends the inquiry." Smith, 538 U.S. at 92 , 123 S.Ct. 1140 (citing Hendricks, 521 U.S. at 361 , 117 S.Ct. 2072 ).

2007Plaintiff next argues that the ordinance is punitive in a way that would violate the ex post facto clause, and relies on the five-part test adopted in Smith v. Doe : (1) whether it "promotes the traditional aims of punishment"; (2) whether the law was "regarded in history and tradition as punishment"; (3) whether it "imposes an affirmative disability or restraint"; (4) whether it "has a rational connection to a nonpunitive purpose"; or (5) whether it "is excessive with respect to [that] purpose." Smith v. Doe, 538 U.S. 84, 97 , 123 S.Ct. 1140, 1149 , 155 L.Ed.2d 164, 180 (2003) (citing Kennedy

2007Plaintiff next argues that the ordinance is punitive in a way that would violate the ex post facto clause, and relies on the five-part test adopted in Smith v. Doe : (1) whether it "promotes the traditional aims of punishment"; (2) whether the law was "regarded in history and tradition as punishment"; (3) whether it "imposes an affirmative disability or restraint"; (4) whether it "has a rational connection to a nonpunitive purpose"; or (5) whether it "is excessive with respect to [that] purpose." Smith v. Doe, 538 U.S. 84, 97 , 123 S.Ct. 1140, 1149 , 155 L.Ed.2d 164, 180 (2003) (citing Kennedy

2000In other words, in order for a criminal law to be an ex post facto violation, it must be both retrospective by applying to events which occurred “ ‘before its enactment, and it must disadvantage the offender affected by it.’ ” Id. (quoting Weaver v. Graham, 450 U.S. 24, 29 , 67 L.

1999In other words, in order for a criminal law to be an ex post facto violation, it must be both retrospective by applying to events which occurred "`before its enactment, and it must disadvantage the offender affected by it.'" Id. (quoting Weaver v. Graham, 450 U.S. 24, 29 , 101 S.Ct. 960 , 67 L.Ed.2d 17, 23 (1981)).

2020Thompson v. State of Missouri, 171 U.S. 380, 386 , 18 S. Ct. 922, 924 (1898); see also In re Kivett, 309 N.C. 635, 672 , 309 S.E.2d 442, 464 (1983) (“Procedural changes of the law in criminal cases are not violations of the ex post facto doctrine.” (citing Dobbert v. State of Florida, 432 U.S. 282 , 97 S. Ct. 2290 (1977)).

2020Thompson v. State of Missouri, 171 U.S. 380, 386 , 18 S. Ct. 922, 924 (1898); see also In re Kivett, 309 N.C. 635, 672 , 309 S.E.2d 442, 464 (1983) (“Procedural changes of the law in criminal cases are not violations of the ex post facto doctrine.” (citing Dobbert v. State of Florida, 432 U.S. 282 , 97 S. Ct. 2290 (1977)).

2020Thompson v. State of Missouri, 171 U.S. 380, 386 , 18 S. Ct. 922, 924 (1898); see also In re Kivett, 309 N.C. 635, 672 , 309 S.E.2d 442, 464 (1983) (“Procedural changes of the law in criminal cases are not violations of the ex post facto doctrine.” (citing Dobbert v. State of Florida, 432 U.S. 282 , 97 S. Ct. 2290 (1977)).

2020Thompson v. State of Missouri, 171 U.S. 380, 386 , 18 S. Ct. 922, 924 (1898); see also In re Kivett, 309 N.C. 635, 672 , 309 S.E.2d 442, 464 (1983) (“Procedural changes of the law in criminal cases are not violations of the ex post facto doctrine.” (citing Dobbert v. State of Florida, 432 U.S. 282 , 97 S. Ct. 2290 (1977)).

2020Modes of procedure do not operate substantive changes, “leav[ing] untouched the nature of the crime and the amount or degree of proof essential to conviction,” Hopt v. People of the Territory of Utah, 110 U.S. 574, 590 , 4 S. Ct. 202, 210 (1884); their alteration cannot constitute an ex post facto violation.

2020Modes of procedure do not operate substantive changes, “leav[ing] untouched the nature of the crime and the amount or degree of proof essential to conviction,” Hopt v. People of the Territory of Utah, 110 U.S. 574, 590 , 4 S. Ct. 202, 210 (1884); their alteration cannot constitute an ex post facto violation.

2020Thompson v. State of Missouri, 171 U.S. 380, 386 , 18 S. Ct. 922, 924 (1898); see also In re Kivett, 309 N.C. 635, 672 , 309 S.E.2d 442, 464 (1983) (“Procedural changes of the law in criminal cases are not violations of the ex post facto doctrine.” (citing Dobbert v. State of Florida, 432 U.S. 282 , 97 S. Ct. 2290 (1977)).

2020Thompson v. State of Missouri, 171 U.S. 380, 386 , 18 S. Ct. 922, 924 (1898); see also In re Kivett, 309 N.C. 635, 672 , 309 S.E.2d 442, 464 (1983) (“Procedural changes of the law in criminal cases are not violations of the ex post facto doctrine.” (citing Dobbert v. State of Florida, 432 U.S. 282 , 97 S. Ct. 2290 (1977)).

2020The Supreme Court has explained that “the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed” and that “an increase in the possible penalty is ex post facto, regardless of the length of the sentence actually imposed, since the measure of punishment prescribed by the later statute is more severe than that of the earlier.” Lindsey, 301 U.S. 397, 401 (citations omitted).

2020The Supreme Court has explained that “the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed” and that “an increase in the possible penalty is ex post facto, regardless of the length of the sentence actually imposed, since the measure of punishment prescribed by the later statute is more severe than that of the earlier.” Lindsey, 301 U.S. 397, 401 (citations omitted).

2020The central concern of the Ex Post Facto Clause is “the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Lynce v. Mathis, 519 U.S. 433, 441 , 117 S. Ct. 891 , 895–96 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 30 , 101 S. Ct. 960, 965 (1981)); see also Dobbert, 432 U.S. at 297 , 97 S. Ct. at 2300 (“The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.”)

2020The central concern of the Ex Post Facto Clause is “the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Lynce v. Mathis, 519 U.S. 433, 441 , 117 S. Ct. 891 , 895–96 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 30 , 101 S. Ct. 960, 965 (1981)); see also Dobbert, 432 U.S. at 297 , 97 S. Ct. at 2300 (“The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.”)

2020Collins, 497 U.S. at 45 ; see also Miller v. Florida, 482 U.S. 423, 433 (1987) (“[E]ven if a law operates to the defendant’s detriment, the ex post facto prohibition does not restrict ‘legislative control of remedies and modes of procedure which do not affect matters of substance.’ Hence, no ex post facto violation occurs if the change in the law is merely procedural and does ‘not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.’ ” (citations omitted)); Morales, 514 U.S. at 506 n.3 (stating that “the focus of the ex post fac

2020Collins, 497 U.S. at 45 ; see also Miller v. Florida, 482 U.S. 423, 433 (1987) (“[E]ven if a law operates to the defendant’s detriment, the ex post facto prohibition does not restrict ‘legislative control of remedies and modes of procedure which do not affect matters of substance.’ Hence, no ex post facto violation occurs if the change in the law is merely procedural and does ‘not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.’ ” (citations omitted)); Morales, 514 U.S. at 506 n.3 (stating that “the focus of the ex post fac

2009App. at 193 , 590 S.E.2d at 455 (holding that retroactive application of sex offender registration statute does not offend the ex post facto clause); see also State v. Sakobie, 165 N.C.

2005We concur with the majority of jurisdictions that hold the ex post facto clause is not violated under the circumstances in this case. “ ‘It is hornbook law that no ex post facto problem occurs when the legislature creates a new offense that includes a prior conviction as an element of the offense, as long as the other relevant conduct took place after the law was passed.’ ” State v. White, 162 N.C.

2010While considering an ex post facto challenge to a sex offender registration scheme in Smith, the Court commented that registration “obligations are less harsh than the sanctions of occupational debarment, which [] have [been] held to be nonpunitive.” Id. at 100 (emphasis added) (citing Hudson, 522 U.S. at 104 (forbidding work in the banking industry); De Veau v. Braisted, 363 U.S. 144 (1960) (forbidding work as a union official); Hawker v. New York, 170 U.S. 189 (1898) (revoking medical license)); see also Bredesen, 507 F.3d at 1005 (relying on Smith to conclude that the effects of Tennessee’s

2010While considering an ex post facto challenge to a sex offender registration scheme in Smith , the Court commented that registration "obligations are less harsh than the sanctions of occupational debarment, which [] have [been] held to be nonpunitive." Id. at 100 , 123 S.Ct. 1140 (emphasis added) (citing Hudson, 522 U.S. at 104 , 118 S.Ct. 488 (forbidding work in the banking industry); De Veau v. Braisted, 363 U.S. 144 , 80 S.Ct. 1146 , 4 L.Ed.2d 1109 (1960) (forbidding work as a union official); Hawker v. New York, 170 U.S. 189 , 18 S.Ct. 573 , 42 L.Ed. 1002 (1898) (revoking medical license));

2010The basis of this argument is the same as his first contention on appeal: that defendant’s type of conduct “was never a violation of the common law and is not a violation of the common law now.” This argument, however, overlooks the fact that “[t]here is no violation of the ex post facto clause . . . when a decision is applied retroactively because the clause applies to legislative and not judicial action.” State v. Rivens, 299 N.C. 385, 392 , 261 S.E.2d 867, 871 (1980).

2010The basis of this argument is the same as his first contention on appeal: that defendant’s type of conduct “was never a violation of the common law and is not a violation of the common law now.” This argument, however, overlooks the fact that “[t]here is no violation of the ex post facto clause . . . when a decision is applied retroactively because the clause applies to legislative and not judicial action.” State v. Rivens, 299 N.C. 385, 392 , 261 S.E.2d 867, 871 (1980).

2007"North Carolina has made clear that its intent was to enact a civil disability to protect the public from those felons whose possession of guns there was the most reason to fear, not to impose any punishment or penalty on felons." Farrow, 364 F.3d at 554 -555 (citing O'Neal, 180 F.3d at 123 ); see also Tanner, 39 N.C.App. at 670 , 251 S.E.2d at 706 ; State v. Cobb, 18 N.C.App. 221, 225 , 196 S.E.2d 521, 524 (1973), rev'd on other grounds, 284 N.C. 573 , 201 S.E.2d 878 (1974).

2007See O'Neal, 180 F.3d at 124 ("[T]he rational connection between the [N.C.

2010Because this Court has found that SBM is a 'civil remedy, “application of the SBM provisions do not violate the ex post facto clause.” Id. at-, 677 S.E.2d at 531 .

2009App. ___, 677 S.E.2d 518 (2009), this Court rejected an Ex Post Facto claim identical to the one defendant alleges that his trial counsel should have made.

2020Collins, 497 U.S. at 45 ; see also Miller v. Florida, 482 U.S. 423, 433 (1987) (“[E]ven if a law operates to the defendant’s detriment, the ex post facto prohibition does not restrict ‘legislative control of remedies and modes of procedure which do not affect matters of substance.’ Hence, no ex post facto violation occurs if the change in the law is merely procedural and does ‘not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.’ ” (citations omitted)); Morales, 514 U.S. at 506 n.3 (stating that “the focus of the ex post fac

2020Collins, 497 U.S. at 45 ; see also Miller v. Florida, 482 U.S. 423, 433 (1987) (“[E]ven if a law operates to the defendant’s detriment, the ex post facto prohibition does not restrict ‘legislative control of remedies and modes of procedure which do not affect matters of substance.’ Hence, no ex post facto violation occurs if the change in the law is merely procedural and does ‘not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.’ ” (citations omitted)); Morales, 514 U.S. at 506 n.3 (stating that “the focus of the ex post fac

2010See Smith v. Doe, 538 U.S. 84, 92 (2003) (stating that an ex post facto analysis begins by considering whether “the intention of the legislature was to impose punishment” (citing Kansas v. Hendricks, 521 U.S. 346, 361 (1997))).

2010An ex post facto analysis begins with determining whether the express or implicit "intention of the legislature was to impose punishment," and if so, "that ends the inquiry." Smith, 538 U.S. at 92 , 123 S.Ct. 1140 (citing Hendricks, 521 U.S. at 361 , 117 S.Ct. 2072 ).

2010Because this Court has found that SBM is a 'civil remedy, “application of the SBM provisions do not violate the ex post facto clause.” Id. at-, 677 S.E.2d at 531 .

2009App. at 193 , 590 S.E.2d at 455 (holding that retroactive application of sex offender registration statute does not offend the ex post facto clause); see also State v. Sakobie, 165 N.C.

2013See United States v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999) (“It is well-settled that when a statute is concerned with a continuing offense, the Ex Post Facto clause is not violated by application of a statute to an enterprise that began prior to, but continued after, the effective date of the statute.” (citation and quotation marks omitted)), cert. denied, 529 U.S. 1077 , 146 L.Ed. 2d 501 (2000); People v. Grant, 973 P.2d 72, 75 (Cal. 1999) (“In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transac

2013See United States v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999) (“It is well-settled that when a statute is concerned with a continuing offense, the Ex Post Facto clause is not violated by application of a statute to an enterprise that began prior to, but continued after, the effective date of the statute.” (citation and quotation marks omitted)), cert. denied, 529 U.S. 1077 , 146 L.Ed. 2d 501 (2000); People v. Grant, 973 P.2d 72, 75 (Cal. 1999) (“In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transac

2013See United States v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999) (“It is well-settled that when a statute is concerned with a continuing offense, the Ex Post Facto clause is not violated by application of a statute to an enterprise that began prior to, but continued after, the effective date of the statute.” (citation and quotation marks omitted)), cert. denied, 529 U.S. 1077 , 146 L.Ed. 2d 501 (2000); People v. Grant, 973 P.2d 72, 75 (Cal. 1999) (“In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transac

2013See United States v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999) (“It is well-settled that when a statute is concerned with a continuing offense, the Ex Post Facto clause is not violated by application of a statute to an enterprise that began prior to, but continued after, the effective date of the statute.” (citation and quotation marks omitted)), cert. denied, 529 U.S. 1077 , 146 L.Ed. 2d 501 (2000); People v. Grant, 973 P.2d 72, 75 (Cal. 1999) (“In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transac