{ "id": 4131513, "name": "STATE OF NORTH CAROLINA v. EDY CHARLES BANKS, JR.", "name_abbreviation": "State v. Banks", "decision_date": "2013-02-05", "docket_number": "No. COA12-531", "first_page": "417", "last_page": "422", "citations": [ { "type": "official", "cite": "225 N.C. App. 417" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "185 N.C. App. 423", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8210129 ], "opinion_index": -1, "case_paths": [ "/nc-app/185/0423-01" ] }, { "cite": "648 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639156 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "894" }, { "page": "894-95", "parenthetical": "emphasis added" }, { "page": "895" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0886-01" ] }, { "cite": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "286", "parenthetical": "internal quotations and citations omitted" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 27.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "435" } ], "opinion_index": 0 }, { "cite": "698 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "67-69" } ], "opinion_index": 0 }, { "cite": "364 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152888 ], "year": 2010, "pin_cites": [ { "page": "302-05" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0297-01" ] }, { "cite": "181 S.E.2d 722", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555855 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0516-01" ] }, { "cite": "295 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573306 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0629-01" ] }, { "cite": "306 S.E. 2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4768164 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0224-01" ] }, { "cite": "284 U.S. 299", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5719289 ], "weight": 2, "year": 1932, "opinion_index": 0, "case_paths": [ "/us/284/0299-01" ] }, { "cite": "352 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "683", "parenthetical": "citing Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306 (1932)" }, { "page": "683" } ], "opinion_index": 0 }, { "cite": "319 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741158 ], "year": 1987, "pin_cites": [ { "page": "50", "parenthetical": "citing Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306 (1932)" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0034-01" ] }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "316", "parenthetical": "internal quotations and citations omitted" }, { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "291 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "591" } ], "opinion_index": 0 }, { "cite": "305 N.C. 712", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573095 ], "year": 1982, "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0712-01" ] }, { "cite": "607 S.E.2d 627", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "634", "parenthetical": "quoting State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982)" } ], "opinion_index": 0 }, { "cite": "359 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3793758 ], "year": 2005, "pin_cites": [ { "page": "240", "parenthetical": "quoting State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0228-01" ] }, { "cite": "2009 WL 4931757", "category": "reporters:specialty_west", "reporter": "WL", "weight": 3, "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "689 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 591", "category": "reporters:state", "reporter": "N.C. App.", "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "185 N.C. App. 423", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8210129 ], "weight": 2, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0423-01" ] } ], "analysis": { "cardinality": 596, "char_count": 13633, "ocr_confidence": 0.745, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1333342214159976 }, "sha256": "3ee12b0c275b17f6f8f8078e09f88bb00b42a6e20797023c93e399319824aa30", "simhash": "1:8d18152cf69435dd", "word_count": 2129 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and HUNTER, JR., Robert N. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EDY CHARLES BANKS, JR." ], "opinions": [ { "text": "CALABRIA, Judge.\nEdy Charles Banks, Jr. (\u201cdefendant\u201d) appeals the trial court\u2019s order denying his motion for appropriate relief (\u201cMAR\u201d) for ineffective assistance of counsel (\u201cLAC\u201d). We reverse and remand.\nI. Background\nOn 29 November 2007, a jury returned verdicts finding defendant guilty of statutory rape of a person who is 13, 14, or 15 years old by a defendant who is at least 6 years older, second degree rape of a person who is mentally disabled, and taking indecent liberties with a child in Rowan County Superior Court. For the statutory rape conviction, the trial court sentenced defendant to a minimum of 240 months to a maximum of 297 months. For the second degree rape and indecent liberties convictions, the trial court sentenced defendant to a minimum of 73 months to a maximum of 97 months. Defendant\u2019s sentences were to be served consecutively in the North Carolina' Department of Correction. Defendant appealed.\nIn an unpublished opinion, this Court found no error in defendant\u2019s trial. State v. Banks, 201 N.C. App. 591, 689 S.E.2d 245, 2009 N.C. App. LEXIS 2416, 2009 WL 4931757 (2009)(unpublished). On appeal, defendant argued, inter alia, that his convictions for statutory rape and second degree rape, which were based upon the same act of sexual intercourse, violated his double jeopardy rights. Id. This Court dismissed defendant\u2019s argument because it had not been raised before the trial court. Id.\nOn 2 September 2011, defendant filed an MAR alleging IAC on the basis of his trial counsel\u2019s failure to challenge his charges, convictions, and sentences for both statutory rape and second degree rape offenses. Defendant argued that he was improperly convicted and sentenced for both convictions when they both arose from a single act of sexual intercourse.\nOn 5 December 2011, the trial court, without holding an evidentiary hearing, entered an order denying defendant\u2019s MAR, concluding that his constitutional rights' were not violated because defendant was convicted of \u201cseparate and distinct crimes.\u201d In addition, the court concluded that there was \u201cno clear legislative intent to prohibit multiple convictions for the same conduct.\u201d Accordingly, the trial court found that defendant failed to establish that his trial counsel\u2019s performance fell below an objective standard of reasonableness. Defendant filed a petition for writ of certiorari to review the trial court\u2019s order. The petition was granted 8 February 2012.\nII. Standard of Review\n\u201cWhen considering rulings on motions for appropriate relief, we review the trial court\u2019s order to determine \u2018whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court.\u2019 \u201d State v. Frogge, 359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982)).\nIII. Ineffective Assistance of Counsel\nDefendant argues that the trial court erred in denying his MAR. Specifically, defendant contends that he received IAC when his counsel failed to object to defendant\u2019s judgment which sentenced him for both statutory rape and second degree rape convictions that were based upon a single act of sexual intercourse. We agree.\nTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel\u2019s representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\nState v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006)(internal quotations and citations omitted). In order to determine if defendant\u2019s counsel was ineffective, we must first determine whether defendant was improperly sentenced for both rape convictions.\nA. Double Jeopardy\nIn the instant case, defendant\u2019s convictions for statutory rape and second degree rape were based upon a single act of sexual intercourse. Our Supreme Court has stated:\nWhere, as here, a single criminal transaction constitutes a violation of more than one criminal statute, the test to determine if the elements of the offenses are the same is whether each statute requires proof of a fact which the others do not. By definition, all the essential elements of a lesser included offense are also elements of the greater offense. Invariably then, a lesser included offense requires no proof beyond that required for the greater offense, and the two crimes are considered identical for double jeopardy purposes. If neither crime constitutes a lesser included offense of the other, the convictions will fail to support a plea of double jeopardy.\nState v. Etheridge, 319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987) (citing Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306 (1932))(citations omitted).\nIn Etheridge, our Supreme Court held that convictions of statutory rape, taking indecent liberties with a child, and incest, where the criminal act in question arose out of a single transaction, do not violate a defendant\u2019s rights against double jeopardy, because \u201c[t]he three are legally separate and distinct crimes, none of which is a lesser included offense of another.\u201d Id. at 50, 352 S.E.2d at 683. Our Courts have also held that a defendant\u2019s double jeopardy rights are not violated by convictions for the offenses of crime against nature and second degree sexual offense, State v. Warren, 309 N.C. 224, 306 S.E. 2d 446 (1983), statutory rape and indecent liberties, State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982), and crime against nature and indecent liberties, State v. Copeland, 11 N.C. App. 516, 181 S.E.2d 722 (1971), when the convictions arose from a single sexual act. Since the instant case cannot be materially distinguished from these cases, we must reject defendant\u2019s argument that his convictions for both second degree rape and statutory rape violated his double jeopardy rights.\nB. Legislative Intent\nHowever, the fact that the constitutional prohibition against double jeopardy is inapplicable to defendant\u2019s case does not end our inquiry regarding the propriety of defendant\u2019s sentence. The trial court\u2019s order denying defendant\u2019s MAR also concluded that there was \u201cno clear legislative intent to prohibit multiple convictions for the same conduct.\u201d Our Supreme Court has held that the legislative intent of the General Assembly may also control whether multiple punishments for the same criminal act may be imposed at the same trial. See State v. Davis, 364 N.C. 297, 302-05, 698 S.E.2d 65, 67-69 (2010)(con-cluding that the General Assembly intended to prohibit punishment for convictions of felony death by vehicle and felony serious injury by vehicle when the defendant was punished for the same conduct by convictions for second degree murder and assault with a deadly weapon inflicting serious injury). Although some cases from this Court have elected to analyze the General Assembly\u2019s legislative intent through the lens of double jeopardy, rather than as a separate analysis, we find it more appropriate to consider legislative intent as an independent basis to determine the validity of multiple punishments for the same act. See id. In the instant case, we consider the legislative intent analysis conducted in our decision in State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886 (2007).\nIn Ridgeway, this Court held that the trial court properly allowed the jury to review evidence of both statutory rape and first degree rape arising out of a single act of sexual intercourse. Id. at 434, 648 S.E.2d at 894. However, the Court held that upon verdicts of guilty on both theories, judgment on one conviction must be arrested. Id. To reach this conclusion, the Ridgeway Court conducted the following analysis regarding the legislative intent behind the enactment of N.C. Gen. Stat. \u00a7 14-27.7A, which criminalizes the offense of statutory rape:\nUnder the original statutes for rape and sexual offense, a plain reading of the statutes shows the legislative intent was to provide alternate methods by which the State can prove the crimes of rape or sexual offense: intercourse or a sexual act with a child under 13 or intercourse or a sexual act with any person by force and against the will. See N.C.G.S. \u00a7\u00a7 14-27.2, 14 -27.4 (2005). In 1995, the legislature adopted a new statute extending protection to children between the ages of 13 and 15 from sexual acts or intercourse by older persons. N.C. Gen. Stat. \u00a7 14-27.7A (2005). Separate convictions for these offenses, even though consolidated for a single judgment, \u2018have potentially severe adverse collateral consequences.\u2019\nId. at 435, 648 S.E.2d at 894-95 (emphasis added). Thus, this Court has interpreted N.C. Gen. Stat. \u00a7 14-27.7A as merely providing an extension of one of the \u201calternate methods by which the State can prove the crime[] of rape\u201d under N.C. Gen. Stat. \u00a7 14-27.2, which criminalizes first degree rape. This interpretation is consistent with the classification of both offenses as Class B1 felonies. See N.C. Gen. Stat. \u00a7 14-27.2(a), 14-27.7A (2011).\nIn the instant case, the statute under which defendant was convicted, N.C. Gen. Stat. \u00a7 14-27.3, criminalizes second degree rape and provides the State with additional alternatives of proving rape which would not, standing alone, result in a first degree rape conviction. Specifically, that statute criminalizes sexual intercourse with a person \u201c[w]ho is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless.\u201d N.C. Gen. Stat. \u00a7 27.3 (2011). Nonetheless, second degree rape is undoubtedly a lesser included offense of first degree rape. Since the Ridgeway Court concluded that separate punishments for the offenses of statutory rape and first degree rape are prohibited by the legislative intent of the General Assembly, we are similarly compelled to conclude that separate punishments for statutory rape and second degree rape, a lesser included offense of first degree rape, are also prohibited by legislative intent. Consequently, defendant should not have been sentenced for both statutory rape and second degree rape after he was convicted of these offenses. On remand, the trial court must arrest judgment on either defendant\u2019s statutory rape conviction or his second degree rape conviction. See Ridgeway, 185 N.C. App. at 435, 648 S.E.2d at 895.\nC. Ineffective Assistance\nThis Court released its opinion in Ridgeway approximately three months prior to defendant\u2019s trial and the entry of judgment in the instant case. The logical implication of Ridgeway was that defendant could not have been properly punished for both statutory rape and second degree rape based upon a single act of sexual intercourse. Thus, an objectively reasonable attorney would have raised an objection to defendant\u2019s judgment and sentence; Moreover, since the consecutive judgments imposed against defendant were impermissible, defendant was clearly prejudiced by his counsel\u2019s failure to raise the issue before the trial court. Accordingly, we conclude that defendant received ineffective assistance of counsel and is entitled to relief. See Allen, 360 N.C. at 316, 626 S.E.2d at 286.\nIV. Conclusion\nIn light of this Court\u2019s opinion in Ridgeway, defendant was improperly sentenced for his convictions for both statutory rape and second degree rape because the General Assembly did not intend to subject a defendant to separate punishments for these offenses based upon a single act of sexual intercourse. The Ridgeway decision was published several months prior to defendant\u2019s trial. Therefore, defendant received ineffective assistance from his trial counsel because counsel failed to raise the issue before the trial court. As a result, we reverse the trial court\u2019s order denying defendant\u2019s MAR, and remand the case to the trial court to take appropriate action consistent with this opinion.\nReversed and remanded.\nJudges HUNTER, Robert C. and HUNTER, JR., Robert N. concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.", "NG Prisoner Legal Services, Inc., by Allison Standard, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EDY CHARLES BANKS, JR.\nNo. COA12-531\nFiled 5 February 2013\nRape \u2014 statutory\u2014second-degree rape \u2014 lesser-included offense \u2014separate punishments prohibited \u2014 failure to object \u2014 ineffective assistance of counsel\nThe trial court erred by denying defendant\u2019s motion for appropriate relief based on ineffective assistance of counsel. Under the reasoning of State v. Ridgeway, 185 N.C. App. 423, separate punishments for statutory rape and second-degree rape, a lesser-included offense of first degree rape, are prohibited by legislative intent. Because defense counsel failed to object to defendant\u2019s judgment which sentenced him for both statutory rape and second degree rape convictions based upon a single act of sexual intercourse, defendant received ineffective assistance of counsel.\nOn writ of certiorari to review order entered 5 December 2011 by Judge Anna Mills Wagoner in Rowan County Superior Court. Heard in the Court of Appeals 10 October 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.\nNG Prisoner Legal Services, Inc., by Allison Standard, for defendant-appellant." }, "file_name": "0417-01", "first_page_order": 427, "last_page_order": 432 }