IN THE SUPREME COURT OF NORTH CAROLINA
2021-NCSC-166
No. 40PA20
Filed 17 December 2021
STATE OF NORTH CAROLINA
v. LEONARD PAUL SCHALOW
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, 269 N.C. App. 369 (2020), reversing an order entered on 7
August 2018 by Judge W. Robert Bell, in Superior Court, Henderson County. Heard
in the Supreme Court on 27 April 2021.
Joshua H. Stein, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State-appellant.
Appellate Defender Glenn Gerding, by Daniel Shatz, Assistant Appellate Defender, for defendant-appellee.
HUDSON, Justice.
¶1 Leonard Paul Schalow (defendant) was charged with fourteen counts of felony
child abuse. He moved to dismiss the charges, arguing that the charges were barred
by double jeopardy and amounted to vindictive prosecution, and that the State
impermissibly failed to join the charges in an earlier prosecution. The trial court
denied his motion, but the Court of Appeals allowed his petition for writ of certiorari
and reversed the trial court’s denial of the motion to dismiss based on vindictive STATE V. SCHALOW
Opinion of the Court
prosecution and failure to join. Before this Court, the State argued the Court of
Appeals misapplied or unduly expanded settled caselaw in doing so. After careful
review, we reverse the decision of the Court of Appeals.
I. Facts and Procedural History
¶2 Defendant was married to Erin Henry Schalow in 1997. The couple moved to
North Carolina in 2010. Ms. Schalow is a registered nurse who worked for eight
months with a hospice service in Hendersonville. Defendant was not working during
this time. The State’s evidence presented at trial tended to show that defendant
engaged in many severe acts of domestic violence on an almost daily basis that
resulted in multiple bodily injuries to his wife.1
¶3 In February 2014, defendant was arrested for multiple violent offenses against
Ms. Schalow on a warrant finding probable cause for assault on a female, assault
inflicting serious injury with a minor present, assault with a deadly weapon, assault
by strangulation, and assault inflicting serious bodily injury. On 10 March 2014,
defendant was indicted for attempted murder of Ms. Schalow in 14 CRS 50887. The
indictment described the offense charged as “attempt first degree murder” for
“unlawfully, willfully and feloniously . . . attempt[ing] to murder and kill Erin Henry
Schalow.” The State dismissed other charges pending against defendant.
1 The testimony presented at the second trial is recounted in State v. Schalow, 251
N.C. App. 334 (2016) (Schalow I), disc. rev. improvidently allowed, 370 N.C. 525 (2018). STATE V. SCHALOW
¶4 After the case came on for trial and the jury was impaneled in March 2015, the
trial court noted the indictment failed to allege malice aforethought, a necessary
element of attempted first-degree murder under the short-form indictment statute.
N.C.G.S. § 15-144 (2019). Although defendant objected that the indictment
sufficiently alleged attempted voluntary manslaughter and that a mistrial should not
be declared because jeopardy had attached, the prosecutor asked the trial court to
dismiss the charges so he could bring a new indictment. The trial court declared a
mistrial and dismissed the case because the indictment was fatally defective and the
trial court thus lacked jurisdiction.
¶5 On 18 May 2015, the State issued a new indictment against defendant in a new
prosecution, 15 CRS 50922, for “attempt first degree murder.” Now, the body of the
indictment stated that defendant “unlawfully, willfully and feloniously . . . with
malice aforethought attempt[ed] to murder and kill Erin Henry Schalow by torture.”
Defendant moved to dismiss 15 CRS 50922, arguing that the second prosecution for
attempted first-degree murder was barred by double jeopardy because jeopardy had
attached in the first prosecution for attempted voluntary manslaughter, a lesser
offense. The trial court denied defendant’s motion. The Court of Appeals denied his
pretrial petition for writ of certiorari. The matter came on for trial in November 2015
and defendant was convicted by a jury of attempted first-degree murder and
sentenced to imprisonment for 157 to 201 months. STATE V. SCHALOW
¶6 Defendant appealed to the Court of Appeals. The Court of Appeals vacated the
conviction and indictment, holding that defendant’s trial and conviction in 15 CRS
50922 were barred by the prohibition against double jeopardy because jeopardy had
attached. State v. Schalow, 251 N.C. App. 334, 354 (2016) (Schalow I), disc. rev.
improvidently allowed, 370 N.C. 525 (2018) (per curiam).
¶7 The State obtained further indictments against defendant on 4 January 2017,
this time for felony child abuse under N.C.G.S. § 14-318.4(a5). The State petitioned
this Court for discretionary review of Schalow I the next day. This Court initially
allowed discretionary review; however, we later held discretionary review in Schalow
I was improvidently allowed. See State v. Schalow, 370 N.C. 525 (2018). On 19 March
2018, after this Court ruled discretionary review was improvidently allowed,
defendant was also indicted for three counts of assault with a deadly weapon with
intent to kill inflicting serious injury, two counts of assault inflicting serious bodily
injury, and one count of assault by strangulation. These charges were based on
conduct that included acts of violence against his wife in 2014.
¶8 On 19 July 2018, defendant filed a pretrial motion to dismiss alleging, inter
alia, that double jeopardy barred the indictments, that the State had failed to join all
claims earlier, and that the prosecution was vindictive. Regarding the vindictive
prosecution claim, defendant argued the State indicted him because of his successful
appeal from the attempted murder judgment. On 9 January 2017, after the State STATE V. SCHALOW
petitioned this Court for discretionary review in Schalow I, Greg Newman, the
District Attorney for Henderson County, who oversaw the prosecution of defendant,
was quoted in the press as 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
possible.” He further stated that “[d]omestic violence is unacceptable in any
circumstance, but this case revealed an extreme case of brutality.” After a hearing,
the trial court denied defendant’s pretrial motion to dismiss. Defendant filed a
petition for writ of certiorari with the Court of Appeals seeking immediate review of
the order, which that court allowed.
¶9 The Court of Appeals reversed the trial court’s denial of defendant’s motion to
dismiss. State v. Schalow, 269 N.C. App. 369, 383 (2020) (Schalow II). It held the
charges should have been dismissed because: (1) “[d]efendant is entitled to a
presumption of prosecutorial vindictiveness” and “the State has failed to overcome
the presumption”; and (2) “[d]efendant has made a showing that should have
compelled a determination by the trial court that the prosecutor withheld the
indictments here at issue in order to circumvent [N.C.G.S. § 15A-]926,” and
“[d]efendant is entitled to dismissal of the new charges under [N.C.G.S. § 15A-
]926(c)(2), as well.” Id. at 377, 383. The Court of Appeals declined to reach the STATE V. SCHALOW
question of whether defendant’s motion to dismiss should have been granted on
double-jeopardy grounds. Id. at 383.
¶ 10 This Court allowed the State’s petition for discretionary review. Schalow, 839
S.E.2d 340 (2020) (order).
II. Analysis
¶ 11 The State argues the Court of Appeals erred in reversing the trial court’s denial
of defendant’s motion to dismiss because: (1) defendant was not subjected to
vindictive prosecution; (2) defendant was not subjected to a joinder violation; and (3)
prosecution was not barred by double jeopardy.2 For the reasons stated, we reverse
the Court of Appeals and remand this case to that court to reconsider whether
prosecution was barred by double jeopardy.
A. Vindictive Prosecution
¶ 12 It is well established that “neither the double jeopardy provision nor the Equal
Protection Clause imposes an absolute bar to a more severe sentence upon
2 The State also argues the Court of Appeals in Schalow I erred in holding the second
prosecution for attempted first-degree murder was barred by double jeopardy. That was not the basis for the trial court’s holding that defendant’s prosecution for assault was barred by double jeopardy and, although the Court of Appeals below recognized the holding of Schalow I, to which it was bound as law of the case, that issue was not before the trial court or the Court of Appeals and, accordingly, is not properly before us now. N.C. R. App. P. 10(a)(1). Moreover, the issue is barred by issue preclusion. See State v. Summers, 351 N.C. 620, 623 (2000) (recognizing that once an issue is “decided in a court of record, neither of the parties shall be allowed to call it into question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed” (quoting King v. Grindstaff, 284 N.C. 348, 355 (1973))). The Court of Appeals below declined to determine the separate argument made by defendant as to whether the present offenses are barred by double jeopardy. STATE V. SCHALOW
reconviction”; however, “[d]ue process of law . . . requires 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.” North Carolina v. Pearce, 395 U.S. 711,
723, 725 (1969). In Pearce the defendant was convicted upon a charge of assault to
commit rape, and the trial judge sentenced him to imprisonment for a term of twelve
to fifteen years. Id. at 713. Several years later, his conviction was reversed by this
Court after the defendant filed a state post-conviction proceeding in which he
successfully argued that an involuntary confession had been unconstitutionally
admitted against him. Id. The defendant was later tried again and convicted of the
same offense. Id. The trial court sentenced him to an eight-year term which, when
combined with time previously served, amounted to a longer total sentence than that
originally imposed. Id. After that conviction and sentence were upheld by this Court,
the defendant challenged his sentence in federal court. A federal district court held
that the longer sentence imposed upon retrial was unconstitutional and thus void,
and the Fourth Circuit affirmed. Id. at 714. After granting certiorari, the United
States Supreme Court affirmed the judgment of the Fourth Circuit. Id. at 714, 726.
In so doing, the Court concluded that “whenever a judge imposes a more severe
sentence upon a defendant after a new trial, the reasons for his doing so must
affirmatively appear” in the record and “[t]hose reasons must be based upon objective
information concerning identifiable conduct on the part of the defendant occurring STATE V. SCHALOW
after the time of the original sentencing proceeding.” Id. at 726. Thus, in such
circumstances, vindictiveness is presumed, and the trial court must affirmatively
provide an objective basis for the increased sentence in the record. The rationale is
that vindictiveness for the exercise of a constitutional right, or a defendant’s
apprehension of that motivation in the trial court, penalizes the exercise of that right
and “may unconstitutionally deter a defendant’s exercise of the right to appeal or
collaterally attack his first conviction.” Id. at 725.
¶ 13 In Blackledge v. Perry, 417 U.S. 21 (1974) limited by Alabama v. Smith, 390
U.S. 794, the United States Supreme Court, again in a case from North Carolina,
expanded the presumption of vindictiveness to cases in which a prosecutor seeks
conviction for a more serious charge with a significantly more severe penalty after a
defendant successfully appeals and obtains a trial de novo. Id. at 28–29. In
Blackledge, the defendant was convicted of misdemeanor assault in district court and
sentenced to six months. Id. at 22. Exercising his right to a trial de novo, he filed
notice of appeal to the Superior Court of North Carolina, after which the prosecutor
indicted him for felony assault. Id. at 23. The indictment covered the same conduct
for which the defendant had received the misdemeanor conviction. Id. The defendant
entered a plea of guilty to the more serious offense and was sentenced to five to seven
years. The Supreme Court held due process was violated because the indictment for
a more serious offense carrying a significantly increased sentence was presumptively STATE V. SCHALOW
vindictive, meted out in retaliation for the defendant’s pursuing his statutory right
to a trial de novo in the superior court. Id. at 28–29. The Court observed that, unlike
Pearce, the vindictiveness was not exercised by “the judge or the jury, but the
prosecution.” Id. at 27.
¶ 14 Subsequent decisions of the Supreme Court have declined to expand the rule
in Pearce and Blackledge presuming vindictiveness beyond the circumstances in
those cases. See, e.g., Alabama v. Smith, 490 U.S. 801 (1989) (presumption
inapplicable to greater sentence imposed following a jury trial after a prior guilty
plea); United States v. Goodwin, 457 U.S. 368, 382–84 (1982) (presumption not
warranted when the defendant is indicted after refusing plea deal); see also Gilbert v.
N.C. State Bar, 363 N.C. 70, 77–78 (2009).
¶ 15 North Carolina courts have also declined to expand the presumption of
vindictiveness, instead applying it only when the facts match those in Pearce or
Blackledge. Cf. State v. Bissette, 142 N.C. App. 669, 673 (2001) (applying Blackledge
after finding similar factual scenario); State v. Phillips, 38 N.C. App. 377, 379 (1978)
(same); State v. Mayes, 31 N.C. App. 694, 696–97 (1976) (same). After Pearce was
decided, North Carolina enacted N.C.G.S. § 15A-1335, which provides that when a
conviction or sentence has been set aside on direct review or through collateral attack,
the trial court may not impose a more severe sentence for the same offense “or for a
different offense based on the same conduct.” N.C.G.S. § 15A-1335 (2019). Thus, STATE V. SCHALOW
Pearce-type judicial vindictiveness would not be established so long as the trial court
complies with this prophylactic and mandatory statutory provision, which meets the
constitutional requirement of due process established in Pearce.
¶ 16 Not every case of repeated prosecution falls under Blackledge and warrants
the presumption of vindictiveness on the part of the prosecutor. The filing of
additional charges following the defendant’s exercise of a procedural right does not
necessarily warrant a presumption of prosecutorial vindictiveness. See Goodwin, 457
U.S. at 379; see also United States v. Johnson, 325 F.3d 205, 211 (4th Cir.) (concluding
that the filing of “more appropriate charges” on the same set of facts was not evidence
of vindictiveness), cert. denied, 540 U.S. 897 (2003). Specifically, evidence that
repeated prosecution is motivated by the desire to punish the defendant for his
offenses does not, without more, suffice to warrant a presumption of vindictiveness.
The Supreme Court in Goodwin explained:
The imposition of punishment is the very purpose of virtually all criminal proceedings. The presence of a punitive motivation, therefore, does not provide an adequate basis for distinguishing governmental action that is fully justified as a legitimate response to perceived criminal conduct from governmental action that is an impermissible response to noncriminal, protected activity. Motives are complex and difficult to prove. As a result, in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to “presume” an improper vindictive motive. Given the severity of such a presumption, however—which may operate in the absence of any proof of an improper motive and thus may block a legitimate STATE V. SCHALOW
response to criminal conduct—the Court has done so only in cases in which a reasonable likelihood of vindictiveness exists.
Goodwin, 457 U.S. at 372–73. Accordingly, a reasonable likelihood of vindictiveness
is not shown (and the presumption not warranted) merely by evidence that the
prosecutor sought to punish the defendant for his criminal conduct by reprosecution.
¶ 17 Here, the evidence showed that after defendant’s successful appeal to the
Court of Appeals in Schalow I, the State indicted the defendant for fourteen counts
of felony child abuse and Mr. Newman stated to the media that, if this Court declined
to allow the State’s petition for discretionary review, he “w[ould] take additional
action to see that [defendant] is held accountable for his actions.” In his statements
Mr. Newman specifically noted the “extreme case of brutality” demonstrated by the
acts of domestic violence here. Furthermore, in his Facebook post, Mr. Newman said,
“My goal is to have [defendant] receive a comparable sentence to the one originally
imposed.” Although the prosecution obtained additional charges, the stated purpose
was to ensure defendant was punished for his criminal conduct and to obtain “a
comparable sentence” to the original one—not a substantially more severe sentence
in retaliation for the appeal. Thus, to the extent that the public statements of the
prosecutor evidence any discernable motive to the reprosecution attributable to the
State, it is to punish defendant for his crimes and not for the successful exercise of
his right of appeal. STATE V. SCHALOW
¶ 18 In determining whether the circumstances warranted a presumption of
vindictive prosecution, the Court of Appeals below considered only that (1) “[t]his is
the third time that District Attorney Newman has attempted to try [d]efendant for
crimes based upon the same alleged conduct,” and (2) that, based on its calculation,
the maximum potential period of incarceration defendant could serve if he were
convicted of all of the newly-indicted offenses under the present prosecution
significantly exceeded the sentence he could have received under the second
prosecution for attempted first-degree murder. Schalow II, 269 N.C. App. at 374–75.
The Court of Appeals erred in its analysis.
¶ 19 First, the Court of Appeals erred in calculating the maximum term to which
defendant could be sentenced for the offenses here because it failed to consider the
applicability of N.C.G.S. § 15A-1335 to the hypothetical maximum sentence here. As
previously noted, Section 15A-1335 was enacted specifically to prevent vindictiveness
arising from repeated prosecutions under Pearce and its progeny. While its enactment
following Pearce was aimed at prophylactically eliminating violations of due process
resulting from judicial vindictiveness, the effect of the statute is to potentially
preclude due process violations for prosecutorial vindictiveness under Blackledge as
well. Section 15A-1335 states:
When a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same STATE V. SCHALOW
conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served. This section shall not apply when a defendant, on direct review or collateral attack, succeeds in having a plea of guilty vacated.
N.C.G.S. § 15A-1335. Section 15A-1335 is mandatory; thus, even if a prosecutor
successfully pursues a second prosecution that would otherwise carry a substantially
more severe sentence, so long as the charges are “for the same offense, or for a
different offense based on the same conduct,” the statute operates to prohibit the trial
court from imposing a sentence with a length greater than the sentence which was
set aside minus the portion of the prior sentence that the defendant had already
served. Accordingly, applying N.C.G.S. § 15A-1335, the presumption of prosecutorial
vindictiveness under Blackledge, which applies only where the more serious charge
“subject[ed]” the defendant “to a significantly increased potential period of
incarceration,” Blackledge, 417 U.S. at 28, cannot be implicated because a
“significantly increased” sentence for offenses based on the same conduct is a legal
impossibility under North Carolina law. The Court of Appeals correctly noted that
the offenses charged here were “based upon the same alleged conduct” as the previous
prosecutions. Schalow II, 269 N.C. App. at 374. Therefore, N.C.G.S. § 15A-1335
applies and the maximum potential period of incarceration was limited to an amount
less than or equal to the maximum sentence set aside in Schalow I minus the time
defendant served, namely, a maximum potential sentence of 201 months minus time STATE V. SCHALOW
served. See Schalow I, 251 N.C. App. at 338. The Court of Appeals erred in failing to
apply Section 15A-1335 to its sentencing calculation. As a result, it further erred in
holding a presumption of prosecutorial vindictiveness under Blackledge was shown.3
¶ 20 The Court of Appeals compared the potential period of incarceration under the
new prosecution to the potential period of incarceration under the second prosecution.
See Schalow II, 269 N.C. App. at 375 (“Therefore, the ‘increased potential period of
incarceration’ [d]efendant now faces relative to what he potentially faced in the
Second Prosecution is more than 35 years of incarceration in aggregate.”). Defendant,
however, argues that the most appropriate point of comparison is not between the
current potential period of incarceration and the potential period of incarceration for
the previous prosecution, but zero months because “[w]hen judging whether a
charging decision is vindictive, the most appropriate point of comparison is the
defendant’s exposure immediately before and immediately after that charging
decision.” But this is not the rule in Blackledge, which was based on the rationale
that a defendant “is entitled to pursue his [procedural right] without apprehension
that the State will retaliate by substituting a more serious charge for the original
3 In his brief, defendant repeatedly notes the discrepancy between the single count of
attempted murder originally brought against him and the twenty charges he now faces, arguing that the number of new charges alone could also justify a presumption of prosecutorial vindictiveness. While colloquially “quantity has a quality all its own,” that is not the presumption recognized in Blackledge. Rather, the relevant criterion is solely whether the new charge or charges subject the defendant “to a significantly increased potential period of incarceration.” 417 U.S. at 28. STATE V. SCHALOW
one.” Blackledge, 417 U.S. at 28 (emphasis added). Hence, the comparison under
Blackledge is between the present potential criminal liability and that under the
original charge or charges. Moreover, taken literally, defendant’s argument would
presume vindictiveness for any prosecution, given that deciding to charge after
initially not charging, or deciding to pursue additional charges, both result in an
increase in exposure compared to immediately before the charging decision.
¶ 21 Defendant next argues as an alternative basis that the Court of Appeals should
be affirmed because, under the United States Supreme Court’s decision in Goodwin,
the trigger for applying the presumption of vindictiveness is “a change in the charging
decision made after an initial trial is completed.” Goodwin, 457 U.S. at 381.
Defendant fundamentally misreads Goodwin. In Goodwin the Court held that due
process does not necessitate the imposition of a prophylactic presumption of
prosecutorial vindictiveness whenever a prosecutor brings greater charges after a
defendant requests a jury trial. Id. at 383. In reasoning the presumption was
unwarranted, the Court noted, “There is good reason to be cautious before adopting
an inflexible presumption of prosecutorial vindictiveness in a pretrial setting”
because
[a]t this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins—and certainly by the time a conviction has been obtained—it is much more likely that the State has discovered and assessed all of the information against an accused and has STATE V. SCHALOW
made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.
Id. at 381. The Court in Goodwin was simply distinguishing the likelihood of
vindictiveness undergirding decisions to change charging decisions at various stages
of trial and reasoning that a presumption of vindictiveness was less warranted in
decisions made before trial than after. Merely because the Court held that a
presumption was not warranted in a pre-trial change in charging decision, it does not
follow that it held that such a presumption was warranted for all post-trial charging
decision changes. Indeed, the Court in Goodwin reaffirmed the long-standing
principle that, “[g]iven the severity of such a presumption . . . the Court has done so
only in cases in which a reasonable likelihood of vindictiveness exists.” Id. at 373. We
decline defendant’s invitation to adopt his reading of Goodwin so as to dramatically
expand the categories of cases in which a presumption of vindictiveness is warranted
by. We join the Court in Goodwin in recognizing the harshness of such a presumption,
“which may operate in the absence of any proof of an improper motive and thus may
block a legitimate response to criminal conduct.” Id.
¶ 22 Finally, although the Court of Appeals did not reach the issue of whether
actual vindictiveness was shown, the State argues it was not shown and defendant
argues it was. In arguing there was actual vindictiveness, defendant points to STATE V. SCHALOW
evidence of Mr. Newman’s statements to the press and to the trial court about his
intention to pursue new charges if this Court denied the State’s petition for
discretionary review. As discussed above, the only motive these statements reflected
on the part of the State was its desire to punish defendant’s alleged criminal conduct.
As the Court in Goodwin noted, “The imposition of punishment is the very purpose of
virtually all criminal proceedings,” and, accordingly, “does not provide an adequate
basis for distinguishing governmental action that is fully justified as a legitimate
response to perceived criminal conduct from governmental action that is an
impermissible response to noncriminal, protected activity.” Id. at 372–73. Indeed, a
prosecutor’s charging decision is presumptively lawful. United States v. Armstrong,
517 U.S. 456, 464 (1996). Only in rare cases may that presumption be overcome, and
it has not been overcome by evidence of actual vindictiveness here. See Goodwin, 457
U.S. at 384 n.19; Johnson, 325 F.3d at 210–11.
¶ 23 We hold that by failing to consider the application of Section 15A-1335, the
Court of Appeals erred in its calculation of the possible period of incarceration for the
present charges when compared with the prior charge. A proper comparison of the
potential sentences establishes that the Blackledge presumption of prosecutorial
vindictiveness is not warranted. Moreover, no other presumption of prosecutorial
vindictiveness is warranted and the defendant has failed to show actual
vindictiveness. STATE V. SCHALOW
B. Joinder Violation
¶ 24 The Court of Appeals next held that the trial court erred in denying defendant’s
motion to dismiss the charges because they should have been joined for trial with the
original attempted murder charge. We disagree.
¶ 25 Subsection 15A-926(a) of the North Carolina General Statutes states that two
or more offenses may be joined for trial when the offenses “are based on the same act
or transaction or on a series of acts or transactions connected together or constituting
parts of a single scheme or plan.” N.C.G.S. § 15A-926 (2019). Once a defendant has
been tried for one offense, the defendant’s motion to dismiss a subsequent charge of
a joinable offense must be granted. Id. § 15A-926(c)(2). The motion to dismiss must
be made before the second trial and must be granted unless “a. A motion for joinder
of these offenses was previously denied, or b. The court finds that the right of joinder
has been waived, or c. The court finds that because the prosecutor did not have
sufficient evidence to warrant trying this offense at the time of the first trial, or
because of some other reason, the ends of justice would be defeated if the motion were
granted.” Id. § 15A-926(c)(2).
¶ 26 In State v. Furr, 292 N.C. 711, cert. denied, 434 U.S. 924 (1977), a defendant
was tried for the murder of his wife, resulting in a mistrial, id. at 723–24, and was
subsequently tried and convicted for murder and for twelve counts of solicitation, id.
at 714. The defendant argued on appeal that the trial court erred in not dismissing STATE V. SCHALOW
the solicitation charges for failure to join under N.C.G.S. § 15A-926 at the initial
murder trial. Id. at 723–24. We disagreed, holding that Section 15A-926 did not apply
because “[a]t the time of [the] defendant’s first trial for murder . . . no indictments
had yet been returned against him for solicitation.” Id. The solicitation charges “could
not, therefore, have been joined with the murder charge.” Id. We also noted that
nothing “indicated that the state held the solicitation charges in reserve pending the
outcome of the murder trial as defendant suggests.” Id.
¶ 27 In State v. Warren, 313 N.C. 254 (1985), the defendant was tried for murder
and convicted on the lesser offense of manslaughter. Id. at 256. He was then tried for
burglary and larceny from the home of the victim. Id. We restated the rule in Furr
that Section 15A-926 does not apply when the defendant had not been indicted for
the additional charges at the time of the first trial. Id. at 260. But we also recognized
an exception to the rule in Furr that the subsequent offenses must be dismissed “[i]f
a defendant shows that the prosecution withheld indictment on additional charges
solely in order to circumvent the statutory joinder requirements.” Id. We described
two circumstances, “[a] finding of either or both” of which “would support but not
compel a determination by the trial court that the prosecutor withheld the additional
indictment in order to circumvent the statute”: (1) “during the first trial the
prosecutor was aware of substantial evidence that the defendant had committed the
crimes for which he was later indicted”; and (2) “[a] showing that the State’s evidence STATE V. SCHALOW
at the second trial would be the same as the evidence presented at the first.” Id. at
260 (emphasis omitted). We nevertheless concluded that the charges in Warren did
not warrant dismissal, because the record showed “valid reasons” for bringing the
charges later, id. at 263, in that the stolen property was recovered after completion
of the murder trial, and the State thus had insufficient evidence of larceny at the time
of the murder trial, id. at 261–63. Accordingly, as in the case of prosecutorial
vindictiveness, in assessing a claim the prosecution withheld an indictment to
circumvent the statute, the court must assess the justification offered by the State
and determine if legitimate prosecutorial reasons supported the conduct.
¶ 28 Here defendant moved to dismiss arguing, inter alia, that the current charges
for felony child abuse and various kinds of assault should have been joined with the
attempted murder charge from the earlier prosecutions. He argued these offenses
arose from the same act or transaction and thus warranted dismissal. At the hearing
on the motion, defendant’s counsel stated the motion was based on the “statutory
prohibition on prosecuting joinable offenses after a defendant has already been tried
for an offense that would have been joinable under [N.C.G.S. §] 15A-926,” and that
Section 15A-926 “makes it clear that if there is a joinable offense and the State
proceeds to try in a second trial offenses that should have been joined in the first trial,
. . . the court must grant a motion to dismiss.” The trial court denied defendant’s
motion to dismiss. STATE V. SCHALOW
¶ 29 The record reveals no evidence that defendant alleged the State originally held
the additional charges in reserve, nor did he allege under Warren that the prosecution
withheld indictment on the additional charges in order to circumvent the statute.
Under Warren it is the defendant’s burden to make such a showing, because a
prosecutor’s charging decision is presumptively lawful. See Armstrong, 517 U.S. at
464; Warren, 313 N.C. at 260. Because the defendant made no argument under
Warren, the trial court did not make findings of fact regarding the prosecutor’s motive
in not pursuing the indictments.
¶ 30 Nevertheless, on appeal to the Court of Appeals, defendant argued the offenses
were joinable and should be dismissed for failure to join under N.C.G.S. § 15A-926,
and while acknowledging Furr’s holding that such offenses could not be charged when
no indictments had been returned, also argued for the first time that the record
supported the exception under Warren.
¶ 31 The Court of Appeals below held that the trial court erred in denying
defendant’s motion to dismiss, opining that defendant had “shown both Warren
circumstances.” Schalow II, 269 N.C. App. at 382. Although Warren expressly states
that a showing of one or both circumstances merely “would support but not compel a
determination by the trial court that the prosecutor withheld the additional
indictment in order to circumvent the statute,” Warren, 313 N.C. at 260 (emphasis
added), the Court of Appeals went further and held for the first time that a showing STATE V. SCHALOW
of the circumstances described in Warren not merely permitted but mandated
dismissal by the trial court. Schalow II, 269 N.C. App. at 382. Acknowledging that in
Warren itself this Court held that the circumstances outlined would support, but not
compel, such a determination and that it was “left with no precedent regarding what,
beyond the two Warren circumstances, a defendant needs to show in order to
implicate the Warren exception,” id., the Court of Appeals announced a new test for
when the Warren exception compels reversal of a denial of a motion to dismiss:
[B]ecause (1) Defendant has shown that both Warren circumstances are present, (2) the State has had multiple previous opportunities to join the offenses on which it now seeks to try Defendant, and (3) the State has neither argued that it was somehow unable to try the offenses at an earlier time nor proffered any explanation for why the offenses were not tried along with the earlier charge, we hold that the Warren exception should apply.
Id. The Court of Appeals then concluded that “[d]efendant has made a showing that
should have compelled a determination by the trial court that the prosecutor withheld
the indictments here at issue in order to circumvent [N.C.G.S. § 15A-]926, and that
[d]efendant is entitled to dismissal of the new charges under [N.C.G.S. § 15A-
]926(c)(2), as well.” Id. at 383.
¶ 32 The State argues the Court of Appeals erred in finding a joinder violation, and
we agree. First, defendant contended that the Warren exception applies to require
dismissal for failure to join when that argument is made for the first time at the Court STATE V. SCHALOW
of Appeals. That argument was not made to the trial court; rather, defendant’s motion
to dismiss there was based on a violation of N.C.G.S. § 15A-926. Defendant did not
cite Warren and, most importantly, made no allegation or argument that the
prosecution withheld the subsequent indictments for the purpose of circumventing
the joinder statute. Because no such showing was made by defendant to the trial
court, the issue of whether the Warren exception applied was not passed upon by the
trial court. Accordingly, under Rule of Appellate Procedure 10(a)(1), the issue was not
preserved for appeal.4 N.C. R. App. P. 10(a)(1).
¶ 33 Beyond defendant’s failure to preserve the issue and the Court of Appeals’
reversal of the trial court’s order on a ground not argued to the trial court in the first
instance, the Court of Appeals also erred by disregarding our rule in Warren and
transforming the exception recognized there from one permitting dismissal of the
subsequent charges by the trial court to one requiring it. In Warren, we specifically
stated that showing one or both circumstances identified therein “would support but
not compel a determination by the trial court that the prosecutor withheld the
additional indictment in order to circumvent the statute.” 313 N.C. at 260 (emphasis
4 In State v. Golder, we opined that “[b]y not requiring that a defendant state the
specific grounds for his or her objection, Rule 10(a)(3) provides that a defendant preserves all insufficiency of the evidence issues for appellate review simply by making a motion to dismiss the action at the proper time.” State v. Golder, 374 N.C. 238, 246 (2020). We specifically contrasted this approach to sufficiency of the evidence under Rule 10(a)(3) with Rules 10(a)(1)–(2), which require “specific grounds” for preserving other issues. See id. at 245–46. STATE V. SCHALOW
added). Accordingly, converting a showing of both Warren circumstances into a
mandate requiring dismissal contravenes precedent of this Court.5
III. Conclusion
¶ 34 In conclusion, we hold the Court of Appeals erred in holding a presumption of
prosecutorial vindictiveness was warranted and in holding the trial court should have
dismissed the charges under Warren, both because the issue is not preserved and,
even if it were, the Court of Appeals decision contravenes our precedents.
Furthermore, the State’s argument the Court of Appeals in Schalow I erred in holding
the second prosecution was barred by double jeopardy is barred by issue preclusion.
Finally, the Court of Appeals declined to address the additional argument defendant
made in appealing from the trial court’s denial of his motion to dismiss that double
jeopardy barred the present charges. Schalow II, 269 N.C. App. at 383. Accordingly,
we reverse the decision of the Court of Appeals and remand this case to that court for
consideration of defendant’s double-jeopardy arguments.
REVERSED AND REMANDED.
5 Likewise, the second criterion identified in the test created by the Court of Appeals—
that “the State has had multiple opportunities to join the offenses”—would require overruling Furr, in which we determined that the State had not had an opportunity to join the offenses when, as here, an indictment for the offenses had not been returned. Furr, 292 N.C. at 723– 24. Indeed, defendant asks us to overrule Furr. We are not persuaded and decline to do so.