State v. Wilkerson

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NO. COA13-365 NORTH CAROLINA COURT OF APPEALS Filed: 18 February 2014 STATE OF NORTH CAROLINA Cumberland County Nos. 91 CRS 1552-53, 1578, 1893, 1895, 2408 v. TERRANCE WILKERSON Review stemming from the allowance of a petition for the issuance of a writ of certiorari filed by the State challenging an order entered 17 December 2012 by Judge Mary Ann Tally in Cumberland County Superior Court. Heard in the Court of Appeals 26 September 2013. Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O Brien, for the State. Sarah Jessica Farber, for Defendant-Appellee. ERVIN, Judge. The State has sought appellate review of an order granting Defendant Terrance Wilkerson s motion for appropriate relief; vacating judgments entered on 5 December 1991 stemming from Defendant s convictions for second degree burglary, three counts of felonious breaking or entering, four counts of felonious larceny, and two counts of possession of stolen property; and resentencing Defendant to a term of 21 years imprisonment. appeal, the State contends that the trial court On erroneously concluded that the sentences contained in the original judgments -2entered in these cases resulted in the imposition of a cruel and unusual punishment upon Defendant. After careful consideration of the State s challenges to the trial court s order in light of the record and the applicable law, we conclude that the trial court s order should be reversed and that this case should be remanded to the Cumberland County Superior Court for reinstatement of the original judgments imposed in these cases. I. Factual Background Between 14 December 1990 and 12 January 1991, Defendant broke into several homes and stole various items of property. At the time that he committed these criminal offenses, Defendant was sixteen years old and had no prior criminal record. On 13 January 1991, charging Defendant with property, second degree warrants two for counts burglary, of arrest were possession two counts of of issued stolen felonious breaking or entering, and three counts of felonious larceny. On 2 April 1991, the Cumberland County grand jury returned bills of indictment charging Defendant with two counts of second degree burglary, four counts of felonious breaking or entering, six counts of felonious larceny, and six counts of possession of stolen property. On 4 December 1991, Defendant entered pleas of guilty to one count of second degree burglary, four counts of felonious larceny, three counts of felonious breaking or entering, and two counts of possession of stolen property. In -3return for Defendant s guilty pleas, the State voluntarily dismissed the remaining charges that had been lodged against him. At the conclusion of the proceedings that occurred in connection with the entry of Defendant s guilty pleas, Judge William C. Gore, Jr., found as aggravating factors that [t]he defendant involved a person under the age of 16 in the commission of the crime and that [t]he offense involved the actual taking of property of great monetary value ; found as mitigating factors that [t]he defendant ha[d] no record of criminal convictions and that, [a]t an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer ; determined that the factors in aggravation outweigh[ed] the factors in mitigation ; and entered a judgment in the case in which Defendant had been convicted of second degree burglary imprisonment. aggravation and sentencing him to a term of 40 years In addition, based upon the same findings in mitigation, Judge Gore consolidated one of Defendant s convictions for felonious breaking or entering and one of Defendant s convictions for felonious larceny for judgment and sentenced Defendant to a consecutive term of ten years imprisonment. sentencing Defendant Finally, to a Judge concurrent Gore term entered of judgments three years imprisonment based upon a conviction for felonious larceny, to a -4concurrent term of three years imprisonment based upon consolidated convictions for felonious breaking or entering and felonious larceny, to a concurrent term of three years imprisonment based upon a conviction for possession of stolen property, to a concurrent term of three years imprisonment based upon convictions felonious for larceny, felonious and to a breaking concurrent or term entering of three and years imprisonment based upon a conviction for possession of stolen property. As a result, Judge Gore s judgments effectively required Defendant to serve a term of fifty years imprisonment based upon these convictions. On 27 June 2012, Defendant filed a motion for appropriate relief in which he requested the court to arrest his sentences and resentence him in such a manner as to avoid subjecting him to cruel and unusual punishment. Defendant s motion for appropriate relief rested upon the contention that his fifty year sentence committed for when a series he was of nonviolent sixteen years property old was crimes grossly disproportionate to the maximum sentence that he could receive in the event that he was sentenced for committing the same crimes under the current sentencing statutes and contravened the protections punishment against contained the in imposition the Eighth of cruel Amendment and to the unusual United -5States Constitution and N.C. Const. art. I, § 27.1 2012, the Defendant s summary trial court Motion disposition necessary. for is entered an order Appropriate Relief inappropriate, and On 25 July concluding has that merit, a that that hearing is The State filed a written response to Defendant s motion for appropriate relief on 24 August 2012 in which it requested that Defendant receive no relief. A hearing was held with respect to Defendant s motion for appropriate relief on 11 December 2012. On 17 December 2012, the trial court entered an order granting Defendant s motion for appropriate relief on the grounds that, [u]nder evolving standards of decency, the sentence embodied in the judgments entered by Judge Gore was excessive and disproportionate to the crimes for which Defendant had been convicted in violation of the Eighth Amendment and was, for that reason, invalid. result, the trial court vacated the As a judgments that had been entered by Judge Gore, resentenced Defendant to a term of 21 years imprisonment, gave Defendant credit for 21 years and 6 days in pretrial confinement, and ordered that Defendant be immediately released. 1 Although Defendant argued that his sentences violated N.C. Const. art. I, § 27, in his motion for appropriate relief, the trial court made no reference to this provision of the state constitution in its order and Defendant has not advanced any argument stemming from the state constitution in his brief. For those reasons, we will treat this case as arising solely under the relevant provision of the United States constitution. -6On 17 December 2012, the State filed petitions seeking the issuance of a writ of certiorari authorizing appellate review of the 17 December superseadeas 2012 staying order the and trial the issuance court s of order completion of the appellate review process. a writ pending of the On 2 January 2013, this Court granted the State s petitions. II. Substantive Legal Analysis A. Appellate Jurisdiction As an initial matter, we are required to address Defendant s contention that this Court lacked the authority to grant the certiorari. State s petition for the issuance of a writ of In view of the fact that a panel of this Court has previously rejected this contention in the course of granting the State s certiorari petition, we are required to do so as well. N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 567, 299 S.E.2d 629, 631-32 (1983) (stating that, once a panel of the Court of Appeals has decided a question in a given case[,] that decision becomes the law of the case and governs other panels which may thereafter consider the case and that, since the power of one panel of the Court of Appeals is equal to and coordinate with that of another, a succeeding panel of that court has no power to review the decision of another panel on the same question in the same case ). In addition, for the reasons set forth in detail below, we also believe that this -7Court had the authority to grant the State s certiorari petition. The Court jurisdiction as of Appeals the General Const. art. IV, § 12(2). shall Assembly have may such appellate prescribe. N.C. According to N.C. Gen. Stat. § 7A- 32(c), this Court has the authority to issue writs of certiorari in aid of its own jurisdiction, or to supervise and control the proceedings of any of the trial courts of the General Court of Justice. [trial] N.C. Gen. Stat. § 32(c). court s ruling on a As a result, given that a motion for appropriate relief pursuant to [N.C. Gen. Stat. §] 15A-1415 is subject to review . . . [i]f the time for appeal has expired and no appeal is pending, by writ of certiorari, N.C. Gen. Stat. § 15A- 1422(c)(3), see State v. Dammons, 128 N.C. App. 16, 22, 493 S.E.2d 480, 484 (stating that [t]his Court may review a trial court s ruling on a motion for appropriate relief if the time for appeal has expired and no appeal is pending, by writ of certiorari ) (quoting N.C. Gen. Stat. § 15A-1422(c)(3)), disc. review denied, 342 N.C. 660, 465 S.E.2d 547 (1997); State v. Morgan, 118 (stating N.C. that App. [a] 461, trial 463, 455 court s S.E.2d ruling 490, on a 491 (1995) motion for appropriate relief pursuant to [N.C. Gen. Stat. §] 15A-1415 is subject to review . . . [i]f the time for appeal has expired and no appeal is pending, by writ of certiorari ) (citations -8omitted), and given that the issuance of a writ of certiorari in situations such as this one is necessary to supervise and control proceedings in the trial courts, see Troy v. Tucker, 126 N.C. App. 213, 215, 484 S.E.2d 98, 99 (1997) (recognizing the existence of our supervisory jurisdiction over the trial courts as authorized by N.C. Const. art. IV, § 12 and N.C. Gen. Stat. § 7A 32(c)); In re Robinson, 120 N.C. App. 874, 875, 464 S.E.2d 86, 87 (1995) (granting certiorari pursuant to [this Court s] supervisory power under [N.C. Gen. Stat. §] 7A 32(c) ), we clearly had ample authority to grant the State s request for the issuance of a writ of certiorari authorizing review of the trial court s order in this case. In support of his contention to the contrary, Defendant cites a previous decision by this Court refusing to issue a writ of certiorari requested by the State on the grounds that the issuance of the requested writ was not authorized by N.C. R. App. P. 21(a)(1), which provides that a writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review pursuant to [N.C. Gen. Stat.] § 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief. State v. Starkey, -9177 N.C. App. 264, 268, 628 S.E.2d 424, 426, cert denied, __ N.C. __, 21(a)(1). 636 S.E.2d 196 (2006) (quoting N.C. R. App. P. According to the logic enunciated in Starkey, since N.C. R. App. P. 21 limits certiorari review of orders granting or denying motions for appropriate relief to orders denying such motions and since the State sought review of an order granting a defendant s motion for appropriate relief, we lacked authority to issue the requested writ. fact that Starkey conflicts Id. As a result, however, of the with several decisions of the Supreme Court that authorize review of trial court decisions granting motions for appropriate relief filed by a defendant, our decision in Starkey does not stand as an obstacle to the allowance of the State s certiorari petition. See State v. Whitehead, 365 N.C. 444, 445-46, 722 S.E.2d 492, 494 (2012) (granting the State s petition for the issuance of a writ of certiorari for the purpose of reviewing a trial court order granting a motion for appropriate relief); State v. Frogge, 359 N.C. 228, 230, 607 S.E.2d 627, 628-29 (2005) (granting a petition for the issuance of a writ of certiorari authorizing review of a trial court order granting a defendant s motion for appropriate relief), cert. denied, 531 U.S. 994, 121 S. Ct. 487, 148 L. Ed. 2d 459 (2000); State v. McDowell, 310 N.C. 61, 62, 310 S.E.2d 301, 301 (1984) (allowing a petition for the issuance of a writ of certiorari filed by the State seeking review of a -10trial court order granting defendant s motion for appropriate relief). As a result of the fact that the logic adopted in Starkey would be equally applicable to the situations at issue in Whitehead, Frogge, and McDowell, and since nothing in N.C. R. App. P. 21 makes any distinction between our authority to issue writs of certiorari in response to petitions filed by the State seeking relief review and of that orders of the granting Supreme a motion Court, we for appropriate believe that our decision in Starkey is inconsistent with prior and subsequent decisions of the Supreme Court and is not, for that reason, controlling in the present case.2 App. 443, decline[d] 2 449, to 680 follow S.E.2d an See State v. Davis, 198 N.C. 239, earlier 244 Court (2009) of (this Appeals Court decision In addition, this Court has granted petitions for writs of certiorari filed by the State for the purpose of seeking review of orders allowing motions for appropriate relief in previous cases. See State v. Bonsteel, 160 N.C. App. 709, __ S.E.2d __ (2003) (unpublished) (granting the State s petition for the issuance of a writ of certiorari for the purpose of reviewing a trial court order granting a defendant s motion for appropriate relief); State v. Rubio, __ N.C. App. __, 732 S.E.2d 393 (2012) (unpublished), disc. review dismissed, __ N.C. __, 735 S.E.2d 824 (2013) (citing N.C. Gen. Stat. § 15A-1422(c)(3) as the basis for asserting jurisdiction over an order granting a defendant s motion for appropriate relief). Although we are not bound by our prior unpublished decisions, see United Services Automobile Assn. v. Simpson, 126 N.C. App. 393, 396, 485 S.E.2d 337, 339, disc. review denied, 347 N.C. 141, 492 S.E.2d 37 (1997) (holding that this Court is not bound by a prior unpublished decision of another panel of this Court), we believe that Bonsteel and Rubio shed additional light on our authority to grant the State s request for certiorari review of an order granting a defendant s motion for appropriate relief. -11 inconsistent with prior decisions of this Court and our Supreme Court ); Cissell v. Glover Landscape Supply, Inc., 126 N.C. App. 667, 670 n.1, 486 S.E.2d 472, 473 n.1 (1997), rev d on other grounds, 348 N.C. 67, 497 S.E.2d 283 (1998) (stating that, because that case is inconsistent with prior decisions of this Court and our Supreme Court, we decline to follow it. ). Our conclusion to this effect is reinforced by our recognition of the fact that the rules of appellate procedure shall not be construed to extend or limit the jurisdiction of the courts of the appellate division as that is established by law, N.C. R. App. P. 1(c); the fact that our authority to grant certiorari for the purpose of reviewing orders granting or denying motions for appropriate relief is established by N.C. Gen. Stat. § 15A1422(c)(3); and the fact that the approach adopted in Starkey, contrary to N.C. R. App. P. 1, treats N.C. R. App. P. 21 as limiting the jurisdiction afforded to this Court by the General Assembly. As a result, we have no hesitation in concluding that this Court did, in fact, have the authority to grant the State s petition for the issuance of a writ of certiorari in this case and will proceed to address the merits of the State s challenge to the trial court s order. B. Validity of Trial Court s Order 1. Standard of Review -12 When considering rulings on motions for appropriate relief, we review the trial court s order to determine 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. Frogge, 359 N.C. at 240, 607 S.E.2d at 634 (quoting State Stevens, v. (1982)). When 305 a N.C. trial 712, court s 720, 291 findings S.E.2d on a 585, 591 motion for appropriate relief 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, 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)). Conclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal. Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004). Because the facts underlying this case as described in the trial court s findings of fact are essentially undisputed, the only issue that we are required to address in this case is whether the trial court correctly concluded that, on the basis of the present record, Defendant was entitled to relief from Judge Gore s original judgments on Eighth Amendment grounds. -132. Trial Court s Jurisdiction Over Defendant s Motion In its initial challenge to the trial court s judgment, the State argues that the trial court lacked jurisdiction to vacate Judge Gore s original judgments. contends that authorized no the Defendant s provision trial original of court More specifically, the State N.C. to judgments, ordering that he be released. Gen. enter Stat. an resentencing § 15A-1415 order vacating Defendant, and We do not find this aspect of the State s argument persuasive. According to N.C. Gen. Stat. § 15A 1415(b), a convicted criminal defendant is entitled to seek relief from a trial court judgment by means of a motion for appropriate relief filed more than ten days after the entry of judgment certain specifically enumerated grounds. 15A 1415(b). 15A 1415(b) on the basis of See N.C. Gen. Stat. § As we have recently stated, N.C. Gen. Stat. § clearly provides that the eight specific grounds listed in that statutory subsection are the only grounds which the defendant may assert by a motion for appropriate relief made more than 10 days after the entry of judgment, so that a trial court lacks jurisdiction over the subject matter of a claim for postconviction relief which does not fall within one of the categories specified in N.C. Gen. Stat. § 15A 1415(b). State v. Harwood, __ N.C. App. __, __, 746 S.E.2d 445, 450, disc. review dismissed, __ N.C. __, 748 S.E.2d 320 (2013). -14In its order, the trial court concluded that it had the authority to grant the requested relief pursuant to N.C. Gen. Stat. §§ 15A-1415(b)(4) and (b)(8), which authorize an award of postconviction relief in the event that [t]he defendant was convicted or sentenced under a statute that was in violation of the Constitution of the United States or the Constitution of North Carolina, N.C. Gen. Stat. § 15A-1415(b)(4), or that [t]he 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. 15A-1415(b)(8). N.C. Gen. Stat. § The fact that Defendant did not cite N.C. Gen. Stat. § 15A-1415(b)(4) before the trial court is irrelevant to the required jurisdictional determination given the fact that the constitutional Gore s original nature judgments of was Defendant s clearly challenge stated in to Judge Defendant s motion for appropriate relief and the fact that the trial court has the authority, in appropriate cases, to grant postconviction relief on its own motion. N.C. Gen. Stat. § 15A-1420(d) (stating that, [a]t any time that a defendant would be entitled to relief by motion for appropriate relief, the court may grant such relief upon its own motion ). Similarly, the fact that the sentences imposed in Judge Gore s original judgments were not -15unauthorized, invalid, or otherwise unlawful at the time that they were imposed does not, contrary to the State s argument, preclude an award of relief based on N.C. Gen. Stat. § 15A1415(b)(8) given that the reference to at the time imposed in the relevant statutory language does not modify the language authorizing a grant of relief in the event that the defendant s sentence is otherwise invalid as a matter of law. In fact, acceptance of the State s argument that the trial court lacked the authority to enter the challenged order would necessarily mean that trial judges have no authority to grant postconviction sentencing relief on Eighth Amendment grounds after the time for noting a direct appeal has expired, an outcome which we do not believe to have been within the General Assembly s contemplation and which is jurisprudence. not consistent with our postconviction State v. Bonds, 45 N.C. App. 62, 64, 262 S.E.2d 340, 342 (stating that, [i]f a judgment is invalid as a matter of law, the courts of North Carolina have always had the authority to vacate such judgments pursuant to petition for writ of habeas corpus and, more recently, by way of postconviction proceedings ), app. dismissed, 300 N.C. 376, 267 S.E.2d 687, cert. denied, 449 U.S. 883, 101 S. Ct. 235, 66 L. Ed. 2d 107 (1980). As a result of the fact that Defendant has asserted in his motion for appropriate relief that the sentences imposed in Judge Gore s original judgment are disproportionate to the -16offenses for which he was convicted in violation of the Eighth Amendment and that those sentences were, for that reason, invalid, the trial court clearly had jurisdiction to reach the merits of judgments Defendant s pursuant to challenge N.C. Gen. to Judge Stat. §§ Gore s original 15A-1415(b)(4) and (b)(8). This Court has recently addressed and rejected the same argument in a case in which the trial court granted a defendant s motion for appropriate relief and vacated his life sentence, which had been imposed upon him in 1973 as the result of his conviction for second degree burglary, on the basis of a conclusion sentence that, violated under the evolving Eighth standards, Amendment and is [defendant s] invalid as a matter of law. State v. Stubbs, __ N.C. App. __, __, __ S.E.2d __, __ (2014). Although the State argued before this Court in that case, as it has here, that nothing in N.C. Gen. Stat. § 15A-1415 authorized the trial court to modify the defendant s original sentence, Id. at __, __ S.E.2d at __, we concluded that the trial court had jurisdiction over the [original] judgment to consider whether matter of law. defendant s was invalid as a Id. at __, __ S.E.2d at __ (quoting N.C. Gen. Stat. § 15A-1415(b)(8)).3 3 sentence As a result, in light of the literal In support of its argument that the trial court lacked the authority to consider Defendant s challenge to the judgments at -17language of N.C. Gen. Stat. §§ 15A-1415(b)(4) and (b)(8) and our decision in Stubbs, we hold that the trial court had jurisdiction to consider Defendant s challenges to Judge Gore s original judgments on the merits. 3. Gross Disproportionality Secondly, the State contends that, even if the trial court had jurisdiction challenge to determining serving to Judge that consider Gore s the subjected him the original sentences to that cruel violation of the Eighth Amendment. The which Eighth has been Amendment made validity to the applicable and of Defendant s judgments, it Defendant was unusual erred by currently punishment in We agree. United to the States states Constitution, through the Fourteenth Amendment, provides that [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const. amend. VIII. The concept of proportionality is central to the Eighth Amendment. Embodied issue here, the State cites the Supreme Court s decision in Whitehead to the effect that, [h]aving concluded that defendant is not entitled to resentencing under the [Structured Sentencing Act], we also note that defendant s [motion for appropriate relief] provides no appropriate grounds for resentencing under the [Fair Sentencing Act]. Whitehead, 365 N.C. at 448, 722 S.E.2d at 495. In this case, unlike Whitehead, Defendant has advanced a constitutional, rather than a merely statutory, challenge to the validity of Judge Gore s original judgments, a fact which distinguishes this case from Whitehead and gave the trial court the authority to consider the merits of Defendant s motion for appropriate relief. -18in the Constitution s ban on cruel and unusual punishments is the precept of justice that punishment for crime should be graduated and proportioned to [the] offense. Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 2021, 176 L. Ed. 2d 825, 835 (2010) (quoting Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544, 549, 54 L. Ed. 793, 798 (1910)). the concept standards of of society. proportionality decency that mark according the to We view the evolving of maturing progress a Miller v. Alabama, __ U.S. __, __, 132 S. Ct. 2455, 2463, 183 L. Ed. 2d 407, 417 (2012) (quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 290 50 L. Ed. 2d 251, 259 (1976)). The Eighth Amendment does not[, however,] require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime. Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680, 2705, 115 L. Ed. 2d 836, 869 (1991) (Justice Kennedy, joined by Justices O Connor and Souter, concurring) (internal quotations and citations omitted). As a result, [o]nly in exceedingly unusual non-capital cases will the sentences imposed be so grossly Amendment s State v. disproportionate proscription Clifton, 158 of N.C. as cruel App. to and 88, violate unusual 94, 580 the Eighth punishment. S.E.2d 40, 45 (quoting State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983)), cert. denied, 357 N.C. 463, 586 S.E.2d 266 (2003). -19 [I]n the absence of legal error, it is not the role of the judiciary to engage in discretionary sentence reduction, since that power resides in the executive branch, as established by the state constitution and acts of the General Assembly, Whitehead, 365 N.C. at 448, 722 S.E.2d at 496, and since our General Assembly has directed the Post-Release Supervision and Parole Commission to review matters of proportionality arising from the changes sentencing of in the convicted enacted in recent years. statutory criminal provisions defendants governing that have the been Stubbs, __ N.C. App. at __, __ S.E.2d at __.4 As the United States Supreme Court has explained, cases addressing the proportionality general classifications[:] term-of-years particular sentences case[;] and of sentences fall within two first, challenges to the length of given all second, the cases circumstances in in Court which the a implements the proportionality standard by certain categorical restrictions on the death penalty. Graham, 560 U.S. at 59, 130 S. at Ct. 4 at 2021, 176 L. Ed. 2d 836. In the first Although the State has argued at length that, outside the capital context, there is no general proportionality principle inherent in the prohibition against cruel and unusual punishment, we believe that the relevant decisions of the United States Supreme Court clearly state the gross disproportionality test discussed in the text of this opinion for use in non-capital cases and do not understand the State to be advancing a contrary assertion. -20classification the Court considers all of the circumstances of the case to determine whether the sentence is unconstitutionally excessive Id., with that determination beginning with a comparison of the gravity of the offense and the severity of the sentence. Graham, 560 U.S. at 60, 130 S. Ct. at 2022, 176 L. Ed. 2d at 836 (citing Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L. Ed. 2d at 871 (Justice Justices O Connor and Souter, concurring)). case in which Kennedy, joined by [I]n the rare [this] threshold comparison . . . leads to an inference of gross disproportionality[,] the court should then compare the defendant s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed Outside for the the same crime context of in other capital jurisdictions. punishment, Id. successful challenges to the proportionality of particular sentences have been exceedingly rare. Rummel v. Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133, 1138, 63 L. Ed. 2d 382, 390 (1980). The trial court reached the conclusion that Defendant had been subjected to cruel and unusual punishment based upon a consideration of (1) the gravity of the offense, (2) the harshness of the penalty, and (3) the sentences for other crimes within the jurisdiction. In seeking to persuade us to uphold the trial court s order, Defendant notes that he was a juvenile at the time that the offenses in question were committed, points -21out that he would receive a significantly shorter term of imprisonment in the event that he were to be sentenced under current law, imprisonment and with argues the that his possibility sentence of parole of based 50 years upon his convictions for second degree burglary, felonious breaking or entering, felonious larceny, and possession of stolen property was grossly disproportionate to the crimes committed. We do not find Defendant s argument persuasive.5 The first problem with the trial court s order is that the trial court claimed to have erroneously considered a comparison of the sentence imposed upon Defendant with sentences imposed upon others under more recent statutory sentencing provisions in the course of determining grossly disproportionate. whether Defendant s sentence was However, a comparison of the sentence imposed upon Defendant to the sentences that have been or could be imposed upon other convicted felons is not relevant to the issues raised by Defendant s motion for appropriate relief until 5 The parties do not appear to agree upon the sentence upon which we should focus our attention in analyzing the validity of the State s challenge to the trial court s order. On the one hand, Defendant s argument rests upon the assumption that we should view the sum total of the sentences embodied in Judge Gore s original judgments as a single term of imprisonment while the State appears to suggest that we should focus our attention on the specific sentence that Defendant is currently serving. As a result of the fact that we do not believe that this difference of opinion has any bearing on the ultimate outcome that we should reach in this case, we will assume, without deciding, that the approach taken by Defendant is the correct one. -22after a finding of gross disproportionality had been made. See Graham, 560 U.S. at 60, 130 S. Ct. at 2022, 176 L. Ed. 2d at 836 (stating that an evaluation of the gravity of the offense for which the defendant had been convicted and the severity of the sentence conviction imposed for defendant s the sentence upon the purpose was defendant of grossly based determining upon that whether disproportionate must the be undertaken before the court compares a defendant s sentence to the sentences of others for similar offenses); Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L. Ed. 2d at 871 (stating that [a] better reading of our cases leads to the conclusion that intrajurisdictional appropriate only in and the interjurisdictional rare case in which analyses a are threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality ) (Justice Kennedy, joined by Justices O Connor and Souter, concurring). For that reason, the extent to which Defendant would have been subject to a less severe sentence in the event that he had been sentenced under current sentencing law has no bearing upon the initial phase of the required Eighth Amendment analysis. the trial court determination erred that by apparently Defendant s failing sentence As a result, to was make a grossly disproportionate without taking subsequent sentencing amendments into account before concluding that Judge Gore s original -23judgments should be vacated and that Defendant should be resentenced. In addition, we are unable to agree that Defendant has established that the sentence embodied in Judge Gore s original judgments was grossly disproportionate. Although Defendant was a juvenile at the time that he committed the offenses that led to the challenged trial court judgments and although the offenses for which Defendant was convicted were not violent in nature, he pled guilty to one count of second degree burglary, three counts of felonious breaking or entering, four counts of felonious larceny, and property, resulting in two a counts total of of possession ten felony of stolen convictions. Moreover, despite the fact that Defendant s convictions did, as he points out in his brief, result from the commission of nonviolent property crimes, the fact that he was convicted of committing burglary ten is a felony offenses, particularly the serious fact that offense second degree involving the breaking and entering of a residence in the nighttime with the intent to commit a felony or any larceny, State v. Beaver, 291 N.C. 137, 141, 229 S.E.2d 179, 181 (1976) (stating that [t]he distinction between the two degrees [of burglary] depends upon the actual occupancy of the dwelling house or sleeping apartment at the time of the commission of the crime ), and the fact that, in two of the cases at issue here, Defendant was found to have -24taken property of great value and involved a young person less than sixteen years old in the criminal activity in which he was engaged, are relevant to the constitutional validity of Judge Gore s decision to impose a particularly severe sentence in this case. Simply put, in light of the number of felony offenses for which Defendant was convicted, the fact that one of the offenses for which Defendant was convicted was a particularly serious one, and the fact that Defendant s conduct involved great financial harm and led to criminal activity on the part of a younger individual, embodied in we Judge disproportionate. are Gore s unable to original say that judgments the sentence was grossly Our conclusion to this effect is buttressed by a careful examination of the reported appellate decisions addressing similar factual circumstances, all of which suggest that this is not one of the exceedingly rare and extreme cases in which disproportionate. the sentence upon Defendant is grossly See Ewing v. California, 538 U.S. 11, 30-31, 123 S. Ct. 1179, 1190, 155 L. Ed. 2d 108, 123 (2003) (holding that a sentence of 25 years to life imprisonment for larceny pursuant to constitute a three cruel and strikes unusual and you re punishment in out law violation did not of the Eighth Amendment); Harmelin, 501 U.S. at 1008-09, 111 S. Ct. at 2709, 115 L. Ed. 2d at 874 (holding that a sentence of life imprisonment without the possibility of parole for possession of -25cocaine was not so grossly disproportionate as to constitute cruel and unusual Amendment) punishment (Justice Kennedy, Souter, concurring); in joined State v. violation by of Justices Green, 348 N.C. the Eighth O Connor 588, and 612, 502 S.E.2d 819, 834 (1998), cert. denied, 525 U.S. 1111, 119 S. Ct. 883, 142 L. Ed. 2d 783 (1999) (holding that a sentence of life imprisonment with the possibility of parole based upon a thirteen year old defendant s conviction for first degree sexual offense did not constitute cruel and unusual punishment in violation of the Eighth Amendment); State v. Ford, 297 N.C. 28, 32, 252 S.E.2d 717, 719 (1979) (holding that a sentence of life imprisonment for first degree burglary did not constitute cruel and unusual punishment in violation of the Eighth Amendment); State v. Sweezy, 291 N.C. 366, 384-85, 230 S.E.2d 524, 536 (1976) (holding that a sentence of life imprisonment for first degree burglary did not constitute cruel and unusual punishment in violation of the Eighth Amendment); Stubbs, __ N.C. App. at __, __ S.E.2d at __ (holding that a defendant s sentence of life imprisonment for a second degree burglary committed when the defendant was a juvenile did not constitute cruel and unusual punishment in violation of the Eighth Amendment); State v. Pettigrew, 204 N.C. App. 248, 258-59, 693 S.E.2d 698, 705, app. dismissed, 364 N.C. 439, 706 S.E.2d 467 (2010) (holding that a sentence of 32 to 40 years imprisonment for two counts of first -26degree sexual offense committed when the defendant was sixteen years old did not constitute cruel and unusual punishment in violation of the Eighth Amendment). we see no exceedingly basis rare for concluding noncapital For all of these reasons, that cases this in is which one the of the sentence imposed is grossly disproportionate to the crimes for which Defendant stands convicted. As a result, we conclude that the sentence imposed upon Defendant in this case, while undoubtedly severe, is not cruel or unusual in the constitutional sense, Green, 348 N.C. at 612, 502 S.E.2d at 834, and, for that reason, hold that the trial court s order should be reversed and that this case should be remanded to the Cumberland County Superior Court with instructions to reinstate Judge Gore s original judgments. III. Conclusion Thus, for the reasons set forth above, we conclude that the trial court erred by vacating Judge Gore s original judgments, resentencing Defendant, and ordering his immediate release. As a result, the trial court s order should be, and hereby is, reversed, and this case should be, and hereby is, remanded to the Cumberland County Superior Court for reinstatement of Judge Gore s original judgments. REVERSED AND REMANDED. Judges ROBERT N. HUNTER, JR., and DAVIS concur.

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