{
  "id": 9379384,
  "name": "STATE OF NORTH CAROLINA v. WILLIAM ANTHONY HEARST",
  "name_abbreviation": "State v. Hearst",
  "decision_date": "2001-11-20",
  "docket_number": "No. COA00-1402",
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  "casebody": {
    "judges": [
      "Judges MCCULLOUGH and BRYANT concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIAM ANTHONY HEARST"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nThe issue on appeal is whether upon activation of his suspended sentence, defendant William Anthony Hearst was entitled to credit for time spent during his probation in the Intensive Motivational Program of Alternative Correctional Treatment (IMPACT).\nDefendant initially pled guilty to various charges and was awarded a suspended sentence with probation that was later modified to require his participation in the IMPACT program, which he did for eighty-one days. However, he violated conditions of his probation and the trial judge activated his sentence but denied him any credit for the time spent in IMPACT. Defendant appeals; we affirm the trial court\u2019s denial of credit.\nOur General Assembly made extensive changes to our statutory scheme as it concerns the IMPACT program in the Current Operations Appropriations and Capital Improvement Appropriations Act of 1998, 1998 N.C. Sess. Laws ch. 212 (the \u201c1998 Act\u201d). See 1998 N.C. Sess. Laws ch. 212, \u00a7 17.21 (amending N.C. Gen. Stat. \u00a7\u00a7 15A-1343(bl), 15A-1343.1, and 15A-1351(a)). These changes, in a section of the 1998 Act entitled \u201cConvert IMPACT to Residential Program,\u201d became effective 1 December 1998 and therefore apply to the case at bar. Id. at \u00a7 17.21(c).\nN.C. Gen. Stat. \u00a7 15A-1343(bl) (1999), as amended, provides that the trial court may require, as a condition of probation, that during probation the defendant comply with certain special conditions. Among the possible special conditions that may be imposed, the defendant may be required to:\n[s]ubmit to a period of residential treatment in the Intensive Motivational Program of Alternative Correctional Treatment (IMPACT), pursuant to G.S. 15A-1343.1, for a minimum of 90 days or a maximum of 120 days and abide by all rules and regulations of that program.\nG.S. \u00a7 15A-1343(bl)(2a) (emphasis added). N.C. Gen. Stat. \u00a7 15A-1343.1 (1999), as amended, outlines the criteria for selecting and sentencing offenders to IMPACT, and provides that IMPACT \u201cshall be a residential program within the meaning of G.S. 15A-1340.11(8), operated by the Department of Correction.\u201d (Emphasis added.) N.C. Gen. Stat. \u00a7 15A-1340.il(8) (1999) defines a \u201cresidential program\u201d as one:\nin which the offender, as a condition of probation, is required to reside in a facility for a specified period and to participate in activities such as counseling, treatment, social skills training, or employment training, conducted at the residential facility or at other specified locations.\nPrior to the amendments effected by the 1998 Act, G.S. \u00a7 15A-1343(bl)(2a) stated that a trial court may, as a special condition of probation, require the defendant to \u201c[s]ubmit to a period of confinement in a facility operated by the Department of Correction ....\u201d N.C. Gen. Stat. \u00a7 15A-1343(bl)(2a) (emphasis added) (amended effective 1 December 1998). In addition, language in N.C. Gen. Stat. \u00a7 15A-1344(e) and N.C. Gen. Stat. \u00a7 15A-1351(a) (each amended effective 1 December 1998), that referenced \u201cprobationary sentences which include a period of imprisonment in\u201d IMPACT (emphasis added), was stricken under the 1998 Act.\nWhether participation in IMPACT, as that program was altered under the 1998 Act, constitutes \u201cconfinement\u201d as contemplated by N.C. Gen. Stat. \u00a7 15-196.1 (1999) is an issue of first impression.\nCriminal statutes must be strictly construed. But, while a criminal statute must be strictly construed, the courts must nevertheless construe it with regard to the evil which it is intended to suppress. The intent of the legislature controls the interpretation of a statute. When the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give the statute its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein.\nIn re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388-89 (1978) (internal citations omitted).\nG.S. \u00a7 15-196.1, which provides for credit against prison sentences, controls the trial court\u2019s application of credit for time served in sentencing defendants upon probation revocation:\nThe 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 ....\nG.S. \u00a7 15-196.1. See State v. Farris, 336 N.C. 552, 444 S.E.2d 182 (1994). In Farris, our Supreme Court stated that \u201csection 15-196.1 manifests the legislature\u2019s intention that a defendant be credited with all time defendant was in custody and not at liberty as the result of the [underlying] charge.\u201d 336 N.C. at 556, 444 S.E.2d at 185. We must therefore determine whether defendant\u2019s time served participating in IMPACT was \u201ccustodial,\u201d such that he was \u201cnot at liberty\u201d and must therefore be given credit for such time.\nMore recently, this Court considered G.S. \u00a7 15-196.1 and found it to be unambiguous, narrowly interpreting the statute to hold that house arrest does not constitute confinement and therefore \u201cdoes not qualify as time that can be credited against a defendant\u2019s sentence pursuant to section 15-196.1.\u201d State v. Jarman, 140 N.C. App. 198, 206, 535 S.E.2d 875, 880 (2000). As explained in Jarman, the phrase \u201cin custody\u201d in the second sentence of G.S. \u00a7 15-196.1 is merely shorthand for time spent \u201ccommitted to or in confinement in any State or local correctional, mental or other institution,\u201d as detailed in the statute\u2019s first sentence. G.S. \u00a7 15-196.1; see Jarman, 140 N.C. App. at 205, 535 S.E.2d at 880. Defendants are not entitled to time spent in house arrest as such time does not constitute commitment to or confinement in a \u201cState or local correctional, mental or other institution.\u201d\nWe must therefore determine whether participation in IMPACT, as a condition of probation imposed under G.S. \u00a7 15A-1343(bl)(2a), constitutes commitment to or confinement in a State institution such that defendants are entitled to credit, under G.S. \u00a7 15-196.1, for time spent participating therein. Accordingly, we carefully examine statutes concerning IMPACT to determine the legislature\u2019s intent in converting IMPACT to a residential program.\nIn passing legislation to \u201cconvert IMPACT to [a] residential program,\u201d our General Assembly removed all references to periods of \u201cimprisonment\u201d in IMPACT. The 1998 Act also redefined participation in IMPACT as a special probationary condition in terms of \u201cresidential treatment\u201d instead of \u201cconfinement.\u201d We conclude that the General Assembly\u2019s action in converting IMPACT to a residential program under section 17.21 of the 1998 Act acknowledged that participation in IMPACT is a lesser sanction than commitment to or confinement in a state institution.\nHaving concluded that defendant is not entitled under G.S. \u00a7 15-196.1 to credit against his active sentence for time spent participating in IMPACT as such program is not \u201ccustodial,\u201d we also reject defendant\u2019s argument that the failure to afford him such credit violates constitutional notions of double jeopardy. Just as defendant was required to visit with his probation officer as an original condition of his probation, he was required to submit to IMPACT as a special condition of his probation, following the violation of his original probation conditions. However, his participation in IMPACT was ultimately voluntary, as were his visits with his probation officer. Defendant was not required to participate in IMPACT, or visit his probation officer, or comply with any of his probationary conditions, even though his failure to do so subjected him to the activation of his suspended sentence. Rather than restricting defendant\u2019s liberty, the imposition of probationary conditions actually served to increase it by allowing him an escape from involuntary confinement already lawfully imposed. Thus, defendant\u2019s participation in IMPACT did not constitute a coercive deprivation of liberty.\nFurthermore, the IMPACT program did not \u201cimprison\u201d or \u201cconfine\u201d defendant in such a way that he was \u201cin custody and not at liberty\u201d for purposes of our analysis under Farris. In a hearing before Superior Court Judge Dennis J. Winner on 10 August 2000, defendant testified that the IMPACT facility was not locked or fenced, and that he could have quit the program and left at any time. In light of the nature of the IMPACT program, we cannot conclude that the defendant was in \u201ccustody\u201d while participating in the program such that he was entitled to credit against his active sentence for time served while participating therein. Defendant is no more entitled to credit for time spent in the IMPACT program than he is for time spent during required visits with his probation officer. As we conclude that time spent by defendant in IMPACT (as that program exists as of 1 December 1998 pursuant to the changes effected by the 1998 Act) was not sufficiently incarcerative as to be \u201ccustodial,\u201d and thus was not subject to being credited against defendant\u2019s active sentence under G.S. \u00a7 15-196.1, the trial court\u2019s denial of credit for time spent in IMPACT is,\nAffirmed.\nJudges MCCULLOUGH and BRYANT concur.\n. In State v. Greene, 143 N.C. App. 186, 546 S.E.2d 189 (2001) (unpublished), this Court held that the trial court erred in not granting the defendant credit under G.S. \u00a7 15-196.1 for time spent in IMPACT, as it existed prior to 1 December 1998. The defendant in Greene entered IMPACT in November 1998 as a condition of special probation pursuant to an order entered by the trial court in October 1998. This Court noted that the repealed version of G.S. \u00a7 15A-1351 referred to time spent in IMPACT as a \u201cperiod of imprisonment,\u201d and noted the \u201ccustodial nature\u201d of IMPACT. Nonetheless, this Court\u2019s opinion in Greene is of no precedential value in our determination of this appeal. See N.C.R. App. P. 30(e)(3) (2000).\n. Several other states have considered the circumstances under which defendants should receive credit against active sentences for time spent under court-imposed conditions. See State v. Bradley, 629 N.W.2d 462 (Minn. Ct. App. 2001) (defendant was not entitled to credit for time spent in private residential treatment facility as a condition of probation, although credit would be allowed for treatment received as part of confinement in a state correctional facility); Williams v. State, 780 So.2d 244 (Fla. Dist. Ct. App. 2001) (defendant was not entitled to credit for time spent in residential drug treatment facility as condition of probation, as he was not in the total control and custody of the state at all times); State v. Fellhauer, 943 P.2d 123 (N.M. Ct. App. 1997) (defendant\u2019s house arrest not deemed official confinement for purposes of receiving presentence confinement credit). But see Dedo v. State, 680 A.2d 464 (Md. 1996) (defendant was entitled to credit toward his sentence for the time he spent in home detention between his conviction and sentencing, where the restraints imposed upon him were sufficiently incarcerative; defendant was subject to a charge of escape for any unexcused absence).",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Associate Attorney General Heather M. Beach, for the State.",
      "Assistant Public Defender William H. Leslie for the defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM ANTHONY HEARST\nNo. COA00-1402\n(Filed 20 November 2001)\n1. Sentencing\u2014 IMPACT program not completed \u2014 no credit for time served\nThe trial court did not err when activating a suspended sentence by denying defendant credit for time spent during probation in the Intensive Motivational Program of Alternative Correctional Treatment (IMPACT). N.C.G.S. \u00a7 15-196.1 manifests the General Assembly\u2019s intent that a defendant be credited with time in custody and not at liberty and the phrase \u201cin custody\u201d is shorthand for time spent committed to or in confinement in any State or local correctional, mental or other institution. The 1998 amendment converting IMPACT to a residential program acknowledged that participation in IMPACT is a lesser sanction than commitment to or confinement in a state institution.\n2. Constitutional Law\u2014 double jeopardy \u2014 credit for time served denied \u2014 IMPACT program\nThe trial court\u2019s denial of credit for time served in an IMPACT program (Intensive Motivational Program of Alternate Correctional Treatment) upon activation of defendant\u2019s suspended sentence did not violate double jeopardy. Defendant was not required to participate in IMPACT, visit his probation officer, or comply with any of his probationary conditions, even though his failure to do so subjected him to activation of his suspended sentence. Furthermore, the IMPACT facility was not fenced or locked and defendant could quit the program at any time. Defendant was not in custody and was no more entitled to credit for time spent in IMPACT than to time spent during required visits to his probation officer.\nAppeal by defendant from judgment entered 10 August 2000 by Judge Dennis J. Winner in Superior Court, Buncombe County. Heard in the Court of Appeals 17 October 2001.\nAttorney General Roy Cooper, by Associate Attorney General Heather M. Beach, for the State.\nAssistant Public Defender William H. Leslie for the defendant-appellant."
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  "file_name": "0298-01",
  "first_page_order": 328,
  "last_page_order": 333
}
