Resentencing on Remand: G.S. 15A-1335 Applied to Multiple Convictions

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Under G.S. 15A-1335, “[w]hen a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.” That law is North Carolina’s statutory response to the United States Supreme Court’s decision in North Carolina v. Pearce, 395 U.S. 711 (1969), which limited a judge’s authority to impose a more severe after a defendant’s successful appeal. Our statute is actually a little more protective for defendants than Pearce itself—something you can read all about in Jessie Smith’s excellent bulletin on the Limitations on a Judge’s Authority to Impose a More Severe Sentence After a Defendant’s Successful Appeal or Collateral Attack. The law is straightforward enough when the sentence for a single conviction is overturned on appeal. It’s more complicated, though, when multiple convictions are involved. The court of appeals’ recent decision in State v. Daniels provides an illustration.

In Daniels, the defendant was convicted of first-degree rape and first-degree kidnapping. He was sentenced to consecutive terms of 307–378 months for the rape and 133–169 months for the kidnapping. On Daniels’ first appeal, the court of appeals held it was error for the trial court to permit the same sexual assault to serve as the basis for the defendant’s first-degree rape and first-degree kidnapping convictions. (Though not the primary subject of this post, that’s an error common enough to note: when a sexual assault provides the basis for elevating a kidnapping crime to first-degree kidnapping under G.S. 14-39(b), the defendant may not be punished for both the first-degree kidnapping and the sexual assault. State v. Freeland, 316 N.C. 13 (1986).) The proper course of action in that situation is to remand the case with instructions for the trial court to either (1) arrest judgment on the first-degree kidnapping conviction and resentence the defendant for second-degree kidnapping and the rape, or (2) arrest judgment on the rape and resentence the defendant on the first-degree kidnapping alone. That’s what the court of appeals did.

On remand, the trial court chose option #1, arresting judgment on the first-degree kidnapping conviction and resentencing the defendant for second-degree kidnapping and first-degree rape. The court sentenced the defendant to 370–453 months on the rape [about 75 months more than the original sentence for the rape], with a consecutive term of 46–65 months for the kidnapping [about 104 months less than the original sentence based on the same conduct]. Though the aggregate term of imprisonment fell by over two years, the defendant argued that the court violated G.S. 15A-1335 by giving a longer sentence on the rape. The State argued that as long as the aggregate prison term didn’t exceed the original, the sentence was okay.

The court of appeals agreed with the defendant. Citing State v. Nixon, 119 N.C. App. 571 (1995)—a case involving a resentencing precipitated by the very same underlying error related to a kidnapping and a rape—the court of appeals held that the prohibition against imposing more severe sentences after appeal applies to “offenses charged and convictions thereon, not to an aggregate term of years.” The appellate court remanded the case again, with instructions to enter a sentence on the rape no longer than the original 307–378 month sentence.

So that, too, is straightforward enough I suppose. But lest you think G.S. 15A-1335 is always easy to apply, I’ll write another post soon on how the rule works when consolidated sentences are involved.

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