{ "id": 6777265, "name": "STATE OF NORTH CAROLINA v. LARRY STUBBS", "name_abbreviation": "State v. Stubbs", "decision_date": "2014-02-04", "docket_number": "No. COA13-174", "first_page": "274", "last_page": "296", "citations": [ { "type": "official", "cite": "232 N.C. App. 274" } ], "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": "299 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "631-32" } ], "opinion_index": 0 }, { "cite": "307 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564174 ], "year": 1983, "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0563-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 148-58", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "parenthetical": "amended in 1973, effective 1 July 1974, to provide that the period a prisoner sentenced to life imprisonment must serve before being eligible for parole would be changed from ten to twenty years" } ], "opinion_index": 0 }, { "cite": "463 U.S. 277", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6194264 ], "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "holding that South Dakota's sentence of life without possibility of parole for uttering a \"no account\" check after the defendant had previously been convicted of six non-violent felonies was disproportionate to his .crime and prohibited by the Eighth Amendment" }, { "parenthetical": "holding that South Dakota's sentence of life without possibility of parole for uttering a \"no account\" check after the defendant had previously been convicted of six non-violent felonies was disproportionate to his .crime and prohibited by the Eighth Amendment" } ], "opinion_index": 0, "case_paths": [ "/us/463/0277-01" ] }, { "cite": "538 U.S. 11", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9030344 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "holding that the defendant's sentence of twenty-five years to life for felony grand theft under California's \"three strikes and you're out\" law did not violate the Eighth Amendment's prohibition on cruel and unusual punishments" }, { "parenthetical": "holding that the defendant's sentence of twenty-five years to life for felony grand theft under California's \"three strikes and you're out\" law did not violate the Eighth Amendment's prohibition on cruel and unusual punishments" } ], "opinion_index": 0, "case_paths": [ "/us/538/0011-01" ] }, { "cite": "445 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777320 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "288" }, { "page": "283-84" }, { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/us/445/0263-01" ] }, { "cite": "501 U.S. 957", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1107767 ], "weight": 10, "year": 1991, "pin_cites": [ { "page": "997, 1000-1001" }, { "page": "836", "parenthetical": "Kennedy, J., concurring in part and concurring in judgment" }, { "page": "961" }, { "page": "996" }, { "page": "865" } ], "opinion_index": 0, "case_paths": [ "/us/501/0957-01" ] }, { "cite": "171 L. Ed. 2d 932", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2008, "opinion_index": 0 }, { "cite": "554 U.S. 945", "category": "reporters:federal", "reporter": "U.S.", "year": 2008, "opinion_index": 0 }, { "cite": "554 U.S. 407", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3677216 ], "weight": 2, "pin_cites": [ { "page": "419" }, { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/us/554/0407-01" ] }, { "cite": "560 U.S. 48", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12448995, 3641893 ], "weight": 20, "year": 2010, "pin_cites": [ { "page": "58", "parenthetical": "citations, quotations, and bracket omitted" }, { "page": "835", "parenthetical": "citations, quotations, and bracket omitted" }, { "page": "59" }, { "page": "835-36" }, { "page": "59" }, { "page": "836" }, { "page": "59-60" }, { "page": "836" }, { "page": "59" }, { "page": "836" }, { "page": "69-70" }, { "page": "842" }, { "page": "74" }, { "page": "845" }, { "page": "75" }, { "page": "845-46", "parenthetical": "emphasis added" }, { "page": "82" }, { "page": "850" } ], "opinion_index": 0, "case_paths": [ "/l-ed-2d/176/0825-01", "/us/560/0048-01" ] }, { "cite": "50 L. Ed. 2d 259", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "429 U.S. 97", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7354 ], "weight": 5, "year": 1976, "pin_cites": [ { "page": "102-03", "parenthetical": "citation and quotations omitted" }, { "page": "259", "parenthetical": "citation and quotations omitted" }, { "page": "102" }, { "page": "258" }, { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/us/429/0097-01" ] }, { "cite": "356 U.S. 86", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6161306 ], "weight": 2, "year": 1958, "pin_cites": [ { "page": "100-01", "parenthetical": "citation omitted" }, { "page": "642", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/356/0086-01" ] }, { "cite": "525 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "136 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241087 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/136/0596-01" ] }, { "cite": "502 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "828", "parenthetical": "citations omitted" }, { "page": "828" } ], "opinion_index": 0 }, { "cite": "348 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659735 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "603", "parenthetical": "citations omitted" }, { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0588-01" ] }, { "cite": "291 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "591" } ], "opinion_index": 0 }, { "cite": "305 N.C. 712", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573095 ], "year": 1982, "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0712-01" ] }, { "cite": "744 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "157", "parenthetical": "quoting State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982)" } ], "opinion_index": 0 }, { "cite": "722 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2012, "pin_cites": [ { "page": "495", "parenthetical": "citations omitted" }, { "page": "496" }, { "page": "496", "parenthetical": "\"[I]t is not the role of the judiciary to engage in discretionary sentence reduction.\"" } ], "opinion_index": 0 }, { "cite": "365 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154353 ], "weight": 6, "year": 2012, "pin_cites": [ { "page": "448" }, { "page": "448" }, { "page": "449" }, { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0444-01" ] }, { "cite": "637 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637328 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "558", "parenthetical": "holding that a challenge to procedures in accepting a guilty plea is reviewable by certiorari'" } ], "opinion_index": 1, "case_paths": [ "/se2d/637/0557-01" ] }, { "cite": "628 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635586 ], "year": 2006, "pin_cites": [ { "page": "426", "parenthetical": "denying a petition for writ of certiorari by refusing to invoke Rule 2" } ], "opinion_index": 1, "case_paths": [ "/se2d/628/0424-01" ] }, { "cite": "180 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8243310 ], "year": 2006, "pin_cites": [ { "page": "471", "parenthetical": "holding that a challenge to procedures in accepting a guilty plea is reviewable by certiorari'" } ], "opinion_index": 1, "case_paths": [ "/nc-app/180/0470-01" ] }, { "cite": "359 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "462", "parenthetical": "holding that a defendant may obtain appellate review through a writ of cer-tiorari to challenge the procedures followed in accepting a guilty plea, notwithstanding that the defendant does not have the statutory right to appellate review" } ], "opinion_index": 1 }, { "cite": "320 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728334 ], "year": 1987, "pin_cites": [ { "page": "601-02", "parenthetical": "holding that a defendant may obtain appellate review through a writ of cer-tiorari to challenge the procedures followed in accepting a guilty plea, notwithstanding that the defendant does not have the statutory right to appellate review" } ], "opinion_index": 1, "case_paths": [ "/nc/320/0596-01" ] }, { "cite": "177 N.C. App. 264", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301186 ], "year": 2006, "pin_cites": [ { "page": "268", "parenthetical": "denying a petition for writ of certiorari by refusing to invoke Rule 2" } ], "opinion_index": 1, "case_paths": [ "/nc-app/177/0264-01" ] }, { "cite": "568 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "872", "parenthetical": "dismissing a petition for writ of certiorari, stating that since the appeal was not within the scope of Rule 21, this Court \"does not have the authority to issue a writ of certiorari\"" } ], "opinion_index": 1 }, { "cite": "153 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248676 ], "year": 2002, "pin_cites": [ { "page": "77", "parenthetical": "dismissing a petition for writ of certiorari, stating that since the appeal was not within the scope of Rule 21, this Court \"does not have the authority to issue a writ of certiorari\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/153/0069-01" ] }, { "cite": "364 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "188" } ], "opinion_index": 1 }, { "cite": "88 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358631 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/nc-app/88/0577-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "year": 2008, "pin_cites": [ { "page": "365", "parenthetical": "noting that \"in the absence of jurisdiction, the appellate courts lack authority to consider whether the circumstances of a purported appeal justify application of Rule 2\"" } ], "opinion_index": 2, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "636 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636973, 12636974 ], "weight": 3, "year": 2006, "pin_cites": [ { "parenthetical": "citation, internal quotation marks, and brackets omitted" } ], "opinion_index": 2, "case_paths": [ "/se2d/636/0196-01", "/se2d/636/0196-02" ] }, { "cite": "628 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635586 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "425" }, { "page": "426" }, { "page": "426", "parenthetical": "citation and internal quotation marks omitted; italics added" }, { "parenthetical": "italics added" } ], "opinion_index": 2, "case_paths": [ "/se2d/628/0424-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 2 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 2, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "362 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149183 ], "year": 2008, "pin_cites": [ { "page": "198", "parenthetical": "noting that \"in the absence of jurisdiction, the appellate courts lack authority to consider whether the circumstances of a purported appeal justify application of Rule 2\"" } ], "opinion_index": 2, "case_paths": [ "/nc/362/0191-01" ] }, { "cite": "264 S.E.2d 737", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "740", "parenthetical": "italics added" } ], "opinion_index": 2 }, { "cite": "46 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549764 ], "year": 1980, "pin_cites": [ { "page": "204", "parenthetical": "italics added" } ], "opinion_index": 2, "case_paths": [ "/nc-app/46/0200-01" ] }, { "cite": "607 S.E.2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 2 }, { "cite": "359 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794209, 3799976, 3793513, 3800274, 3796792, 3798971, 3799454 ], "year": 2004, "opinion_index": 2, "case_paths": [ "/nc/359/0191-07", "/nc/359/0191-01", "/nc/359/0191-04", "/nc/359/0191-05", "/nc/359/0191-03", "/nc/359/0191-02", "/nc/359/0191-06" ] }, { "cite": "599 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "924" } ], "opinion_index": 2 }, { "cite": "165 N.C. App. 885", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000703 ], "pin_cites": [ { "page": "887" } ], "opinion_index": 2, "case_paths": [ "/nc-app/165/0885-01" ] }, { "cite": "137 S.E. 2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "808" } ], "opinion_index": 2 }, { "cite": "262 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568279 ], "year": 1964, "pin_cites": [ { "page": "465" } ], "opinion_index": 2, "case_paths": [ "/nc/262/0462-01" ] }, { "cite": "184 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 2 }, { "cite": "279 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571713, 8571746, 8571572, 8571606, 8571643 ], "year": 1971, "opinion_index": 2, "case_paths": [ "/nc/279/0619-04", "/nc/279/0619-05", "/nc/279/0619-01", "/nc/279/0619-02", "/nc/279/0619-03" ] }, { "cite": "183 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "419" } ], "opinion_index": 2 }, { "cite": "12 N.C. App. 348", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549451 ], "year": 1971, "pin_cites": [ { "page": "362" } ], "opinion_index": 2, "case_paths": [ "/nc-app/12/0348-01" ] }, { "cite": "467 U.S. 822", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6208656 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "828" }, { "page": "688" } ], "opinion_index": 2, "case_paths": [ "/us/467/0822-01" ] }, { "cite": "184 L. Ed. 2d 627", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12407338 ], "year": 2013, "pin_cites": [ { "page": "637", "parenthetical": "noting that \" [objections to a tribunal's jurisdiction can be raised at any time, even by a party that once conceded the tribunal's subject-matter jurisdiction over the controversy\"" } ], "opinion_index": 2, "case_paths": [ "/us/568/0145-01" ] }, { "cite": "177 N.C. App. 264", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301186 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "266" }, { "page": "267" }, { "page": "268" } ], "opinion_index": 2, "case_paths": [ "/nc-app/177/0264-01" ] }, { "cite": "364 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "188", "parenthetical": "emphasis added" } ], "opinion_index": 2 }, { "cite": "88 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358631 ], "year": 1988, "pin_cites": [ { "page": "579", "parenthetical": "emphasis added" } ], "opinion_index": 2, "case_paths": [ "/nc-app/88/0577-01" ] }, { "cite": "299 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1983, "pin_cites": [ { "page": "631-32" }, { "page": "630" }, { "page": "630-31" }, { "page": "631" }, { "page": "631-32", "parenthetical": "citations, internal quotation marks, and some brackets omitted" } ], "opinion_index": 2 }, { "cite": "307 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564174 ], "year": 1983, "pin_cites": [ { "page": "567" } ], "opinion_index": 2, "case_paths": [ "/nc/307/0563-01" ] }, { "cite": "722 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2012, "pin_cites": [ { "page": "494" }, { "page": "494", "parenthetical": "citation and internal quotation marks omitted; emphasis added" } ], "opinion_index": 2 }, { "cite": "365 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154353 ], "weight": 2, "year": 2012, "pin_cites": [ { "page": "445" } ], "opinion_index": 2, "case_paths": [ "/nc/365/0444-01" ] } ], "analysis": { "cardinality": 1669, "char_count": 56847, "ocr_confidence": 0.715, "pagerank": { "raw": 8.157032917574693e-08, "percentile": 0.4747189894082628 }, "sha256": "3ff610be06a8df9541d0a5980a1554d87d161c615a0fb54f1dcec4c35c254c2f", "simhash": "1:c8a9b770570f3f59", "word_count": 9219 }, "last_updated": "2023-07-14T19:34:41.441392+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. LARRY STUBBS" ], "opinions": [ { "text": "BRYANT, Judge.\nWhere the trial court erred in concluding that defendant\u2019s sentence of life in prison with the possibility of parole was a violation of the Eighth Amendment, we reverse and remand the trial court order modifying defendant\u2019s original sentence.\nOn 7 May 1973, a complaint and warrant for arrest was issued against seventeen-year-old defendant Larry Connell Stubbs in Cumberland County.\n[The complainant alleged that on that day, defendant] unlawfully, willfully, and feloniously and burglariously [sic] did break and enter, at or about the hour of two o\u2019clock AM in the night... the dwelling house of [the victim] located at 6697 Amanda Circle, Fayetteville, N.C. and then and there actually occupied by the said [victim], with the felonious intent [defendant], [sic] the goods and chattels of the said [victim], in the said dwelling house then and there being, then and there feloniously and burglariously [sic] to steal and carry away, said items stolen and carried away, one table lamp, one General Electric Record Player; one Magnus Electric Organ; One Portable General Electric 19\u201d television set;.. . one man\u2019s suit color black, the personal property of [the victim], and valued at $394.00.\nIn addition to first-degree burglary and felonious larceny, defendant was charged with and later indicted on the charge of rape. On 6 August 1973, defendant pled guilty to second-degree burglary and assault with intent to commit rape. The State dismissed the charge of felonious larceny.\nOn the charge of second-degree burglary, the trial court accepted defendant\u2019s plea, entered judgment, and sentenced defendant to an active term for \u201chis natural life.\u201d On the charge of assault with intent to commit rape, the trial court sentenced defendant to an active term of fifteen years to run concurrently with his life sentence.\nOn 11 May 2011, defendant filed a pro se motion for appropriate relief (MAR) in the Cumberland County Superior Court asking that his sentence of life in prison on the charge of second-degree burglaiy be set aside, that he be resentenced, and after awarding time served as credit toward the new sentence, that he be released from prison. As a statutory basis for the relief requested, defendant cited N.C. Gen. Stat. \u00a7 15A-1415(b)(7), \u201cGrounds for appropriate relief which may be asserted by defendant after verdict; limitation as to time\u201d, and G.S. \u00a7 15A-1340.17, \u201cPunishment limits for each class of offense and prior record level\u201d pursuant to the Structured Sentencing Act codified at \u00a7\u00a7 15A-1340.10, et seq. Defendant\u2019s contention was that his original sentence was grossly disproportionate to the maximum sentence he could receive for the same crime if sentenced today. Sentenced to an active term for his natural life for second-degree burglary, defendant maintained that if he had been sentenced under the Structured Sentencing Act, effective 1 October 1994, his term would have been between twenty-nine and forty-four months. \u201cBecause there has been a \u2018significant change\u2019 in the law,\u201d defendant asserted that his life sentence should now be considered cruel and unusual punishment. Defendant petitioned the Superior Court to resentence him based on \u201cevolving standards of decency under the Eighth Amendment of the United States Constitution which prohibits cruel and unusual punishment being inflicted[,] as does [] Article I, section 27 of the North Carolina Constitution.\u201d Defendant also petitioned to proceed in forma pauperis.\nOn 10 October 2011, Senior Resident Superior Court Judge Gregory A. Weeks filed an order in which he concluded that defendant\u2019s \u201cMotion for Appropriate Relief [was] not frivolous, [had] merit, that a summary disposition [was] inappropriate, and that a hearing [was] necessary.\u201d The court appointed the Office of North Carolina Prisoner Legal Services to represent defendant.\nOn 13 August 2012, the State filed its Memorandum Opposing Defendant\u2019s Motion for Appropriate Relief. In its memorandum, the State addressed defendant\u2019s motion as a request for retroactive application of the Structured Sentencing Act and a challenge to his life sentence pursuant to the Cruel and Unusual Punishments Clause of the Eighth Amendment to the United States Constitution. The State maintained that defendant was not entitled to the relief sought: the Structured Sentencing Act was applicable to criminal offenses occurring on or after 1 October 1994; and \u201c[t]o the extent that [] Defendant\u2019s argument challenges his sentence pursuant to the Cruel and Unusual Punishments Clause of the Eighth Amendment to the United States Constitution,\u201d Eighth Amendment jurisprudence proscribes a different analysis than the one proposed by defendant. The State further asserted that our State Appellate Courts have rejected arguments similar to the one defendant presented.\nOn 15 August 2012, defendant, through appointed counsel, filed a Memorandum Supporting Defendant\u2019s Motion for Appropriate Relief. Acknowledging our North Carolina Supreme Court\u2019s holding which declined to retroactively apply the sentencing provisions codified under the Structured Sentencing Act, see State v. Whitehead, 365 N.C. 444, 722 S.E.2d 492 (2012), defendant asserted that he was entitled to relief \u201cbecause his sentence of Life Imprisonment for his conviction of Second Degree Burglary in 1973 is unconstitutionally excessive under evolving standards of decency and the Eighth Amendment to the United States Constitution . . . and Article I, Section 27 of the North Carolina Constitution.\u201d Defendant asserted that \u201c[t]o gauge evolving standards of decency, the [United States] Supreme Court looks to legislative changes and enactments.\u201d Defendant also asserted that \u201c[t]he [Structured Sentencing Act] is the most current expression of North Carolina\u2019s assessment of appropriate and humane sentences, and [] is an objective index of sentence proportionality for Eighth Amendment analysis purposes.\u201d \u201cAs of today, Defendant has served nearly forty years in prison for his Second Degree Burglary conviction. This is nearly ten times the length of time that any defendant could be ordered to serve today.\u201d Defendant contended that his sentence was excessive, that it violated the United States Constitution and the North Carolina Constitution \u201cmaking it necessary to vacate Defendant\u2019s life sentence and to resentence him to a term of years that is not disproportionate, cruel, or unusual.\u201d\nFollowing a 13 August 2012 hearing, the trial court on 5 December 2012 entered an order in which it found that on 6 August 1973, defendant pled guilty to second-degree burglary and assault with intent to commit rape. Defendant had been sentenced to life in prison for second-degree burglary along with a concurrent sentence of fifteen years imprisonment for assault with intent to commit rape. Defendant completed his sentence for assault with intent to commit rape in 1983 and was currently incarcerated solely for his second-degree burglary conviction. \u201cAs of 30 November 2012, [defendant] has been in the custody of the North Carolina Department of Public Safety for this crime for more than thirty-six years.\u201d The court found that defendant was paroled in December 2008 and that while on parole, he was charged with and convicted of driving while impaired. Subsequent to his conviction, defendant\u2019s parole status was revoked, and he was returned to incarceration. The trial court concluded that under \u201cevolving standards, [defendant\u2019s] sentence violated the Eighth Amendment and is invalid as a matter of law.\u201d The trial court granted defendant\u2019s motion for appropriate relief and vacated the judgment entered 6 August 1973 as to the second-degree burglary conviction, resentencing defendant to a term of thirty years. Defendant was given credit for 13,652 days spent in confinement. The trial court further ordered that the North Carolina Department of Public Safety Division of Adult Correction release defendant immediately.\nThe State filed with this Court petitions for a writ of certiorari to review the 5 December 2012 trial court order and a writ of supersedeas to stay imposition of the trial court\u2019s order pending appeal. Both petitions were granted.\nOn appeal, the State brings forth the issue of whether the Superior Court erred by ruling that defendant\u2019s 1973 sentence of fife imprisonment with the possibility of parole for a second-degree burglary conviction is now in violation of the Eighth Amendment to the United States Constitution, vacating defendant\u2019s 1973 judgment, and resentencing him. The State argues on appeal that (A) the trial court lacked jurisdiction over the original judgment and (B) that it incorrectly interpreted the precedent of the Supreme Court of the United States.\n\u201cOur review of a trial court\u2019s ruling on a defendant\u2019s MAR is \u2018whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court.\u2019 \u201d State v. Peterson,_N.C. App._,_, 744 S.E.2d 153, 157 (2013) (quoting State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982)).\nA\nThe State argues that the trial court lacked jurisdiction over the original judgment. Specifically, the State contends that defendant\u2019s motion for appropriate relief was made pursuant to N.C. Gen. Stat. \u00a7 15A-1415 but that no provision of section 15A-1415 granted the trial court jurisdiction to modify the original sentence. We disagree.\nA trial court loses jurisdiction to modify a defendant\u2019s sentence, \u201csubject to limited exceptions, after the adjournment of the session of court in which [the] defendant receive[s] this sentence^] [although a trial court may properly modify a sentence after the trial term upon submission of a [Motion for Appropriate Relief (MAR)][.]\u201d Whitehead, 365 N.C. at 448, 722 S.E.2d at 495 (citations omitted). Section 15A-1415 of the North Carolina General Statutes lists \u201cthe only grounds which the defendant may assert by a motion for appropriate refief made more than 10 days after entry of judgment[.]\u201d N.C. Gen. Stat. \u00a7 15A-1415(b) (2011).\nAt the 13 August 2012 hearing on defendant\u2019s MAR, defendant contended that he was entitled to relief pursuant to N.C. Gen. Stat. \u00a7 15A-1415(b)(8). In its 5 December 2012 order, the trial court concluded that its authority over the 6 August 1973 judgment was allowed pursuant to N.C.G.S. \u00a7 15A-1415(b)(4) & (b)(8).\nPursuant to General Statutes, section 15A-1415, a defendant may assert by MAR made more than ten days after entry of judgment the following grounds:\n(4) The defendant was convicted or sentenced under a statute that was in violation of the Constitution of the United States or the Constitution of North Carolina.\n(8) The sentence imposed was unauthorized at the time imposed, contained a type of sentence disposition or a term of imprisonment not authorized for the particular class of offense and prior record or conviction level was illegally imposed, or is otherwise invalid as a matter of law.\nN.C.G.S. \u00a7 15A-1415(b)(4) & (b)(8).\nThe gravamen of the argument presented in defendant\u2019s MAR submitted to the trial court is that because \u201chis sentence of Life Imprisonment for his conviction of Second Degree Burglary in 1973 is unconstitutionally excessive under evolving standards of decency and the Eighth Amendment to the United States Constitution . . . and Article I, Section 27 of the North Carolina Constitution,\u201d the trial court had jurisdiction over the 6 August 1973 judgment to consider whether defendant\u2019s sentence was \u201cinvalid as a matter of law.\u201d N.C.G.S. \u00a7 15A-1415(b)(8); see also N.C.G.S. \u00a7 15A-1415(b)(4). We agree and therefore, overrule the State\u2019s challenge to the trial court\u2019s jurisdiction.\nB\nThe State further contends that the trial court misapplied United States Supreme Court precedent, applying the wrong test to determine whether an Eighth Amendment violation has occurred. We agree in part.\nThe Eighth Amendment to the United States Constitution states that \u201c[ejxcessive bail shall not be required, nor excessive lines imposed, nor cruel and unusual punishments inflicted[,]\u201d U.S. Const. amend. VIII, and is made applicable to the States by the Fourteenth Amendment, id. amend. XIV. The Constitution of North Carolina similarly states, \u201c[ejxcessive bail shall not be required, nor excessive hues imposed, nor cruel or unusual punishments inflicted.\u201d N.C. Const. art. I, \u00a7 27. Despite the difference between the two constitutions, one prohibiting \u201ccruel and unusual punishments,\u201d the other \u201ccruel or unusual punishments,\u201d \u201c[our North Carolina Supreme Court] historically has analyzed cruel and/or unusual punishment claims by criminal defendants the same under both the federal and state Constitutions.\u201d State v. Green, 348 N.C. 588, 603, 502 S.E.2d 819, 828 (1998) (citations omitted), superseded by statute on other grounds as stated in In re J.L.W., 136 N.C. App. 596, 525 S.E.2d 500 (2000).\n\u201cThe basic concept underlying the Eighth Amendment is nothing less than the dignity of man.... [T]he words of the Amendment are not precise, and [] their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.\u201d Trop v. Dulles, 356 U.S. 86, 100-01, 2 L. Ed. 2d 630, 642 (1958) (citation omitted). \u201cThe [Eighth] Amendment embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . . , against which we must evaluate penal measures.\u201d Estelle v. Gamble, 429 U.S. 97, 102-03, 50 L. Ed. 2d 251, 259 (1976) (citation and quotations omitted).\nIn Estelle v. Gamble, the United States Supreme Court observed that when the Court initially applied the Eight Amendment, the challenged punishments regarded methods of execution. Id. at 102, 50 L. Ed. 2d at 258. However, \u201cthe Amendment proscribes more than physically barbarous punishments.\u201d Id. at 102, 50 L. Ed. 2d 259.\nTo determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society. This is because the standard of extreme cruelty is riot merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.\nGraham v. Florida, 560 U.S. 48, 58, 176 L. Ed. 2d 825, 835 (2010) (citations, quotations, and bracket omitted).\n[T]he Eighth Amendment\u2019s protection against excessive or cruel and unusual punishments flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense. Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that currently prevail. The Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society.\nKennedy v. Louisiana, 554 U.S. 407, 419, 171 L. Ed. 2d 525, 538 (citations and quotations omitted) opinion modified on denial of reh\u2019g, 554 U.S. 945, 171 L. Ed. 2d 932 (2008).\nThe concept of proportionality is central to the Eighth Amendment....\nThe Court\u2019s cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty.\nGraham, 560 U.S. at 59, 176 L. Ed. 2d at 835-36.\nAs to the first classification, in which the Court considers whether a term-of-years sentence is unconstitutionally excessive given the circumstances of a case, the Court noted that \u201cit has been difficult for [challengers] to establish a lack of proportionality.\u201d Id. at 59, 176 L. Ed. 2d at 836. Referring to Harmelin v. Michigan, 501 U.S. 957, 115 L. Ed. 2d 836 (1991), as a leading case on the review of Eighth Amendment challenges to term-of-years sentences as disproportionate, Justice Kennedy delivering the opinion of the Graham Court acknowledged his concurring opinion in Harmelin: \u201c[T]he Eighth Amendment contains a \u2018narrow proportionality principle,\u2019 that \u2018does not require strict proportionality between crime and sentence\u2019 but rather \u2018forbids only extreme sentences that are \u201cgrossly disproportionate\u201d to the crime.\u2019 \u201d Graham, 560 U.S. at 59-60, 176 L. Ed. 2d at 836 (quoting Harmelin, 501 U.S. at 997, 1000-1001, 115 L. Ed. 2d at 836 (Kennedy, J., concurring in part and concurring in judgment)). Accord Rummel v. Estelle, 445 U.S. 263, 288, 63 L. Ed. 2d 382 (1980) (Powell, J., dissenting (The scope of the Cruel and Unusual Punishments Clause extends .. ..to punishments that are grossly disproportionate. Disproportionality analysis... focuses on whether, a person deserves such punishment.... A statute that levied a mandatory life sentence for overtime parking might well deter vehicular lawlessness, but it would offend our felt sense of justice. The Court concedes today that the principle of disproportionality plays a role in the review of sentences imposing the death penalty, but suggests that the principle may be less applicable when a noncapital sentence is challenged.\u201d)).\nIn Harmelin, 501 U.S. 957, 115 L. Ed. 2d 836, the defendant challenged his sentence of life in prison without possibility of parole on the grounds that it was \u201csignificantly\u201d disproportionate to his crime, possession of 650 or more grams of cocaine. The defendant further argued that because the sentence was mandatory upon conviction, it amounted to cruel and unusual punishment as it precluded consideration of individual mitigating circumstances. Id. at 961, 115 L. Ed. 2d at 843 n.l. In an opinion delivered by Justice Scalia, a majority of the Court held that the sentence was not cruel and unusual punishment solely because it was mandatory upon conviction. In addressing the defendant\u2019s alternative argument, that his sentence of life in prison without possibility of parole was significantly disproportionate to his crime of possessing 650 or more grams of cocaine, a majority of the Court concluded that the defendant\u2019s sentence did not run afoul of the Eighth Amendment; however, the Court revealed varied views as to whether the Eighth Amendment includes a protection against disproportionate sentencing and if so, to what extent. See also Ewing v. California, 538 U.S. 11, 155 L. Ed. 2d 108 (2003) (holding that the defendant\u2019s sentence of twenty-five years to life for felony grand theft under California\u2019s \u201cthree strikes and you\u2019re out\u201d law did not violate the Eighth Amendment\u2019s prohibition on cruel and unusual punishments). Cf. Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637 (1983) (holding that South Dakota\u2019s sentence of life without possibility of parole for uttering a \u201cno account\u201d check after the defendant had previously been convicted of six non-violent felonies was disproportionate to his .crime and prohibited by the Eighth Amendment).\nWe return our attention to Graham v. Florida which sets out the second classification of Eighth Amendment proportionality challenges as \u201cimplement[ing] the proportionality standard by certain categorical restrictions on the death penalty.\u201d Graham, 560 U.S. at 59, 176 L. Ed. 2d at 836. But, rather than a challenge to a capital sentence, the Graham Court was presented with a categorical challenge to a term-of-years sentence: whether the imposition of life in prison without the possibility of parole for a nonhomicide crime committed by a sixteen-year-old juvenile offender violated the Eighth Amendment. In its reasoning, the Court made the following observation:\n[L]ife without parole is the second most severe penalty permitted by law.... [L]ife without parole sentences share some characteristics with death sentences that are shared by no other sentences [T]he sentence alters the offender\u2019s life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency \u2014 the remote possibility of which does not mitigate the harshness of the sentence.\nId. at 69-70, 176 L. Ed. 2d at 842. The Court concluded that the severity of a sentence imposing life without parole for a person who was a juvenile at the time his nonhomicide offense was committed is a sentencing practice that is cruel and unusual. Id. at 74, 176 L. Ed. 2d at 845. However, the Court went on to note that this sentencing preclusion may not lessen the duration of a sentence.\nA State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give [the] defendant]] ... some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis . . . that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomi-cide offender, it does not require the State to release that offender during his natural life. . . . The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life.\nId. at 75, 176 L. Ed. 2d at 845-46 (emphasis added).\nAs a means of obtaining release from incarceration, our North Carolina General Assembly has created by statute a Post-Release Supervision and Parole Commission. N.C. Gen. Stat. \u00a7 143B-720 (2011). With the exception of those sentenced under the Structured Sentencing Act, the Commission has \u201cauthority to grant paroles ... to persons held by virtue of any final order or judgment of any court of this State-\u201d Id. \u00a7 143B-720(a). Furthermore, the Commission is to assist the Governor and perform such services as the Governor may require in exercising his executive clemency powers. Id. We note that in State v. Whitehead, 365 N.C. 444, 722 S.E.2d 492 (2012), a case reviewing the retroactive application of a less severe sentencing statute, our Supreme Court also drew attention to the powers of the Post-Release Supervision and Parole Commission.\nIn 2005,2007,2009, and2011, the GeneralAssembly directed the Post-Release Supervision and Parole Commission to determine whether inmates sentenced under previous sentencing standards have served more time in custody than they would have served if they had received the maximum sentence under the SSA. [Defendant\u2019s sentence appears to fall within the purview of this directive.].. . In addition, wholly independent of the Commission\u2019s grant of authority, the state constitution empowers the Governor to \u201cgrant reprieves, commutations, and pardons, after conviction, for all offenses... upon such conditions as he may think proper.\u201d N.C. Const. art. III, \u00a7 5(6).\nId. at 448, 722 S.E.2d at 496 n.l (emphasis added).\nThe Whitehead Court considered atrial court order granting a defendant\u2019s MAR requesting that his life sentence imposed following a guilty plea entered 29 July 1994 and imposed pursuant to the Fair Sentencing Act for a homicide occurring 25 August 1993 be modified by retroactively applying the sentencing provisions of the Structured Sentencing Act applicable to offenses committed on or after 1 October 1994. Id. Vacating and remanding the judgment and order of the trial court, our Supreme Court stated that \u201c[c]riminal sentences may be invalidated for cognizable legal error demonstrated in appropriate proceedings. But, in the absence of legal error, it is not the role of the judiciary to engage in discretionary sentence reduction.\u201d Id. at 448, 722 S.E.2d at 496.\nIn the matter before us, we note that on 7 May 1973, the date of the offense for which defendant was charged with committing the offense of second-degree burglary, he was seventeen years old. On 6 August 1973, the date defendant pled guilty to second-degree burglary, defendant was eighteen. Defendant was sentenced to incarceration for \u201chis natural life.\u201d Pursuant to our General Statutes in effect at that time, any prisoner serving a life sentence was eligible to have his case considered for parole after serving ten years of his sentence. N.C.G.S. \u00a7 148-58. The record is not clear how often defendant was considered for parole. However, after serving over thirty-five years, defendant was paroled in December 2008. In 2010, defendant was convicted of driving while impaired. He was sentenced and served 120 days in jail. Thereafter, his parole was revoked and his life sentence reinstated.\n\u201c[L]ife imprisonment with possibility of parole is [] unique in that it is the third most severe [punishment].\u201d Harmelin, 501 U.S. at 996, 115 L. Ed. 2d at 865. Nevertheless, in the body of case law involving those who commit nonhomicide criminal offenses even as juveniles, sentences allowing for the \u201crealistic opportunity to obtain release before the end of [a life] term\u201d do not violate the prohibitions of the Eighth Amendment. Graham, 560 U.S. at 82, 176 L. Ed. 2d at 850. Defendant\u2019s sentence allows for the realistic opportunity to obtain release before the end of his life. In fact, defendant was placed on parole in December 2008 prior to his 2010 conviction for the offense of driving while impaired, which led to the revocation of his parole and reinstatement of his life sentence. As our Supreme Court has not indicated a preference for discretionary sentence reduction, see Whitehead, 365 N.C. at 448, 722 S.E.2d at 496 (\u201c[I]t is not the role of the judiciary to engage in discretionary sentence reduction.\u201d), and our General Assembly has directed the Post-Release Supervision and Parole Commission to review matters of proportionality, see N.C.G.S. \u00a7 143B-720; Whitehead, 365 N.C. at 449, 722 S.E.2d at 496 n. 1, we hold that the trial court erred in concluding defendant\u2019s life sentence violated the prohibitions of the Eighth Amendment to the United States Constitution. See Rummel v. Estelle, 445 U.S. 263, 283-84, 63 L. Ed. 2d 382, 397 (1980) (\u201cPerhaps . . . time works changes upon the Eighth Amendment, bringing into existence new conditions and purposes. We all, of course, would like to think that we are moving down the road toward human decency. Within the confines of this judicial proceeding, however, we have no way of knowing in which direction that road lies. Penologists themselves have been unable to agree whether sentences should be light or heavy, discretionary or determinate. This uncertainty reinforces our conviction that any nationwide trend toward fighter, discretionary sentences must find its source and its sustaining force in the legislatures, not in the [] courts.\u201d (citations and quotations omitted)). It should be stated that by all accounts based on today\u2019s sentencing standards, defendant\u2019s sentence cannot be viewed as anything but severe. Since 1973 at the age of eighteen, defendant has been incarcerated for all but less than two years. There is no record of an appeal from the 1973 conviction, and the record before us does not provide details of the circumstances which led to defendant\u2019s arrest or the injury to the victim. Regardless, we must address only what is, as opposed to what is not, before us. Upon review of the arguments presented and cases cited, defendant\u2019s outstanding sentence of fife in prison with possibility of parole for second-degree burglary, though severe, is not cruel or unusual in the constitutional sense. See Green, 348 N.C. at 603, 502 S.E.2d at 828. Accordingly, we reverse the Superior Court\u2019s 5 December order modifying defendant\u2019s original sentence and remand to the trial court for reinstatement of the original 6 August 1973 judgment and commitment.\nReversed and remanded.\n. Pursuant to N.C. Gen. Stat. \u00a7 148-58, effective in 1973, \u201cTime of eligibility of prisoners to have cases considered,\u201d \u201cany prisoner serving sentence for life shall be eligible [to have their cases considered for parole] when he has served 10 years of his sentence.\u201d N.C. Gen. Stat. \u00a7 148-58 (1973) (amended in 1973, effective 1 July 1974, to provide that the period a prisoner sentenced to life imprisonment must serve before being eligible for parole would be changed from ten to twenty years) (repealed 1977).\n. We acknowledge with appreciation the responsiveness of the State and defense counsel in providing this Court with memoranda of additional authority regarding a question presented by this Court at oral argument reflecting on our jurisdiction to hear this appeal. We also note that because one panel of this Court has previously decided the jurisdictional issue by granting the State\u2019s petition for a writ of certiorari to hear the appeal, we cannot overrule that decision. N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 567, 299 S.E.2d 629, 631-32 (1983) (\u201c[OJnce a panel of the Court of Appeals has decided a question in a given case that decision becomes the law of the case and governs other panels which may thereafter consider the case. Further, since the power of one panel of the Court of Appeals is equal to and coordinate with that of another, a succeeding panel of that court has no power to review the decision of another panel on the same question in the same case. Thus the second panel in the instant case had no authority to exercise its discretion [against] reviewing the trial court\u2019s order when a preceding panel had earlier decided to the contrary.\u201d). However, a separate concurring and a separate dissenting opinion further address the issue of jurisdiction to hear this appeal.\n. While this quote from Whitehead, 365 N.C. at 448, 722 S.E.2d at 496 n.1, is a footnote, we think it is relevant to the instant case wherein defendant, like the defendant in Whitehead, was sentenced under a \u201cprevious sentencing standard,\u201d and defendant would have fallen within the directives of the Parole Commission.\n. At the time of his offense, North Carolina General Statutes, Chapter 7A, Article 23, entitled \u201cJurisdiction and Procedure Applicable to Children,\u201d defined \u201cChild\u201d as \u201cany person who has not reached his sixteenth birthday.\u201d N.C. Gen. Stat. \u00a7 7A-278(1) (1973). As defendant was seventeen at the time of his offense, he did not come within the aegis of the Chapter 7A, Article 23.", "type": "majority", "author": "BRYANT, Judge." }, { "text": "DILLON, Judge,\nconcurring in separate opinion.\nI agree with the majority opinion. However, I write to address the jurisdiction question raised by the parties and discussed in footnote 2 of the majority opinion. I believe that the \u201claw of the case\u201d principle, referenced in that footnote, generally compels a panel of this Court to follow the decisions of another panel made in the same case. However, I do not believe a panel is compelled to follow the \u201claw of the case\u201d where the issue concerns subject matter jurisdiction. See McAllister v. Cone Mills Corporation, 88 N.C. App. 577, 364 S.E.2d 186 (1988). In McAllister we held that a superior court judge had the authority to determine whether it had subject matter jurisdiction to consider a matter after another superior court judge, in a prior hearing, had denied a motion to dismiss the matter based on lack of subject matter jurisdiction, stating that \u201c[i]f a court finds at any stage of the proceedings that it lacks jurisdiction over the subject matter of a case, it must dismiss the case for want of jurisdiction.\u201d Id. at 579, 364 S.E.2d at 188. Therefore, I believe we are compelled to make a determination whether the panel of this Court which granted the State\u2019s petition for writ of certiorari - which is the basis for our panel\u2019s jurisdiction - had the authority to do so.\nThe North Carolina Constitution states that this Court has appellate jurisdiction \u201cas the General Assembly may prescribe.\u201d N.C. Const. Article IV, Section 12(2). Our General Assembly has prescribed that this Court has jurisdiction \u201cto issue . . . prerogative writs, including . . . cer-tiorari ... to supervise and control the proceedings of any of the trial courts. . . .\u201d N.C. Gen. Stat. \u00a7 7A-32(c) (2011). The General Assembly further has prescribed that the \u201cpractice and procedure\u201d by which this Court exercises its jurisdiction to issue writs of certiorari is provided, in part, by \u201crule of the Supreme Court.\u201d Id. The Supreme Court has enacted the Rules of Appellate Procedure, which includes Rule 21, providing that writs of certiorari may be issued by either this Court or the Supreme Court in three specific circumstances, none of which applies to the State\u2019s appeal in this case.\nDefendant argues that the subject matter jurisdiction of this Court to issue writs of certiorari is limited to the three circumstances listed in Rule 21. The State argues that Rule 21 is not intended to limit the subject matter jurisdiction of this Court but is simply a \u201crule\u201d establishing a \u201cpractice and procedure,\u201d and that Rule 2 - which allows this Court to \u201csuspend or vary the requirements of any of these rules\u201d - provides an avenue by which this Court may exercise the jurisdiction granted by the General Assembly in N.C. Gen. Stat. \u00a7 7A-32 to issue writs of certiorari for matters not stated in Rule 21. There is language in decisions of this Court which suggests that our authority to grant writs of certiorari is limited to the three circumstances described in Rule 21. See, e.g., State v. Pimental, 153 N.C. App. 69, 77, 568 S.E.2d 867, 872 (2002) (dismissing a petition for writ of certiorari, stating that since the appeal was not within the scope of Rule 21, this Court \u201cdoes not have the authority to issue a writ of certiorari\u201d). However, there is language in other decisions which suggests that this Court may invoke Rule 2 to consider writs of certiorari in circumstances not covered by Rule 21. See, e.g., State v. Starkey, 177 N.C. App. 264, 268, 628 S.E.2d 424, 426 (2006) (denying a petition for writ of certiorari by refusing to invoke Rule 2).\nI believe that our approach in Starkey - suggesting that our subject matter jurisdiction to issue writs of certiorari is not limited to the circumstances contained in Rule 21 - is correct. Our Supreme Court and this Court has recognized the authority of our appellate courts to issue writs of certiorari in circumstances not contained in Rule 21. See, e.g., State v. Bolinger, 320 N.C. 596, 601-02, 359 S.E.2d 459, 462 (1987) (holding that a defendant may obtain appellate review through a writ of cer-tiorari to challenge the procedures followed in accepting a guilty plea, notwithstanding that the defendant does not have the statutory right to appellate review); see also State v. Carriker, 180 N.C. App. 470, 471, 637 S.E.2d 557, 558 (2006) (holding that a challenge to procedures in accepting a guilty plea is reviewable by certiorari'). Additionally, in Rule 1 of the Rules of Appellate Procedure, our Supreme Court stated that the appellate rules \u201cshall not be construed to extend or limit the jurisdiction of the courts of the appellate division[.]\u201d Id.\nAccordingly, I believe that the panel of this Court which considered the State\u2019s petition for a writ of certiorari had the authority to grant the writ, notwithstanding that an appeal by the State from an order granting a defendant\u2019s motion for appropriate relief is not among the circumstances contained in N.C.R. App. P. 21; and, therefore, we are bound by the decision of that panel.\n. This language employed by the General Assembly is similar to the language in our Constitution defining the jurisdictional limits of our Supreme Court, which includes the authority of \u201cgeneral supervision and control over the proceedings of the other courts.\u201d N.C. Const. art. IV, \u00a7 12(1).", "type": "concurrence", "author": "DILLON, Judge," }, { "text": "STEPHENS, Judge,\ndissenting.\nBecause I believe that this Court lacks subject matter jurisdiction to review the State\u2019s arguments, I respectfully dissent.\nIn support of its determination that this panel is bound by the decision of a petition panel of this Court that we have subject matter jurisdiction to grant the State\u2019s petition for writ of certiorari, the majority cites our Supreme Court\u2019s opinion in North Carolina Nat. Bank v. Virginia Carolina Builders, 307 N.C. 563, 567, 299 S.E.2d 629, 631-32 (1983) (\u201c[Ojnce a panel of the Court of Appeals has decided a question in a given case that decision becomes the law of the case and governs other panels which may thereafter consider the case. Further, since the power of one panel of the Court of Appeals is equal to and coordinate with that of another, a succeeding panel of that court has no power to review the decision of another panel on the same question in the same case. Thus the second panel in the instant case had no authority to exercise its discretion in favor of reviewing the trial court\u2019s order when a preceding panel had earlier decided to the contrary.\u201d). In my view, Virginia Carolina Builders is clearly distinguishable from the issue presented in the case at bar because it concerned a Court of Appeals panel\u2019s reconsideration of a prior panel\u2019s exercise of discretion, rather than a question regarding this Court\u2019s subject matter jurisdiction over a matter.\nIn Virginia Carolina Builders, the appellant sought review of an interlocutory order. Id. at 565, 299 S.E.2d at 630. The appellant gave notice of appeal from the order, but prior to filing the record with this Court, he petitioned for writ of certiorari. Id. A panel of this Court denied that petition. Id. Thereafter, the appellant filed the record on appeal with this Court and presented arguments on the merits of his claims. Id. Two judges of a second panel of this Court, to whom the appeal was assigned, recognized that the order appealed from was interlocutory and would ordinarily be nonappealable, but nonetheless elected to reach the merits in their \u201cdiscretion^]\u201d Id. at 565, 299 S.E.2d at 630-31. Based on the dissent of one judge who would have dismissed the appeal, the appellees sought review as a matter of right in the Supreme Court. Id. at 565-66, 299 S.E.2d at 631.\nThe Supreme Court stated:\nAlthough we have never considered the question, well-established analogies in our law lead us to conclude that the second panel of the Court of Appeals was without authority to overrule the first on the same question in the same case. Once an appellate court has ruled on a question, that decision becomes the law of the case and governs the question not only on remand at trial, but on a subsequent appeal of the same case. At the trial level the well[-]estabhshed rule in North Carolina is that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another\u2019s errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action. The power of one judge of the superior court is equal to and coordinate with that of another, and a judge holding a succeeding term of court has no power to review a judgment rendered at a former term on the ground that the judgment is erroneous.\nApplying these principles to the question before us, we conclude that once a panel of the Court of Appeals has decided a question in a given case that decision becomes the law of the case and governs other panels which may thereafter consider the case. Further, since the power of one panel of the Court of Appeals is equal to and coordinate with that of another, a succeeding panel of that court has no power to review the decision of another panel on the same question in the same case. Thus the second panel in the instant case had no authority to exercise its discretion in favor of reviewing the trial court\u2019s order when a preceding panel had earlier decided to the contrary.\nOur decision on this point in no way impinges on the power of this Court or the Court of Appeals to change its ruling upon a motion to rehear, or on the court\u2019s own motion, if the court determines that its former ruling was clearly erroneous. In the case of the Court of Appeals, however, such a change must be made, if at all, by the same panel which initially decided the matter. Otherwise, a party against whom a decision was'made by one panel of the Court of Appeals could simply continue to press a point in that court hoping that some other panel would eventually decide it favorably, as indeed the plaintiff did in this case; and we would not have that orderly administration of the law by the courts, which litigants have a right to expect.\nId. at 566-67, 299 S.E.2d at 631-32 (citations, internal quotation marks, and some brackets omitted).\nI fully agree that in matters such as the exercise of discretion, factual determinations, and legal rulings, one panel of this Court cannot overrule another. However, I believe that determination of subject matter jurisdiction presents a different situation, one to which the analysis of Virginia Carolina Builders plainly does not apply. \u201cCharacterizing a rule as jurisdictional renders it unique in our adversarial system.\u201d Sebelius v. Auburn Reg\u2019l Med. Ctr.,_U.S._,_, 184 L. Ed. 2d 627, 637 (2013) (noting that \u201c [objections to a tribunal\u2019s jurisdiction can be raised at any time, even by a party that once conceded the tribunal\u2019s subject-matter jurisdiction over the controversy\u201d). \u201cSubject[]matter jurisdiction defines the court\u2019s authority to hear a given type of case[.]\u201d United States v. Morton, 467 U.S. 822, 828, 81 L. Ed. 2d 680, 688 (1984). A \u201clack of jurisdiction of the subject matter may always be raised by a party, or the court may raise such defect on its own initiative.\u201d Dale v. Lattimore, 12 N.C. App. 348, 362, 183 S.E.2d 417, 419, cert. denied, 279 N.C. 619, 184 S.E.2d 113 (1971). \u201cIf a court finds at any stage of the proceedings that it lacks jurisdiction over the subject matter of a case, it must dismiss the case for want of jurisdiction.\u201d McAllister v. Cone Mills Corp., 88 N.C. App. 577, 579, 364 S.E.2d 186, 188 (1988) (emphasis added) (citing Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E. 2d 806, 808 (1964) (\u201c[T]he proceedings of a court without jurisdiction of the subject matter are a nullity. If a court finds at any stage of the proceedings it is without jurisdiction, it is its duty to take notice of the defect and stay, quash or dismiss the suit. This is necessary, to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment. So, ex necessitate, the court may, on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceeding.\u201d) (citation and internal quotation marks omitted)). Further, \u201cparties cannot stipulate to give a court subject matter jurisdiction where no such jurisdiction exists.\u201d Northfield Dev. Co. v. City of Burlington, 165 N.C. App. 885, 887, 599 S.E.2d 921, 924 (citation omitted), disc. review denied, 359 N.C. 191, 607 S.E.2d 278 (2004).\nMy careful review of our State\u2019s statutory and case law reveals that this Court lacks subject matter jurisdiction to consider the State\u2019s arguments via review of a trial court\u2019s allowance of a motion for appropriate relief (\u201cMAR\u201d) or by issuance of a writ of certiorari.\nIn State v. Starkey, immediately after entering judgment on a jury\u2019s verdict, the trial court entered an order sua sponte granting its own MAR regarding the defendant\u2019s sentence. 177 N.C. App. 264, 266, 628 S.E.2d 424, 425, cert denied,_N.C._, 636 S.E.2d 196 (2006). The trial court found that the defendant\u2019s sentence violated \u201chis rights under the Eighth and Fourteenth Amendments to the United States Constitution.\u201d Id. On appeal, in Starkey, we considered the same two issues as presented in this matter: \u201c(I) whether the State ha[d] a right to appeal from the entry of [an] order granting the trial court\u2019s motion for appropriate relief; and (II) whether this Court [could] grant the State\u2019s [p]etition for [w]rit of [c\\ertiorari\") (italicsadded).Id.\nAs noted in that case, \u201cthe right of the State to appeal in a criminal case is statutory, and statutes authorizing an appeal by the State in criminal cases are strictly construed.\u201d Id. (citation, internal quotation marks, and brackets omitted). Two sections of our General Statutes touch on the State\u2019s possible right of appeal here: that discussing appeals by the State in general and those covering appeals from MARs specifically. My careful review, along with a plain reading of Starkey, reveals no authority for the State\u2019s purported appeal or petition for writ of certiorari here.\nOur General Statutes provide:\n(a) Unless the rule against double jeopardy prohibits further prosecution, the State may appeal from the superior court to the appellate division:\n(1) When there has been a decision or judgment dismissing criminal charges as to one or more counts.\n(2) Upon the granting of a motion for a new trial on the ground of newly discovered or newly available evidence but only on questions of law.\n(3) When the State alleges that the sentence imposed:\na. Results from an incorrect determination of the defendant\u2019s prior record level under [section] 15A-1340.14 or the defendant\u2019s prior conviction level under [section] 15A-1340.21;\nb. Contains a type of sentence disposition that is not authorized by [section] 15A-1340.17 or [section] 15A-1340.23 for the defendant\u2019s class of offense and prior record or conviction level;\nc. Contains a term of imprisonment that is for a duration not authorized by [section] 15A-1340.17 or [section] 15A-1340.23 for the defendant\u2019s class of offense and prior record or conviction level; or\nd. Imposes an intermediate punishment pursuant to [section] 15A-1340.13(g) based on findings of extraordinary mitigating circumstances that are not supported by evidence or are insufficient as a matter of law to support the dispositional deviation.\n(b) The State may appeal an order by the superior court granting a motion to suppress as provided in [section] 15A-979.\nN.C. Gen. Stat. \u00a7 15A-1445 (2013) (emphasis added).\nAs observed in Starkey, an appeal from the grant of a defendant\u2019s MAR as occurred here implicates none of these conditions:\nThe relief granted by the trial court might be considered to have effectively dismissed [the] defendant\u2019s charge of having attained the status of an habitual felon or imposed an unauthorized prison term in light of [the] defendant\u2019s status as an habitual felon. However, it is the underlying judgment and not the order granting this relief from which the State must have the right to take an appeal. The State does not argue and we do not find that the underlying judgment dismisses a charge against defendant or that the term of imprisonment imposed was not authorized. The State therefore has no right to appeal from the underlying judgment and this appeal is not one \u201cregularly taken.\u201d This appeal must be dismissed.\nStarkey, 177 N.C. App. at 267, 628 S.E.2d at 426.\nThe mention of an appeal \u201cregularly taken\u201d refers to subsection 15A-1422(b) of our General Statutes, which covers MARs: \u201cThe grant or denial of relief sought pursuant to [section] 15A-1414 is subject to appellate review only in an appeal regularly taken.\u201d N.C. Gen. Stat. \u00a7 15A-1422(b) (2013). In turn, section 15A-1414 covers errors which may be asserted in MARs filed within ten days following entry of a judgment upon conviction, N.C. Gen. Stat. \u00a7 15A-1414 (2013), while section 15A-1415 specifies the \u201c[g]rounds for appropriate relief which may be asserted by [a] defendant\u201d outside that ten-day time period. N.C. Gen. Stat. \u00a7 15A-1415 (2013). Because Defendant here filed his MAR more than ten days after entry of judgment upon his convictions, section 15A-1422(c) applies to the matter before us:\nThe court\u2019s ruling on a motion for appropriate relief pursuant to [section] 15A-1415 is subject to review:\n(1) If the time for appeal from the conviction has not expired, by appeal.\n(2) If an appeal is pending when the ruling is entered, in that appeal.\n(3) If the time for appeal has expired and no appeal is pending, by writ of certiorari.\nN.C. Gen. Stat. \u00a7 15A-1422(c) (emphasis added). Here, the time for appeal had long passed, and there was no appeal pending when the MAR was ruled upon, rendering subsections (a) and (b) inapplicable.\nAs for the availability of appellate review via writ of certiorari, this Court in Starkey held:\nReview by this Court pursuant to a [p]etition for [w]rit of [c]ertiorari is governed by Rule 21 of the North Carolina Rules of Appellate Procedure. Pursuant to Rule 21, this Court is limited to issuing a writ of certiorari-.\nto permit review of the judgments and orders of trial tribunals when [1] the right to prosecute an appeal has been lost by failure to take timely action, or [2] when no right of appeal from an interlocutory order exists, or [3] for review pursuant to [section] 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.\nThe State recognizes that its petition does not satisfy any of the conditions of Rule 21 and asks this Court to invoke Rule 2 of the North Carolina Rules of Appellate Procedure and review the trial court\u2019s order.\nStarkey, 177 N.C. App. at 268, 628 S.E.2d at 426 (citation and internal quotation marks omitted; italics added). This Court declined \u201cthe State\u2019s request to invoke Rule 2 and denfied] the State\u2019s [p]etition for [w]rit of [c]ertiorari.\u201d Id. (italics added). As noted supra and as was the case in Starkey, none of the circumstances permitting this Court to grant a writ of certiorari are presented in the matter before us.\nThe order entered by this Court on 13 December 2012 cites three authorities which purportedly give this Court jurisdiction to grant the State\u2019s petition: N.C. Const. art. IV, \u00a7 12(2), N.C. Gen. Stat. \u00a7 7A-32(c), and State v. Whitehead, 365 N.C. 444, 722 S.E.2d 492 (2012). The cited constitutional provision merely states that \u201c[t]he Court of Appeals shall have such appellate jurisdiction as the General Assembly may prescribe.\u201d N.C. Const. art. IV, \u00a7 12(2). In turn, section 7A-32(c) provides:\nThe Court of Appeals has jurisdiction, exercisable by one judge or by such number of judges as the Supreme Court may by rule provide, to issue the prerogative writs, including mandamus, prohibition, certiorari, and supersedeas, in aid of its own jurisdiction, or to supervise and control the proceedings of any of the trial courts of the General Court of Justice, and of the Utilities Commission and the Industrial Commission. The practice and procedure shall be as provided by statute or rule of the Supreme Court, or, in the absence of statute or rule, according to the practice and procedure of the common law.\nN.C. Gen. Stat. \u00a7 7A-32(c) (emphasis added). The 13 December 2012 order states that this Court has jurisdiction to grant the State\u2019s petition in order \u201cto supervise and control the proceedings of any of the trial courts of the General Court of Justice[.]\u201d Id. However, the plain language of the statute states that this jurisdiction is circumscribed by \u201cstatute],] rule of the Supreme Court, . . . [or] the common law.\u201d Id. There is no statute or common law principle giving us jurisdiction to grant the State\u2019s petition. Further, as discussed supra, Rule 21 of our Rules of Appellate Procedure, set forth by our Supreme Court, does not permit this Court to grant petition's of certiorari in the circumstances presented here.\nFinally, Whitehead is inapposite. That case was issued by our Supreme Court which, in contrast to the purely statutory and rule-based jurisdiction and power of this Court, has independent constitutional \u201c \u2018jurisdiction to review upon appeal any decision of the courts below.\u2019 \u201d 365 N.C. at 445, 722 S.E.2d at 494 (quoting N.C. Const. art. IV, \u00a7 12(1) (\u201cThe Supreme Court shall have jurisdiction to review upon appeal any decision of the courts below, upon any matter of law or legal inference.\u201d)). The Supreme Court stated that it \u201cwill not hesitate to exercise its rarely used general supervisory authority when necessary ....\u201d Id. at 446, 722 S.E.2d at 494 (citation and internal quotation marks omitted; emphasis added). I find it telling that the Supreme Court, exercising its constitutional general supervisory authority, allowed the State\u2019s petition for writ of certiorari in Whitehead to review the identical issue as is raised in the case at bar, with no prior review by this Court. This suggests that the State\u2019s procedure in Whitehead, to wit, seeking review of the trial court\u2019s MAR decision via petition for certiorari directly to the Supreme Court, is the proper route for this appeal.\nIn sum, this Court lacks jurisdiction to review the State\u2019s arguments by direct appeal, writ of certiorari, or any other procedure. Accordingly, I dissent.\n. As this Court has noted,\n[a]ppeal is defined in [section] 15A-101(0.1): \u201cAppeal. \u2014 When used in a general context, the term \u2018appeal\u2019 also includes appellate review upon writ of certiorari.\u201d Applying this definition to [section] 15A-1445, we hold the word \u201cappeal\u201d in the statute includes \u201cappellate review upon writ of certiorari\u201d Otherwise, the legislature would have used such language as \u201cthe [S]tate shall have a right of appeal.\u201d By way of contrast, the legislature in setting out when a defendant may appeal, uses the phrase \u201cis entitled to appeal as a matter of right.\u201d N.C. Gen. Stat. [\u00a7] 15A-1444(a).\nState v. Ward, 46 N.C. App. 200, 204, 264 S.E.2d 737, 740 (1980) (italics added).\n. Nothing in Starkey or the relevant statutes suggests that the timing of the MAR\u2019s filing (i.e., within or outside of the ten-day period) would have any effect on the reasoning of the Court in dismissing the State\u2019s purported appeal. Neither section 15A-1414 nor 15A-1415 would permit the appeal by the State in the case before us.\n. Although the language used by this Court in Starkey suggests that the panel could have invoked Rule 2 and granted the petition, Rule 21 is jurisdictional, see N.C. Gen. Stat. \u00a7 7A-32(c) (2013), and thus cannot be obviated by invocation of Rule 2. See Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008) (noting that \u201cin the absence of jurisdiction, the appellate courts lack authority to consider whether the circumstances of a purported appeal justify application of Rule 2\u201d).\n. Further, the decision of the petition panel overruled this Court\u2019s published opinion in Starkey, which constituted binding precedent mandating that we dismiss the State\u2019s purported appeal and deny its petition for writ of certiorari. See In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d).", "type": "dissent", "author": "STEPHENS, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O\u2019Brien, for the State.", "Sarah Jessica Farberfor defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LARRY STUBBS\nNo. COA13-174\nFiled 4 February 2014\n1. Appeal and Error \u2014 appellate jurisdiction \u2014 subsequent panel \u2014 cannot overrule prior panel granting certiorari\nA subsequent panel of the Court of Appeals could not overrule a prior panel which had decided the issue of jurisdiction to hear the appeal by granting the State\u2019s petition for a writ of certiorari.\n2. Criminal Law \u2014 jurisdiction\u2014MAR\u2014sentence invalid as a matter of law\nThe State\u2019s challenge to the trial court\u2019s jurisdiction was overruled where the gravamen of the argument presented in defendant\u2019s MAR was that his life sentence for second-degree burglary in 1973 was unconstitutionally excessive under evolving standards of decency,the Eighth Amendment to the United States Constitution and Article I, Section 27 of the North Carolina Constitution. The trial court had jurisdiction over the 1973 judgment to consider whether defendant\u2019s sentence was invalid as a matter of law.\n3. Constitutional Law \u2014 1973 sentence of life with the possibility of parole \u2014 not cruel and unusual\nThe trial court erred by concluding that defendant\u2019s 1973 sentence of life imprisonment with the possibility of parole for second-degree burglary violated the prohibitions of the Eighth Amendment to the United States Constitution. Although defendant argued that the original sentence was excessive under evolving standards of decency and the Eighth Amendment, the sentence was severe but not cruel or unusual in the constitutional sense because it allowed for the realistic opportunity to obtain release before the end of his life. The case was remanded for reinstatement of the original sentence.\nJudge DILLON concurs in separate opinion.\nJudge Stephens dissents in separate opinion.\nAppeal by the State from judgment entered 5 December 2012 by Judge Gregory A. Weeks in Cumberland County Superior Court. Heard in the Court of Appeals 5 June 2013.\nAttorney General Roy Cooper, by Assistant Attorney General Daniel P. O\u2019Brien, for the State.\nSarah Jessica Farberfor defendant-appellee." }, "file_name": "0274-01", "first_page_order": 284, "last_page_order": 306 }