{ "id": 4155617, "name": "STATE OF NORTH CAROLINA v. FELTON IAN HANNER", "name_abbreviation": "State v. Hanner", "decision_date": "2008-01-15", "docket_number": "No. COA07-757", "first_page": "137", "last_page": "144", "citations": [ { "type": "official", "cite": "188 N.C. App. 137" } ], "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": "90 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522976 ], "opinion_index": -1, "case_paths": [ "/nc-app/90/0142-01" ] }, { "cite": "369 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "606" }, { "page": "606" } ], "opinion_index": 0 }, { "cite": "486 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "737", "parenthetical": "\"[a]nnouncement of judgment in open court merely constitutes 'rendering' of judgment, not entry of judgment\"" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 800", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713506 ], "year": 1997, "pin_cites": [ { "page": "803", "parenthetical": "\"[a]nnouncement of judgment in open court merely constitutes 'rendering' of judgment, not entry of judgment\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0800-01" ] }, { "cite": "519 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1999, "pin_cites": [ { "page": "99", "parenthetical": "citing Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737 (1997) (\"[a]nnouncement of judgment in open court merely constitutes 'rendering' of judgment, not entry of judgment\")" }, { "page": "99", "parenthetical": "citations omitted" }, { "page": "99" }, { "page": "99" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238982 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "66", "parenthetical": "citing Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737 (1997) (\"[a]nnouncement of judgment in open court merely constitutes 'rendering' of judgment, not entry of judgment\")" }, { "page": "66" }, { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0059-01" ] }, { "cite": "90 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522976 ], "weight": 2, "pin_cites": [ { "page": "143" }, { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0142-01" ] }, { "cite": "450 U.S. 333", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185443 ], "weight": 2, "year": 1981, "pin_cites": [ { "parenthetical": "\"This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.\" (Quotation omitted)" }, { "parenthetical": "\"This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.\" (Quotation omitted)" } ], "opinion_index": 1, "case_paths": [ "/us/450/0333-01" ] }, { "cite": "337 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "681-82" } ], "opinion_index": 1 }, { "cite": "78 N.C. App. 572", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522768 ], "year": 1985, "pin_cites": [ { "page": "577" } ], "opinion_index": 1, "case_paths": [ "/nc-app/78/0572-01" ] }, { "cite": "189 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "488" } ], "opinion_index": 1 }, { "cite": "281 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575351 ], "year": 1972, "pin_cites": [ { "page": "501" } ], "opinion_index": 1, "case_paths": [ "/nc/281/0496-01" ] }, { "cite": "592 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "194", "parenthetical": "quoting Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972)" } ], "opinion_index": 1 }, { "cite": "357 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491490 ], "year": 2003, "pin_cites": [ { "page": "549", "parenthetical": "quoting Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972)" } ], "opinion_index": 1, "case_paths": [ "/nc/357/0544-01" ] }, { "cite": "369 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1988, "pin_cites": [ { "page": "606" }, { "page": "606" }, { "page": "606" }, { "page": "606" } ], "opinion_index": 1 }, { "cite": "90 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522976 ], "weight": 3, "pin_cites": [ { "page": "143" }, { "page": "142" } ], "opinion_index": 1, "case_paths": [ "/nc-app/90/0142-01" ] } ], "analysis": { "cardinality": 535, "char_count": 15731, "ocr_confidence": 0.724, "pagerank": { "raw": 8.445193661838842e-08, "percentile": 0.48474737330245893 }, "sha256": "d7fb34ce0294eb90741532ac82af6528eaf8d66c4ac76412e45bc82ca33994e5", "simhash": "1:abebf620560f7cfd", "word_count": 2509 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JACKSON concurs in the result.", "Judge TYSON concurs in part and dissents in part in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. FELTON IAN HANNER" ], "opinions": [ { "text": "ARROWOOD, Judge.\nDefendant appeals from judgments entered revoking Defendant\u2019s probation and activating Defendant\u2019s suspended sentences. For the reasons discussed herein, we vacate the sentences imposed in 05 CRS 78686 and 05 CRS 86681 and remand 05 CRS 78686 and 05 CRS 86681 for a new sentencing hearing.\nDefendant pled guilty to the following offenses pertinent to this appeal: five counts of breaking and entering, five counts of larceny after breaking and entering, three counts of obtaining property by false pretenses, two counts of possession of stolen property, and one count of financial transaction card theft. Defendant\u2019s plea agreement reflects that \u201c[i]n exchange for [Defendant\u2019s] cooperation[,] these offenses shall be consolidated into [eight] consecutive . . . judgments.\u201d At Defendant\u2019s plea hearing on 6 March 2006, the trial court rendered judgment sentencing Defendant pursuant to Defendant\u2019s plea agreement, under eight distinct file numbers, to eight consecutive sentences of 8 to 10 months imprisonment.\nThe trial court entered, among other judgments, the following judgments pertinent to Defendant\u2019s appeal, setting two sentences to run concurrently that were announced in open court as running consecutively:\n05 CRS 66373, Consolidated Judgment and Commitment on Breaking and Entering and Larceny. Suspended sentence of 8 months to a maximum term of 10 months.\n05 CRS 66813, Consolidated Judgment and Commitment on Breaking and Entering and Larceny. Suspended sentence of 8 months to a maximum term of 10 months, to begin at the expiration of the sentence imposed in 05 CRS 66373.\n05 CRS 78686 and 05 CRS 77933, Consolidated Judgment and Commitment on Possession of Stolen Goods and Breaking and Entering. Suspended sentence of 8 months to a maximum term of 10 months, to begin at the expiration of the sentence imposed in 05 CRS 66373.\n05 CRS 86681 and 05 CRS 86121, Consolidated Judgment and Commitment on Larceny and Breaking and Entering. Suspended sentence of 8 months to a maximum term of 10 months, to begin at the expiration of the sentence imposed in 05 CRS 66373.\n\u201cThe sentence actually imposed... was the sentence contained in the written judgment,\u201d not the sentence rendered in open court. State v. Crumbley, 135 N.C. App. 59, 66, 519 S.E.2d 94, 99 (1999) (citing Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737 (1997) (\u201c[a]nnouncement of judgment in open court merely constitutes \u2018rendering\u2019 of judgment, not entry of judgment\u201d)).\nIn open court on 8 November 2006, the trial court rendered judgment revoking Defendant\u2019s probation and placing \u201c[Defendant\u2019s] sentence in effect just as it was given [.]\u201d However, on 5 December 2006, when the judgments were entered, the trial court veered from the original judgments, setting two sentences to run consecutively which were set on 6 March 2006 to run concurrently. The court entered, among other judgments, the following judgments pertinent to Defendant\u2019s appeal:\n05 CRS 66373, Judgment and Commitment upon Revocation of Probation. Activated sentence of 8 months to a maximum term of 10 months.\n05 CRS 66813, Judgment and Commitment upon Revocation of Probation. Activated sentence of 8 months to a maximum term of 10 months, to begin at the expiration of the sentence imposed in 05 CRS 66373.\n05 CRS 78686, et al., Judgment and Commitment upon Revocation of Probation. Activated sentence of 8 months to a maximum term of 10 months, to begin at the expiration of the sentence imposed in 05 CRS 76450.\n05 CRS 86681, et al., Judgment and Commitment upon Revocation of Probation. Activated sentence of 8 months to a maximum term of 10 months, to begin at the expiration of the sentence imposed in 05 CRS 78686.\nThe sentences imposed in 05 CRS 78686 and 05 CRS 86681 were originally entered to run concurrently with 05 CRS 66813 at the expiration of 05 CRS 66373. However, upon Defendant\u2019s revocation of probation, the sentences in 05 CRS 78686 and 05 CRS 86681 were entered to run not as originally set, but rather, to run consecutively, which resulted in the extension of Defendant\u2019s term of imprisonment. From these judgments, Defendant appeals.\nIn his first argument, Defendant contends that the trial court erred by activating Defendant\u2019s suspended sentences such that two sentences which were set to run concurrently in the original judgments were set to run consecutively in the judgments upon the revocation of Defendant\u2019s probation. We find this argument to be without merit.\nN.C. Gen. Stat. \u00a7 15A-1344(d) (2005) states the following:\nA sentence activated upon revocation of probation commences on the day probation is revoked and runs concurrently with any other period of probation, parole, or imprisonment to which the defendant is subject during that period unless the revoking judge specifies that it is to run consecutively with the other period.\nIn State v. Paige, 90 N.C. App. 142, 143, 369 S.E.2d 606, 606 (1988), this Court interpreted G.S. \u00a7 15A-1344(d):\nAs we read it, this section permits the trial court to impose a consecutive sentence when a suspended sentence is activated upon revocation of a probationary judgment without regard to whether the sentence previously imposed ran concurrently or consecutively. Thus, under this section, the trial court in the present case had the authority to order defendant\u2019s sentence for felonious breaking and entering to be served consecutively to his sentence for possession of stolen goods.\nIn Paige, the original judgments entered upon the defendant\u2019s convictions of felonious breaking and entering and possession of stolen goods did not specify whether the sentences would run concurrently or consecutively. If a judgment fails to specify whether multiple sentences are to run consecutively or concurrently, the sentences run concurrently. See N.C. Gen. Stat. \u00a7 15A-1354(a) (2005). The trial court, however, in activating the defendant\u2019s suspended sentences, specified that the sentences should run consecutively. This Court upheld the trial court\u2019s ruling.\nPaige is binding authority in the case sub judice. Here, pursuant to G.S. \u00a7 15A-1344(d) and Paige the trial court did not err by activating Defendant\u2019s suspended sentences and specifying that the sen-fences should run consecutively instead of concurrently. This assignment of error is overruled.\nIn his second argument, Defendant contends that the trial court violated Defendant\u2019s right to be present during sentencing by entering a written judgment imposing a longer prison term than that which the trial court rendered in open court at Defendant\u2019s revocation hearing. We agree.\n\u201cThe Defendant had a right to be present at the time that sentence was imposed.\u201d Crumbley, 135 N.C. App. at 66, 519 S.E.2d at 99 (citations omitted).\nWe find this Court\u2019s opinion in Crumbley authoritative here. In Crumbley, the trial court orally rendered judgment sentencing the defendant to concurrent terms of imprisonment; however, as here, the written judgment entered at a later date by the trial court provided that the sentences would run consecutively. In Crumbley, we held that the trial court erred and rejected the State\u2019s argument there was no error because the defendant was present in open court at the time the sentence was originally rendered. The Court reasoned that \u201c[the] substantive change in the sentence could only be made in the Defendant\u2019s presence, where [the defendant or] his attorney would have an opportunity to be heard.\u201d Crumbley, 135 N.C. App. at 67, 519 S.E.2d at 99. This Court concluded that, \u201c[b]ecause there is no indication in this record that Defendant was present at the time the written judgment was entered, the sentence must be vacated and this matter remanded for the entry of a new sentencing judgment.\u201d Id. at 66, 519 S.E.2d at 99.\nHere, as in Crumbley, the trial court rendered judgment in open court on 8 November 2006, sentencing Defendant to two concurrent terms of imprisonment, because the trial court placed \u201c[Defendant\u2019s] sentence in effect just as it was given[.]\u201d The sentences imposed in 05 CRS 78686 and 05 CRS 86681 were originally entered on 6 March 2006 to run concurrently with 05 CRS 66813 at the expiration of 05 CRS 66373. Thereafter, on 5 December 2006, the court entered written judgments upon Defendant\u2019s revocation of probation, sentencing Defendant to consecutive rather than concurrent terms of imprisonment. The sentences imposed in 05 CRS 78686 and 05 CRS 86681 were entered to run not as originally set, at the expiration of 05 CRS 66373 and both concurrently with 05 CRS 66813, but rather, to run consecutively, which resulted in the extension of Defendant\u2019s term of imprisonment. There is no indication in this record that Defendant was present at the time the written judgments were entered.\nIn light of Crumbley, we vacate 05 CRS 78686 and 05 CRS 86681 and remand this matter for the entry of new sentencing judgments not inconsistent with this opinion. We again note that the trial court has the authority pursuant to G.S. \u00a7 15A-1344(d) and Paige to enter judgments upon a defendant\u2019s revocation of probation sentencing a defendant to a consecutive prison term \u201cwithout regard to whether the sentence previously imposed ran concurrently or consecutively[.]\u201d Paige, 90 N.C. App. at 143, 369 S.E.2d at 606.\nVacated and Remanded in part and No Error in part.\nJudge JACKSON concurs in the result.\nJudge TYSON concurs in part and dissents in part in a separate opinion.", "type": "majority", "author": "ARROWOOD, Judge." }, { "text": "TYSON, Judge\nconcurring in part and dissenting in part.\nThe majority\u2019s opinion holds the trial court: (1) properly activated defendant\u2019s suspended sentences and changed the sentences to run consecutively, instead of concurrently as originally imposed, and (2) erred when it entered a substantially different written judgment outside of defendant\u2019s presence. I concur to vacate and remand on entering the substantially different judgment outside of defendant\u2019s presence. I disagree with the majority\u2019s holding to affirm the consecutive sentences. I vote to reverse and respectfully dissent.\nI. Probation Revocation\nThe majority opinion fails to include all relevant portions of N.C. Gen. Stat. \u00a7 15A-1344(d) in its analysis. The more relevant portion of N.C. Gen. Stat. \u00a7 15A-1344(d) (2005) states:\nIf a convicted defendant violates a condition of probation at any time prior to the expiration or termination of the period of probation, the court, in accordance with the provisions of G.S. 15A-1345, may continue him on probation, with or without modifying the conditions, may place the defendant on special probation as provided in subsection (e), or, if continuation, modification, or special probation is not appropriate, may revoke the probation and activate the suspended sentence imposed at the time of initial sentencing, if any, or may order that charges as to which prosecution has been deferred be brought to trial; provided that probation may not be revoked solely for conviction of a Class 3 misdemeanor.\n(Emphasis supplied).\nThe majority incorrectly extends and misapplies this Court\u2019s reasoning in State v. Paige. 90 N.C. App. 142, 369 S.E.2d 606 (1988). In Paige, this Court held N.C. Gen. Stat. \u00a7 15A-1344(d) gave the trial court \u201cauthority to order defendant\u2019s sentence for felonious breaking and entering to be served consecutively to his sentence for possession of stolen goods.\u201d 90 N.C. App. at 143, 369 S.E.2d at 606. The facts of Paige are far different than and distinguishable from those at bar. Id. at 142, 369 S.E.2d at 606. In Paige, the defendant\u2019s sentences were entered in different proceedings more than two months apart and resulted in separate judgments that suspended the sentences and placed the defendant on probation for one and five year terms respectively. Id. at 142-43, 369 S.E.2d at 606.\nHere, defendant\u2019s concurrent sentences were all entered on the same day as result of a plea agreement and defendant was sentenced to one probationary term of five years. The trial court activated defendant\u2019s suspended sentences ordered to to run concurrently by the judge who imposed the sentences. \u201c[0]rdinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action.\u201d State v. Woolridge, 357 N.C. 544, 549, 592 S.E.2d 191, 194 (2003) (quoting Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972)).\nThe Rule of Lenity prevents courts from interpreting a criminal statute in a manner that would impose a penalty possibly greater than that intended by the General Assembly. State v. Boykin, 78 N.C. App. 572, 577, 337 S.E.2d 678, 681-82 (1985); see also Albernaz v. United States, 450 U.S. 333, 67 L. Ed. 2d 275 (1981) (\u201cThis policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.\u201d (Quotation omitted)).\nUnder the plain and unambiguous language of N.C. Gen. Stat. \u00a7 15A-1344(d) the trial court was only authorized to \u201crevoke the probation and activate the suspended sentence imposed at the time of initial sentencing . . . .\u201d (Emphasis supplied). The trial court erred when it altered defendant\u2019s original sentence and sentenced defendant to eight consecutive terms of imprisonment rather than five as imposed in the suspended judgment.\nI vote to reverse the trial court\u2019s judgment and remand to specify defendant\u2019s sentences run consecutively as imposed \u201cat the time of [defendant\u2019s] initial sentencing . . . .\u201d N.C. Gen. Stat. \u00a7 15A-1344(d). Under this analysis, it is unnecessary to reach defendant\u2019s second assignment of error. However, I concur with the majority\u2019s decision to vacate and remand for entering a substantially different judgment outside of defendant\u2019s presence.\nII. Conclusion\nThe majority\u2019s opinion fails to analyze controlling statutory provisions and incorrectly extends and misapplies N.C. Gen. Stat. \u00a7 15A-1344(d) and this Court\u2019s reasoning in Paige, 90 N.C. App. at 142, 369 S.E.2d at 606. I vote to reverse the trial court\u2019s judgment and remand for re-sentencing and activation of the original concurrent sentences exactly as imposed at the time of defendant\u2019s initial sentencing.\nUnder the express language of the statute and the facts of this case, the trial court was without authority to re-sentence defendant contrary to his plea agreement and the suspended sentences in the judgment originally imposed. Id. Our holding in Paige is inapplicable to the facts in this case. Id. I respectfully dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "TYSON, Judge" } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Brent D. Kiziah, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FELTON IAN HANNER\nNo. COA07-757\n(Filed 15 January 2008)\n1. Probation and Parole\u2014 revocation \u2014 sentence changed from concurrent to consecutive\nThe trial court did not err by activating defendant\u2019s suspended sentences and specifying that the sentences should run consecutively instead of concurrently as originally imposed pursuant to N.C.G.S. \u00a7 15A-1344(d) and State v. Paige, 90 N.C. App. 142.\n2. Sentencing\u2014 probation revoked \u2014 sentence changed from concurrent to consecutive \u2014 defendant not present\nThe trial court erred when revoking defendant\u2019s probation by changing some of defendant\u2019s terms to consecutive from concurrent (which it had the authority to do) but without defendant\u2019s presence.\nJudge TYSON concurring in part and dissenting in part.\nAppeal by Defendant from judgments entered 5 December 2005 by Judge Richard L. Doughton in Guilford County Superior Court. Heard in the Court of Appeals 29 November 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Brent D. Kiziah, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for Defendant." }, "file_name": "0137-01", "first_page_order": 167, "last_page_order": 174 }