The Court of Appeals ruled Tuesday in State v. Bowden that a man convicted of first degree murder and sentenced to life in prison be released after serving 38 years of his “life” sentence. The concurring opinion of Judge McCullough contains a powerful defense of the rule of law and specifically the “law of the case” doctrine.
The relevant facts and procedure, which admittedly are complicated and potentially confusing, are as follows: On December 15, 1975, Bobby Bowden was convicted of two counts of first-degree murder and one count of armed robbery and was sentenced to death for having killed two individuals on August 7, 1975. In 1976 the North Carolina Supreme Court vacated Mr. Bowden’s death sentence and directed that Mr. Bowden be imprisoned for life for his convictions on two counts of first-degree murder. Mr. Bowden was given two life sentences, to run concurrently.
Thirty years later, in December 2005, Bowden filed a Petition for Writ of Habeas Corpus ad Subjiciendum with the trial court claiming that he had completed service of his “life” sentence and was entitled to release. Notably, at the time that Bowden committed his crimes, a North Carolina statute (since repealed) defined a sentence of life in prison as lasting 80 years. Bowden’s petition was twice denied by the trial court. In 2008 the Court of Appeals reversed, holding that the statute in question treated a life sentence as an 80-year sentence for all purposes. The Court also noted that the Department of Corrections had retroactively changed Bowden’s sentence reduction credits from “applied” to “pending.” The Court of Appeals remanded Bowden’s case to the trial court for hearing on how many sentence reduction credits Bowden was entitled to and how the credits were to be applied. The State sought discretionary review of the Court of Appeals’ determination. The Supreme Court initially granted review, but then entered an order stating that review had been improvidently allowed and the case went back to the trial court.
After the Supreme Court ultimately denied discretionary review, a series of events were set in motion relating to Bowden’s incarceration. Within the Department of Corrections in 2009, emails were sent indicating that as a result of the Court of Appeals’ determination on Bowden’s petition, “[l]ife sentences for a crime committed between April 4, 1974 and June 30, 1978 equal 80 years, and that based on other sentencing laws the 80 year sentence is cut to 40 years. In addition the inmate is entitled to other sentence reduction credits…As a result of this ruling the [DOC] is mandated to calculate to affected inmates[‘] sentences in this manner.” When all was said and done, Bowden was informed that he would be released on October 29, 2009 and preparations were made for his release on that date.
Bowden was not released on October 29, 2009, and instead remained incarcerated waiting for the trial court to hold the hearing directed by the Court of Appeals in 2009 as to his sentence reduction credits. That hearing took place in May 2012 and the trial court determined that the DOC’s attempted revocation of Bowden’s sentence reduction credits violated his rights under the Due Process Clause and Ex Post Facto Clause of the United States Constitution. The trial court further determined that Bowden had served the entirety of his sentence, that he should have been released on October 29, 2009, and ordered that he be released unconditionally by May 11, 2012. The trial court then, at the State’s request, stayed its order until final appellate review. The Court of Appeals granted the State’s Petition for Writ of Certiorari.
The majority opinion issued by the Court of Appeals on Tuesday affirmed the trial court’s decision and order. The grounds for that opinion can be summarized succinctly: the Court found that there was sufficient evidence that the DOC’s acts in informing Bowden that he would be released on October 29, 2009 created a liberty interest subject to protection by the due process clause of the Constitution and that the DOC’s attempts to revoke Bowden’s sentence reduction credits also violated his due process rights. The Court also rejected the State’s argument that the trial court had misapplied the doctrine regarding sentence reduction credits set forth in Jones v. Keller, 364 N.C. 249, 698 S.E. 2d 49 (2010).
While the majority opinion in Bowden is instructive and informative, the concurring opinion of Judge McCullough contains reasoning of special interest to appellate practitioners. Judge McCullough was the author of the original opinion in 2008 that held that the law of North Carolina treated Bowden’s life sentence as a sentence for a term of 80 years. In his concurrence he makes note of the fact that while the Supreme Court originally granted discretionary review of that 2008 Opinion, it ultimately withdrew the discretionary review and the mandate of the Court of Appeals opinion became final.
The concurrence then invokes the law of the case doctrine, noting that even if the Supreme Court now believed the opinion of the Court of Appeals in 2008 to have been erroneous, it would not affect the outcome in this case. The holding of the Court of Appeals is “final word” on the issues of that case. See Creech v. Melnik, 147 N.C. App. 471, 556 S.E. 2d 587 (2001) (explaining the law of the case doctrine). When it came time to implement the holding in the 2008 Opinion and Bowden was to be released from prison (despite having been sentence to “life”), the case became politically controversial. As Judge McCullough makes clear, however, the Court cannot be swayed by political pressures and must follow the law in making its determinations. Judge McCullough criticized the State for taking a position in this case contrary to one it had taken in a prior case, when it clearly conceded that a life sentence was equal to 80 years. Of the contradictory position taken by the State, Judge McCullough says:
It seems disingenuous for the State to argue otherwise now, after the decision became controversial. The rule of law cannot survive if parties are allowed to abandon positions taken in court merely because they are displeased with the result or their concession leads to a decision that later becomes controversial. I doubt that the citizens of North Carolina are placed at risk if a small number of geriatric prisoners are released after having served over 38 years in prison…I believe that allowing a party to shift its argument due to controversy is a far greater danger to our State.
Regardless of your view on the policy questions in this case, Judge McCullough’s staunch defense of the law of the case doctrine is a good reminder for all practitioners, appellate or otherwise, that you must be cognizant of the potential subsequent effects of concessions made in litigation, that it is difficult to overcome prior precedent, and that the Court of Appeals will follow the established law, however controversial that law may be.