State v. Ransom

343 S.E.2d 232 (1986)

STATE of North Carolina v. Cleveland RANSOM.

No. 8612SC33.

Court of Appeals of North Carolina.

May 20, 1986.

*233 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Sueanna P. Peeler, Raleigh, for the State.

Beaver, Thompson, Holt & Richardson, P.A. by F. Thomas Holt, III, Fayetteville, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant contends that G.S. 15A-1335 and G.S. 15A-1340.4 prohibited the trial court from sentencing defendant to more than ten years imprisonment. G.S. 15A-1335, which generally embodies the holding in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), provides as follows:

When a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.

G.S. 15A-1340.4(b) describes the three sets of circumstances under which a trial judge may impose a sentence other than the presumptive sentence. Under G.S. 15A-1340.4(b) a trial court may impose a *234 sentence other than the presumptive term when convictions are consolidated for judgment as long as the sentence imposed does not exceed the total of the presumptive terms for each felony consolidated, does not exceed the maximum term for the most serious felony consolidated and is not shorter than the presumptive term for the most serious felony consolidated.

Defendant contends he may not be sentenced to more than ten years imprisonment because all of his convictions were consolidated during the first sentencing hearing and the maximum term for the most serious felony consolidated was ten years. Defendant raises the issue of whether the trial court is bound by its decision to consolidate convictions for sentencing when a case is reversed and remanded for resentencing.

While G.S. 15A-1335 prohibits trial courts from imposing stiffer sentences upon remand than originally imposed, nothing prohibits the trial court from changing the way in which it consolidated convictions during a sentencing hearing prior to remand. Defendant was originally given a twenty year prison sentence. After the twenty year sentence was overturned, defendant was sentenced to six three year prison sentences or a total of eighteen years imprisonment. We hold that the trial court did not err in changing the way defendant's convictions were consolidated and that the sentence imposed does not violate G.S. 15A-1335. Defendant's assignments of error are overruled.

Affirmed.

EAGLES and COZORT, JJ., concur.