Yesterday, I posted on the State v. Hardaway case and the use of a “concurrence dubitante” by Judge Hampson to flag his concerns with the binding holding of the earlier-decided State v. Jenkins case.

Having thought a bit more about the cases, I think this dispute has as good a chance as any to lead to our first en banc sitting of the North Carolina Court of Appeals. Here’s why.

Take a close look at the timing of these two appeals. State v. Hardaway arises from a September 2023 judgment. The case was orally argued in the Court of Appeals on 5 March 2025. And the opinions were issued on 1 October 2025.

State v. Jenkins arises from a February 2024 judgment. The case was not selected for oral argument, but rather was conferenced on the briefs alone on 22 May 2025. Although State v. Jenkins was therefore a couple of months behind State v. Hardaway, it was decided first, on 6 August 2025.

But what would have happened had State v. Hardaway been decided first? While we don’t know for sure, it is possible that two or all three of the State v. Hardaway panel members would have agreed with Judge Hampson’s reasoning in his concurrence. If so, then the State v. Jenkins panel would have been bound by the State v. Hardaway decision, not the other way around.

Of course, it could very well be that State v. Jenkins was itself correctly decided. But the timing issues here at least raise the question of whether such an important question–one that could meaningfully affect both of these defendants’ convictions and sentences–should turn on the happenstance of which opinion was sent to the printer sooner.

Luckily, we have the en banc procedure. Sure, it would be a logistical challenge to cram all fifteen judges into the Court of Appeals courtroom. Perhaps some could appear virtually. Could this be the case that finally goes to the full Court?