State v. Hanner

654 S.E.2d 820, 188 N.C. App. 137, 2008 N.C. App. LEXIS 70
CourtCourt of Appeals of North Carolina
DecidedJanuary 15, 2008
DocketCOA07-757
StatusPublished
Cited by12 cases

This text of 654 S.E.2d 820 (State v. Hanner) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hanner, 654 S.E.2d 820, 188 N.C. App. 137, 2008 N.C. App. LEXIS 70 (N.C. Ct. App. 2008).

Opinions

ARROWOOD, Judge.

Defendant appeals from judgments entered revoking Defendant’s probation and activating Defendant’s suspended sentences. For the reasons discussed herein, we vacate the sentences imposed in 05 CRS 78686 and 05 CRS 86681 and remand 05 CRS 78686 and 05 CRS 86681 for a new sentencing hearing.

Defendant pled guilty to the following offenses pertinent to this appeal: five counts of breaking and entering, five counts of larceny after breaking and entering, three counts of obtaining property by false pretenses, two counts of possession of stolen property, and one count of financial transaction card theft. Defendant’s plea agreement reflects that “[i]n exchange for [Defendant’s] cooperation[,] these offenses shall be consolidated into [eight] consecutive . . . judgments.” At Defendant’s plea hearing on 6 March 2006, the trial court rendered judgment sentencing Defendant pursuant to Defendant’s plea agreement, under eight distinct file numbers, to eight consecutive sentences of 8 to 10 months imprisonment.

The trial court entered, among other judgments, the following judgments pertinent to Defendant’s appeal, setting two sentences to run concurrently that were announced in open court as running consecutively:

05 CRS 66373, Consolidated Judgment and Commitment on Breaking and Entering and Larceny. Suspended sentence of 8 months to a maximum term of 10 months.
05 CRS 66813, Consolidated Judgment and Commitment on Breaking and Entering and Larceny. Suspended sentence of 8 months to a maximum term of 10 months, to begin at the expiration of the sentence imposed in 05 CRS 66373.
05 CRS 78686 and 05 CRS 77933, Consolidated Judgment and Commitment on Possession of Stolen Goods and Breaking and Entering. Suspended sentence of 8 months to a maximum term of 10 months, to begin at the expiration of the sentence imposed in 05 CRS 66373.
[139]*13905 CRS 86681 and 05 CRS 86121, Consolidated Judgment and Commitment on Larceny and Breaking and Entering. Suspended sentence of 8 months to a maximum term of 10 months, to begin at the expiration of the sentence imposed in 05 CRS 66373.

“The sentence actually imposed... was the sentence contained in the written judgment,” not the sentence rendered in open court. State v. Crumbley, 135 N.C. App. 59, 66, 519 S.E.2d 94, 99 (1999) (citing Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737 (1997) (“[a]nnouncement of judgment in open court merely constitutes ‘rendering’ of judgment, not entry of judgment”)).

In open court on 8 November 2006, the trial court rendered judgment revoking Defendant’s probation and placing “[Defendant’s] sentence in effect just as it was given [.]” However, on 5 December 2006, when the judgments were entered, the trial court veered from the original judgments, setting two sentences to run consecutively which were set on 6 March 2006 to run concurrently. The court entered, among other judgments, the following judgments pertinent to Defendant’s appeal:

05 CRS 66373, Judgment and Commitment upon Revocation of Probation. Activated sentence of 8 months to a maximum term of 10 months.
05 CRS 66813, Judgment and Commitment upon Revocation of Probation. Activated sentence of 8 months to a maximum term of 10 months, to begin at the expiration of the sentence imposed in 05 CRS 66373.
05 CRS 78686, et al., Judgment and Commitment upon Revocation of Probation. Activated sentence of 8 months to a maximum term of 10 months, to begin at the expiration of the sentence imposed in 05 CRS 76450.
05 CRS 86681, et al., Judgment and Commitment upon Revocation of Probation. Activated sentence of 8 months to a maximum term of 10 months, to begin at the expiration of the sentence imposed in 05 CRS 78686.

The sentences imposed in 05 CRS 78686 and 05 CRS 86681 were originally entered to run concurrently with 05 CRS 66813 at the expiration of 05 CRS 66373. However, upon Defendant’s revocation of probation, the sentences in 05 CRS 78686 and 05 CRS 86681 were entered to run [140]*140not as originally set, but rather, to run consecutively, which resulted in the extension of Defendant’s term of imprisonment. From these judgments, Defendant appeals.

In his first argument, Defendant contends that the trial court erred by activating Defendant’s suspended sentences such that two sentences which were set to run concurrently in the original judgments were set to run consecutively in the judgments upon the revocation of Defendant’s probation. We find this argument to be without merit.

N.C. Gen. Stat. § 15A-1344(d) (2005) states the following:

A sentence activated upon revocation of probation commences on the day probation is revoked and runs concurrently with any other period of probation, parole, or imprisonment to which the defendant is subject during that period unless the revoking judge specifies that it is to run consecutively with the other period.

In State v. Paige, 90 N.C. App. 142, 143, 369 S.E.2d 606, 606 (1988), this Court interpreted G.S. § 15A-1344(d):

As we read it, this section permits the trial court to impose a consecutive sentence when a suspended sentence is activated upon revocation of a probationary judgment without regard to whether the sentence previously imposed ran concurrently or consecutively. Thus, under this section, the trial court in the present case had the authority to order defendant’s sentence for felonious breaking and entering to be served consecutively to his sentence for possession of stolen goods.

In Paige, the original judgments entered upon the defendant’s convictions of felonious breaking and entering and possession of stolen goods did not specify whether the sentences would run concurrently or consecutively. If a judgment fails to specify whether multiple sentences are to run consecutively or concurrently, the sentences run concurrently. See N.C. Gen. Stat. § 15A-1354(a) (2005). The trial court, however, in activating the defendant’s suspended sentences, specified that the sentences should run consecutively. This Court upheld the trial court’s ruling.

Paige is binding authority in the case sub judice. Here, pursuant to G.S. § 15A-1344(d) and Paige the trial court did not err by activating Defendant’s suspended sentences and specifying that the sen-[141]*141fences should run consecutively instead of concurrently. This assignment of error is overruled.

In his second argument, Defendant contends that the trial court violated Defendant’s right to be present during sentencing by entering a written judgment imposing a longer prison term than that which the trial court rendered in open court at Defendant’s revocation hearing. We agree.

“The Defendant had a right to be present at the time that sentence was imposed.” Crumbley, 135 N.C. App. at 66, 519 S.E.2d at 99 (citations omitted).

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State v. Hanner
654 S.E.2d 820 (Court of Appeals of North Carolina, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
654 S.E.2d 820, 188 N.C. App. 137, 2008 N.C. App. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hanner-ncctapp-2008.