{ "id": 9251617, "name": "JAMES E. PRICE, Sr.; OLANDER R. BYNUM; CHRISTOPHER PARTIN; LEE WAYNE HUNT; and KERRY McPHERSON, Plaintiffs v. THEODIS BECK, in His Official Capacity as Secretary, North Carolina Department of Corrections; and JUANITA BAKER, in Her Official Capacity as Commissioner of the North Carolina Parole Commission, Defendants", "name_abbreviation": "Price v. Beck", "decision_date": "2002-11-05", "docket_number": "No. COA01-1593", "first_page": "763", "last_page": "769", "citations": [ { "type": "official", "cite": "153 N.C. App. 763" } ], "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": "496 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "347 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551299 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0664-01" ] }, { "cite": "487 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "773" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11793232 ], "year": 1997, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0162-01" ] }, { "cite": "491 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "537" } ], "opinion_index": 0 }, { "cite": "347 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551367 ], "year": 1997, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0247-01" ] }, { "cite": "886 F.2d 686", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10533218 ], "year": 1989, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/f2d/886/0686-01" ] }, { "cite": "761 F.2d 192", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 29458 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "195", "parenthetical": "where re-interpretation of a parole statute was based on the statute's clear language, the interpretation was \"not only foreseeable but indeed was inescapable\"" }, { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/f2d/761/0192-01" ] }, { "cite": "532 U.S. 451", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9301453 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "456", "parenthetical": "ex post facto clause applies only to actions of the legislature, not judicial actions" }, { "page": "704", "parenthetical": "ex post facto clause applies only to actions of the legislature, not judicial actions" }, { "page": "457-59" }, { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/us/532/0451-01" ] }, { "cite": "403 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "500" } ], "opinion_index": 0 }, { "cite": "328 N.C. 613", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543691 ], "year": 1991, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0613-01" ] }, { "cite": "388 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "443", "parenthetical": "department of corrections, including parole commission, is a state agency" } ], "opinion_index": 0 }, { "cite": "326 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306084 ], "year": 1990, "pin_cites": [ { "page": "238", "parenthetical": "department of corrections, including parole commission, is a state agency" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0231-01" ] }, { "cite": "115 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "24-25", "parenthetical": "court will not intervene against prison commission and Director of Prisons while functioning as a state agency absent allegation of abuse of discretion" } ], "opinion_index": 0 }, { "cite": "252 N.C. 803", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626033 ], "year": 1960, "pin_cites": [ { "page": "811-12", "parenthetical": "court will not intervene against prison commission and Director of Prisons while functioning as a state agency absent allegation of abuse of discretion" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0803-01" ] }, { "cite": "484 S.E.2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "448", "parenthetical": "summary judgment is appropriate in a declaratory judgment action where there is no genuine issue of material fact" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11709102 ], "year": 1997, "pin_cites": [ { "page": "158", "parenthetical": "summary judgment is appropriate in a declaratory judgment action where there is no genuine issue of material fact" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0155-01" ] } ], "analysis": { "cardinality": 633, "char_count": 15825, "ocr_confidence": 0.769, "pagerank": { "raw": 2.2825557194492926e-07, "percentile": 0.7853436628930875 }, "sha256": "be1de50c35229323a5d6a2510f650c823c822134106fd35e319738f49716f3ca", "simhash": "1:6e5c819f779b6f74", "word_count": 2468 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and BIGGS concur." ], "parties": [ "JAMES E. PRICE, Sr.; OLANDER R. BYNUM; CHRISTOPHER PARTIN; LEE WAYNE HUNT; and KERRY McPHERSON, Plaintiffs v. THEODIS BECK, in His Official Capacity as Secretary, North Carolina Department of Corrections; and JUANITA BAKER, in Her Official Capacity as Commissioner of the North Carolina Parole Commission, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nJames E. Price, Sr. (Plaintiff) appeals from an order filed 16 November 1999 denying his summary judgment motion and granting summary judgment in favor of Theodis Beck (the Secretary) in his official capacity as Secretary of the North Carolina Department of Corrections (the Department) and Juanita Baker (the Commissioner) in her official capacity as Commissioner of the North Carolina Parole Commission (the Commission).\nOn 18 May 1999, Plaintiff filed a \u201cPetition Seeking Declaratory Relief and Writ of Mandamas\u201d (sic) (the petition). The petition alleged the Commission incorrectly calculated Plaintiffs parole eligibility by not including \u201cmeritorious time\u201d and \u201cgain time\u201d credits toward reducing the life sentence portion of his two consecutive sentences and sought to have his parole eligibility recalculated. The petition further sought to prevent retroactive application of this Court\u2019s decision in Robbins v. Freeman to Plaintiffs parole eligibility as an unconstitutional ex post facto act and a violation of his due process and equal protection rights. All parties subsequently filed motions for summary judgment.\nThe undisputed evidence as presented in the petition and at the summary judgment hearing demonstrates Plaintiff is an inmate in the custody of the Department. Plaintiff began serving a Class B life sentence under the \u201cFair Sentencing Act\u201d for first-degree rape and a consecutive eighteen-year sentence for second-degree kidnapping in January 1984. Plaintiff was initially told by prison officials he would be eligible for parole on 8 December 2003, based on the required minimum service time of twenty years on the life sentence. This calculation was in accordance with the pre-Robbins Department and Commission policy of calculating parole eligibility separately for each sentence an inmate was serving. This Court\u2019s 1997 decision in Robbins, however, requires parole eligibility for an inmate serving consecutive sentences to be calculated as if the inmate were serving a single term. Robbins, 127 N.C. App. at 164-65, 487 S.E.2d at 773. Under Robbins, the minimum term of imprisonment is calculated by adding together the minimum terms of consecutive sentences. Id.\nThe Commission applied Robbins to Plaintiffs consecutive sentences by adding the statutory minimum term of twenty years for the Class B life sentence to a minimum term, calculated for parole eligibility purposes, of two years and three months for the second-degree kidnapping sentence. This calculation delayed Plaintiff\u2019s parole eligibility until 8 March 2006. Furthermore, while the Department kept track of Plaintiff\u2019s \u201cgain time,\u201d \u201cmeritorious time,\u201d and \u201cgood conduct\u201d credits, they did not apply those credits to reduce the minimum service requirement of Plaintiff\u2019s life sentence, although those credits were applied in calculating Plaintiff\u2019s eligibility for parole on the eighteen-year sentence.\nAfter a 1 November 1999 hearing, the trial court concluded, \u201cthere being no genuine issue of material fact presented, Defendant\u2019s summary judgment motion should be granted.\u201d\nThe issues are whether: (I) Plaintiff\u2019s claim of entitlement to \u201cgain time,\u201d \u201cmeritorious time,\u201d and \u201cgood conduct\u201d credits is a genuine issue of material fact; (II) the Commission erred by not reducing the minimum service requirement of Plaintiff\u2019s life sentence with \u201cgain time,\u201d \u201cmeritorious time,\u201d and \u201cgood conduct\u201d credits; (III) retroactive application of Robbins to Plaintiff\u2019s parole eligibility violates the constitutional prohibition against ex post facto laws; (IV) retroactive application of Robbins violates due process; and (V) Plaintiff has adequately established an equal protection claim based on disparate treatment between Class B and C felons under the Fair Sentencing Act.\nI\nPlaintiff first contends this case was not ripe for summary judgment because a material fact existed as to whether Plaintiff was entitled to \u201cgood conduct,\u201d \u201cgain time,\u201d and \u201cmeritorious time\u201d credits to be applied to his life sentence. We disagree.\nA case is ripe for summary judgment where there is no genuine issue of material fact and any party is entitled to judgment as a matter of law. N.C.G.S. \u00a7 1A-1, Rule 56(c) (2001). In this case, the material facts are not in issue. It is undisputed Plaintiffs parole eligibility date was recalculated and he was required to serve a longer term before becoming eligible for parole. It is also undisputed that Plaintiff is not receiving \u201cgood conduct,\u201d \u201cgain time,\u201d or \u201cmeritorious time\u201d credits applied to his life sentence. Whether Plaintiff has a legal right to have credits applied against his life sentence is a matter of law. Since no material facts are in dispute and the remaining issues are matters of law, this case was ripe for summary judgment. See Pine Knoll Ass\u2019n v. Cardon, 126 N.C. App. 155, 158, 484 S.E.2d 446, 448 (1997) (summary judgment is appropriate in a declaratory judgment action where there is no genuine issue of material fact).\nII\nPlaintiff next contends his parole eligibility date has been erroneously calculated by a failure to subtract \u201cgain time,\u201d \u201cmeritorious time,\u201d and \u201cgood conduct\u201d credits from the minimum term of his life sentence. We disagree.\nPlaintiff is serving two consecutive sentences under the Fair Sentencing Act, the law applicable at the time Plaintiff committed the offenses. The first sentence is a Class B life sentence with parole eligibility after twenty years. See N.C.G.S. \u00a7 15A-1371 (a)(1) (1993) (repealed effective January 1, 1995). The second sentence is one for eighteen years that has been calculated, including projected credits, to require service of two years and three months before parole eligibility. These two minimum sentences were added together to create a combined minimum sentence of twenty-two years and three months before Plaintiff is eligible for parole.\nPlaintiff argues this calculation is erroneous because his minimum twenty-year sentence does not include \u201cgood conduct,\u201d \u201cgain time,\u201d and \u201cmeritorious time\u201d credits. These credits would reduce Plaintiffs minimum required service on his life sentence, making him eligible for parole at an earlier date.\nSection 148-13(b) of the North Carolina General Statutes gives the Secretary discretion to \u201cissue regulations regarding deductions of time from the terms of . . . prisoners for good behavior, meritorious conduct . . . and the like\u201d for Class A, B, and C felons. N.C.G.S. \u00a7 148-13(b) (1993) (repealed effective January 1, 1995). The Secretary has not issued regulations regarding deductions of time for Class A, B, and C felons. The statute does not mandate such regulations, and Plaintiff does not argue the Secretary has abused his discretion or failed to exercise his discretion by not promulgating regulations. See Pharr v. Garibaldi, 252 N.C. 803, 811-12, 115 S.E.2d 18, 24-25 (1960) (court will not intervene against prison commission and Director of Prisons while functioning as a state agency absent allegation of abuse of discretion); see also Harwood v. Johnson, 326 N.C. 231, 238, 388 S.E.2d 439, 443 (1990) (department of corrections, including parole commission, is a state agency). Since Plaintiff does not present to this Court any other authority for applying credits against his life sentence, Plaintiffs argument that his parole eligibility has been erroneously calculated must fail.\nIll\nPlaintiff contends application of Robbins to his consecutive sentences, resulting in a delay of two years and three months in his parole eligibility, violates constitutional prohibitions on ex post facto laws. We disagree.\nThe ex post facto clauses of both the U.S. and N.C. constitutions prohibit legislative action that \u201callows imposition of a different or greater punishment than was permitted when the crime was committed.\u201d State v. Vance, 328 N.C. 613, 620, 403 S.E.2d 495, 500 (1991).\nBecause the Fair Sentencing Act has undergone no substantive change subsequent to the commission of Plaintiffs crimes, it remains applicable in Plaintiffs case. The Robbins court simply construed an existing statute. A court\u2019s construction of a statute that is different from a state agency\u2019s prior interpretation is not an ex post facto legislative action. See Rogers v. Tennessee, 532 U.S. 451, 456, 149 L. Ed. 2d 697, 704 (2001) (ex post facto clause applies only to actions of the legislature, not judicial actions). Thus, Plaintiff cannot maintain an ex post facto clause violation claim.\nIV\nAlternatively, Plaintiff argues the recalculation of his parole eligibility violated his due process rights because the Robbins decision was \u201cunforeseeable\u201d and thus denied him the chance to accept a plea bargain for a term of years. Again, we disagree.\nJudicial action must not be given retroactive effect if it is \u201cunexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue\u201d such that it infringes on the \u201ccore due process concept[]\u201d of \u201cthe right to fair warning.\u201d Rogers, 532 U.S. at 457-59, 149 L. Ed. 2d at 706; see Glenn v. Johnson, 761 F.2d 192, 195 (4th Cir. 1985) (where re-interpretation of a parole statute was based on the statute\u2019s clear language, the interpretation was \u201cnot only foreseeable but indeed was inescapable\u201d).\nAssuming the Robbins decision was \u201cunexpected,\u201d as it changed long-standing policy and practice of the Commission, it was not \u201cindefensible by reference to prior law\u201d since the decision rested on the express and unambiguous language of section 15A-1354(b)(2) of the General Statutes. See Glenn, 761 F.2d at 195; N.C.G.S. \u00a7 15A-1354(b)(2) (2001). Thus, this Court\u2019s decision in Robbins, retroactively altering Plaintiff\u2019s parole eligibility calculation, does not infringe upon his due process rights.\nV\nFinally, Plaintiff contends disparate treatment between inmates with Class B and Class C life sentences under the Fair Sentencing Act results in a denial of equal protection of the laws. Unlike Class B life sentences, Class C life sentences are interpreted to be eligible to receive \u201cgood conduct\u201d credit applied to the life sentence, which can reduce the minimum required service from twenty years to as little as ten years. See N.C.G.S. \u00a7 15A-1355(c) (2001).\nPlaintiff\u2019s argument has no merit as Plaintiff admits inmates are not a \u201csuspect class,\u201d Moss v. Clark, 886 F.2d 686, 690 (4th Cir. 1989), and fails to show how this different treatment is not based on some \u201crational relation to a legitimate governmental objective,\u201d Rosie J. v. N.C. Dept. of Human Resources, 347 N.C. 247, 251, 491 S.E.2d 535, 537 (1997).\nAccordingly, the trial court correctly granted summary judgment in favor of the Secretary and the Commissioner.\nAffirmed.\nJudges WYNN and BIGGS concur.\n. Olander R. Bynum and Kerry McPherson did not file briefs in this Court, and we do not read Plaintiff\u2019s arguments as an attempt to argue on their behalf, as to do so would be to permit the unauthorized practice of law. See N.C.G.S. \u00a7 84-4 (2001). Accordingly, Olander Bynum\u2019s and Kerry McPherson\u2019s appeals are dismissed. See N.C.R. App. P. 13(c). Christopher Partin and Lee Wayne Hunt do not appeal.\n. As Plaintiff brought suit against the defendants in their official capacities, Secretary Beck, upon taking office, was automatically substituted for Acting Secretary Joseph Hamilton as a party to this case. See N.C.G.S. \u00a7 1A-1, Rule 25(f)(1) (2001).\n. The \u201cFair Sentencing Act\u201d applies to offenses committed from 1981 through September 1994. See N.C.G.S. \u00a7\u00a7 15A-1340.1 to -1340.7 (1993) (repealed effective October 1, 1994).\n. This practice was known as a \u201cpaper parole\u201d since the inmate was simply paroled from one sentence to the next consecutive sentence. Robbins v. Freeman, 127 N.C. App. 162, 165, 487 S.E.2d 771, 773 (1997), aff'd per curiam, 347 N.C. 664, 496 S.E.2d 375 (1998).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "James E. Price, Sr. pro se plaintiff appellant.", "Attorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons, for defendant appellees." ], "corrections": "", "head_matter": "JAMES E. PRICE, Sr.; OLANDER R. BYNUM; CHRISTOPHER PARTIN; LEE WAYNE HUNT; and KERRY McPHERSON, Plaintiffs v. THEODIS BECK, in His Official Capacity as Secretary, North Carolina Department of Corrections; and JUANITA BAKER, in Her Official Capacity as Commissioner of the North Carolina Parole Commission, Defendants\nNo. COA01-1593\n(Filed 5 November 2002)\n1. Probation and Parole\u2014 recalculation of parole eligibility date \u2014 credits\u2014summary judgment \u2014 ripeness\nThe trial court did not err by concluding a case challenging plaintiff inmate\u2019s parole eligibility date being recalculated, which required him to serve a longer term, was ripe for summary judgment even though plaintiff contends a material fact existed as to whether he was entitled to good conduct, gain time, and meritorious time credits to be applied to his life sentence because: (1) the issue of whether plaintiff has a legal right to have credits applied against his life sentence is a matter of law; and (2) there are no material facts in dispute, and the remaining issues are matters of law.\n2. Sentencing\u2014 life sentence \u2014 minimum service requirement \u2014 credits\nThe Parole Commission did not err by failing to reduce the minimum service requirement of plaintiff\u2019s life sentence with gain time, meritorious time, and good conduct credits, because: (1) N.C.G.S. \u00a7 148-13(b) gives the Secretary of the Department of Correction discretion to issue regulations regarding deductions of time from the terms of prisoners for good behavior, meritorious conduct, and the like for Class A, B, and C felons; (2) the Secretary has not issued regulations regarding deductions of time for Class A, B, and C felons; and (3) plaintiff does not argue that the Secretary has abused his discretion or failed to exercise his discretion by not promulgating regulations.\n3. Constitutional Law\u2014 prohibition against ex post facto laws \u2014 court\u2019s construction of statute different from state agency\u2019s prior interpretation\nThe retroactive application of case law to plaintiff\u2019s parole eligibility resulting in a delay of two years and three months does not violate the constitutional prohibition against ex post facto laws, because: (1) the fact that the Fair Sentencing Act has not undergone substantive change subsequent to the commission of plaintiff\u2019s crimes means it is still applicable in plaintiff\u2019s case, and the pertinent case law simply construed an existing statute; and (2) a court\u2019s construction of a statute that is different from a state agency\u2019s prior interpretation is not an ex post facto legislative action.\n4. Constitutional Law\u2014 due process \u2014 retroactive application of case law\nThe retroactive application of case law to recalculate plaintiff inmate\u2019s parole eligibility did not violate his due process rights even though plaintiff contends the pertinent case was unforeseeable and thus denied him the chance to accept a plea bargain for a term of years because even assuming the case was unexpected as it changed long-standing policy and practice of the Parole Commission, it was not indefensible by reference to prior law since the decision rested on the express and unambiguous language of N.C.G.S. \u00a7 15A-1354(b)(2).\n5. Constitutional Law\u2014 equal protection \u2014 disparate treatment between inmates\nAlthough plaintiff inmate contends disparate treatment between inmates with Class B and Class C life sentences under the Fair Sentencing Act results in a denial of equal protection of the laws, plaintiff\u2019s argument has no merit because: (1) plaintiff admits that inmates are not a suspect class; and (2) plaintiff fails to show how this disparate treatment is not based on some rational relation to a legitimate governmental objective.\nAppeal by plaintiffs from order filed 16 November 1999 by Judge Cy A. Grant, Sr. in Pasquotank County Superior Court. Heard in the Court of Appeals 17 September 2002.\nJames E. Price, Sr. pro se plaintiff appellant.\nAttorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons, for defendant appellees." }, "file_name": "0763-01", "first_page_order": 793, "last_page_order": 799 }