1. Sentencing--Fair Sentencing Act--Structured Sentencing Act--combined sentences
not permitted
The trial court did not err in a breaking and entering and larceny case by resentencing
defendant based on the theory that offenses committed prior to 1 October 1994 could not be
combined with offenses committed after that date, because defendant's offenses committed on
19 September 1994 were controlled by the Fair Sentencing Act and his offenses committed on 4
October 1994 were subject to the Structured Sentencing Act.
2. Sentencing--plea bargain--consolidated offenses not required
The trial court did not violate defendant's plea bargain in a breaking and entering and
larceny case by failing to consolidate the two offenses under Structured Sentencing even though
the offenses occurred under different sentencing schemes because the guilty plea was made
before the discrepancy in sentencing schemes was brought to the trial court's attention, and the
State kept its end of the bargain by dismissing two other breaking and entering charges.
3. Sentencing--resentencing hearing--trial court as a matter of law can vacate an
invalid sentence
The trial court did not unlawfully hold a resentencing hearing in a breaking and entering
and larceny case since the Department of Correction's letter alerting the trial court of its
erroneous sentence was not a motion for appropriate relief, and the trial court as a matter of law
has authority to vacate the invalid sentence and resentence defendant accordingly even if the
term of court has expired.
4. Appeal and Error--preservation of issues--constitutional questions--not raised in
trial court or in a motion
Defendant in a breaking and entering and larceny case did not properly raise the issues of
the violation of double jeopardy and his due process rights because constitutional questions not
raised to the trial court or in a motion will not be considered on appeal.
Appeal by defendant from order entered 27 January 1998 by
Judge Robert H. Hobgood in Franklin County Superior Court.
Certiorari granted 24 March 1998. Heard in the Court of Appeals28 April 1999.
Attorney General Michael F. Easley, by Assistant Attorney
General Teresa L. Harris, for the State.
N.C. Prisoner Legal Services, Inc., by Kathryn L.
VandenBerg, for defendant-appellee.
LEWIS, Judge.
Defendant pled guilty on 30 January 1995 to two counts each
of breaking and entering and of larceny. The first offense was
committed 19 September 1994; the second committed 4 October 1994.
Both offenses were combined and on 30 January 1995 defendant was
sentenced to twelve to fifteen months in jail under the
guidelines of the Structured Sentencing Act of 1994. The
Department of Correction contacted the Clerk of Superior Court in
Franklin County and informed the court that offenses committed
prior to 1 October 1994 could not be combined with offenses
committed after that date. Accordingly defendant was resentenced
in May 1995. Before resentencing, defendant acknowledged, both
verbally and in writing, that he could receive a maximum
punishment of ten years plus ten years for the September charges
and a maximum of 60 months for the October charges. At the
resentencing hearing defendant received twelve to fifteen months
for the offenses committed 4 October 1994 under the Structured
Sentencing Act. Under the Fair Sentencing Act defendant received
ten years for the offenses committed 19 September 1994. Defendant filed a motion for appropriate relief 23 January 1998,
and that motion was denied and dismissed on 27 January 1998.
Defendant argues that the May 1995 resentencing was illegal
for four reasons: (1) there was no prohibition on consolidating
offenses committed before and after the implementation of the
Structured Sentencing Act of 1994; (2) the new sentence violated
defendant's earlier plea bargain; (3) the resentencing hearing
was unlawful; and (4) the increased sentence was illegal. We
disagree with all of defendant's arguments on appeal and affirm
the resentencing.
[1]First, defendant contends that there was no outright ban
against consolidating offenses committed before the
implementation of the Structured Sentencing Act, N.C. Gen. Stat.
§ 15A-1340.10 et seq. (1997), with offenses committed after the
act was implemented. The implementation of the Structured
Sentencing Act is analogous to the implementation of the Fair
Sentencing Act of 1981, N.C. Gen. Stat. § 15A-1340.1 (1988)
(repealed 1993). Sentences for offenses committed before the
effective date of the Fair Sentencing Act were in accord with the
law as it existed before that date. See State v. Burton, 114
N.C. App. 610, 615, 442 S.E.2d 384, 387 (1994); State v. Jones,
66 N.C. App. 274, 279, 311 S.E.2d 351, 354 (1984). Similarly,
offenses that were committed prior to 1 October 1994, theeffective date of the Structured Sentencing Act, fall under the
sentencing guidelines of the Fair Sentencing Act as a matter of
law. See Burton, 114 N.C. App. at 610, 442 S.E.2d at 387.
Therefore, the conviction for breaking and entering and larceny
committed 19 September 1994 was controlled by the Fair Sentencing
Act, and the breaking and entering and larceny committed 4
October 1994 was subject to the Structured Sentencing Act. Id.
See also N.C.G.S. § 15A-1340.1 to -1340.7; N.C.G.S. §§ 15A-
1340.10 et seq. Defendant's first argument is without merit.
[2]Defendant next contends that the new sentence violated
his earlier plea bargain. Defendant claims that in exchange for
his guilty plea the State would consolidate the two offenses
under Structured Sentencing even though it knew that the offenses
occurred under different sentencing schemes. This is an improper
interpretation of the plea bargain. The actual terms were that
in exchange for a guilty plea on the aforementioned charges the
State would dismiss two other breaking and entering charges,
provided that defendant began serving his sentence for the plea
after he completed the ten year sentence he was then currently
serving. The transcript clearly demonstrates that the sentences
were consolidated after the plea was entered. The guilty plea
was made before the discrepancy in sentencing schemes was brought
to the trial court's attention. The plea bargain was notviolated by the resentencing because the State kept its end of
the bargain and did not reinstate the two other charges. See
State v. Rodriguez, 111 N.C. App. 141, 144, 431 S.E.2d 788, 790
(1993). See also U.S. v. Fentress, 792 F.2d 461, 464 (4th Cir.
1986) (applying North Carolina law).
[3]Defendant's next issue on appeal is that the
resentencing hearing was unlawful. Defendant first contends that
the resentencing hearing was unlawful because the state illegally
filed a motion for appropriate relief. Specifically, defendant
argues that the letter from the Department of Correction alerting
the trial court of the erroneous sentence was, in essence, a
motion for appropriate relief, and this motion was not filed
within the statutory period of 10 days. N.C. Gen. Stat. § 15A-
1416 (1997). We disagree.
A motion for appropriate relief is a post-verdict or post-
sentencing motion made to correct errors occurring during and
after a criminal trial. State v. Small, 131 N.C. App. 488, 494,
508 S.E.2d 799, 803 (1998). To properly file a written motion
for appropriate relief, it must state the grounds for the motion,
set forth the relief sought, be timely filed with the clerk, and
be served in accordance to N.C. Gen. Stat. § 15A-951(b) (1997).
N.C. Gen. Stat. § 15A-1420 (1997). This letter was not a motion
for appropriate relief. It was a form letter, alerting the trialcourt to its error in applying the law as to the sentence. Upon
learning of its error the trial court vacated its previous
unlawful sentence and imposed a sentence using the appropriate
applicable law. See State v. Rollins, 131 N.C. App. 601, 607,
508 S.E.2d 554, 558 (1998) (previous sentence vacated for the
purpose of resentencing when prior sentence invalid).
Defendant also contends that the resentencing hearing was
illegal because the trial court had no jurisdiction over the
matter because the term of court had expired. If a judgment is
invalid as a matter of law, North Carolina Courts have the
authority to vacate the invalid sentence and resentence the
defendant accordingly, even if the term has ended. See State v.
Bonds, 45 N.C. App. 62, 64, 262 S.E.2d 340, 342 (1980). Specifically, N.C.G.S. [§] 15A-1415(b)(8)
allows relief to be granted when a prison
sentence was “unauthorized at the time
imposed, exceeded the maximum authorized by
law, was illegally imposed, or is otherwise
invalid as a matter of law.” If resentencing
is required, the trial division may enter an
appropriate sentence. N.C. Gen. Stat. 15A-
1417(c).
Id. at 63-64, 262 S.E.2d at 342 (emphasis added). Defendant's
sentence for the breaking and entering committed 19 September
1994 was unauthorized at the time imposed because it applied
inappropriate sentencing law. See Burton, 114 N.C. App. at 615,
442 S.E.2d at 387. As a matter of law, the conviction for the
offenses committed 19 September 1994 were subject to the Fair
Sentencing Act. Id. As a matter of law, the offenses committed
4 October 1994 were punishable as prescribed by the Structured
Sentencing Act. N.C.G.S. § 15A-1340.10. As such, the trial
court was authorized to resentence defendant using correct law.
[4]Defendant's final argument on appeal is that the
increased sentence was illegal because it violated double
jeopardy and due process under the Constitution. This argument
is not properly before this Court.
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. . . . Any such question whichwas properly preserved for review by action
of counsel . . . may be made the basis of an
assignment of error in the record on appeal.
N.C.R. App. P. 10(b)(1) (1999) (emphasis added). In the
resentencing hearing and in his motion for appropriate relief
defendant failed to address the increased sentence; he argued
only that the sentences should have been consolidated. In
addition, defendant never addressed the constitutionality of the
resentencing. Our Supreme Court has made it clear that
constitutional questions not raised to the trial court or in a
motion will not be considered on appeal. See State v. Gibbs, 335
N.C. 1, 42, 436 S.E.2d 321, 344 (1993), cert. denied, 512 U.S.
1246, 129 L. Ed. 2d 881 (1994). Since he failed to make the
constitutional argument either at the resentencing hearing or in
his motion for appropriate relief, defendant may not present the
argument to this Court. See id.
Affirmed.
Judges TIMMONS-GOODSON and HORTON concur.
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