STATE OF NORTH CAROLINA
v. Wake County
No. 05 CRS 82975
DONALD M. TODD
Attorney General Roy Cooper, by Assistant Attorney General J.
Philip Allen, for the State.
Thorsen Law Office, by Haakon Thorsen, for defendant-
appellant.
LEVINSON, Judge.
Donald M. Todd (defendant) pled guilty on 18 October 2005 to
breaking or entering and felony larceny and was sentenced to
consecutive terms of ten to twelve months imprisonment.
The trial
court suspended defendant's sentences and placed him on supervised
probation for thirty-six months.
On 2 December 2005, a probation violation report was filed
alleging that defendant had failed to comply with the terms of his
probation in that he failed to make any payments toward his
monetary obligations
and had absconded.
On 10 May 2006, the trial court held a probation violation
hearing at which defendant admitted violating his probation. TheState sought revocation of defendant's probation and recommended
that defendant's sentences run concurrent with a sentence he was
presently serving. However, the trial court declined to adopt the
State's recommendation concerning sentencing. The trial court
revoked defendant's probation, activated the suspended sentences
and ordered that the sentences run consecutive to the sentences
defendant was then serving.
Defendant appeals.
Defendant's sole argument on appeal is that the trial court
failed to exercise its discretion pursuant to N.C. Gen. Stat. §
15A-1344(d)
(2005) when it ordered his sentences to run consecutive
to a sentence he was already serving. At the sentencing hearing,
when the State made its recommendation, the court responded
“[c]an't do it.” Defendant contends this statement indicates that
the trial court believed it lacked authority to exercise any other
option and that the trial court did not exercise its discretion.
We disagree.
In State v. Partridge, 110 N.C. App. 786, 431 S.E.2d 550
(1993), this Court reversed a defendant's probation revocation
where the trial court declined to modify defendant's sentences so
that they would run concurrently rather than consecutively. In
declining to do so, the trial court indicated that it believed it
did not have the authority to modify the sentences to run
concurrently. Id. at 788, 431 S.E.2d at 551-52. Here, however,
the trial court did not indicate that it believed it was without
authority or that it had no alternative other than to order
defendant to serve his sentences consecutive to the sentence he wasalready serving. Rather, the trial court ordered that the first
activated sentence run at the expiration of the sentence defendant
was then serving because it believed that defendant was “not a nice
guy.” The Court explained:
He's going to skate, is what y'all wanted me
to do. He has a prior conviction of breaking
and entering. He's got a bunch of stuff. I
mean, I just think he ought to get punished
for it.
It is apparent that the trial court exercised its discretion and
imposed the punishment it believed was appropriate.
Affirmed.
Judges McCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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