State v. Wilkerson , 232 N.C. App. 482 ( 2014 )

NO. COA13-365
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA
Cumberland County
v. Nos. 91 CRS 1552-53, 1578, 1893,
1895, 2408
TERRANCE WILKERSON
Review stemming from the allowance of a petition for the
issuance of a writ of certiorari filed by the State challenging an
order entered 17 December 2012 by Judge Mary Ann Tally in
Cumberland County Superior Court. Heard in the Court of Appeals
26 September 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O’Brien, for the State.
Sarah Jessica Farber, for Defendant-Appellee.
ERVIN, Judge.
The State has sought appellate review of an order granting
Defendant Terrance Wilkerson’s motion for appropriate relief;
vacating judgments entered on 5 December 1991 stemming from
Defendant’s convictions for second degree burglary, three counts
of felonious breaking or entering, four counts of felonious
larceny, and two counts of possession of stolen property; and
resentencing Defendant to a term of 21 years imprisonment. On
appeal, the State contends that the trial court erroneously
concluded that the sentences contained in the original judgments
-2-
entered in these cases resulted in the imposition of a cruel and
unusual punishment upon Defendant. After careful consideration of
the State’s challenges to the trial court’s order in light of the
record and the applicable law, we conclude that the trial court’s
order should be reversed and that this case should be remanded to
the Cumberland County Superior Court for reinstatement of the
original judgments imposed in these cases.
I. Factual Background
Between 14 December 1990 and 12 January 1991, Defendant broke
into several homes and stole various items of property. At the
time that he committed these criminal offenses, Defendant was
sixteen years old and had no prior criminal record.
On 13 January 1991, warrants for arrest were issued charging
Defendant with two counts of possession of stolen property, second
degree burglary, two counts of felonious breaking or entering, and
three counts of felonious larceny. On 2 April 1991, the Cumberland
County grand jury returned bills of indictment charging Defendant
with two counts of second degree burglary, four counts of felonious
breaking or entering, six counts of felonious larceny, and six
counts of possession of stolen property. On 4 December 1991,
Defendant entered pleas of guilty to one count of second degree
burglary, four counts of felonious larceny, three counts of
felonious breaking or entering, and two counts of possession of
stolen property. In return for Defendant’s guilty pleas, the State
-3-
voluntarily dismissed the remaining charges that had been lodged
against him. At the conclusion of the proceedings that occurred
in connection with the entry of Defendant’s guilty pleas, Judge
William C. Gore, Jr., found as aggravating factors that “[t]he
defendant involved a person under the age of 16 in the commission
of the crime” and that “[t]he offense involved the actual taking
of property of great monetary value”; found as mitigating factors
that “[t]he defendant ha[d] no record of criminal convictions” and
that, “[a]t an early stage of the criminal process, the defendant
voluntarily acknowledged wrongdoing in connection with the offense
to a law enforcement officer”; determined that the “factors in
aggravation outweigh[ed] the factors in mitigation”; and entered
a judgment in the case in which Defendant had been convicted of
second degree burglary sentencing him to a term of 40 years
imprisonment. In addition, based upon the same findings in
aggravation and mitigation, Judge Gore consolidated one of
Defendant’s convictions for felonious breaking or entering and one
of Defendant’s convictions for felonious larceny for judgment and
sentenced Defendant to a consecutive term of ten years
imprisonment. Finally, Judge Gore entered judgments sentencing
Defendant to a concurrent term of three years imprisonment based
upon a conviction for felonious larceny, to a concurrent term of
three years imprisonment based upon consolidated convictions for
felonious breaking or entering and felonious larceny, to a
-4-
concurrent term of three years imprisonment based upon a conviction
for possession of stolen property, to a concurrent term of three
years imprisonment based upon convictions for felonious breaking
or entering and felonious larceny, and to a concurrent term of
three years imprisonment based upon a conviction for possession of
stolen property. As a result, Judge Gore’s judgments effectively
required Defendant to serve a term of fifty years imprisonment
based upon these convictions.
On 27 June 2012, Defendant filed a motion for appropriate
relief in which he requested the court to “arrest” his sentences
and resentence him in such a manner as to avoid subjecting him to
cruel and unusual punishment. Defendant’s motion for appropriate
relief rested upon the contention that his fifty year sentence for
a series of nonviolent property crimes committed when he was
sixteen years old was grossly disproportionate to the maximum
sentence that he could receive in the event that he was sentenced
for committing the same crimes under the current sentencing
statutes and contravened the protections against the imposition of
cruel and unusual punishment contained in the Eighth Amendment to
the United States Constitution and N.C. Const. art. I, § 27.1 On
1AlthoughDefendant argued that his sentences violated N.C.
Const. art. I, § 27, in his motion for appropriate relief, the
trial court made no reference to this provision of the state
constitution in its order and Defendant has not advanced any
argument stemming from the state constitution in his brief. For
-5-
25 July 2012, the trial court entered an order concluding that
“Defendant’s Motion for Appropriate Relief has merit, that summary
disposition is inappropriate, and that a hearing is necessary.”
The State filed a written response to Defendant’s motion for
appropriate relief on 24 August 2012 in which it requested that
Defendant receive no relief.
A hearing was held with respect to Defendant’s motion for
appropriate relief on 11 December 2012. On 17 December 2012, the
trial court entered an order granting Defendant’s motion for
appropriate relief on the grounds that, “[u]nder evolving
standards of decency,” the sentence embodied in the judgments
entered by Judge Gore was excessive and disproportionate to the
crimes for which Defendant had been convicted in violation of the
Eighth Amendment and was, for that reason, invalid. As a result,
the trial court vacated the judgments that had been entered by
Judge Gore, resentenced Defendant to a term of 21 years
imprisonment, gave Defendant credit for 21 years and 6 days in
pretrial confinement, and ordered that Defendant be immediately
released.
On 17 December 2012, the State filed petitions seeking the
issuance of a writ of certiorari authorizing appellate review of
the 17 December 2012 order and the issuance of a writ of
those reasons, we will treat this case as arising solely under the
relevant provision of the United States constitution.
-6-
superseadeas staying the trial court’s order pending the
completion of the appellate review process. On 2 January 2013,
this Court granted the State’s petitions.
II. Substantive Legal Analysis
A. Appellate Jurisdiction
As an initial matter, we are required to address Defendant’s
contention that this Court lacked the authority to grant the
State’s petition for the issuance of a writ of certiorari. In
view of the fact that a panel of this Court has previously rejected
this contention in the course of granting the State’s certiorari
petition, we are required to do so as well. N.C.N.B. v. Virginia
Carolina Builders, 307 N.C. 563, 567, 299 S.E.2d 629, 631-32 (1983)
(stating that, “once a panel of the Court of Appeals has decided
a question in a given case[,] that decision becomes the law of the
case and governs other panels which may thereafter consider the
case” and that, “since the power of one panel of the Court of
Appeals is equal to and coordinate with that of another, a
succeeding panel of that court has no power to review the decision
of another panel on the same question in the same case”). In
addition, for the reasons set forth in detail below, we also
believe that this Court had the authority to grant the State’s
certiorari petition.
“The Court of Appeals shall have such appellate jurisdiction
as the General Assembly may prescribe.” N.C. Const. art. IV, §
-7-
12(2). According to N.C. Gen. Stat. § 7A-32(c), this Court has
the authority to issue writs of certiorari “in aid of its own
jurisdiction, or to supervise and control the proceedings of any
of the trial courts of the General Court of Justice.” N.C. Gen.
Stat. § 32(c). As a result, given that a “[trial] court’s ruling
on a motion for appropriate relief pursuant to [N.C. Gen. Stat. §]
15A-1415 is subject to review . . . [i]f the time for appeal has
expired and no appeal is pending, by writ of certiorari,” N.C.
Gen. Stat. § 15A-1422(c)(3), see State v. Dammons, 128 N.C. App.
16, 22, 493 S.E.2d 480, 484 (stating that “[t]his Court may review
a trial court’s ruling on a motion for appropriate relief if ‘the
time for appeal has expired and no appeal is pending, by writ of
certiorari’”) (quoting N.C. Gen. Stat. § 15A-1422(c)(3)), disc.
review denied, 342 N.C. 660, 465 S.E.2d 547 (1997); State v.
Morgan, 118 N.C. App. 461, 463, 455 S.E.2d 490, 491 (1995) (stating
that “[a] trial ‘court’s ruling on a motion for appropriate relief
pursuant to [N.C. Gen. Stat. §] 15A-1415 is subject to review . . .
[i]f the time for appeal has expired and no appeal is pending, by
writ of certiorari’”) (citations omitted), and given that the
issuance of a writ of certiorari in situations such as this one is
necessary to “supervise and control” proceedings in the trial
courts, see Troy v. Tucker, 126 N.C. App. 213, 215, 484 S.E.2d 98,
99 (1997) (recognizing the existence of our supervisory
jurisdiction over the trial courts as authorized by N.C. Const.
-8-
art. IV, § 12 and N.C. Gen. Stat. § 7A–32(c)); In re Robinson, 120
N.C. App. 874, 875, 464 S.E.2d 86, 87 (1995) (granting certiorari
“pursuant to [this Court’s] supervisory power under [N.C. Gen.
Stat. §] 7A–32(c)”), we clearly had ample authority to grant the
State’s request for the issuance of a writ of certiorari
authorizing review of the trial court’s order in this case.
In support of his contention to the contrary, Defendant cites
a previous decision by this Court refusing to issue a writ of
certiorari requested by the State on the grounds that the issuance
of the requested writ was not authorized by N.C. R. App. P.
21(a)(1), which provides that a writ of certiorari may be issued
in appropriate circumstances by either appellate court to “‘permit
review of the judgments and orders of trial tribunals when the
right to prosecute an appeal has been lost by failure to take
timely action, or when no right of appeal from an interlocutory
order exists, or for review pursuant to [N.C. Gen. Stat.] § 15A-
1422(c)(3) of an order of the trial court denying a motion for
appropriate relief.’” State v. Starkey, 177 N.C. App. 264, 268,
628 S.E.2d 424, 426, cert denied, __ N.C. __, 636 S.E.2d 196 (2006)
(quoting N.C. R. App. P. 21(a)(1). According to the logic
enunciated in Starkey, since N.C. R. App. P. 21 limits certiorari
review of orders granting or denying motions for appropriate relief
to orders denying such motions and since the State sought review
of an order granting a defendant’s motion for appropriate relief,
-9-
we lacked authority to issue the requested writ. Id. As a result,
however, of the fact that Starkey conflicts with several decisions
of the Supreme Court that authorize review of trial court decisions
granting motions for appropriate relief filed by a defendant, our
decision in Starkey does not stand as an obstacle to the allowance
of the State’s certiorari petition. See State v. Whitehead, 365
N.C. 444, 445-46, 722 S.E.2d 492, 494 (2012) (granting the State’s
petition for the issuance of a writ of certiorari for the purpose
of reviewing a trial court order granting a motion for appropriate
relief); State v. Frogge, 359 N.C. 228, 230, 607 S.E.2d 627, 628-
29 (2005) (granting a petition for the issuance of a writ of
certiorari authorizing review of a trial court order granting a
defendant’s motion for appropriate relief), cert. denied, 531 U.S.
994, 121 S. Ct. 487, 148 L. Ed. 2d 459 (2000); State v. McDowell,
310 N.C. 61, 62, 310 S.E.2d 301, 301 (1984) (allowing a petition
for the issuance of a writ of certiorari filed by the State seeking
review of a trial court order granting defendant’s motion for
appropriate relief). As a result of the fact that the logic
adopted in Starkey would be equally applicable to the situations
at issue in Whitehead, Frogge, and McDowell, and since nothing in
N.C. R. App. P. 21 makes any distinction between our authority to
issue writs of certiorari in response to petitions filed by the
State seeking review of orders granting a motion for appropriate
relief and that of the Supreme Court, we believe that our decision
-10-
in Starkey is inconsistent with prior and subsequent decisions of
the Supreme Court and is not, for that reason, controlling in the
present case.2 See State v. Davis, 198 N.C. App. 443, 449, 680
S.E.2d 239, 244 (2009) (this Court “decline[d] to follow” an
earlier Court of Appeals decision “inconsistent with prior
decisions of this Court and our Supreme Court”); Cissell v. Glover
Landscape Supply, Inc., 126 N.C. App. 667, 670 n.1, 486 S.E.2d
472, 473 n.1 (1997), rev’d on other grounds, 348 N.C. 67, 497
S.E.2d 283 (1998) (stating that, “because that case is inconsistent
with prior decisions of this Court and our Supreme Court, we
decline to follow it.”). Our conclusion to this effect is
reinforced by our recognition of the fact that the rules of
appellate procedure “shall not be construed to extend or limit the
2In addition, this Court has granted petitions for writs of
certiorari filed by the State for the purpose of seeking review of
orders allowing motions for appropriate relief in previous cases.
See State v. Bonsteel, 160 N.C. App. 709, __ S.E.2d __ (2003)
(unpublished) (granting the State’s petition for the issuance of
a writ of certiorari for the purpose of reviewing a trial court
order granting a defendant’s motion for appropriate relief); State
v. Rubio, __ N.C. App. __, 732 S.E.2d 393 (2012) (unpublished),
disc. review dismissed, __ N.C. __, 735 S.E.2d 824 (2013) (citing
N.C. Gen. Stat. § 15A-1422(c)(3) as the basis for asserting
jurisdiction over an order granting a defendant’s motion for
appropriate relief). Although we are not bound by our prior
unpublished decisions, see United Services Automobile Assn. v.
Simpson, 126 N.C. App. 393, 396, 485 S.E.2d 337, 339, disc. review
denied, 347 N.C. 141, 492 S.E.2d 37 (1997) (holding that this Court
is not bound by a prior unpublished decision of another panel of
this Court), we believe that Bonsteel and Rubio shed additional
light on our authority to grant the State’s request for certiorari
review of an order granting a defendant’s motion for appropriate
relief.
-11-
jurisdiction of the courts of the appellate division as that is
established by law,” N.C. R. App. P. 1(c); the fact that our
authority to grant certiorari for the purpose of reviewing orders
granting or denying motions for appropriate relief is established
by N.C. Gen. Stat. § 15A-1422(c)(3); and the fact that the approach
adopted in Starkey, contrary to N.C. R. App. P. 1, treats N.C. R.
App. P. 21 as limiting the jurisdiction afforded to this Court by
the General Assembly. As a result, we have no hesitation in
concluding that this Court did, in fact, have the authority to
grant the State’s petition for the issuance of a writ of certiorari
in this case and will proceed to address the merits of the State’s
challenge to the trial court’s order.
B. Validity of Trial Court’s Order
1. Standard of Review
“When considering rulings on motions for appropriate relief,
we review the trial court’s order to determine ‘whether the
findings of fact are supported by evidence, whether the findings
of fact support the conclusions of law, and whether the conclusions
of law support the order entered by the trial court.’” Frogge,
359 N.C. at 240, 607 S.E.2d at 634 (quoting State v. Stevens, 305
N.C. 712, 720, 291 S.E.2d 585, 591 (1982)). “‘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 upon a showing of manifest abuse of
-12-
discretion. However, the trial court’s conclusions are fully
reviewable on appeal.’” State v. Lutz, 177 N.C. App. 140, 142,
628 S.E.2d 34, 35 (2006) (quoting State v. Wilkins, 131 N.C. App.
220, 223, 506 S.E.2d 274, 276 (1998)). “Conclusions of law drawn
by the trial court from its findings of fact are reviewable de
novo on appeal.” Carolina Power & Light Co. v. City of Asheville,
358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004). Because the facts
underlying this case as described in the trial court’s findings of
fact are essentially undisputed, the only issue that we are
required to address in this case is whether the trial court
correctly concluded that, on the basis of the present record,
Defendant was entitled to relief from Judge Gore’s original
judgments on Eighth Amendment grounds.
2. Trial Court’s Jurisdiction Over Defendant’s Motion
In its initial challenge to the trial court’s judgment, the
State argues that the trial court lacked jurisdiction to vacate
Judge Gore’s original judgments. More specifically, the State
contends that no provision of N.C. Gen. Stat. § 15A-1415 authorized
the trial court to enter an order vacating Defendant’s original
judgments, resentencing Defendant, and ordering that he be
released. We do not find this aspect of the State’s argument
persuasive.
According to N.C. Gen. Stat. § 15A–1415(b), a convicted
criminal defendant is entitled to seek relief from a trial court
-13-
judgment by means of a motion for appropriate relief filed more
than ten days after the entry of judgment on the basis of certain
specifically enumerated grounds. See N.C. Gen. Stat. § 15A–
1415(b). As we have recently stated, “N.C. Gen. Stat. § 15A–
1415(b) clearly provides that the eight specific grounds listed in
that statutory subsection are ‘the only grounds which the defendant
may assert by a motion for appropriate relief made more than 10
days after the entry of judgment,’” so that “a trial court lacks
jurisdiction over the subject matter of a claim for postconviction
relief which does not fall within one of the categories specified
in N.C. Gen. Stat. § 15A–1415(b).” State v. Harwood, __ N.C. App.
__, __, 746 S.E.2d 445, 450, disc. review dismissed, __ N.C. __,
748 S.E.2d 320 (2013).
In its order, the trial court concluded that it had the
authority to grant the requested relief pursuant to N.C. Gen. Stat.
§§ 15A-1415(b)(4) and (b)(8), which authorize an award of
postconviction relief in the event that “[t]he defendant was
convicted or sentenced under a statute that was in violation of
the Constitution of the United States or the Constitution of North
Carolina,” N.C. Gen. Stat. § 15A-1415(b)(4), or that “[t]he
sentence imposed was unauthorized at the time imposed, contained
a type of sentence disposition or a term of imprisonment not
authorized for the particular class of offense and prior record or
conviction level was illegally imposed, or is otherwise invalid as
-14-
a matter of law.” N.C. Gen. Stat. § 15A-1415(b)(8). The fact
that Defendant did not cite N.C. Gen. Stat. § 15A-1415(b)(4) before
the trial court is irrelevant to the required jurisdictional
determination given the fact that the constitutional nature of
Defendant’s challenge to Judge Gore’s original judgments was
clearly stated in Defendant’s motion for appropriate relief and
the fact that the trial court has the authority, in appropriate
cases, to grant postconviction relief on its own motion. N.C.
Gen. Stat. § 15A-1420(d) (stating that, “[a]t any time that a
defendant would be entitled to relief by motion for appropriate
relief, the court may grant such relief upon its own motion”).
Similarly, the fact that the sentences imposed in Judge Gore’s
original judgments were not unauthorized, invalid, or otherwise
unlawful at the time that they were imposed does not, contrary to
the State’s argument, preclude an award of relief based on N.C.
Gen. Stat. § 15A-1415(b)(8) given that the reference to “at the
time imposed” in the relevant statutory language does not modify
the language authorizing a grant of relief in the event that the
defendant’s sentence “is otherwise invalid as a matter of law.”
In fact, acceptance of the State’s argument that the trial court
lacked the authority to enter the challenged order would
necessarily mean that trial judges have no authority to grant
postconviction sentencing relief on Eighth Amendment grounds after
the time for noting a direct appeal has expired, an outcome which
-15-
we do not believe to have been within the General Assembly’s
contemplation and which is not consistent with our postconviction
jurisprudence. State v. Bonds, 45 N.C. App. 62, 64, 262 S.E.2d
340, 342 (stating that, “[i]f a judgment is invalid as a matter of
law, the courts of North Carolina have always had the authority to
vacate such judgments pursuant to petition for writ of habeas
corpus and, more recently, by way of postconviction proceedings”),
app. dismissed, 300 N.C. 376, 267 S.E.2d 687, cert. denied, 449
U.S. 883, 101 S. Ct. 235, 66 L. Ed. 2d 107 (1980). As a result of
the fact that Defendant has asserted in his motion for appropriate
relief that the sentences imposed in Judge Gore’s original judgment
are disproportionate to the offenses for which he was convicted in
violation of the Eighth Amendment and that those sentences were,
for that reason, invalid, the trial court clearly had jurisdiction
to reach the merits of Defendant’s challenge to Judge Gore’s
original judgments pursuant to N.C. Gen. Stat. §§ 15A-1415(b)(4)
and (b)(8).
This Court has recently addressed and rejected the same
argument in a case in which the trial court granted a defendant’s
motion for appropriate relief and vacated his life sentence, which
had been imposed upon him in 1973 as the result of his conviction
for second degree burglary, on the basis of a conclusion that,
“under evolving standards, [defendant’s] sentence violated the
Eighth Amendment and is invalid as a matter of law.” State v.
-16-
Stubbs, __ N.C. App. __, __, __ S.E.2d __, __ (2014). Although
the State argued before this Court in that case, as it has here,
that nothing in N.C. Gen. Stat. § 15A-1415 authorized the trial
court to modify the defendant’s original sentence, Id. at __, __
S.E.2d at __, we concluded that “the trial court had jurisdiction
over the [original] judgment to consider whether defendant’s
sentence was ‘invalid as a matter of law.’” Id. at __, __ S.E.2d
at __ (quoting N.C. Gen. Stat. § 15A-1415(b)(8)).3 As a result,
in light of the literal language of N.C. Gen. Stat. §§ 15A-
1415(b)(4) and (b)(8) and our decision in Stubbs, we hold that the
trial court had jurisdiction to consider Defendant’s challenges to
Judge Gore’s original judgments on the merits.
3. Gross Disproportionality
Secondly, the State contends that, even if the trial court
had jurisdiction to consider the validity of Defendant’s challenge
to Judge Gore’s original judgments, it erred by determining that
3In
support of its argument that the trial court lacked the
authority to consider Defendant’s challenge to the judgments at
issue here, the State cites the Supreme Court’s decision in
Whitehead to the effect that, “[h]aving concluded that defendant
is not entitled to resentencing under the [Structured Sentencing
Act], we also note that defendant’s [motion for appropriate relief]
provides no appropriate grounds for resentencing under the [Fair
Sentencing Act].” Whitehead, 365 N.C. at 448, 722 S.E.2d at 495.
In this case, unlike Whitehead, Defendant has advanced a
constitutional, rather than a merely statutory, challenge to the
validity of Judge Gore’s original judgments, a fact which
distinguishes this case from Whitehead and gave the trial court
the authority to consider the merits of Defendant’s motion for
appropriate relief.
-17-
the sentences that Defendant was currently serving subjected him
to cruel and unusual punishment in violation of the Eighth
Amendment. We agree.
The Eighth Amendment to the United States Constitution, which
has been made applicable to the states through the Fourteenth
Amendment, provides that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII. “The concept of
proportionality is central to the Eighth Amendment. Embodied in
the Constitution’s ban on cruel and unusual punishments is the
‘precept of justice that punishment for crime should be graduated
and proportioned to [the] offense.’” Graham v. Florida, 560 U.S.
48, 59, 130 S. Ct. 2011, 2021, 176 L. Ed. 2d 825, 835 (2010)
(quoting Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544,
549, 54 L. Ed. 793, 798 (1910)). We view the concept of
proportionality according to “‘the evolving standards of decency
that mark the progress of a maturing society.’” Miller v. Alabama,
__ U.S. __, __, 132 S. Ct. 2455, 2463, 183 L. Ed. 2d 407, 417
(2012) (quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct.
285, 290 50 L. Ed. 2d 251, 259 (1976)). “The Eighth Amendment
does not[, however,] require strict proportionality between crime
and sentence. Rather, it forbids only extreme sentences that are
grossly disproportionate to the crime.” Harmelin v. Michigan, 501
U.S. 957, 1001, 111 S. Ct. 2680, 2705, 115 L. Ed. 2d 836, 869
-18-
(1991) (Justice Kennedy, joined by Justices O’Connor and Souter,
concurring) (internal quotations and citations omitted). As a
result, “‘[o]nly in exceedingly unusual non-capital cases will the
sentences imposed be so grossly disproportionate as to violate the
Eighth Amendment’s proscription of cruel and unusual punishment.’”
State v. Clifton, 158 N.C. App. 88, 94, 580 S.E.2d 40, 45 (quoting
State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983)),
cert. denied, 357 N.C. 463, 586 S.E.2d 266 (2003). “[I]n the
absence of legal error, it is not the role of the judiciary to
engage in discretionary sentence reduction,” since “that power
resides in the executive branch, as established by the state
constitution and acts of the General Assembly,” Whitehead, 365
N.C. at 448, 722 S.E.2d at 496, and since “our General Assembly
has directed the Post-Release Supervision and Parole Commission to
review matters of proportionality” arising from the changes in the
statutory provisions governing the sentencing of convicted
criminal defendants that have been enacted in recent years.
Stubbs, __ N.C. App. at __, __ S.E.2d at __.4
4Although the State has argued at length that, “outside the
capital context, there is no general proportionality principle
inherent in the prohibition against cruel and unusual punishment,”
we believe that the relevant decisions of the United States Supreme
Court clearly state the “gross disproportionality” test discussed
in the text of this opinion for use in non-capital cases and do
not understand the State to be advancing a contrary assertion.
-19-
As the United States Supreme Court has explained, “cases
addressing the proportionality of sentences fall within two
general classifications[:]” first, “challenges to the length of
term-of-years sentences given all the circumstances in a
particular case[;]” and second, “cases in which the Court
implements the proportionality standard by certain categorical
restrictions on the death penalty.” Graham, 560 U.S. at 59, 130
S. Ct. at 2021, 176 L. Ed. 2d at 836. “In the first classification
the Court considers all of the circumstances of the case to
determine whether the sentence is unconstitutionally excessive”
Id., with that determination beginning with a comparison of “the
gravity of the offense and the severity of the sentence.” Graham,
560 U.S. at 60, 130 S. Ct. at 2022, 176 L. Ed. 2d at 836 (citing
Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L. Ed. 2d at
871 (Justice Kennedy, joined by Justices O’Connor and Souter,
concurring)). “‘[I]n the rare case in which [this] threshold
comparison . . . leads to an inference of gross
disproportionality[,]’ the court should then compare the
defendant’s sentence with the sentences received by other
offenders in the same jurisdiction and with the sentences imposed
for the same crime in other jurisdictions.” Id. “Outside the
context of capital punishment, successful challenges to the
proportionality of particular sentences have been exceedingly
-20-
rare.” Rummel v. Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133,
1138, 63 L. Ed. 2d 382, 390 (1980).
The trial court reached the conclusion that Defendant had
been subjected to cruel and unusual punishment based upon a
consideration of “(1) the gravity of the offense, (2) the harshness
of the penalty, and (3) the sentences for other crimes within the
jurisdiction.” In seeking to persuade us to uphold the trial
court’s order, Defendant notes that he was a juvenile at the time
that the offenses in question were committed, points out that he
would receive a significantly shorter term of imprisonment in the
event that he were to be sentenced under current law, and argues
that his sentence of 50 years imprisonment with the possibility of
parole based upon his convictions for second degree burglary,
felonious breaking or entering, felonious larceny, and possession
of stolen property was grossly disproportionate to the crimes
committed. We do not find Defendant’s argument persuasive.5
5The parties do not appear to agree upon the sentence upon
which we should focus our attention in analyzing the validity of
the State’s challenge to the trial court’s order. On the one hand,
Defendant’s argument rests upon the assumption that we should view
the sum total of the sentences embodied in Judge Gore’s original
judgments as a single term of imprisonment while the State appears
to suggest that we should focus our attention on the specific
sentence that Defendant is currently serving. As a result of the
fact that we do not believe that this difference of opinion has
any bearing on the ultimate outcome that we should reach in this
case, we will assume, without deciding, that the approach taken by
Defendant is the correct one.
-21-
The first problem with the trial court’s order is that the
trial court claimed to have erroneously considered a comparison of
the sentence imposed upon Defendant with sentences imposed upon
others under more recent statutory sentencing provisions in the
course of determining whether Defendant’s sentence was grossly
disproportionate. However, a comparison of the sentence imposed
upon Defendant to the sentences that have been or could be imposed
upon other convicted felons is not relevant to the issues raised
by Defendant’s motion for appropriate relief until after a finding
of “gross disproportionality” had been made. See Graham, 560 U.S.
at 60, 130 S. Ct. at 2022, 176 L. Ed. 2d at 836 (stating that an
evaluation of the gravity of the offense for which the defendant
had been convicted and the severity of the sentence imposed upon
the defendant based upon that conviction for the purpose of
determining whether the defendant’s sentence was grossly
disproportionate must be undertaken before the court compares a
defendant’s sentence to the sentences of others for similar
offenses); Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L.
Ed. 2d at 871 (stating that “[a] better reading of our cases leads
to the conclusion that intrajurisdictional and interjurisdictional
analyses are appropriate only in the rare case in which a threshold
comparison of the crime committed and the sentence imposed leads
to an inference of gross disproportionality”) (Justice Kennedy,
joined by Justices O’Connor and Souter, concurring). For that
-22-
reason, the extent to which Defendant would have been subject to
a less severe sentence in the event that he had been sentenced
under current sentencing law has no bearing upon the initial phase
of the required Eighth Amendment analysis. As a result, the trial
court erred by apparently failing to make a determination that
Defendant’s sentence was grossly disproportionate without taking
subsequent sentencing amendments into account before concluding
that Judge Gore’s original judgments should be vacated and that
Defendant should be resentenced.
In addition, we are unable to agree that Defendant has
established that the sentence embodied in Judge Gore’s original
judgments was grossly disproportionate. Although Defendant was a
juvenile at the time that he committed the offenses that led to
the challenged trial court judgments and although the offenses for
which Defendant was convicted were not violent in nature, he pled
guilty to one count of second degree burglary, three counts of
felonious breaking or entering, four counts of felonious larceny,
and two counts of possession of stolen property, resulting in a
total of ten felony convictions. Moreover, despite the fact that
Defendant’s convictions did, as he points out in his brief, result
from the commission of nonviolent property crimes, the fact that
he was convicted of committing ten felony offenses, the fact that
second degree burglary is a particularly serious offense involving
the breaking and entering of a residence in the nighttime with the
-23-
intent to commit a felony or any larceny, State v. Beaver, 291
N.C. 137, 141, 229 S.E.2d 179, 181 (1976) (stating that “[t]he
distinction between the two degrees [of burglary] depends upon the
actual occupancy of the dwelling house or sleeping apartment at
the time of the commission of the crime”), and the fact that, in
two of the cases at issue here, Defendant was found to have taken
property of great value and involved a young person less than
sixteen years old in the criminal activity in which he was engaged,
are relevant to the constitutional validity of Judge Gore’s
decision to impose a particularly severe sentence in this case.
Simply put, in light of the number of felony offenses for which
Defendant was convicted, the fact that one of the offenses for
which Defendant was convicted was a particularly serious one, and
the fact that Defendant’s conduct involved great financial harm
and led to criminal activity on the part of a younger individual,
we are unable to say that the sentence embodied in Judge Gore’s
original judgments was “grossly disproportionate.” Our conclusion
to this effect is buttressed by a careful examination of the
reported appellate decisions addressing similar factual
circumstances, all of which suggest that this is not one of the
“exceedingly rare” and “extreme” cases in which the sentence upon
Defendant is “grossly disproportionate.” See Ewing v. California,
538 U.S. 11, 30-31, 123 S. Ct. 1179, 1190, 155 L. Ed. 2d 108, 123
(2003) (holding that a sentence of 25 years to life imprisonment
-24-
for larceny pursuant to a “three strikes and you’re out” law did
not constitute cruel and unusual punishment in violation of the
Eighth Amendment); Harmelin, 501 U.S. at 1008-09, 111 S. Ct. at
2709, 115 L. Ed. 2d at 874 (holding that a sentence of life
imprisonment without the possibility of parole for possession of
cocaine was not so grossly disproportionate as to constitute cruel
and unusual punishment in violation of the Eighth Amendment)
(Justice Kennedy, joined by Justices O’Connor and Souter,
concurring); State v. Green, 348 N.C. 588, 612, 502 S.E.2d 819,
834 (1998), cert. denied, 525 U.S. 1111, 119 S. Ct. 883, 142 L.
Ed. 2d 783 (1999) (holding that a sentence of life imprisonment
with the possibility of parole based upon a thirteen year old
defendant’s conviction for first degree sexual offense did not
constitute cruel and unusual punishment in violation of the Eighth
Amendment); State v. Ford, 297 N.C. 28, 32, 252 S.E.2d 717, 719
(1979) (holding that a sentence of life imprisonment for first
degree burglary did not constitute cruel and unusual punishment in
violation of the Eighth Amendment); State v. Sweezy, 291 N.C. 366,
384-85, 230 S.E.2d 524, 536 (1976) (holding that a sentence of
life imprisonment for first degree burglary did not constitute
cruel and unusual punishment in violation of the Eighth Amendment);
Stubbs, __ N.C. App. at __, __ S.E.2d at __ (holding that a
defendant’s sentence of life imprisonment for a second degree
burglary committed when the defendant was a juvenile did not
-25-
constitute cruel and unusual punishment in violation of the Eighth
Amendment); State v. Pettigrew, 204 N.C. App. 248, 258-59, 693
S.E.2d 698, 705, app. dismissed, 364 N.C. 439, 706 S.E.2d 467(2010) (holding that a sentence of 32 to 40 years imprisonment for
two counts of first degree sexual offense committed when the
defendant was sixteen years old did not constitute cruel and
unusual punishment in violation of the Eighth Amendment). For all
of these reasons, we see no basis for concluding that this is one
of the “exceedingly rare noncapital cases” in which the sentence
imposed is “grossly disproportionate” to the crimes for which
Defendant stands convicted. As a result, we conclude that the
sentence imposed upon Defendant in this case, while undoubtedly
severe, is “not cruel or unusual in the constitutional sense,”
Green, 348 N.C. at 612, 502 S.E.2d at 834, and, for that reason,
hold that the trial court’s order should be reversed and that this
case should be remanded to the Cumberland County Superior Court
with instructions to reinstate Judge Gore’s original judgments.
III. Conclusion
Thus, for the reasons set forth above, we conclude that the
trial court erred by vacating Judge Gore’s original judgments,
resentencing Defendant, and ordering his immediate release. As a
result, the trial court’s order should be, and hereby is, reversed,
and this case should be, and hereby is, remanded to the Cumberland
-26-
County Superior Court for reinstatement of Judge Gore’s original
judgments.
REVERSED AND REMANDED.
Judges ROBERT N. HUNTER, JR., and DAVIS concur.