State v. Wilkerson

753 S.E.2d 829

STATE of North Carolina

v.Terrance WILKERSON.

No. COA13–365.

Court of Appeals of North Carolina.

Feb. 18, 2014.

Review stemming from the allowance of a petition for the issuance of a writ of certiorari filed by the State challenging an order entered 17 December 2012 by Judge Mary Ann Tally in Cumberland County Superior Court. Heard in the Court of Appeals 26 September 2013.

Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State.

Sarah Jessica Farber, for Defendant–Appellee.

ERVIN, Judge.

The State has sought appellate review of an order granting Defendant Terrance Wilkerson's motion for appropriate relief; vacating judgments entered on 5 December 1991 stemming from Defendant's convictions for second degree burglary, three counts of felonious breaking or entering, four counts of felonious larceny, and two counts of possession of stolen property; and resentencing Defendant to a term of 21 years imprisonment. On appeal, the State contends that the trial court erroneously concluded that the sentences contained in the original judgments entered in these cases resulted in the imposition of a cruel and unusual punishment upon Defendant. After careful consideration of the State's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be reversed and that this case should be remanded to the Cumberland County Superior Court for reinstatement of the original judgments imposed in these cases.

I. Factual Background

Between 14 December 1990 and 12 January 1991, Defendant broke into several homes and stole various items of property. At the time that he committed these criminal offenses, Defendant was sixteen years old and had no prior criminal record.

On 13 January 1991, warrants for arrest were issued charging Defendant with two counts of possession of stolen property, second degree burglary, two counts of felonious breaking or entering, and three counts of felonious larceny. On 2 April 1991, the Cumberland County grand jury returned bills of indictment charging Defendant with two counts of second degree burglary, four counts of felonious breaking or entering, six counts of felonious larceny, and six counts of possession of stolen property. On 4 December 1991, Defendant entered pleas of guilty to one count of second degree burglary, four counts of felonious larceny, three counts of felonious breaking or entering, and two counts of possession of stolen property. In return for Defendant's guilty pleas, the State voluntarily dismissed the remaining charges that had been lodged against him. At the conclusion of the proceedings that occurred in connection with the entry of Defendant's guilty pleas, Judge William C. Gore, Jr., found as aggravating factors that “[t]he defendant involved a person under the age of 16 in the commission of the crime” and that “[t]he offense involved the actual taking of property of great monetary value”; found as mitigating factors that “[t]he defendant ha[d] no record of criminal convictions” and that, “[a]t an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer”; determined that the “factors in aggravation outweigh[ed] the factors in mitigation”; and entered a judgment in the case in which Defendant had been convicted of second degree burglary sentencing him to a term of 40 years imprisonment. In addition, based upon the same findings in aggravation and mitigation, Judge Gore consolidated one of Defendant's convictions for felonious breaking or entering and one of Defendant's convictions for felonious larceny for judgment and sentenced Defendant to a consecutive term of ten years imprisonment. Finally, Judge Gore entered judgments sentencing Defendant to a concurrent term of three years imprisonment based upon a conviction for felonious larceny, to a concurrent term of three years imprisonment based upon consolidated convictions for felonious breaking or entering and felonious larceny, to a concurrent term of three years imprisonment based upon a conviction for possession of stolen property, to a concurrent term of three years imprisonment based upon convictions for felonious breaking or entering and felonious larceny, and to a concurrent term of three years imprisonment based upon a conviction for possession of stolen property. As a result, Judge Gore's judgments effectively required Defendant to serve a term of fifty years imprisonment based upon these convictions.

On 27 June 2012, Defendant filed a motion for appropriate relief in which he requested the court to “arrest” his sentences and resentence him in such a manner as to avoid subjecting him to cruel and unusual punishment. Defendant's motion for appropriate relief rested upon the contention that his fifty year sentence for a series of nonviolent property crimes committed when he was sixteen years old was grossly disproportionate to the maximum sentence that he could receive in the event that he was sentenced for committing the same crimes under the current sentencing statutes and contravened the protections against the imposition of cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and N.C. Const. art. I, § 27.¹ On 25 July 2012, the trial court entered an order concluding that “Defendant's Motion for Appropriate Relief has merit, that summary disposition is inappropriate, and that a hearing is necessary.” The State filed a written response to Defendant's motion for appropriate relief on 24 August 2012 in which it requested that Defendant receive no relief.

A hearing was held with respect to Defendant's motion for appropriate relief on 11 December 2012. On 17 December 2012, the trial court entered an order granting Defendant's motion for appropriate relief on the grounds that, “[u]nder evolving standards of decency,” the sentence embodied in the judgments entered by Judge Gore was excessive and disproportionate to the crimes for which Defendant had been convicted in violation of the Eighth Amendment and was, for that reason, invalid. As a result, the trial court vacated the judgments that had been entered by Judge Gore, resentenced Defendant to a term of 21 years imprisonment, gave Defendant credit for 21 years and 6 days in pretrial confinement, and ordered that Defendant be immediately released.

On 17 December 2012, the State filed petitions seeking the issuance of a writ of certiorari authorizing appellate review of the 17 December 2012 order and the issuance of a writ of superseadeas staying the trial court's order pending the completion of the appellate review process. On 2 January 2013, this Court granted the State's petitions.

II. Substantive Legal Analysis

A. Appellate Jurisdiction

As an initial matter, we are required to address Defendant's contention that this Court lacked the authority to grant the State's petition for the issuance of a writ of certiorari. In view of the fact that a panel of this Court has previously rejected this contention in the course of granting the State's certiorari petition, we are required to do so as well. N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 567, 299 S.E.2d 629, 631–32 (1983) (stating 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” and that, “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”). In addition, for the reasons set forth in detail below, we also believe that this Court had the authority to grant the State's certiorari petition.

“The Court of Appeals shall have such appellate jurisdiction as the General Assembly may prescribe.” N.C. Const. art. IV, § 12(2). According to N.C. Gen.Stat. § 7A–32(c), this Court has the authority to issue writs of certiorari “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.” N.C. Gen.Stat. § 7A–32(c). As a result, given that a “[trial] court's ruling on a motion for appropriate relief pursuant to [N.C. Gen.Stat. § ] 15A–1415 is subject to review ... [i]f the time for appeal has expired and no appeal is pending, by writ of certiorari,” N.C. Gen.Stat. § 15A–1422(c)(3), see State v. Dammons, 128 N.C.App. 16, 22, 493 S.E.2d 480, 484 (stating that “[t]his Court may review a trial court's ruling on a motion for appropriate relief if ‘the time for appeal has expired and no appeal is pending, by writ of certiorari’ ”) (quoting N.C. Gen.Stat. § 15A–1422(c)(3)), disc. review denied,342 N.C. 660, 465 S.E.2d 547 (1997); State v. Morgan, 118 N.C.App. 461, 463, 455 S.E.2d 490, 491 (1995) (stating that “[a] trial ‘court's ruling on a motion for appropriate relief pursuant to [N.C. Gen.Stat. § ] 15A–1415 is subject to review ... [i]f the time for appeal has expired and no appeal is pending, by writ of certiorari’ ”) (citations omitted), and given that the issuance of a writ of certiorari in situations such as this one is necessary to “supervise and control” proceedings in the trial courts, see Troy v. Tucker, 126 N.C.App. 213, 215, 484 S.E.2d 98, 99 (1997) (recognizing the existence of our supervisory jurisdiction over the trial courts as authorized by N.C. Const. art. IV, § 12 and N.C. Gen.Stat. § 7A–32(c)); In re Robinson, 120 N.C.App. 874, 875, 464 S.E.2d 86, 87 (1995) (granting certiorari “pursuant to [this Court's] supervisory power under [N.C. Gen.Stat. § ] 7A–32(c)”), we clearly had ample authority to grant the State's request for the issuance of a writ of certiorari authorizing review of the trial court's order in this case.

In support of his contention to the...