v. Hamm

Citations

• 2019 COA 90

Syllabus

Hamm was charged with one count of distribution of a controlled substance (3.4 grams of cocaine) and five habitual criminal counts based on his prior felony convictions. A jury convicted him on the distribution count. In exchange for dismissal of the habitual counts and to avoid a mandatory 64-year sentence, Hamm stipulated to a sentence of 30 years in the custody of the Department of Corrections and five years of parole. Hamm did not directly appeal his conviction or sentence, but over a year later, he filed a petition for postconviction relief and requested an evidentiary hearing. The district court denied the motion without a hearing. On appeal, Hamm contended that his trial counsel was ineffective by not advising him that the penalty reductions enacted through the Uniform Controlled Substances Act of 2013 (the Act) applied retroactively and if the Act had been applied to him, his maximum sentence would have been 16 years. Hamm's failure to file a direct appeal, however, precluded him from seeking postconviction review of his sentence based on a \significant change in the law.\ Thus, the district court should not have considered the claim. Hamm also contended that the district court erred in denying him an evidentiary hearing on his challenge to the voluntariness of his stipulation. He contended that the stipulation was involuntary and should be set aside because he was not aware that the sentence reductions applied to him and he accepted the stipulation equivocally. However, the Act does not apply retroactively, and the sentencing ranges in the Act cannot reduce Hamm's sentence because the offense for which the jury convicted him occurred more than two years before the effective date of the Act. Further, the petition, files, and record establish the voluntariness of the stipulation. Therefore, the trial court did not err in denying Hamm an evidentiary hearing. The order was affirmed.