Appeal by defendant from order entered 27 August 2007 by Judge
Gary L. Locklear in Cumberland County Superior Court. Heard in the
Court of Appeals 25 September 2008.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth F. Parsons, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant appellant.
McCULLOUGH, Judge.
Defendant Bobby E. Bowden appeals from an order denying his
motion for appropriate relief. For the reasons stated herein, we
reverse and remand for further proceedings.
I. Background
On 20 December 1975, defendant Bobby E. Bowden was convicted
of two counts of first-degree murder in Cumberland County Superior
Court and later sentenced to death. On 5 October 1976, our Supreme
Court vacated defendant's death sentences and remanded so that life
sentences could be imposed.
State v. Bowden, 290 N.C. 702, 717,
228 S.E.2d 414, 424 (1976). On 26 October 1975, defendant was
given two life sentences, which are presumed to run concurrently.
See Jernigan v. State, 279 N.C. 556, 563, 184 S.E.2d 259, 265
(1971) (stating that sentences imposed in the same jurisdiction and
to be served at the same place or prison are presumed to run
concurrently).
Defendant has been in the custody of the Department
of Correction since 20 December 1975. Defendant became eligible
for parole in 1987, and has since received annual parole reviews.
On 12 December 2005, defendant filed a Petition for the
Issuance of a Writ of
Habeas Corpus ad Subjiciendum, arguing that
after applying all of his sentence reduction credits, he had
completed his 80-year sentence and, therefore, was entitled to
immediate release. When defendant committed the offenses, N.C.
Gen. Stat. § 14-2
(1974) provided that a life sentence should be
considered as imprisonment for 80 years.
Id. Defendant contended
that he should have received good time and good conduct credit
required by the 1981 Retroactive Provision of the Fair Sentencing
Act, which would cut his sentence in half, reducing his 80-year
sentence to 40 years. Defendant also asserted that he had
accumulated 210 days of good conduct credit, 753 days of
meritorious credit, and 1,537 days of gain time credit. On 25
January 2006, the trial court denied his petition.
Defendant appealed to our Court and we treated the matter as
a motion for appropriate relief. We vacated the trial court's
order and remanded the matter, ordering the trial court to conduct
“an evidentiary hearing pursuant to N.C. Gen. Stat. § 15A-1420" to
resolve issues of fact raised in defendant's petition. The trial court conducted an evidentiary hearing on 27 August
2007, during which defendant provided detailed records from the
Department of Correction regarding his sentence reduction credits.
Initially, the Department of Correction's records indicated that
all of defendant's good conduct time, merit time, and gain time
credits had been applied to his sentence. However, for reasons
unclear to this Court, the Department of Correction later
retroactively changed the status of defendant's sentence reduction
credits from “applied” to “pending.”
The trial court issued an order on 27 August 2007, denying
defendant's claim for relief. In its order, it concluded that N.C.
Gen. Stat. § 14-2 (1974) only requires the Department of Correction
to treat defendant's life sentence as a term of 80 years for
purposes of parole eligibility. From this order, defendant
appeals.
II. Issues
This Court reviews a trial court's conclusions of law on a
motion for appropriate relief
de novo.
State v. Wilkins, 131 N.C.
App. 220, 223, 506 S.E.2d 274, 276 (1998) (citation omitted).
Defendant contends that the trial court erred by denying his motion
for appropriate relief. Specifically, defendant argues that N.C.
Gen. Stat. § 14-2 (1974) grants him a statutory right to have his
life sentence treated as an 80-year sentence for all purposes,
including the determination of his unconditional release date. We
agree and reverse and remand.
III. Discussion
At the time defendant committed the offenses, N.C. Gen. Stat.
§ 14-2 provided the following:
Every person who shall be convicted of any
felony for which no specific punishment is
prescribed by statute shall be punished by
fine, by imprisonment for a term not exceeding
10 years, or by both, in the discretion of the
court.
A sentence of life imprisonment shall
be considered as a sentence of imprisonment
for a term of 80 years in the State's prison.
N.C. Gen. Stat. § 14-2 (1974) (emphasis added). The State argues
that N.C. Gen. Stat. § 14-2 (1974) does not govern the length of
defendant's sentence in prison, but applies only when determining
his eligibility for parole. Defendant asserts that the statute
requires his life sentence to be considered as a sentence of 80
years for all purposes, and therefore, the Retroactive Provision of
the Fair Sentencing Act reduces his sentence to 40 years.
(See footnote 1)
The State asserts that the statute is ambiguous. It argues
that a life sentence cannot be defined in terms of years because
when a person is sentenced to life, he or she is imprisoned for the
term of his natural life. Furthermore, the State contends that
N.C. Gen. Stat. § 14-2 should not be read alone, but must be
interpreted in conjunction with N.C. Gen. Stat. § 148-58 (1974),
which provides as follows:
All prisoners shall be eligible to have their
cases considered for parole when they have
served a fourth of their sentence, if theirsentence is determinate, and a fourth of their
minimum sentence, if their sentence is
indeterminate; provided, that
any prisoner
serving sentence for life shall be eligible
for such consideration when he has served 20
years of his sentence. Nothing in this
section shall be construed as making mandatory
the release of any prisoner on parole, but
shall be construed as only guaranteeing to
every prisoner a review and consideration of
his case upon its merits.
Id. (emphasis added). Defendant claims that since there was no way
to calculate a fourth of a life sentence, N.C. Gen. Stat. § 14-2
(1974) defined life as a term of 80 years so that prisoners with
life sentences would be eligible for parole after 20 years.
Defendant asks our Court to take judicial notice of a
statement contained in the State's brief in
State v. Richardson,
295 N.C. 309, 245 S.E.2d 754 (1978), and we grant defendant's
request. An appellate court may take judicial notice of the public
records of other courts within the state judicial system.
Whitmire
v. Cooper, 153 N.C. App. 730, 735 n.4, 570 S.E.2d 908, 911 n.4
(2002),
disc. review denied, appeal dismissed, 356 N.C. 696, 579
S.E.2d 104 (2003). Accordingly, we take judicial notice of the
following sentence: “The State agrees with the defendant that
credit is now provided to those serving a life sentence since
N.C.G.S. § 14-2 makes a life sentence equivalent to 80 years.”
Here, the State concedes to what defendant is currently arguing.
Our judicial notice of this sentence is dispositive to the issue of
whether defendant's life sentence is equivalent to 80 years for
purposes other than parole eligibility. Even without our judicial notice of the statement above, we
still hold that N.C. Gen. Stat. § 14-2 (1974) treats defendant's
life sentence as an 80-year sentence for all purposes.
Our Supreme
Court has previously considered a life sentence to be equivalent to
80 years, pursuant to N.C. Gen. Stat. § 14-2 (1974), for purposes
other than parole eligibility.
See State v. Williams, 295 N.C.
655, 679, 249 S.E.2d 709, 725 (1978)
;
see also Richardson, 295 N.C.
at 318-19, 245 S.E.2d at 760-61. In
Richardson, our Supreme Court
considered the defendant's life sentence to be the equivalent of 80
years for purposes of determining his pretrial incarceration
credit.
Id. In W
illiams, our Supreme Court decided that each of
the defendant's life sentences was equal to 80 years for purposes
of adding his consecutive sentences and determining his total
sentence of 300 years.
Williams, 295 N.C. at 679-80, 249 S.E.2d at
725.
We do not read this statute to be ambiguous nor do we find
that it must be read in conjunction with N.C. Gen. Stat. § 148-58
(1974). The plain language of the statute states that life
imprisonment shall be considered as a sentence of imprisonment for
a term of 80 years in the State's prison without any limitation or
restriction. We are not permitted to interpolate or superimpose
provisions or limitations which are not contained in the text of
the statute.
Sonopress, Inc. v. Town of Weaverville, 139 N.C. App.
378, 383, 533 S.E.2d 537, 539 (2000). Had our Legislature intended
that N.C. Gen. Stat. § 14-2 (1974) only apply when determining a
prisoner's parole eligibility, it would have been a simple matterto have included that explicit phrase.
See In re Appeal of Bass
Income Fund, 115 N.C. App. 703, 706, 446 S.E.2d 594, 596 (1994).
Contrary to the State's assertion, N.C. Gen. Stat. § 14-2
(1974) does not give the Department of Correction authority to
commute all life sentences to 80 years. Instead, the Legislature
merely defines the term of life imprisonment, which it has the
authority to do. Our Legislature is granted the power and the
authority to define crimes and set punishment for those crimes.
Jernigan, 279 N.C. at 564, 184 S.E.2d at 265 (stating that the
Legislature has exclusive power to determine the State's
penological system and prescribe punishments for crime). In light
of our decision to remand, it is unnecessary to address the
remaining issues briefed on appeal.
IV. Conclusion
We hold that N.C. Gen. Stat. § 14-2 (1974) requires that
defendant's life sentence is considered as an 80-year sentence for
all purposes. We reverse the trial court's order and remand for a
hearing to determine how many sentence reduction credits defendant
is eligible to receive and how those credits are to be applied.
Reversed and Remanded.
Judges TYSON and CALABRIA concur.
Footnote: 1