Robbins v. Freeman

487 S.E.2d 771 (1997)

Donnie Earl ROBBINS, Plaintiff-Appellant, v. Franklin FREEMAN, Secretary of the North Carolina Department of Correction, in his official capacity; Juanita Baker, Chairman of the North Carolina Parole Commission, in her official capacity; Elbert Buck, William A. Lowry, Charles L. Mann, Sr., and Peggy Stamey, Members of the North Carolina Parole Commission, in their official capacities, Defendant-Appellees.

No. COA96-223.

Court of Appeals of North Carolina.

August 5, 1997.

*772 George B. Currin, Raleigh, for plaintiff-appellant.

Attorney General Michael F. Easley by Special Deputy Attorney General Jacob L. *773 Safron and Assistant Attorney General David F. Hoke, for defendant-appellees.

McGEE, Judge.

Plaintiff contends the trial court erred by failing to find that defendants are required, pursuant to G.S. 15A-1354(b), to aggregate consecutive sentences for armed robbery committed prior to 1 October 1994 for purposes of determining parole eligibility. We agree.

In determining the effect of consecutive sentences, the Department of Correction must treat a defendant as if he had been committed for a single term. N.C. Gen.Stat. § 15A-1354(b)(1985). In such a case, the minimum term of imprisonment consists of the total of the minimum terms of the consecutive sentences. G.S. 15A-1354(b)(2). We disagree with defendants' contention that the specific language of the armed robbery statute in effect at the time defendant committed his crimes controls over the provisions of G.S. 15A-1354.

The armed robbery statute applicable to plaintiff's crime, N.C. Gen.Stat. § 14-87(c)(repealed effective 1 July 1981), and its successor, N.C. Gen.Stat. § 14-87(d)(repealed effective 1 January 1995) both state that "[s]entences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any (other) sentence(s) being served by the person sentenced hereunder." Defendants argue the language of these statutes deals "with a subject in detail with reference to a particular situation (armed robbery)" while G.S. 15A-1354(b) "deals with the same subject in general and comprehensive terms" and, therefore, the armed robbery statutes control and negate the computation provisions of G.S. 15A-1354(b). See State v. Leeper, 59 N.C.App. 199, 201-02, 296 S.E.2d 7, 8-9, disc. review denied, 307 N.C. 272, 299 S.E.2d 218 (1982). As a result, defendants contend armed robbery sentences are not subject to being aggregated for parole eligibility purposes, and inmates sentenced for armed robbery only begin serving time at the completion of the prior sentence or upon having been "paper paroled" to the consecutive armed robbery sentence.

However, while G.S. 14-87(c) and (d) dealt with when consecutive sentences should be imposed, G.S. 15A-1354(b) mandates how the Department of Correction must treat consecutive sentences once they have been imposed. See G.S. 15A-1354, Official Commentary ("Subsection (b) sets out the rules for calculating the effects of consecutive terms ... in order to determine parole eligibility."). Contrary to defendants' assertions, the armed robbery statute applicable to the plaintiff did not mandate how consecutive sentences should be treated for determining parole eligibility. This Court has previously determined that the statutory language stating "[s]entences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder" means only that a sentence for an armed robbery conviction must be consecutive to a prison term already in effect at the time of sentencing. State v. Crain, 73 N.C.App. 269, 271, 326 S.E.2d 120, 122 (1985). Where, as here, multiple armed robbery offenses are disposed of in the same sentencing proceeding, they are not required to be consecutive to one another. Id. Other than prescribing that a defendant must serve at least seven years of any sentence for armed robbery, G.S. 14-87(c) did not affect how consecutive sentences were to be treated for parole eligibility purposes once the consecutive sentences had been imposed. Further, we can find no statutory authority for defendants' practice of issuing "paper paroles." Therefore, plaintiff's sentences should be aggregated pursuant to G.S. 15A-1354(b) for purposes of determining parole eligibility.

Plaintiff next contends that, for purposes of parole eligibility, he is entitled to a reduction of the seven-year minimum mandatory sentences required in cases 80-CRS-23443 and 80-CRS-23442 to the extent of any gain time granted under N.C. Gen.Stat. § 148-13. We disagree. The armed robbery statute in effect at the time plaintiff committed his crimes read as follows:

Any person who has been convicted of a violation of G.S. 14-87(a) shall serve the *774 first seven years of his sentence without benefit of parole, probation, suspended sentence, or any other judicial or administrative procedure except such time as may be allowed as a result of good behavior, whereby the period of actual incarceration of the person sentenced is reduced to a period of less than seven years.... Notwithstanding any other provision of law, neither the Parole Commission nor any other agency having responsibility for release of inmates prior to expiration of sentences, shall authorize the release of an inmate sentenced under this section prior to his having been incarcerated for seven years except such time as may be allowed as a result of good behavior.

G.S. 14-87(c). The statute allowed a reduction for good behavior, but made no provision for a reduction for gain time. Nevertheless, since G.S. 14-87(c) was repealed effective 1 July 1981, and plaintiff was sentenced on 1 April 1982, plaintiff argues G.S. 14-87(d), which he contends allows a reduction below the seven-year minimum for gain time earned, applies in his case. However, G.S. 14-87(d) applied only to offenses committed on or after 1 July 1981 and plaintiff's criminal charges arose in 1980. 1979 N.C. Sess. Laws ch. 760, § 6, as amended by 1979 N.C. Sess. Laws, 2nd Sess., ch. 1316, § 47; 1981, ch. 63, § 1; and 1981, ch. 179, § 14. Therefore, plaintiff is not entitled to have his sentences reduced below the seven-year minimum to the extent of gain time served.

Because of our decision, we need not address plaintiff's remaining argument. For the reasons stated, the order of the trial court is reversed.

Reversed.

WYNN, J., concurs in the result with separate opinion.

JOHN, J., concurs in the result and joins in Judge WYNN's opinion.

WYNN, Judge concurring in the result only.

I disagree with our Court's earlier determination in State v. Crain, 73 N.C.App. 269, 326 S.E.2d 120 (1985) that N.C. Gen.Stat. § 14-87 does not require the imposition of consecutive sentencesfor sentences imposed on multiple offenses under that sectionwhere "the defendant is not yet serving a sentence for any of the counts at the time of the sentencing proceeding." Id. at 271, 326 S.E.2d at 122. Instead, I agree with the State's interpretation of § 14-87 that our legislature intended that consecutive sentences for armed robberies be mandatory under that section rather than discretionary under N.C. Gen.Stat. 15A-1354(a). In that light, § 15A-1354(b) would have no application in this case because "the consecutive sentences were [not] imposed under the authority of [Article 15A]." N.C. Gen.Stat. 15A-1354(b).

Nevertheless, Crain represents binding precedence on this panel. See, In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989) (holding one panel may not overrule another panel). Under Crain, because the defendant in this case was not "serving a sentence for any counts at the time of the sentencing proceeding", the trial court necessarily imposed the consecutive sentence terms under § 15A-1354(a). That being the case, § 15A-1354(b) applies and accordingly, I must concur with the result reached by the majority.