State v. Willis

• Court: Court of Appeals of North Carolina
• Decided: January 21, 2014
• Docket: 13-626
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .

NO. COA13-626 NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Rutherford County No. 11 CRS 2459 RODNEY LEE WILLIS, Defendant.

Appeal by defendant from judgment entered 29 October 2012

by Judge Laura J. Bridges in Rutherford County Superior Court.

Heard in the Court of Appeals 9 December 2013.

Roy Cooper, Attorney General, by Ann Stone, Assistant Attorney General, for the State.

J. Thomas Diepenbrock, for defendant-appellant.

MARTIN, Chief Judge.

Defendant Rodney Lee Willis appeals from the judgment

entered upon the revocation of his probation for indecent

liberties with a child. For the reasons stated herein, we must

vacate the judgment and remand this case to the trial court for

entry of a new judgment consistent with this opinion.

On 4 August 2010, defendant pleaded guilty to one count of -2- incest and one count of indecent liberties with a child. The

trial court entered a judgment upon the incest conviction

imposing an active sentence of 20 to 24 months imprisonment with

credit for the 413 days defendant spent in prejudgment

confinement. As to the indecent liberties with a child

conviction, the trial court entered a judgment imposing a

suspended sentence of 26 to 32 months imprisonment and placing

defendant on supervised probation for 30 months. The trial

court did not award credit for the time defendant spent in

prejudgment confinement against his sentence for indecent

liberties with a child. The judgments did not indicate whether

the probationary sentence was to run concurrently or

consecutively with the sentence of active imprisonment.

On 31 August 2012, the State filed a violation report

alleging that defendant willfully violated the conditions of his

probation. Defendant admitted to the alleged violations at a

hearing held on 29 October 2012. Based upon defendant’s

admission, the trial court revoked defendant’s probation and

activated his suspended sentence of 26 to 32 months imprisonment

with credit for the 63 days defendant spent in confinement

awaiting hearing on the probation violation. Defendant appeals.

_________________________

Defendant’s sole argument on appeal is that the trial court -3- failed to fully credit his activated sentence for indecent

liberties with a child. Specifically, defendant contends the

trial court erred by failing to credit his activated sentence

for indecent liberties with a child with the 413 days he spent

in prejudgment confinement as a result of the charges that

culminated in the sentences imposed on 4 August 2010.

We review alleged sentencing errors to determine “‘whether

[the] sentence is supported by evidence introduced at the trial

and sentencing hearing.’” State v. Deese, 127 N.C. App. 536,

540, 491 S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A-

1444(a1) (Cum. Supp. 1996)). A defendant is entitled to credit

against his sentence for “the total amount of time a defendant

has spent . . . in confinement in any State or local

correctional . . . institution as a result of the charge that

culminated in the sentence.” N.C. Gen. Stat. § 15-196.1 (2013).

“The language of section 15-196.1 manifests the legislature’s

intention that a defendant be credited with all time defendant

was in custody and not at liberty as the result of the charge.”

State v. Farris, 336 N.C. 552, 556, 444 S.E.2d 182, 185 (1994).

Where a defendant has spent time in custody as the result

of multiple charges that culminate in concurrent sentences, each

concurrent sentence is “credited with so much of the time as was

spent in custody due to the offense resulting in the sentence.” -4- N.C. Gen. Stat. § 15-196.2 (2013). A probationary sentence runs

concurrently with a sentence of imprisonment imposed at the same

time, unless otherwise specified by the trial court. N.C. Gen.

Stat. § 15A-1346(b) (2013). In addition, a suspended sentence

that is activated upon revocation of probation is credited with

the time the defendant spent in confinement for the violation of

probation. State v. Belcher, 173 N.C. App. 620, 623, 619 S.E.2d

567, 569 (2005). A defendant is therefore entitled to credit

against his or her sentence for all time spent in confinement on

a particular charge, whether prejudgment or postconviction.

State v. Reynolds, 164 N.C. App. 406, 408, 595 S.E.2d 788, 789

(2004).

The record in this case reveals that defendant spent 413

days in prejudgment confinement as a result of both the incest

and indecent liberties with a child charges that culminated in

the sentences imposed on 4 August 2010 as well as 63 days in

confinement awaiting hearing on the probation violation. The

trial court properly credited defendant’s activated sentence

with the 63 days defendant spent in confinement for the

violation of probation. See Belcher, 173 N.C. App. at 623, 619

S.E.2d at 569. The trial court should have, however, also

credited the activated sentence with the 413 days defendant

spent in prejudgment confinement. Because the original -5- judgments did not specify whether the sentences were to run

concurrently or consecutively, the sentences ran concurrently.

See N.C. Gen. Stat. § 15A-1346(b). The concurrent sentences,

therefore, should have both been credited with 413 days of

prejudgment confinement. See N.C. Gen. Stat. § 15-196.2; State

v. Dudley, 319 N.C. 656, 660, 356 S.E.2d 361, 364 (1987)

(holding that defendant given two concurrent life sentences

“should have been credited on both life sentences with time

spent in jail awaiting trial”). Accordingly, we hold that

defendant is entitled to credit for the time he spent in

liberties with a child. Thus, we must vacate the judgment

entered upon revocation of defendant’s probation and remand this

case to the trial court for entry of a new judgment crediting

defendant’s activated sentence with 413 days of prejudgment

confinement.

Vacated and remanded.

Judges ERVIN and MCCULLOUGH concur.

Report per Rule 30(e).