Case Summaries – N.C. Court of Appeals (March 17, 2020)

This post summarizes the published criminal cases from the North Carolina Court of Appeals issued on March 17, 2020.

Reasonable suspicion to stop defendant’s vehicle was based on an objectively reasonable mistake of fact; extension of the stop was permissible based on reasonable suspicion of other criminal activity.

State v. Wiles, __ N.C. App. __ (March 17, 2020)

While parked on the side of the road, a trooper saw a truck pass by and believed that the passenger was not wearing a seat belt. After the trooper stopped the truck and approached the passenger side, he realized that passenger was wearing his seat belt, but the gray belt had not been visible against the passenger’s gray shirt. The passenger stated that he was wearing his seat belt the whole time, and the trooper did not cite him for a seat belt infraction.

However, upon approaching the window, the trooper had also immediately noticed an odor of alcohol coming from the vehicle. The trooper asked the passenger and the driver (the defendant) if they had been drinking, and both men said yes. The trooper asked the men to step out of the truck, and saw that the defendant’s eyes were red, glassy, and bloodshot. After further investigation, the trooper determined the defendant was impaired and charged him with DWI. The defendant filed a motion to suppress, arguing there was no reasonable suspicion to support the initial or extended vehicle stop. The trial court denied the motion, finding that the trooper had a mistaken but lawful basis for the initial stop, and he developed reasonable suspicion of other criminal activity that warranted an extension of the stop. The defendant proceeded to trial, was convicted of DWI, and appealed.

The appellate court affirmed the findings and rulings denying the suppression motion. First, the trial court’s findings of fact were adequately supported by the trooper’s testimony. Second, even though the trooper’s initial belief that the passenger was not wearing a seat belt turned out to be mistaken, it was nevertheless objectively reasonable (“failing to see a gray seat belt atop a gray shirt is one a reasonable officer could make”) and the extension of the stop was permissible based on the trooper “instantaneously” smelling an odor of alcohol coming from the vehicle, raising a reasonable suspicion of DWI. Defendant’s related constitutional arguments concerning the extension of the stop and probable cause to arrest were not properly raised at the trial level, so they were dismissed on appeal. As to defendant’s remaining arguments regarding his trial (denial of motion to dismiss at close of evidence, allowing a “positive” PBT reading into evidence, and qualifying the trooper as an expert in HGN), the appellate court likewise found no error.

Evidence supported multiple convictions for assault; defendant’s hands and feet could be deadly weapons; defendant was not materially prejudiced by lack of charge conference where record established that a conference did take place.

State v. Dew, __ N.C. App. __ (March 17, 2020)

The defendant and the victim were in a relationship and took a vacation trip to the beach. While at the vacation house, the defendant became enraged after consuming drugs and alcohol and committed a series of violent assaults against the victim that included punching her in the nose, biting her ears, head-butting her, and strangling her to the point of vomiting. The assaults began at the vacation house and continued throughout a forced drive back from the beach and after returning to the victim’s home. The victim eventually spoke with her family by phone, who came to her house and contacted emergency services. The victim suffered a broken nose, ruptured eardrum, concussion, and other serious injuries. The defendant was subsequently tried and convicted for kidnapping, three different assault offenses, and communicating threats.

On appeal, the defendant first argued that his motion to dismiss for insufficiency of the evidence should have been granted because the evidence only established a single, continuous assault rather than multiple separate offenses. The appellate court held that this argument was not made at trial and therefore it was not preserved for appeal; but even if it had been raised at trial, there was evidence to support multiple assault convictions. To support multiple convictions, there must be “separate and distinct” assaults. To decide whether the assaults are sufficiently distinct, the court considers whether each act: (i) requires a separate thought process; (ii) is distinct in time; and (iii) results in a different outcome. In this case, the court held that the defendant employed a separate thought process in his decision to inflict each distinct punch, slap, kick, bite and head butt, and each assault occurred at a different point in time and resulted in different injuries. Therefore, even if the argument had been made and preserved, the trial court did not err by denying the motion to dismiss.

The defendant next argued that the trial court should have granted his motion to dismiss the assault charge alleging use of a deadly weapon because there was insufficient evidence that his hands and feet were deadly weapons. Hands and feet can be a deadly weapon based on the manner in which they are used and the relative size and condition of the parties. In this case, based on defendant’s height and size relative to the victim, the violent nature of the attacks, and the victim’s severe injuries, the appellate court held that it was not error to deny the motion to dismiss and let the jury decide whether his hands and feet were deadly weapons.

Defendant’s final argument, asserting that he was materially prejudiced by the trial court’s failure to conduct a charge conference as required by G.S. 15A-1231(b), was denied because the record established that a conference did take place, and the defense indicated they were satisfied with the proposed instructions and made no objection after the instructions were given.

New trial required where judge failed to indicate that declining to provide jurors with a transcript of witnesses’ testimony was an exercise of discretion.

State v. Nova, __ N.C. App. __ (March 17, 2020)

The defendant was indicted for taking indecent liberties with a child and went to trial. At trial, the jury heard testimony from the victim and the defendant. During deliberations, the jury asked to see a transcript of both witnesses’ testimony. The trial judge told the jury that “unlike on TV” transcripts are not made in real time, it would take “a couple weeks at the fastest” to create them, so it is “just not able to be done.” On appeal, the defendant argued this was reversible error because the trial judge failed to clearly state that she was declining to provide a transcript as a matter of judicial discretion, rather than because it was impossible. The appellate court agreed, based on nearly indistinguishable binding precedent, even though in this case it “readily can be inferred” from the trial judge’s comments that she was aware that she had the discretion to order a transcript but was choosing not to do so because of the delay it would cause. The court noted that “we believe the Supreme Court should review this line of cases,” but “as an intermediate appellate court […w]e are bound by both our own precedent and the Supreme Court’s, and thus constrained to find error.”

Additionally, the error is deemed prejudicial when it is material to the determination of guilt or innocence and involves issues of confusion or contradiction such that the jury would want to review the evidence to understand it. Both factors applied in this case because there was no physical evidence and “the State’s case relied entirely on witness testimony.” Since the jury asked to review a transcript of that testimony, and the trial court erroneously told the jury it was not possible, “there is a reasonable possibility that the trial court’s error affected the outcome of the jury’s deliberations.” The conviction was vacated and remanded for a new trial.

Motion to set aside bond forfeiture filed by corporate officer of surety company was unauthorized practice of law, but sanctions imposed for filing motion with no signature were improper.

State v. Cash, __ N.C. App. __ (March 17, 2020)

The defendant’s bond was forfeited after he failed to appear for court. After the defendant was served with an order for arrest for failing to appear, the surety on his bond (1^st Atlantic Surety Company) filed a motion to set aside the forfeiture pursuant to G.S. 15A-544.5. The motion was signed by a corporate officer of the surety who was not an attorney. The local Board of Education, as a party in interest on the forfeiture, objected on the grounds that filing the motion was the unauthorized practice of law. The trial court agreed and denied the surety’s motion, and the appellate court affirmed its ruling. Although a surety is permitted to file such a motion under the statute, it is a legal document and petition for use in court and therefore filing it constitutes the practice of law. While an individual bond agent could have filed this motion pro se, G.S. 84-5 dictates that a corporation must appear in court through a licensed attorney and cannot proceed pro se.

The trial court also granted the board’s motion for sanctions against the surety, as allowed by the statute if the motion to set aside the bond forfeiture “was not signed.” The appellate court reversed this part of the order, holding that although the corporate officer’s signature on the motion was not authorized, that is not the equivalent of a motion bearing no signature at all.

Lifetime satellite-based monitoring based on defendant’s conviction for aggravated sexual offenses was an unreasonable search under Grady III.

State v. Gordon, __ N.C. App. __ (March 17, 2020)

The defendant pleaded guilty in 2017 to multiple sexual offenses and was sentenced to 190-288 months. After determining that the convictions qualified as “aggravated offenses” under G.S. 14-208.6(1A), the court conducted a satellite-based monitoring (SBM) hearing. Evidence at the hearing showed that the defendant had a moderate to low Static-99 score (indicating a lower likelihood of re-offending) and only one prior offense, but based on the facts of the underlying case and testimony from the state’s witness that the device was a relatively minor intrusion, the trial court ordered that he be monitored for life upon his release. The defendant appealed the order, arguing the state had failed to show that imposing monitoring on him was reasonable under the Fourth Amendment.

Based on prior decisions that culminated in Grady v. North Carolina, 575 U.S. 306 (2015) (“Grady I”) and State v. Grady, 817 S.E.2d 18 (N.C. App. 2018) (“Grady II”), the appellate court vacated the monitoring order in this case in an earlier opinion (820 S.E.2d 329) filed on September 4, 2018, finding that the state had failed to meet its burden of showing that monitoring this defendant would be a reasonable search 15 or 20 years in the future. The state sought discretionary review of that decision at the North Carolina Supreme Court, but after issuing its opinion in State v. Grady, 372 N.C. 509 (2019) (“Grady III”), the state supreme court remanded this matter back to the appellate court for reconsideration in light of that decision. Grady III applied the earlier rulings finding that SBM is a “search” under the Fourth Amendment, and then used a totality of the circumstances test to decide if the search was reasonable, balancing the defendant’s privacy interest against the legitimate government interest in tracking the defendant. Grady III concluded that SBM was unconstitutional as applied to any unsupervised person ordered to enroll in monitoring solely on the basis of being a recidivist offender, but left open the possibility that defendants placed on SBM for other reasons (such as commission of an aggravated offense) might be permissible.

Reconsidering the instant case in light of Grady III, the appellate court conducted a totality of the circumstances analysis and weighed the defendant’s Fourth Amendment and privacy rights against the legitimate government interest in preventing sexual assaults, and once again held that the state had failed to meet its burden of showing that lifetime SBM was a reasonable search of this defendant. Compared to the high degree of intrusion into the defendant’s privacy, the state could not forecast either the need or scope of such monitoring 15 or 20 years in the future, whether the defendant would be supervised or unsupervised at that time, or even whether the same technology would still be in use, and the state failed to demonstrate that the monitoring would achieve its stated goal of preventing future sexual assaults. The trial court’s order imposing lifetime SBM on the defendant was therefore reversed.

(1) Corroborating witness’s testimony was sufficiently similar to victim’s testimony to be permissible; (2) trial court did not err in allowing testimony about defendant’s extradition or instructing the jury on flight; (3) Georgia offense was  substantially similar to a North Carolina offense for criminal history purposes; (4) order imposing lifetime SBM without an evidentiary hearing was error; (5) MAR order made insufficient findings of fact.

State v. Graham, __ N.C. App. __ (March 17, 2020)

The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. The state dismissed some of the charges prior to verdict, and the jury ultimately convicted the defendant of one count of sexual offense against a child under age 13. The defendant’s MAR requesting a new trial was denied. On appeal, the court addressed five issues.

(1) Testimony from one of the witnesses offered as corroboration of the victim’s testimony included details about additional abuse not testified to by the victim. Distinguishing an omission or silence on a subject from direct contradiction, and noting that the “vast majority” of the witness’s corroborating testimony did conform to the victim’s testimony, the court held that the other witness’s testimony was sufficiently similar to the victim’s and the trial court did not abuse its discretion by admitting it for corroborative purposes. Assuming arguendo that it was error, it was not prejudicial, since other witnesses also testified to corroboration that more closely tracked the victim’s trial testimony. Therefore, the defendant did not show there was a reasonable possibility the jury would have evaluated the victim’s credibility differently without this particular witness’s corroboration.

(2) After the allegations in this case came to light, the defendant left the area and could not be located. The lead detective sought assistance from the U.S. Marshals, and the defendant was eventually located in and extradited from Puerto Rico. Defendant argued that the trial court erred by allowing the detective to testify about the extradition since he had no direct personal knowledge about what transpired, and argued that the court erred a second time by instructing the jury on flight. The defendant did not raise either objection at trial, so the issues were restricted to plain error review. The appellate court held that it was not plain error to allow testimony about extradition since the detective had personal knowledge based on his own attempts to locate the defendant, his act of soliciting help from the Marshals, and his oversight of the whole case as lead detective. Even if it was error, it was not prejudicial since the jury also heard testimony that the defendant escaped from jail pending trial and was recaptured hiding in a nearby home. The jury instruction on flight was likewise proper, since defendant altered his usual routine after the accusations by leaving and staying away until he was located and extradited, reasonably supporting the state’s position that he fled to avoid apprehension.

(3) At sentencing, the trial court concluded that a prior sex offense conviction from Georgia was substantially similar to a North Carolina offense classified as a B1 felony, adding 9 points to defendant’s criminal history. The Georgia statute was not formally introduced into evidence, but the appellate court determined the record was sufficient to review the issue and reject defendant’s argument. Although there were some minor differences in the statutes regarding the age requirements for perpetrators and victims, such that some acts might qualify under one statute but not the other, overall the prohibited conduct was substantially similar and “[b]oth N.C. Gen. Stat. § 14-27.25 and Ga. Code Ann. § 16-6-3 seek to protect persons under age sixteen from those who would engage in sexual intercourse with them, and seek greater deterrence for offenders significantly older than their victims by punishing them more severely.”

(4) Immediately after sentencing, the state asked to proceed with an evidentiary hearing on subjecting defendant to satellite-based monitoring (SBM) after his release. Rather than conduct a hearing, the trial court took notice of the facts presented at trial, defendant’s prior conviction, and the nature of the underlying offense, and ordered defendant placed on lifetime SBM. On appeal, defendant argued it was error to enter that order without conduct a hearing; the state conceded it was error, and the Court of Appeals agreed. To support an SBM order, the state must prove at a hearing that the search imposed by monitoring is reasonable as applied to the defendant, under the totality of the circumstances, weighing the defendant’s privacy rights against the state’s legitimate interests. The trial court’s order was reversed and the matter was remanded to conduct the hearing.

(5) Defendant filed an MAR seeking a new trial, based on the victim recanting her testimony. At a hearing on the MAR, the victim testified that she lied about the abuse at trial due to bribes and threats from another person. The trial judge denied the MAR, but failed to make sufficient findings of fact resolving the conflicts in the victim’s testimony between the trial and the MAR hearing. The trial court “abused its discretion by failing to expressly find which version of events it believed to be true,” so the matter was remanded with instructions to enter a new order making clear findings. Dissenting as to this part of the decision, J. Bryant would have found that the judge’s order was sufficient, since the defendant had the burden of proof at the hearing and the trial judge made a finding that the defense had not met that burden by stating she was “not satisfied that the testimony given by [A.M.D.] at the trial on this matter in December 2016 was false.”

(1) Alleged threats prohibited by statute must be “true threats” to survive constitutional challenge; (2) proving that the statement was a true threat, and was intended as one by the defendant, are essential elements of the offense; (3) defendant must subjectively intend the statement as a true threat, and it must be one that would be perceived in context as a threat by an objectively reasonable recipient; (4) as a mixed question of law and fact, convictions for making a threat are subject to whole case review on appeal.

State v. Taylor, __ N.C. App. __ (March 17, 2020)

The victim in this case was the elected district attorney for the county, and the defendant was an acquaintance who worked in an office building next to the courthouse. After learning that the district attorney would not be pursuing criminal charges in a matter involving the death of a child, the defendant made a series of posts on Facebook. Some of the posts broadly addressed the defendant’s general anger and frustration with politics and the judicial system as a whole, while other posts more specifically referenced the district attorney in particular, using phrases such as “death to her as well” or calling for “old time mtn [mountain] justice,” and implied his willingness to use firearms against law enforcement if they came to his house in response to the posts. The defendant deleted the posts later the same evening, but a detective who was a Facebook friend of the defendant took screenshots of the posts before they were removed. After bringing in the SBI to investigate and interviewing the defendant about the posts, the defendant was charged with threatening a court officer under G.S. 14-16.7(a). Following a jury trial, the defendant was convicted and appealed.

At trial, the defendant raised a First Amendment challenge, arguing that anti-threat statutes such as G.S. 14-16.7 must be construed as constitutionally requiring proof of a “true threat,” meaning that the communication shows a serious intent to cause harm to the victim, and further arguing that the trial court should not admit the five posts offered by the state while excluding other posts and comments that would have provided relevant context and explanation. On appeal, the defense argued that the trial court erred by: (i) denying the defendant’s motion to dismiss at the close of evidence based on the state’s failure to prove the alleged threats were true threats; and (ii) failing to properly instruct the jury on the law and requirements of a true threat.

Ruling as a matter of first impression, the Court of Appeals found in favor of the defendant and reversed the conviction. The appellate court’s decision contains an exhaustive review of case law from North Carolina and other jurisdictions on the First Amendment’s application to anti-threat statutes and other forms of protected speech, but it relies most extensively on Watts v. United States, 394 U.S. 705 (1969), Virginia v. Black, 538 U.S. 343 (2003), and their progeny. Based on those cases, the appellate court agreed that laws which criminalize speech must be construed in accordance with the First Amendment; here, that means a threat cognizable under the statute must be a “true threat” as defined by Black: “under the First Amendment the State can punish threatening expression, but only if the ‘speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’” To clarify its holding and provide guidance in future cases, the court made six supplemental holdings that were not yet fully addressed by the North Carolina case law.

First, when reviewing a conviction under an anti-threat statute, the appellate court will engage in a “whole record” review. Whenever a defendant’s conviction is based in part on a determination that the state met its burden of proving a true threat, the appellate court will conduct an independent review of the entire record to determine the sufficiency of the evidence and whether the defendant’s First Amendment rights were preserved.

Second, establishing that an alleged threat was a “true threat” must be treated as an essential element of the offense to be proved by the state. At trial in this case, the state relied heavily on the fact that the underlying statute and pattern jury instructions only used the single word “threat,” without further qualification. The appellate court’s holding on this point acknowledged that fact, but explained that in order to comport with the First Amendment, “‘true threat’ must be incorporated into the definition of N.C.G.S. § 14-16.7(a) if the statute is to be held constitutional” (emphasis in original).

Third, the “intent” to communicate a true threat is also deemed an essential element of the offense. A statement is only a true threat if it was made intentionally, meaning that it was made with both the general intent to make the threatening statement (considered “from the viewpoint of an objective, reasonable person considering the alleged threat in full context”) and specific intent (i.e., a subjective intent to truly threaten). This does not require proof that the defendant actually intended to carry out the threatened act, but he must have intended that it would be received as a true threat by him to do so.

Fourth, deciding on appeal whether a statement was a true threat is a mixed question of fact and law. Therefore, proving a true threat will usually be a matter for the jury (or judge acting as trier of fact) to decide initially, but as noted above the appellate courts will conduct a “de novo whole record review” on appeal, even if the jury was properly instructed on the law and there is some evidence in the record to support its finding.

Fifth, noting that many types of protected speech may be unpopular, crude, or even aggressive, a “true threat” is defined in accordance with Black as only those statements where “the speaker intends to communicate, to a particular individual or group of individuals, a threat, being ‘a serious expression of an intent to commit an act of unlawful violence[.]’” This definition incorporates the intent requirements adopted above, meaning that the defendant had the “subjective intent to threaten a person or group of persons by communicating the alleged threat.” But deciding whether a statement was a true threat must also be evaluated objectively, based on the “context in which the communication was made; i.e., all the facts surrounding the communication of the challenged speech.” In other words, finding a statement to be a true threat requires both a subjective and an objective determination: (i) the defendant subjectively intended the statement to be understood as a true threat; and (ii) the people hearing or reading it would objectively understand it, in context, as a serious expression of intent to kill or injure the person or group identified.

Sixth, applying the preceding analyses to the particular statute at issue, the court identified and summarized the seven essential elements of the offense as follows:

In order to obtain a constitutional conviction for threatening a court officer pursuant to N.C.G.S. § 14-16.7(a), the State must prove, beyond a reasonable doubt, that: (1) the defendant; (2) knowingly and willfully; (3) made a threat; (4) constituting a “true threat,” meaning a statement “that an ordinary, reasonable [person] who is familiar with the context in which the statement [wa]s made would interpret as a serious expression of an intent to do harm”; (5) to a court official; (6) knowing the court official was a court official; and (7) when the defendant communicated the statement, the defendant specifically intended the statement to be understood by the court officer as a real threat expressing the defendant’s intention to carry out the actions threatened.

Additionally, since proving a true threat is an essential element of the offense, failure to properly instruct the jury on these issues violates the defendant’s First, Sixth, and Fourteenth Amendment rights. That error is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.

Finally, turning back to the case at hand, the court conducted an independent whole case review to decide whether the statements made by this defendant were true threats, whether the defendant had the subjective intent that they reach the recipient and cause her to believe that he intended to kill her, and whether they would be understood as threats by an objectively reasonable person.

Looking first at the plain language of the posts, although some of them did contain aggressive statements such as “death to her as well” and “she will be first to go,” the court concluded that they were also vague or contingent on the occurrence of unlikely events (such as a revolution), and “there were no specifics such as time, manner, place, ability, preparation, or other facts that might allow a reasonable person to read Defendant’s words as a ‘true threat’ to kill D.A. Welch.” As a result, none of the posts offered by the state rose to the level of constituting a true threat.

The court then evaluated the statements in context, considering other factors such as the defendant’s reference (and apparent access) to firearms, his close proximity and ability to reach the purported victim, and the initial concern of the detective who saw the posts indicating that she viewed the threat as real. However, other evidence indicated that neither the victim nor law enforcement perceived the statements as true threats, such as the detective’s somewhat delayed response to the posts, the purported victim’s belief that additional security was unnecessary, the fact that officers did not further investigate the defendant’s ability to carry out the alleged threats, a history of “polite and non-threatening” interactions between the parties, and the broad nature of other comments directed at the judicial system as a whole.

As part of its whole case review, the appellate court also considered the hyperbolic nature of many posts on “public forums” like Facebook, the political context of the defendant’s related comments about the judicial system, the lack of specificity to any alleged threats, the reactions of others who saw the posts, and the defendant’s explanation for the posts. In sum, the court found that as a matter of law the defendant’s posts did not rise to the level of being a “true threat” in this case, and the evidence did not support a finding that the defendant’s intent in posting the comments was to make the purported victim believe he actually intended to kill her. Consistent with the holdings above, the appellate court found that the trial court erred by failing to instruct the jury on the constitutionally required elements of a “true threat” and state’s burden to prove the defendant’s intent, and further found that the error was not harmless beyond a reasonable doubt in this case, given the erroneous law and arguments presented to the jury.

Based on its whole record review (or, in the alternative, based on the regular standard of appellate review as well as the trial court’s failure to properly instruct the jury), the defendant’s conviction was reversed and the case was remanded for entry of judgment of acquittal. The court then reiterated and summarized the essential elements of the offense, the state’s burden of proof, and the jury instructions required for a constitutionally valid conviction under the statute.

(1) The trial court did not abuse its discretion by revoking the defendant’s probation for absconding; (2) The trial court did not err by ordering the sentences activated upon revocation of probation to run consecutively.

State v. Crompton, ___ N.C. App. ___ (March 17, 2020)

(1) The defendant, who had been on probation in six cases, argued on appeal that the trial court erred by revoking his probation for absconding. A divided Court of Appeals disagreed, concluding that the trial court did not abuse its discretion by revoking when the State presented competent evidence to support its finding that the defendant absconded. At the violation hearing, the probation officer testified that, as part of his investigation, he went to the defendant’s last known residence twice, called the defendant’s references, called the local hospital, and checked legal databases to see if the defendant was in custody. During the investigation the defendant also missed two additional appointments and did not contact the officer, leaving the officer unaware of the defendant’s whereabouts for at least nine days. The appellate court distinguished State v. Williams, 243 N.C. App. 198 (2015), in which it had overturned an absconding revocation for a defendant who, despite missing meetings with his officer, remained in contact by telephone. The court also articulated a mens rea distinction between nonrevocable failure-to-report violations and revocable absconding violations, saying that failures to report can amount to absconding if they are willful and the State proves to the trial judge’s reasonable satisfaction that the defendant was avoiding supervision or making his whereabouts unknown. Here, the court cited evidence of the defendant’s failure to return a call from the officer and the thoroughness of the officer’s investigation as sufficient evidence that the defendant was willfully making himself unavailable for supervision and making his whereabouts unknown within the meaning of the absconding condition. Moreover, the defendant admitted to the absconding, and thus failed to meet his burden of establishing that the violation was not willful. (2) The defendant also argued that the trial court erred by ordering the six activated sentences to run consecutively, to the extent that it mistakenly believed that it lacked the authority to allow them to run concurrently. The Court of Appeals disagreed, concluding that the revoking judge’s remark that he was not going to modify the sentencing judge’s decision indicated that the judge acted in his discretion, not under a misapprehension of the law. The court remanded the matter for correction of a clerical error. A judge dissenting in part would have concluded in light of prior appellate cases that the evidence did not support a finding of willful absconding.