#### STATE OF NORTH CAROLINA v. GARY MACKEY

No. 7226SC395

(Filed 12 July 1972)

Criminal Law § 138— active sentence — discretion

The trial judge was acting in the exercise of his discretion in imposing an active sentence for felonious escape and did not hold that an active sentence was required as a matter of law, where the judge advised defense counsel that, under the circumstances of the case, he did not feel justified in suspending defendant’s sentence.

Appeal by defendant from Ervin, Judge, 17 January 1972 Session of Superior Court held in Mecklenburg County.

Defendant, represented by counsel, tendered a plea of guilty to felonious escape. After inquiry by the court the plea was accepted. Judgment was entered imposing a prison sentence of six months with the recommendation that defendant be allowed to serve the sentence under the work release plan. Defendant appealed.

Attorney General Robert Morgan by Edward L. Eatman, Jr., Assistant Attorney General, for the State.

Mraz, Aycock & Casstevens by Frank B. Aycock III for defendant appellant.

VAUGHN, Judge.

Defendant’s first assignment of error is that the court held that an active sentence was required as a matter of law. *292It is perfectly clear that the judge was acting in the exercise of his discretion when he imposed a very short active sentence. Defendant’s counsel requested that the sentence be suspended because, among other things, of the pregnancy of the defendant’s wife. The judge advised counsel that, under the circumstances of the case, he did not feel justified in so doing. All of defendant’s assignments of error have been considered and the same are overruled.

The judgment from which defendant appealed is affirmed.

Affirmed.

Judges Parker and Graham concur.