Running a Sentence Consecutively to an Anticipated Sentence

May the judge sentencing a conviction now order that it run consecutively to sentences the defendant might get in the future?

The General Statutes don’t explicitly say. G.S. 15A-1354(a) notes two situations in which consecutive sentences may be imposed: when multiple sentences are entered at the same time, or when a new term of imprisonment is being imposed on a person who is already subject to an undischarged term of imprisonment. The law makes no mention of any authority for the judge sentencing a conviction now to preemptively determine how today’s sentence will relate to those imposed in the future.

A recent North Carolina case briefly considered the question. In State v. Fleming, __ N.C. App. __ (June 7, 2016), the defendant was convicted of common law robbery, conspiracy to commit common law robbery, and some other charges. The judge ordered the sentences to run consecutively to one another, and also consecutively “to any other sentence he may get in the future.” Appellant Brief at 31. The defendant appealed. The court of appeals hinted that the latter remark may have been improper, but no record of it made its way into the trial court’s written judgment. Because the written judgment controlled, the appellate court found no error.

Had the judge’s comment been reflected in the written judgment, I think it probably would have been deemed erroneous. There is no clear statutory procedure for starting a sentence only to put it on hold later if another sentence is entered before the first one is complete. Also, to give effect to the first judge’s order would seem to encroach on the sentencing authority of the second judge. Given the practical difficulties and the wording of G.S. 15A-1354(a), I wouldn’t think a judge could do that.

On the other hand, the Supreme Court did not read an analogous provision in the federal Sentencing Reform Act that way in the recent case of Setser v. United States, 132 S. Ct. 1463 (2012). To the contrary, the Court concluded that a federal district judge did have the discretion to order that a federal sentence run consecutively to an anticipated state sentence that had yet to be imposed. The Court reasoned that the text of the Sentencing Reform Act of 1984 did not forbid the practice, and that our courts have traditionally allowed it. The Court rejected the defendant’s argument that it is generally better to leave the consecutive-versus-concurrent decision to the second judge, who will have more information when the time comes to make the decision.

I might note that the anticipated sentence in Setser was not a wide-open reference to any old thing the defendant might do in the future. It was, rather, a new state charge (and related probation violation) that was already pending when the federal district judge entered his sentence. In that regard, the situation there was different from the broad statement made verbally (though apparently not in writing) by the superior court judge in Fleming.

A related question that comes up from time to time is whether the judge sentencing a conviction now may require that sentences for future crimes run consecutively to the sentence he or she is entering. Again, I’m skeptical of the first judge being able to box the second judge in that way, but I’m not aware of any North Carolina case law on point.

When I am asked about that it’s usually a situation involving one of the handful of North Carolina crimes that require the sentence to run consecutively to any sentence “being served” by the defendant. As Jeff noted here, that language has consistently been interpreted to require those sentences to run consecutively to sentences already being served by the defendant. The rule does not apply to two sentences imposed at the same time (for instance, two drug trafficking convictions sentenced at the same time may run concurrently with one another,  State v. Walston, 193 N.C. App. 134, 141–42 (2008)), or to subsequent sentences imposed on the defendant already sentenced under a mandatory consecutive rule. In that way, North Carolina’s mandatory consecutive sentence rules wind up being a one-way street. For example, if a defendant is sentenced to prison for non-habitual Conviction A today and then as a habitual felon for Crime B next week, Sentence B must run consecutively to Sentence A. But the reverse is not true. If the habitual felon sentence were entered first, nothing requires the later-imposed non-habitual sentence to run consecutively. And I don’t know of any authority for the first judge to require the second judge to set things up that way.