Good Time; Gained Time; Parole; Drug Trafficking

Subject:

Good Time; Gained Time; Parole; G.S. 90-95; Drug Trafficking

Requested By:

Ben G. Irons, II

Senior Administrative Assistant N.C. Department of Correction

Questions:

1. Are defendants convicted of drug trafficking under the first version of G.S. 90-95 eligible for good time?

2. Are such defendants sentenced under this statute eligible for parole?

3. If any defendants sentenced under this statute are eligible for parole, how are applicable parole eligibility dates computed?

4. Does the court’s finding that a defendant cooperated with law enforcement authorities during their investigation (see G.S. 90-95(h)(6)) have any effect on parole eligibility dates?

Conclusion:

1. Yes.

2. Yes, but not until they have served the applicable minimum sentence less earned good or gained time.

3. See answer to 2 above.

4. Yes. A defendant who has cooperated may receive a lesser minimum sentence, which must be served before becoming eligible for parole, but this minimum may be reduced by earned good time and gained time.

The answer to the above questions requires a careful study of the two versions of G.S. 90-95. In 1980 the General Assembly enacted "An Act to Control Trafficking in Certain Controlled Substances." 1979 Session Laws (2d Session), ch. 1251. The year previous the legislature had enacted "An Act to Establish A Fair Sentencing System in North Carolina Criminal Courts." 1979 Session Laws, ch. 760. The effective date of ch. 760 was postponed several times and ultimately became effective July 1, 1981. Hence the General Assembly enacted two versions of

G.S. 90-95. The first version was to provide for the period between July 1, 1980, and the date when "The Fair Sentence Act" was to be effective, at which time the second version was to replace the former statute. The two versions are parallel except that prisoners under the first version are eligible for parole; whereas Fair Sentence prisoner, sentenced under the second version are not. Because it does not appear that the General Assembly intended any substantive difference between the two versions other than to make the "Drug Trafficking Act" conform to the concepts of the "Fair Sentencing Act," it is necessary to consider both versions of G.S. 90-95 to respond to your inquiries.

As noted in State v. Crabtree, ___N.C. App.___ , No. 8327SC474 (decided 21 February 1984), the second version of G.S. 90-95 does not contain the subsection (h)(5), which reads as follows:

Notwithstanding any other provision of law, except as provided in G.S. 90-95(h)(6), any person who has been convicted of a violation of this subsection shall serve the applicable minimum term provided by this subsection before either unconditional release or parole.

Subsection (h)(6) in the first version is indentical in the second version except for numbering and reads as follows:

A person sentenced under this subsection is not eligible for early release or early parole if the person is sentenced as a committed youthful offender and the sentencing judge may not suspend the sentence or place the person sentenced on probation. However, the sentencing judge may reduce the fine, or impose a prison term less than the applicable minimum prison term provided by this subsection, or suspend the prison term imposed and place a person on probation when such person has, to the best of his knowledge, provided substantial assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals if the sentencing judge enters in the record a finding that the person to be sentenced has rendered substantial assistance.

For convenience, we will use the numbering of the first version in making reference to the substantial quote immediately above.

G.S.

90-95(h)(6) makes no reference to good time or gain time. In the absence of a clear provision to the contrary, it must be presumed that the General Assembly intended prisoners sentenced under that subsection to receive good time and gained time. See G.S. 15A-1355(c) and

G.S.

148-13(c) and (d). For this reason we are of the opinion that prisoners sentenced under the second version are entitled to earn good time and gained time. Unless G.S. 90-95(h)(5) imposes a different standard, prisoners sentenced under the first version would also be entitled to good time and gained time. We do not believe that subsection (h)(6) imposes a different standard. The purpose of that subsection is to restrict parole eligibility for prisoners who otherwise would be eligible for parole under G.S. 15A-1371. We believe that the General Assembly intended to eliminate the discretion of sentencing judges to impose any or even no minimum sentence and to require that judges impose sentences for conviction of drug trafficking not less than the minimum provided by the statute.

Neither version of G.S. 90-95 speaks of good time or gained time. The General Assembly has authorized the Secretary of Correction to establish regulations for the granting of good time and gained time for non-Fair Sentence prisoners, G.S. 148-13, and has provided that good time and gained time may reduce parole eligibility dates. 15A-1355(c). The Secretary has established regulations implementing the statutory authorization. 5 NCAC 2B.0100.

If it had intended to preclude defendants sentenced under the first version of G.S. 90-95 from eligibility for good time and gained time, the legislature would have dealt with the matter explicitly as it did in the statutes concerning burglary, G.S. 14-52, and armed robbery, G.S. 14

87. We do not believe that the General Assembly intended to provide by implication that prisoners convicted of drug trafficking offenses committed between July 1, 1980 and, June 30, 1981, should be denied good time and gained time, whereas prisoners who committed similar acts before July 1, 1980, or after June 30, 1981, would receive these benefits. Furthermore, we can see no other way to reconcile the various statutes pertaining to good time, gained time, and parole eligibility.

Thus we conclude that prisoners sentenced under the first version of G.S. 90-95 are entitled to good time and gained time under regulations established by the Secretary of Correction. Such prisoners are also eligible for parole, but not until they have served the statutory minimum sentence less good time and gained time credit. Sentencing judges may impose a lesser minimum sentence for prisoners who have provided substantial assistance in drug trafficking investigations, and this sentence may be reduced by good and gained time.

RUFUS L. EDMISTEN ATTORNEY GENERAL

James Peeler Smith Assistant Attorney General