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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. WILLIAM S. LUTZ
Filed: 4 April 2006
Probation and Parole_revocation_credit for time served_substance abuse program
Defendant was confined and in custody while in a substance abuse program and the trial
court erred by denying his motion for credit for that time when his probation was revoked.
Appeal by defendant from judgment entered 8 April 2005 by
Judge Jerry Braswell in Wayne County Superior Court. Heard in the
Court of Appeals 9 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
N.C. Prisoner Legal Services, Inc., by Mary E. McNeill, for
William S. Lutz (defendant) appeals from judgment entered
denying his motion for credit against his active sentence. We
reverse and remand for resentencing.
On 24 March 2004, defendant pled guilty to four counts of
forgery and one count of embezzlement. Defendant was sentenced to
a term of a minimum of eight months and a maximum of ten months
imprisonment, consistent with the plea agreement. The trial court
suspended defendant's sentence and placed him on thirty-six months
supervised probation. Defendant was ordered to attend a substance
abuse program (DART-Cherry) for ninety days as a special
condition of his probation. The trial court ordered defendant to be incarcerated until
space became available at DART-Cherry. On 28 April 2004, defendant
entered the program. Defendant spent ninety-one days at DART-
Cherry and successfully completed the program on 28 July 2004.
On 18 November 2004, a probation violation report was filed
against defendant alleging positive drug tests, failure to pay the
supervision fee, and failure to report to his probation officer.
The trial court found defendant had wilfully violated the terms and
conditions of his probation. The trial court revoked defendant's
probation and activated his suspended sentence of eight to ten
months imprisonment. The trial court credited defendant for time
served in the Wayne County jail awaiting entry into DART-Cherry.
Defendant filed a motion for credit against his active
sentence for his time spent at DART-Cherry on 11 March 2005,
pursuant to N.C. Gen. Stat. § 15-196.1. On 8 April 2005, an
evidentiary hearing was held and the trial court denied defendant's
motion for credit against his sentence. Defendant appeals.
Defendant argues he is entitled to credit against his active
sentence for the days he was in the control and custody of the
State at DART-Cherry.
III. Standard of Review
Our standard of review for a motion for appropriate relief is
well established. When a trial court's findings on a motion for
appropriate relief are reviewed, these findings are binding if they
are supported by competent evidence and may be disturbed only upona showing of manifest abuse of discretion. However, the trial
court's conclusions are fully reviewable on appeal. State v.
Wilkins, 131 N.C. App. 220, 223, 506 S.E.2d 274, 276 (1998)
(internal citations omitted).
IV. Credit Against Sentence
his sentence should be credited for the days
he spent at DART-Cherry pursuant to State v
, 356 N.C. 132,
567 S.E.2d 124 (2002). We agree.
N.C. Gen. Stat. . 15-196.1 (2005) provides:
The minimum and maximum term of a sentence
shall be credited with and diminished by the
total amount of time a defendant has spent,
committed to or in confinement in any state or
local correctional, mental or other
institution as a result of the charge that
culminated in the sentence. The credit
provided shall be calculated from the date
custody under the charge commenced and shall
include credit for all time spent in custody
pending trial, trial de novo, appeal, retrial,
or pending parole, probation, or post-release
supervision revocation hearing: Provided,
however, the credit available herein shall not
include any time that is credited on the term
of a previously imposed sentence to which a
defendant is subject.
Our Supreme Court has stated, [t]he langauge 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).
In State v. Hearst, our Supreme Court also considered the
conditions of confinement at a State ordered rehabilitation program
(IMPACT) and held that where the defendant was ordered to attendthe program as a condition of his probation and had to relinquish
his freedom to the IMPACT staff, the defendant was confined. 356
N.C. 138, 140, 567 S.E.2d 129, 130 (2002). The Court also held
that the environment at IMPACT presented a custodial situation
wherein the defendant was denied his liberty even though the
facility was not locked or fenced, and the defendant could have
left at anytime. Id. at 139, 567 S.E.2d at 129. The defendant was
ordered to attend treatment at IMPACT, or he would have been in
violation of the special conditions of probation and subject to
having his sentence activated. Id. The Court noted that [w]hile
trainees may be 'free to leave' IMPACT, those who fail or withdraw
from the program face the probability of returning to prison. Id.
at 140, 567 S.E.2d at 130.
A. Confinement and Custody
Our Supreme Court defined, 'confinement' . . . as 'the act
of imprisoning or restraining someone; the state of being
imprisoned or restrained,' while 'custody' is defined as 'the care
and control of a thing or person for inspection, preservation, or
security.' Id. (citing Black's Law Dictionary (7th ed. 1999)).
The Court also stated, Black's Law Dictionary also specifically
defines types of custody such as 'penal custody' and 'physical
custody.' Id. Penal custody is defined as 'custody intended to
punish a criminal offender' and physical custody is defined as
'custody of a person . . . whose freedom is directly controlled and
While at DART-Cherry, defendant's freedom [was] directly
controlled and limited. Id. During the evidentiary hearing on
defendant's motion for credit against his sentence, the State
conceded defendant was confined at DART-Cherry. The State now
asserts defendant was not confined while being treated at DART-
Cherry and argues conditions at DART-Cherry are dissimilar to the
conditions at IMPACT because here defendant was: (1) allowed
several breaks and free time; (2) not required to do any physical
labor; (3) required to be up at 5:30 a.m. instead of 4:30 a.m.; and
(4) required to be in bed by 10:30 p.m. instead of 8:30 p.m.
Defendant contends he was ordered to attend DART-Cherry as a
special condition of his probation, as was the defendant in Hearst.
If defendant failed to attend the program or withdrew from the
program, his sentence could have been activated. Defendant was not
allowed to speak with other DART-Cherry participants while in
hallways. If he violated that rule, the staff could require him to
write a paper or perform extra hours of cleaning or clearing land.
Although no guards were stationed on the premises, he was told that
if he left the facility he would be charged with escape. If
charged, defendant testified he was told that six more months
would be added to his sentence in addition to facing a probation
Defendant was confined and in custody pursuant to the plain
meaning of those words and our Supreme Court's analysis in Hearst.
Defendant's freedom and liberty were limited by the programs and
daily schedule. Although defendant could leave or withdraw fromthe program at anytime, he was told if he did so he would be
charged with additional crimes and have his suspended sentence
Defendant was in confinement and not at liberty at DART-
, 336 N.C. at 556, 444 S.E.2d at 185. Pursuant to
N.C. Gen. Stat. § 15-196.1, defendant is entitled to be credited
for the ninety-one days spent at DART-Cherry. The trial court
erred in denying defendant's motion for credit against his
sentence. We reverse and remand for resentencing with appropriate
credit consistent with this opinion.
Reversed and Remanded.
Judges MCCULLOUGH and LEVINSON concur.
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