An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Proced ure.

NO. COA02-254


Filed: 21 October 2003


v .                             Haywood County
                                Nos. 95 CRS 4258
KIM LEE BONSTEEL                        95 CRS 4259

    Appeal by the State from judgment entered 3 January 2001 by Judge J. Marlene Hyatt in Haywood County Superior Court. Heard in the Court of Appeals 8 September 2003.

    Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State.

    Janna D. Allison for defendant-appellee.

    EAGLES, Chief Judge.

    This appeal arises from the State's petition for writ of certiorari seeking review of an order entered 3 January 2001, modifying the sentence imposed against defendant by a judgment originally entered on 15 August 1995.
    The record tends to establish the following: On 15 August 1995, defendant was convicted of numerous criminal and traffic offenses, including four counts of assault with a deadly weapon on a government officer, driving while impaired, failure to stop for a blue light and siren, reckless driving, speeding to elude, and resisting arrest. At the time of trial and sentencing, defendant contended that North Carolina's courts had no jurisdiction or authority over him. Consequently, defendant waived his right tocounsel, refused to take part in his trial, presented no evidence of mitigating factors at sentencing, and refused to consent to the imposition of either community or intermediate punishment. Judge J. Marlene Hyatt sentenced defendant to imprisonment for four consecutive 20 to 24 month terms, one for each count of assault on a government officer. Defendant was also sentenced to consecutive terms of one year on the DWI and 90 days for all remaining misdemeanors.
    In prison, defendant immediately became a disciplinary problem and spent the majority of his first eighteen months of incarceration in full-time lock down. Following his transfer to another facility, defendant changed his ways and began to take advantage of the educational and vocational opportunities available to him. Defendant subsequently became a model prisoner, earning a vocational diploma in carpentry as well as a degree in electronics engineering.
    On 15 September 2000, defendant filed a motion for appropriate relief, namely a new sentencing hearing, based on defendant's lack of understanding of sentencing procedures, and failure to offer evidence of mitigating circumstances during his original sentencing hearing. The matter was heard on 3 January 2001 by Judge J. Marlene Hyatt. At the time of this hearing, defendant had two consecutive 20 to 24 month sentences left to serve. Defendant presented testimony concerning his academic and vocational achievement in prison, rehabilitation, remorse, and ties within the community. Defendant conceded there was no “legal” basis for granting hismotion under G.S. § 15A-1415(b); rather, defendant contended that the trial court had the inherent, “equitable” authority “to change the conditions of the sentence.” Following the hearing, the trial court modified the original judgment, imposing community punishment for the balance of defendant's original sentence. The State petitioned for writ of certiorari to review Judge Hyatt's order, which we granted on 4 May 2001.
    The sole issue presented is whether, based on this record, the trial court had authority to reconsider and modify the terms of defendant's original judgment and sentence. We conclude the trial court lacked authority. Accordingly, we vacate the judgment entered on 3 January 2001.
    G.S. § 15A-1415(b) sets forth the only grounds upon which a motion for appropriate relief may be based when made more than ten days after the entry of judgment. Moreover, this Court has already concluded that “a trial court does not have authority to resentence a criminal defendant for discretionary reasons after the expiration of the session of court in which he was originally sentenced where no error of law appears upon the face of the judgment.” State v. Bonds, 45 N.C. App. 62, 65, 262 S.E.2d 340, 343, appeal dismissed and disc. review denied, 300 N.C. 376, 267 S.E.2d 687, cert. denied, 449 U.S. 883, 66 L. Ed. 2d 107 (1980).
    Here, the original judgment was entered over five years before defendant filed his motion for appropriate relief. Moreover, defendant concedes that his motion is not based on any of the grounds enumerated in G.S. § 15A-1415(b), and no errors of lawappear on the face of the original judgment. Applying Bonds, we hold the trial court lacked authority to modify the sentence imposed under defendant's original judgment. Accordingly, the judgment is vacated and the matter is remanded to the superior court for reimposition of the defendant's original sentence.
    Vacated and remanded.
    Judges McCULLOUGH and STEELMAN concur.
    Report per Rule 30(e).

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