DATE: August 1, 1995
SUBJECT: POST-RELEASE SUPERVISION AND PAROLE COMMISSION; ARMED ROBBERY; AGGREGATION OF SENTENCES
REQUESTED BY: SAM F. BOYD, EXECUTIVE DIRECTOR, POST-RELEASE SUPERVISION AND PAROLE COMMISSION
QUESTIONS:
. CAN THE POST RELEASE SUPERVISION AND PAROLE COMMISSION AGGREGATE, PURSUANT TO G.S. § 15A-1354(b), THE SENTENCES IMPOSED FOR ARMED ROBBERIES COMMITTED PRIOR TO OCTOBER 1, 1994?
. IF AN INMATE IS SENTENCED TO CONSECUTIVE ARMED ROBBERY SENTENCES AT THE SAME SENTENCING HEARING, SHOULD HIS SENTENCES BE AGGREGATED PURSUANT TO G.S.§ 15A-1354(b)?
CONCLUSIONS:
. No
. No
Structured Sentencing became effective October 1, 1994. G.S. § 14-87(d), Armed Robbery, which provided that "Sentences imposed pursuant to this sections shall run consecutively with and shall commence at the expiration of any sentence being served by the person being sentenced hereunder" was repealed and prospectively replaced [See § 1359 of Ch. 539 of the Session Laws of 1993] by G.S. § 14-87(a) which now provides:
"Any person or persons who, having in possession or with the use or threatened use of any firearm or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or at night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D. Felony."
1.
G.S. § 14-87(c)(repealed by Session Laws 1979, Ch. 760, § 5, effective July 1, 1981), read, in pertinent part:
"Any person who has been convicted of a violation of G.S. 14-87(a) [armed robbery] shall serve the first seven years of his sentence without benefit of parole, probation, suspended sentence, or any other judicial or administrative procedure except such time as may be allowed as a result of good behavior, whereby the period of actual incarceration of the person sentenced is reduced to a period of less than seven years. Sentences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any other sentences being served by the person sentenced hereunder.
"Notwithstanding any other provision of law, neither the Parole Commission nor any other agency having responsibility for release of inmates prior to the expiration of sentences shall authorize the release of an inmate sentenced under this section prior to his having been incarcerated for seven years except such time as may be allowed as a result of good behavior." (Emphasis added).
Effective July 1, 1981, with the introduction of Fair Sentencing, G.S. § 14-87, Robbery with firearms or other dangerous weapons, was rewritten as follows:
"Notwithstanding any other provision of law, with the exception of persons sentenced as committed youthful offenders, a person convicted of robbery with firearms or other dangerous weapons shall serve a term of not less than seven years in prison, excluding gain time granted under G.S. 148-13. A person convicted of robbery with firearms or other dangerous weapons shall receive a sentence of at least 14 years in the State’s prison and shall be entitled to credit for good behavior under G.S. 15A-1340.7. The sentencing judge may not suspend the sentence and may not place the person sentenced on probation. Sentences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder." (Emphasis added).
Prior to the Structured Sentencing rewrite effective October 1, 1994, a sentence for armed robbery was consecutive. G.S. § 14-87(c)(repealed effective July 1, 1981) and G.S. § 1487(d)(repealed effective October 1, 1994), both provided that "Sentences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any other sentences being served by the person sentenced hereunder."
In State v. Leeper, 59 N.C.App. 199, 296 S.E.2d 7, cert. denied, 307 N.C. 272, 299 S.E.2d 218 (1982), in considering the application of G.S. § 14-87(d), the Court of Appeals stated that:
"The language of N.C. Gen. Stat. 14-87(d) is unambiguous and its effect is clear. Any person convicted of armed robbery must receive no less than a fourteen-year sentence, notwithstanding any other provision of law. Thus, there is no room for judicial construction on this point. . . .
"These factors lead to the conclusion that the General Assembly intended to impose a minimum sentence for armed robbery greater than the presumptive sentence for a Class D felony and also intended that the minimum be irreducible, except for credit for good behavior, ‘notwithstanding any other provision of law. . . .’ N.C. Gen. Stat. 14-87(d).
"Where one statute deals with a subject in detail with reference to a particular situation (in this case, armed robbery) and another statute deals with the same subject in general and comprehensive terms (felonies), the particular statute will be construed as controlling in the particular situation unless it clearly appears that the General Assembly intended to make the general act controlling in regard thereto. . . . In this case the Legislature clearly intended the provisions of N.C. Gen. Stat. 14-87(d) to control over the conflicting provisions of the Fair Sentencing Act.
"The North Carolina Supreme Court has previously recognized that the General Assembly intended to provide more severe punishment for armed robbery offenses when it enacted N.C. Gen. Stat. 14-87. State v. Jones, 227 N.C. 402, 42 S.E.2d 465 (1947). The statutory construction which we have set forth is in accordance with the legislature’s firm stand on the punishment of persons committing armed robbery. ‘It is not for us to say that the policy judgement of the General Assembly with respect to punishment for armed robbery is wrong. Armed robbery is a crime of violence and those who take the risk must assume the consequences involved.’ State v. Legette, 292 N.C. 44, 58, 231 S.E.2d 896, 904 (1977).
"As the General Assembly has chosen to remove much of the discretionary power which judges previously exercised in the sentencing process we must hold that the fourteen-year sentence for armed robbery specified in N.C. Gen. Stat. 14-87(d) is a minimum which may not be reduced under the Fair Sentencing Act except by credit for good behavior."
G.S. § 15A-1354(b) refers to consecutive terms. It provides:
". . . .In determining the effect of consecutive sentences imposed under the authority of this Article and the manner in which they will be served, the Department of Correction must treat the defendant as though he has been committed for a single term with the following incidents:
- (1)
- The maximum prison sentence consists of the total of the maximum terms of the
consecutive sentences; and
- (2)
- The minimum term it any, consists of the total of the minimum terms of the
consecutive sentences.”
The language, "shall run consecutively and shall commence at the expiration of any other sentences being served by the person sentenced hereunder," "deals with a subject in detail with reference to a particular situation (in this case, armed robbery)" while G.S. 15A-1354(b) "deals with the same subject in general and comprehensive terms" and, therefore, G.S. 14-87(d) "will be construed as controlling in the particular situation" and negates the computation provisions of § 15A-1354. As a result, armed robbery sentences are not subject to being aggregated and inmates sentenced for armed robbery only begin serving time at the completion of the prior sentence or upon having been "paper paroled" to the armed robbery sentence.
2.
On December 7, 1993, an advisory opinion was issued to the Parole Commission by William McBlief, Associate Attorney General, concerning two distinctively different situations. One requiring aggregation and one negating aggregation based on the timing of the sentencing hearing. This opinion held that if the inmate received consecutive sentences at the same sentencing hearing, the Parole Commission should aggregate for parole eligibility computation. The opinion further held that if at different sentencing hearings, aggregation does not apply. To the extent the opinion of December 7, 1993 held that if the inmate received consecutive sentences at the same sentencing hearing, the Parole Commission should aggregate for parole eligibility computation, the opinion is overruled.
MICHAEL F. EASLEY Attorney General
Jacob L. Safron
Special Deputy Attorney General