IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-701

No. COA21-268

Filed 21 December 2021

Wake County, Nos. 14 CRS 226605, 15 CRS 4735-36, 4741

STATE OF NORTH CAROLINA

v.

EDWARD THORPE

Appeal by defendant from order entered 21 October 2020 by Judge Paul C. 

Ridgeway in Wake County Superior Court. Heard in the Court of Appeals

16 November 2021.

Attorney General Joshua H. Stein, by Assistant Attorney General Zachary K. 

Dunn, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Heidi 

Reiner, for defendant.

ARROWOOD, Judge.

¶ 1 Edward Thorpe (“defendant”) appeals from order denying his motion for 

appropriate relief (“MAR”) and habeas corpus claims therein. Defendant contends he 

is entitled to relief because his medical history poses a particular risk of serious 

illness or death from COVID-19 while incarcerated. For the following reasons, we 

affirm.

I. Background
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Opinion of the Court

¶ 2 Between 26 January 2015 and 29 September 2015, defendant was indicted on 

counts of breaking and entering, larceny after breaking and entering, possession of 

stolen goods, assault on a female, habitual misdemeanor assault, and establishing 

himself as a habitual felon. On 9 February 2016, defendant entered into a plea 

agreement in which he pled guilty to two counts of habitual misdemeanor assault and 

one count each of breaking and entering, larceny, and possession of stolen goods, and 

in which he also admitted his status as a habitual felon. In exchange, these charges 

were consolidated into a single judgment of 77 to 105 months imprisonment, and his 

remaining charges were dismissed. Defendant was so sentenced on 30 May 2017.

¶ 3 On 14 October 2020, defendant, acting pro se, filed a MAR in which he claimed

his underlying health conditions,1 coupled with his living arrangements while 

incarcerated, made him especially susceptible to severe illness or death from the 

COVID-19 pandemic (the “pandemic”). Thus, defendant argued his “continued 

confinement in prison violate[d] his right to be free from cruel punishment under 

Article I, § 27 of the North Carolina Constitution.”

 

1 Namely, diabetes and hypertension. Defendant presented minimal documentation of his 

own medical condition and failed to present any medical evidence regarding how his specific

medical conditions place him at increased risk due to COVID-19. Instead, defendant’s MAR 

cited to various websites purportedly supporting his arguments regarding the risks of 

COVID-19. However, we will assume arguendo that his allegations regarding his health 

conditions and increased risk are accurate.
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¶ 4 Defendant argued “the MAR statutes were enacted as mechanisms for 

amending sentences previously believed to be lawful.” In the alternative, defendant 

sought relief under “North Carolina’s habeas statutes[,]” arguing he was entitled to 

be discharged under N.C. Gen. Stat. § 17-33(2). In conclusion, defendant requested 

that his habitual felon status be vacated, his remaining convictions be consolidated, 

his judgment be amended “without habitual felon status” and with a “Class H, Level 

VI sentence of 25-34 months[,]” “or other appropriate relief[.]”

¶ 5 In an order issued on 21 October 2020, the trial court denied defendant’s MAR 

as well as his request to “ ‘amend his conviction’ by way of habeas corpus” for lack of 

any statutory or appellate authority to grant the relief sought. On 

19 November 2020, defendant filed a Petition for Writ of Certiorari with this Court 

seeking review of the trial court’s order. Defendant’s petition was granted on 

16 December 2020.

¶ 6 Notably, on 3 February 2021, defendant was released from prison “as part of 

the Extended Limits of Confinement program.” Defendant contends, however, that 

he could still be returned to prison at this time and thus his appeal is not moot.

II. Discussion

¶ 7 On appeal, defendant argues that: (A) the trial court erred in denying his 

MAR, claiming he “is entitled to MAR relief under N.C. [Gen. Stat.] § 15A-1415(b)(8) 

because the combination of his pre-existing health conditions and the risk of 
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Opinion of the Court

coronavirus exposure in prison constitute cruel and unusual punishment[,]” 

rendering his sentence invalid as a matter of law; and (B) the trial court erred by 

“misapprehend[ing] the law regarding the availability of alternate habeas relief[,]” 

warranting a remand.

¶ 8 Because defendant is serving his sentence outside of prison, he “has therefore 

received the relief requested . . . and this case is moot.” State v. Daw, 2021-NCCOA180, ¶ 12. However, because “the public interest exception applies” in this case, we

“will proceed to address the merits . . . .” Id. ¶ 17.

2

A. Motion for Appropriate Relief

¶ 9 “Our review of a trial court’s ruling on a defendant’s MAR is ‘whether 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.’ ” State v. Peterson, 228 N.C. App. 339, 343, 744 S.E.2d 153, 157 (2013) 

(citations omitted). “ ‘When a trial court’s findings on a [MAR] are reviewed, these 

findings are binding if they are supported by competent evidence and may be 

disturbed only upon a showing of manifest abuse of discretion. However, the trial 

court’s conclusions are fully reviewable on appeal.’ ” State v. Lutz, 177 N.C. App. 140, 

 

2 “Resolution of the questions presented by this appeal on the merits would therefore clearly 

affect ‘members of the public beyond just the parties in the immediate case.’ ” Daw, ¶ 17 

(quoting Chavez v. Carmichael, 262 N.C. App. 196, 203-204, 822 S.E.2d 131, 137 (2018)).
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142, 628 S.E.2d 34, 35 (2006) (quoting State v. Wilkins, 131 N.C. App. 220, 223, 506 

S.E.2d 274, 276 (1998)).

¶ 10 N.C. Gen. Stat. § 15A-1415(b)(8), upon which defendant asserts his MAR,

provides, in pertinent part, that relief is warranted when:

The sentence imposed was unauthorized at the time 

imposed, contained a type of sentence disposition or a term 

of imprisonment not authorized for the particular class of 

offense and prior record or conviction level was illegally 

imposed, or is otherwise invalid as a matter of law.

N.C. Gen. Stat. § 15A-1415(b)(8) (2019) (emphasis added).

¶ 11 Defendant argues that his sentence is invalid as a matter of law due to the 

ongoing pandemic. Specifically, defendant contends that, because of his health 

condition, his continued imprisonment constituted cruel and unusual punishment 

under the North Carolina and the United States Constitutions. He however cites no 

binding precedent stating that requiring one to serve a sentence, which was lawful 

when imposed, during pandemic times makes a sentence cruel and unusual.

¶ 12 The trial court’s judgment, sentencing defendant to 77 to 105 months’ 

imprisonment, was filed in 2017, years before the pandemic had even begun. Thus, 

the original judgment, which does not on its face present any other error of law

unrelated to the pandemic, is lawful. While we do not dispute the gravity of 

defendant’s predicament in the context of a global pandemic, and while the State may 

well have a duty to modify the conditions under which it holds individuals who are 
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incarcerated, the mere fact that one is held in prison does not give rise to a claim of 

cruel and unusual punishment or make that imprisonment invalid as a matter of law.

Therefore, defendant had no recourse under N.C. Gen. Stat. § 15A-1415(b)(8).

¶ 13 Accordingly, the trial court did not err when it found it had “no statutory 

authority” to vacate defendant’s judgment and denied his MAR.

B. Availability of Relief Under Habeas Corpus

¶ 14 Defendant seeks, in the alternative, relief under “North Carolina’s habeas 

statutes” merely by reference in his MAR. Specifically, defendant has not formally 

filed a Petition for Writ of Habeas Corpus, in violation of procedural formalities 

imposed by statute. In fact, N.C. Gen. Stat. § 17-7 provides:

The application must state, in substance, as follows:

(1) That the party, in whose behalf the writ is applied for, 

is imprisoned or restrained of his liberty, the place 

where, and the officer or person by whom he is 

imprisoned or restrained, naming both parties, if their 

names are known, or describing them if they are not 

known.

(2) The cause or pretense of such imprisonment or 

restraint, according to the knowledge or belief of the 

applicant.

(3) If the imprisonment is by virtue of any warrant or other 

process, a copy thereof shall be annexed, or it shall be 

made to appear that a copy thereof has been demanded 

and refused, or that for some sufficient reason a demand 

for such copy could not be made.
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(4) If the imprisonment or restraint is alleged to be illegal, 

the application must state in what the alleged illegality 

consists; and that the legality of the imprisonment or 

restraint has not been already adjudged, upon a prior 

writ of habeas corpus, to the knowledge or belief of the 

applicant.

(5) The facts set forth in the application must be verified by 

the oath of the applicant, or by that of some other 

credible witness, which oath may be administered by 

any person authorized by law to take affidavits.

N.C. Gen. Stat. § 17-7 (2019).

¶ 15 As the trial court noted in its order, defendant’s MAR lacks the procedural 

requirements set out by N.C. Gen. Stat. § 17-7, particularly subsections (1), (4), and 

(5). Given these deficiencies, the trial court did not err in denying the alternative 

relief under habeas corpus.3 Our affirmation of this denial is without prejudice to 

defendant’s right to seek habeas relief with a properly supported petition.

III. Conclusion

¶ 16 For the foregoing reasons, the trial court did not err in denying defendant’s 

MAR and the habeas corpus claim therein.

AFFIRMED.

Chief Judge STROUD and Judge JACKSON concur.

 

3 We thus deny, per our opinion, the State’s motion to dismiss this appeal.