STATE OF NORTH CAROLINA
v. New Hanover County
No. 99 CRS 1723
VICTOR FRANCISCO VALLADARES
Attorney General Roy Cooper, by Special Deputy Attorney
General Jonathan P. Babb, for the State.
Robert T. Newman, Sr., for defendant appellant.
BIGGS, Judge.
On 21 October 1999, Victor Francisco Valladares (defendant)
was convicted of three counts of trafficking in heroin in 99 CRS
1721, 99 CRS 1722, and 99 CRS 1723. He was also convicted of one
count of possession of heroin with intent to sell or deliver in 99
CRS 1720. The trial court consolidated the four offenses into two
judgments (hereafter “Judgment 1" and “Judgment 2"). In Judgment
1, the court consolidated the two heroin trafficking counts in 99
CRS 1721 and 99 CRS 1723, sentencing defendant to the mandatory
term of 70 - 84 months imprisonment. See N.C.G.S. § 90-95(h)(4)(a)
(1999). In Judgment 2, the court consolidated the third
trafficking count in 99 CRS 1722 with the possession charge in 99CRS 1720, imposing a second consecutive prison sentence of 70 - 84
months. On appeal, this Court found no error as to Judgment 2.
State v. Valladares, 143 N.C. App. 570, 547 S.E.2d 861 (2001)
(unpublished opinion). As to Judgment 1, this Court found no error
in the conviction for possession of heroin in 99 CRS 1723, but
vacated defendant's conviction for trafficking in heroin by
manufacture in 99 CRS 1721. Id.
The cause was remanded to the trial court, which held a re-
sentencing hearing on 26 July 2001. Defendant argued that the
court should consolidate the remaining trafficking offense from
Judgment 1 into Judgment 2. The trial court concluded that it had
no authority to revisit Judgment 2, which had been affirmed in all
respects on appeal. The trial court determined that only the
remaining offense from Judgment 1, 99 CRS 1723, was before it on
remand. Because the sentence for trafficking in heroin was
prescribed by statute, see N.C.G.S. § 90-95(h)(4)(a) (1999), the
trial court entered judgment in 99 CRS 1723, imposing a 70 - 84
month sentence. This sentence was to run consecutively to
defendant's sentence in Judgment 2, as required by N.C.G.S. § 90-
95(h)(6) (1999).
On appeal, defendant claims the trial court erred by failing
to conduct a de novo resentencing proceeding as to all three of his
convictions. Defendant argues that the court's failure to
recognize its own authority and discretion on remand to consolidate
the offenses from both Judgment 1 and Judgment 2 resulted in a
denial of his constitutional right to due process and equalprotection.
We note initially that defendant did not raise his due process
or equal protection claims in the trial court. “Constitutional
questions which are not raised and passed upon at trial will not be
considered on appeal.” State v. Gainey, 355 N.C. 73, 105, 558
S.E.2d 463, 484 (2002) (citing State v. Benson, 323 N.C. 318, 322,
372 S.E.2d 517, 519 (1988)).
Defendant avers that both Judgment 1 and Judgment 2 were
before the trial court on remand from our decision vacating the
conviction in 99 CRS 1721 contained in Judgment 1. In light of the
Supreme Court's decision in State v. Hemby, 333 N.C. 331, 333-34,
426 S.E.2d 77, 78 (1993), we disagree.
The defendant in Hemby was convicted of eight indictments,
which were consolidated for sentencing into three judgments. The
First Judgment covered the offenses alleged in indictments A, B,
and C; the Second Judgment covered indictments D, E, and F; and the
Third Judgment covered indictments G and H. Id. at 333, 426 S.E.2d
at 78. On appeal, this Court upheld defendant's convictions but
found sentencing errors in the first two judgments. “The Court of
Appeals upheld the two-year sentence imposed for indictments G and
H, but it vacated and remanded for resentencing indictments A, B,
C, D, E and F.” Id. On remand, the trial court did not revisit
the Third Judgment, finding that “indictments G and H were not
subject to resentencing since the . . . sentence on these
indictments had been upheld on appeal.” Id. at 334, 426 S.E.2d 78.
On appeal after re-sentencing, the Supreme Court held that thetrial court erred by sentencing defendant to a more severe sentence
than he had initially received. The Supreme Court in Hemby
remanded to the trial court for yet another sentencing hearing.
However, remand was expressly limited to those indictments which
had been before the trial court on re-sentencing. Excluded from
re-sentencing by the Supreme Court was the Third Judgment, which
contained the convictions in indictments G and H and had been
upheld in all respects in defendant's original appeal. Id. at 337,
426 S.E.2d at 80.
In this case, Judgment 2 was affirmed on appeal as to both the
convictions consolidated therein and the sentence imposed by the
trial court. Therefore, as with the Third Judgment in Hemby,
Judgment 2 was not before the trial court at defendant's re-
sentencing hearing because it had been affirmed in all respects on
appeal. The re-sentencing hearing conducted after defendant's
conviction in 99 CRS 1720 was vacated concerned only the remaining
conviction from Judgment 1, 99 CRS 1723. The trial court correctly
determined that it was without authority to revisit Judgment 2.
Defendant cites State v. Ransom, 80 N.C. App. 711, 343 S.E.2d
232 (1986), for the proposition that re-sentencing proceedings are
conducted de novo, leaving the trial court free to change the
manner in which it originally consolidated offenses for judgment.
In Ransom, however, all of the defendant's convictions were
consolidated into a single judgment prior to remand. On remand,
therefore, all of the convictions contained in this lone judgment
were before the court for re-sentencing. Ransom does notcontradict the principle reflected in Hemby that only a judgment
that has been disturbed on appeal is before the trial court on
remand. Defendant's reliance on Ransom is misplaced.
We agree with the trial court that it lacked the authority to
re-sentence defendant on Judgment 2 based on our decision vacating
a conviction in Judgment 1. Judgment 2 was affirmed in all
respects on appeal and, therefore, was not before the trial court
on remand. We note that defendant's sentence on remand in 99 CRS
1720 was compelled by the provisions of the drug trafficking
statute, N.C.G.S. § 90-95 (h)(4)(a), (6). Therefore, the fact that
defendant received the same sentence after one of the two
consolidated convictions in Judgment 1 was vacated did not violate
the provisions of N.C.G.S. § 15A-1335 (1999). See State v. Holt,
144 N.C. App. 112, 547 S.E.2d 148 (2001), disc. review dismissed as
improvidently allowed, 355 N.C. 347, 560 S.E.2d 793 (2002).
No error.
Judges WALKER and THOMAS concur.
Report per Rule 30(e).
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