NO. COA02-177
Appeal by defendants from judgments entered 8 November 2001 by
Judge Jack A. Thompson in Robeson County Superior Court. Heard in
the Court of Appeals 16 October 2002.
Attorney General Roy Cooper, by Assistant Attorney
General John G. Barnwell, for the State.
Robert P. Mosteller, Duke University School of Law, for
defendant-appellants.
BIGGS, Judge.
Defendants each appeal from the imposition of consecutive
sentences of life imprisonment. The relevant facts may be
summarized as follows: In 1979, following a joint trial, defendants
were convicted of the first degree murder and armed robbery of
Allen Watts and Dayton Hodge. Oliver received death sentences for
each of the murders. Moore was sentenced to death for Watts'
murder, and to life imprisonment for Hodge's murder. The trial
court did not indicate in its judgment whether these sentences were
to run concurrently or consecutively. On appeal, the North
Carolina Supreme Court affirmed the defendants' convictions of all
offenses, and the sentence of life imprisonment imposed on Moore. However, the Court vacated the death sentences imposed on both
defendants, and remanded for a new sentencing hearing. State v.
Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981). On remand, the jury
again recommended death sentences for both defendants, and the
trial court sentenced Oliver to two death sentences, and sentenced
Moore to death for Watts' murder. Defendants once again appealed
these sentences. The North Carolina Supreme Court affirmed the
death sentence imposed on Oliver for Hodge's murder, vacated the
death sentences imposed on each defendant for the killing of Watts,
and remanded for a third sentencing hearing. State v. Oliver, 309
N.C. 326, 307 S.E.2d 304 (1983). The State scheduled the new
resentencing for November, 2001. In the interim, defendant Oliver
pursued a motion for appropriate relief (MAR), and in 1994,
following a hearing on his MAR, the trial court vacated the death
sentence that Oliver received for killing Hodge.
At the November, 2001 resentencing, the State elected not to
pursue the death penalty, leaving life imprisonment as the only
permissible penalty for defendants' convictions of first degree
murder. See N.C.G.S. § 14-17 (2001). The court sentenced
defendant Oliver to two sentences of life imprisonment to run
consecutively, and defendant Moore to a sentence of life
imprisonment, to run consecutively to the life sentence he was
already serving. Thus, each defendant was sentenced to consecutive
life sentences. Defendants again appeal.
The sole issue raised on appeal is whether the trial court
erred by imposing consecutive, rather than concurrent, sentences of
life imprisonment. Defendants contend that their original
sentences were imposed concurrently, and that, therefore, the trial
court's imposition of consecutive sentences on remand violated
N.C.G.S. § 15A-1335 (2001). We conclude that, irrespective of
whether their original death sentences were concurrent or
consecutive, the court did not violate the statute by entering
consecutive life sentences on remand.
N.C.G.S. § 15A-1335 provides that:
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.
See State v. Holt, 144 N.C. App. 112, 117, 547 S.E.2d 148, 152
(2001) (“life sentence on resentencing exceeds [defendant's]
original sentence of 196 to 245 months, and thus violates §
15A-1335”). When multiple sentences are involved, N.C.G.S. § 15A-
1335 bars the trial court from imposing an increased sentence for
any of the convictions, even if the total term of imprisonment does
not exceed that of the original sentence.
State v. Nixon, 119 N.C.
App. 571, 459 S.E.2d 49 (1995) (“the prohibition against imposing
more severe sentences after appeal . . . applies to offenses chargedand convictions thereon, not to an aggregate term of years”) (citing
State v. Hemby, 333 N.C. 331, 426 S.E.2d 77 (1993)).
However, N.C.G.S. § 15A-1335 does not prohibit the trial
court's replacement of concurrent sentences with consecutive
sentences upon resentencing, provided neither the individual
sentences, nor the aggregate sentence, exceeds that imposed at the
original sentencing hearing.
State v. Ransom, 80 N.C. App. 711, 343
S.E.2d 232 (1986). In
Ransom, the defendant initially received a
consolidated sentence of twenty years for multiple offenses. On
remand following appeal, the court sentenced him to six consecutive
three year sentences, for a total of eighteen years. This Court
found no violation of N.C.G.S. § 15A-1335 in the trial court's
replacement of concurrent sentences with consecutive sentences:
[T]he issue [is] 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.
Id. at 713-714, 343 S.E.2d at 234 (emphasis added).
See also State
v. Harris, 115 N.C. App. 42, 444 S.E.2d 226 (1994) (G.S. 15A-1335
does not restrict trial court on resentencing “from correcting the
way in which it consolidated offenses” initially).
We find no violation of N.C.G.S. § 15A-1335 in the case
subjudice. We reject defendants' argument, that by replacing Oliver's
concurrent death sentences with consecutive life sentences, and
Moore's death sentence with a second life sentence to run
consecutively to the life sentence originally entered, the court
violated the statute by entering a more severe sentence. Any number
of life sentences, even if imposed consecutively, cannot be
considered a greater sentence than even one death sentence, because
“the penalty of death is qualitatively different from a sentence of
imprisonment, however long.”
Woodson v. North Carolina, 428 U.S.
280, 49 L. Ed.2d 944 (1976). The United States Supreme Court has
stated:
'The penalty of death differs from all other
forms of criminal punishment, not in degree but
in kind. It is unique in its total
irrevocability. It is unique in its rejection
of rehabilitation of the convict as a basic
purpose of criminal justice. And it is unique,
finally, in its absolute renunciation of all
that is embodied in our concept of humanity.'
Harmelin v. Michigan, 501 U.S. 957, 995, 115 L. Ed. 2d 836, 865
(1991) (quoting
Furman v. Georgia, 408 U.S. 238, 306, 33 L. Ed. 2d
346, 388). Although our appellate courts have not previously
addressed this issue, a Wyoming court, in
Turner v. State, 624 P.2d
774 (Wyo. 2 March 1981), held that replacement of two death
sentences with consecutive life sentences did not increase
defendant's sentence:
To prevail, [defendant] must establish . . .
that two death sentences to run concurrently,
or even one, is not as severe as two sentencesof life imprisonment to run consecutively. He
fails to do so. Life is precious.
We hold that the trial court did not violate N.C.G.S. § 15A-1335 by
imposing consecutive life sentences. Accordingly, the sentences
imposed by the trial court are
Affirmed.
Judges MCGEE and HUDSON concur.
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