{ "id": 8301029, "name": "STATE OF NORTH CAROLINA v. WILLIAM S. LUTZ", "name_abbreviation": "State v. Lutz", "decision_date": "2006-04-04", "docket_number": "No. COA05-1187", "first_page": "140", "last_page": "144", "citations": [ { "type": "official", "cite": "177 N.C. App. 140" } ], "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": "567 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "130" }, { "page": "139" } ], "opinion_index": 0 }, { "cite": "356 N.C. 138", "category": "reporters:state", "reporter": "N.C.", "year": 2002, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "444 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "185" }, { "page": "185" } ], "opinion_index": 0 }, { "cite": "336 N.C. 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2533767 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "556" }, { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0552-01" ] }, { "cite": "567 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511319 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0132-01" ] }, { "cite": "506 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "276", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 220", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11198507 ], "year": 1998, "pin_cites": [ { "page": "223", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0220-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-196.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 444, "char_count": 8234, "ocr_confidence": 0.73, "pagerank": { "raw": 2.3284970777852208e-07, "percentile": 0.7908171480267768 }, "sha256": "dfdeda16d9f6f3f5c86f8e225af482faaf60064ce968542ead0f0b719a569342", "simhash": "1:251f8c6a764b6b64", "word_count": 1322 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and LEVINSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM S. LUTZ" ], "opinions": [ { "text": "TYSON, Judge.\nWilliam S. Lutz (\u201cdefendant\u201d) appeals from judgment entered denying his motion for credit against his active sentence. We reverse and remand for resentencing.\nI. Background\nOn 24 March 2004, defendant pled guilty to four counts of forgery and one count of embezzlement. Defendant was sentenced to a term of a minimum of eight months and a maximum of ten months imprisonment, consistent with the plea agreement. The trial court suspended defendant\u2019s sentence and placed him on thirty-six months supervised probation. Defendant was ordered to attend a substance abuse program (\u201cDART-Cherry\u201d) for ninety days as a special condition of his probation.\nThe trial court ordered defendant to be incarcerated until'space became available at DART-Cherry. On 28 April 2004, defendant entered the program. Defendant spent ninety-one days at DART-Cherry and successfully completed the program on 28 July 2004.\nOn 18 November 2004, a probation violation report was filed against defendant alleging positive drug tests, failure to pay the supervision fee, and failure to report to his probation officer. The trial court found defendant had wilfully violated the terms and conditions of his probation. The trial court revoked defendant\u2019s probation and activated his suspended sentence of eight to ten months imprisonment. The trial court credited defendant for time served in the Wayne County jail awaiting entry into DART-Cherry.\nDefendant filed a motion for credit against his active sentence for his time spent at DART-Cherry on 11 March 2005, pursuant to N.C. Gen. Stat. \u00a7 15-196.1. On 8 April 2005, an evidentiary hearing was held and the trial court denied defendant\u2019s motion for credit against his sentence. Defendant appeals.\nII.Issue\nDefendant argues-he is entitled to credit against his active sentence for the days he was in the control and custody of the State at DART-Cherry.\nIII.Standard of Review\nOur standard of review for a motion for appropriate relief is well established. \u201cWhen a trial court\u2019s 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 discretion. However, the trial court\u2019s conclusions are fully reviewable on appeal.\u201d State v. Wilkins, 131 N.C. App. 220, 223, 506 S.E.2d 274, 276 (1998) (internal citations omitted).\nIV.Credit Against Sentence\nDefendant argues his sentence should be credited for the days he spent at DART-Cherry pursuant to State v. Hearst, 356 N.C. 132, 567 S.E.2d 124 (2002). We agree.\nN.C. Gen. Stat. \u00a7 15-196.1 (2005) provides:\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, pending trial, trial de novo, appeal, retrial, or pending parole, probation, or post-release supervision revocation hearing: Provided, however, the credit available herein shall not include any time that is credited on the term of a previously imposed sentence to which a defendant is subject.\nOur Supreme Court has stated, \u201c[t]he langauge of section 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 charge.\u201d State v. Farris, 336 N.C. 552, 556, 444 S.E.2d 182, 185 (1994).\nIn State v. Hearst, our Supreme Court also considered the conditions of confinement at a State ordered rehabilitation program (\u201cIMPACT\u201d) and held that where the defendant was ordered to attend the program as a condition of his probation and had to relinquish his freedom to the IMPACT staff, the defendant was confined. 356 N.C. 138, 140, 567 S.E.2d 129, 130 (2002). The Court also held that the environment at IMPACT presented a custodial situation wherein the defendant was denied his liberty even though the facility was not locked or fenced, and the defendant could have left at anytime. Id. at 139, 567 S.E.2d at 129. The defendant was ordered to attend treatment at IMPACT, or he would have been in violation of the special conditions of probation and subject to having his sentence activated. Id. The Court noted that \u201c[w]hile trainees may be \u2018free to leave\u2019 IMPACT, those who fail or withdraw from the program face the probability of returning to prison.\u201d Id. at 140, 567 S.E.2d at 130.\nA. Confinement and Custody\nOur Supreme Court defined, \u201c \u2018confinement\u2019 ... as \u2018the act of imprisoning or restraining someone; the state of being imprisoned or restrained,\u2019 while \u2018custody\u2019 is defined as \u2018the care and control of a thing or person for inspection, preservation, or security.\u2019 \u201d Id. (citing Black's Law Dictionary (7th ed. 1999)). The Court also stated, \u201cBlack's Law Dictionary also specifically defines types of custody such as \u2018penal custody\u2019 and \u2018physical custody.\u2019 \u201d Id. \u201cPenal custody is defined as \u2018custody intended to punish a criminal offender\u2019 and physical custody is defined as \u2018custody of a person . . . whose freedom is directly controlled and limited.\u2019 \u201d Id.\nB. Analysis\nWhile at DART-Cherry, defendant\u2019s \u201cfreedom [was] directly controlled and limited.\u201d Id. During the evidentiary hearing on defendant\u2019s motion for credit against his sentence, the State conceded defendant was \u201cconfined\u201d at DART-Cherry. The State now asserts defendant was not \u201cconfined\u201d while being treated at DART-Cherry and argues conditions at DART-Cherry are dissimilar to the conditions at IMPACT because here defendant was: (1) allowed several breaks and free time; (2) not required to do any physical labor; (3) required to be up at 5:30 a.m. instead of 4:30 a.m.; and (4) required to be in bed by 10:30 p.m. instead of 8:30 p.m.\nDefendant contends he was ordered to attend DART-Cherry as a special condition of his probation, as was the defendant in Hearst. If defendant failed to attend the program or withdrew from the program, his sentence could have been activated. Defendant was not allowed to speak with other DART-Cherry participants while in hallways. If he violated that rule, the staff could require him to write a paper or perform extra hours of cleaning or clearing land. Although n\u00f3 guards were stationed on the premises, he was told that if he left the facility \u201che would be charged with escape.\u201d If charged, defendant testified he was told that \u201csix more months\u201d would be added to his sentence in addition to facing a probation violation report.\nDefendant was confined and in custody pursuant to the plain meaning of those words and our Supreme Court\u2019s analysis in Hearst. Defendant\u2019s freedom and liberty were limited by the programs and daily schedule. Although defendant could leave or withdraw from the program at anytime, he was told if he did so he would be charged with additional crimes and have his suspended sentence activated.\nV. Conclusion\nDefendant was in confinement and not at liberty at DART-Cherry. Farris, 336 N.C. at 556, 444 S.E.2d at 185. Pursuant to N.C. Gen. Stat. \u00a7 15-196.1, defendant is entitled to be credited for the ninety-one days spent at DART-Cherry. The trial court erred in denying defendant\u2019s motion for credit against his sentence. We reverse and remand for resentencing with appropriate credit consistent with this opinion.\nReversed and Remanded.\nJudges McCULLOUGH and LEVINSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.", "N.C. Prisoner Legal Services, Inc., by Mary E. McNeill, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM S. LUTZ\nNo. COA05-1187\n(Filed 4 April 2006)\nProbation and Parole\u2014 revocation \u2014 credit for time served\u2014 substance abuse program\nDefendant was confined and in custody while in a substance abuse program and the trial court erred by denying his motion for credit for that time when his probation was revoked.\nAppeal by defendant from judgment entered 8 April 2005 by Judge Jerry Braswell in Wayne County Superior Court. Heard in the Court of Appeals 9 March 2006.\nAttorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.\nN.C. Prisoner Legal Services, Inc., by Mary E. McNeill, for defendant-appellant." }, "file_name": "0140-01", "first_page_order": 174, "last_page_order": 178 }