{ "id": 11793232, "name": "DONNIE EARL ROBBINS, Plaintiff-Appellant v. FRANKLIN FREEMAN, Secretary of the North Carolina Department of Correction, in his official capacity; JUANITA BAKER, Chairman of the North Carolina Parole Commission, in her official capacity; ELBERT BUCK, WILLIAM A. LOWRY, CHARLES L. MANN, SR., and PEGGY STAMEY, Members of the North Carolina Parole Commission, in their official capacities, Defendant-Appellees", "name_abbreviation": "Robbins v. Freeman", "decision_date": "1997-08-05", "docket_number": "No. COA96-223", "first_page": "162", "last_page": "167", "citations": [ { "type": "official", "cite": "127 N.C. App. 162" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 148-13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "326 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "122" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523326 ], "year": 1985, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0269-01" ] }, { "cite": "299 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561958, 8562091, 8561931, 8562060, 8561909 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0272-03", "/nc/307/0272-05", "/nc/307/0272-02", "/nc/307/0272-04", "/nc/307/0272-01" ] }, { "cite": "296 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "8-9" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 199", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526024 ], "year": 1982, "pin_cites": [ { "page": "201-02" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0199-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(c)", "parenthetical": "repealed effective 1 July 1981" }, { "page": "(d)", "parenthetical": "repealed effective 1 January 1995" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 148-13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "holding one panel may not overrule another panel" } ], "opinion_index": 1 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "parenthetical": "holding one panel may not overrule another panel" } ], "opinion_index": 1, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "326 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "122" } ], "opinion_index": 1 }, { "cite": "73 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523326 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc-app/73/0269-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "271" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 488, "char_count": 12065, "ocr_confidence": 0.699, "pagerank": { "raw": 6.258344702395063e-07, "percentile": 0.9576936724882416 }, "sha256": "f1576caa1e32d87c479e2b491f1a3778194f94620cbc96df0c3c536e9afc1adc", "simhash": "1:c9ef0dcc7e02fed8", "word_count": 1919 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs in the result with separate opinion.", "Judge JOHN concurs in the result and joins in Judge WYNN\u2019s opinion." ], "parties": [ "DONNIE EARL ROBBINS, Plaintiff-Appellant v. FRANKLIN FREEMAN, Secretary of the North Carolina Department of Correction, in his official capacity; JUANITA BAKER, Chairman of the North Carolina Parole Commission, in her official capacity; ELBERT BUCK, WILLIAM A. LOWRY, CHARLES L. MANN, SR., and PEGGY STAMEY, Members of the North Carolina Parole Commission, in their official capacities, Defendant-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiff contends the trial court erred by failing to find that defendants are required, pursuant to G.S. 15A-1354(b), to aggregate consecutive sentences for armed robbery committed prior to 1 October 1994 for purposes of determining parole eligibility. We agree.\nIn determining the effect of consecutive sentences, the Department of Correction must treat a defendant as if he had been committed for a single term. N.C. Gen. Stat. \u00a7 15A-1354(b) (1985). In such a case, the minimum term of imprisonment consists of the total of the minimum terms of the consecutive sentences. G.S. 15A-1354(b)(2). We disagree with defendants\u2019 contention that the specific language of the armed robbery statute in effect at the time defendant committed his crimes controls over the provisions of G.S. 15A-1354.\nThe armed robbery statute applicable to plaintiffs crime, N.C. Gen. Stat. \u00a7 14-87(c) (repealed effective 1 July 1981), and its successor, N.C. Gen. Stat. \u00a7 14-87(d) (repealed effective 1 January 1995) both state that \u201c[sentences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any (other) sentence(s) being served by the person sentenced hereunder.\u201d Defendants argue the language of these statutes deals \u201cwith a subject in detail with reference to a particular situation (armed robbery)\u201d while G.S. 15A-1354(b) \u201cdeals with the same subject in general and comprehensive terms\u201d and, therefore, the armed robbery statutes control and negate the computation provisions of G.S. 15A-1354(b). See State v. Leeper, 59 N.C. App. 199, 201-02, 296 S.E.2d 7, 8-9, disc. review denied, 307 N.C. 272, 299 S.E.2d 218 (1982). As a result, defendants contend armed robbery sentences are not subject to being aggregated for parole eligibility purposes, and inmates sentenced for armed robbery only begin serving time at the completion of the prior sentence or upon having been \u201cpaper paroled\u201d to the consecutive armed robbery sentence.\nHowever, while G.S. 14-87 (c) and (d) dealt with when consecutive sentences should be imposed, G.S. 15A-1354(b) mandates how the Department of Correction must treat consecutive sentences once they have been imposed. See G.S. 15A-1354, Official Commentary (\u201cSubsection (b) sets out the rules for calculating the effects of consecutive terms ... in order to determine parole eligibility.\u201d). Contrary to defendants\u2019 assertions, the armed robbery statute applicable to the plaintiff did not mandate how consecutive sentences should be treated for determining parole eligibility. This Court has previously determined that the statutory language stating \u201c[sentences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder\u201d means only that a sentence for an armed robbery conviction must be consecutive to a prison term already in effect at the time of sentencing. State v. Crain, 73 N.C. App. 269, 271, 326 S.E.2d 120, 122 (1985). Where, as here, multiple armed robbery offenses are disposed of in the same sentencing proceeding, they are not required to be consecutive to one another. Id. Other than prescribing that a defendant must serve at least seven years of any sentence for armed robbery, G.S. 14-87(c) did not affect how consecutive sentences were to be treated for parole eligibility purposes once the consecutive sentences had been imposed. Further, we can find no statutory authority for defendants\u2019 practice of issuing \u201cpaper paroles.\u201d Therefore, plaintiff\u2019s sentences should be aggregated pursuant to G.S. 15A-1354(b) for purposes of determining parole eligibility.\nPlaintiff next contends that, for purposes of parole eligibility, he is entitled to a reduction of the seven-year minimum mandatory sentences required in cases 80-CRS-23443 and 80-CRS-23442 to the extent of any gain time granted under N.C. Gen. Stat. \u00a7 148-13. We disagree. The armed robbery statute in effect at the time plaintiff committed his crimes read as follows:\nAny person who has been convicted of a violation of G.S. 14-87(a) shall serve the first seven years of his sentence without benefit of parole, probation, suspended sentence, or any other judicial or administrative procedure except such time as may be allowed as a result of good behavior, whereby the period of actual incarceration of the person sentenced is reduced to a period of less than seven years.. . .\nNotwithstanding any other provision of law, neither the Parole Commission nor any other agency having responsibility for release of inmates prior to expiration of sentences, shall authorize the release of an inmate sentenced under this section prior to his having been incarcerated for seven years except such time as may be allowed as a result of good behavior.\nG.S. 14-87(c). The statute allowed a reduction for good behavior, but made no provision for a reduction for gain time. Nevertheless, since G.S. 14-87(c) was repealed effective 1 July 1981, and plaintiff was sentenced on 1 April 1982, plaintiff argues G.S. 14-87(d), which he contends allows a reduction below the seven-year minimum for gain time earned, applies in his case. However, G.S. 14-87(d) applied only to offenses committed on or after 1 July 1981 and plaintiff\u2019s criminal charges arose in 1980. 1979 N.C. Sess. Laws ch. 760, \u00a7 6, as amended by 1979 N.C. Sess. Laws, 2nd Sess., ch. 1316, \u00a7 47; 1981, ch. 63, \u00a7 1; and 1981, ch. 179, \u00a7 14. Therefore, plaintiff is not entitled to have his sentences reduced below the seven-year minimum to the extent of gain time served.\nBecause of our decision, we need not address plaintiffs remaining argument. For the reasons stated, the order of the trial court is reversed.\nReversed.\nJudge WYNN concurs in the result with separate opinion.\nJudge JOHN concurs in the result and joins in Judge WYNN\u2019s opinion.", "type": "majority", "author": "McGEE, Judge." }, { "text": "Judge Wynn\nconcurring in the result only.\nI disagree with our Court\u2019s earlier determination in State v. Crain, 73 N.C. App. 269, 326 S.E.2d 120 (1985) that N.C. Gen. Stat. \u00a7 14-87 does not require the imposition of consecutive sentences \u2014 for sentences imposed on multiple offenses under that section \u2014 where \u201cthe defendant is not yet serving a sentence for any of the counts at the time of the sentencing proceeding.\u201d Id. at 271, 326 S.E.2d at 122. Instead, I agree with the State\u2019s interpretation of \u00a7 14-87 that our legislature intended that consecutive sentences for armed robberies be mandatory under that section rather than discretionary under N.C. Gen. Stat. \u00a7 15A-1354(a). In that light, \u00a7 15A-1354(b) would have no application in this case because \u201cthe consecutive sentences were [not] imposed under the authority of [Article 15A].\u201d N.C. Gen. Stat. 15A-1354(b).\nNevertheless, Crain represents binding precedence on this panel. See, In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989) (holding one panel may not overrule another panel). Under Crain, because the defendant in this case was not \u201cserving a sentence for any counts at the time of the sentencing proceeding,\u201d the trial court necessarily imposed the consecutive sentence terms under \u00a7 15A-1354(a). That being the case, \u00a7 15A-1354(b) applies and accordingly, I must must concur with the result reached by the majority.", "type": "concurrence", "author": "Judge Wynn" } ], "attorneys": [ "George B. Currin, for plaintiff-appellant.", "Attorney General Michael F. Easley, by Special Deputy Attorney General Jacob L. Safron and Assistant Attorney General David F. Hoke, for defendant-appellees." ], "corrections": "", "head_matter": "DONNIE EARL ROBBINS, Plaintiff-Appellant v. FRANKLIN FREEMAN, Secretary of the North Carolina Department of Correction, in his official capacity; JUANITA BAKER, Chairman of the North Carolina Parole Commission, in her official capacity; ELBERT BUCK, WILLIAM A. LOWRY, CHARLES L. MANN, SR., and PEGGY STAMEY, Members of the North Carolina Parole Commission, in their official capacities, Defendant-Appellees\nNo. COA96-223\n(Filed 5 August 1997)\n1. Criminal Law \u00a7 1608 (NCI4th Rev.)\u2014 consecutive armed robbery sentences \u2014 parole eligibility\nThe trial court erred in a declaratory judgment action to determine plaintiffs parole eligibility from consecutive armed robbery sentences by not finding that defendants were required by N.C.G.S. \u00a7 15A-1354(b) to aggregate consecutive sentences for armed robberies committed prior to 1 October 1994 for purposes of determining parole eligibility. Other than prescribing that a defendant must serve at least seven years of any sentence for armed robbery, N.C.G.S. \u00a7 14-87(c) did not affect how consecutive sentences were to be treated for parole eligibility purposes once the consecutive sentences had been imposed. Furthermore, no statutory authority could be found for the practice of issuing \u201cpaper paroles\u201d for the first of consecutive sentences for armed robbery before the inmates are treated as having begun service of the second.\n2. Robbery \u00a7 162 (NCI4th)\u2014 1980 robberies \u2014 mandated minimum sentence \u2014 no gain time reduction\nA defendant who was convicted of robbery charges which arose in 1980 was not entitled to a gain-time reduction of his sentence below the statutorily mandated seven-year minimum where the statute in effect at the time of defendant\u2019s convictions allowed a sentence reduction for good behavior, but made no provision for a reduction for gain time. N.C.G.S. \u00a7 14-87(c).\nJudge Wynn concurring in the result only.\nJudge John concurs in the result and joins in Judge Wynn\u2019s opinion.\nAppeal by plaintiff from order entered 9 January 1996 by Judge Knox V. Jenkins, Jr., in Wake County Superior Court. Heard in the Court of Appeals 24 October 1996.\nPlaintiff Donnie Earl Robbins is an inmate in the custody of the North Carolina Department of Correction. On 1 April 1982, plaintiff pled guilty to, among other charges, three counts of robbery with a deadly weapon (case numbers 80-CRS-23443, 80-CRS-23442, and 80-CRS-28885). In case number 80-CRS-23443, plaintiff received a sentence of a maximum term of thirty years and a minimum term of fifteen years. In case number 80-CRS-23442, plaintiff received a maximum term of fifteen years and a minimum term of ten years. The sentence imposed in 80-CRS-23442 was to begin at the expiration of the sentence imposed in 80-CRS-23443. The sentence imposed in case number 80-CRS-28885, a maximum term of fifteen years and a minimum term of ten years, was to run concurrently with the sentence imposed in 80-CRS-23442.\nPlaintiff filed this action 24 March 1995 for a declaratory judgment determining his parole eligibility. Plaintiff alleged that N.C. Gen. Stat. \u00a7 15A-1354(b) requires defendants to aggregate and treat, for parole eligibility purposes, consecutive sentences as a single offense, with the maximum sentence being the total of the maximum terms of the consecutive sentences and the minimum term being the total of the minimum terms of the consecutive sentences. Defendants engage in a process known as \u201cpaper parole,\u201d whereby an inmate serving consecutive sentences for armed robbery is required to be paroled from the first sentence to a second consecutive sentence before being treated as having begun service of the second sentence for purposes of determining parole eligibility. Plaintiff was \u201cpaper paroled\u201d effective 8 March 1993 from the sentence in 80-CRS-23443 and is currently completing service of the sentence imposed in 80-CRS-23442. Plaintiff also alleged he was entitled to a reduction of the 7-year minimum mandatory sentences required by the applicable armed robbery statute to the extent of any gain time earned under N.C. Gen. Stat. \u00a7 148-13.\nIn an order filed 9 January 1996, the trial court held that sentences imposed for armed robberies committed prior to 1 October 1994 may not be aggregated pursuant to G.S. 15A-1354(b), and that inmates sentenced for armed robbery only begin serving the sentence at the completion of a prior sentence or upon having been \u201cpaper paroled\u201d from a prior sentence to the armed robbery sentence. The trial court did not address the issue of reduction of the mandatory minimum to the extent of gain time earned. From this order, plaintiff appeals.\nGeorge B. Currin, for plaintiff-appellant.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Jacob L. Safron and Assistant Attorney General David F. Hoke, for defendant-appellees." }, "file_name": "0162-01", "first_page_order": 198, "last_page_order": 203 }