Statutorily Mandated Sentences: An Exception to G.S. 15A-1335

G.S. 15A-1335 provides that when 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, that is more severe than the prior sentence less the portion of the prior sentence previously served. I’ve previously written about a recent change to the statute and about when a sentence is “more severe.” In this post I’ll focus on an exception to the statute: The statutorily mandated sentence.

The case law holds that the statute doesn’t apply when the higher sentence is statutorily mandated. State v. Williams, 74 N.C. App. 728 (1985) (in this armed robbery case, after a new trial was ordered and the defendant again was convicted, the trial judge imposed a 14-year sentence, two years more than the original sentence; G.S. 15A-1335 did not apply because the statute then in effect provided that armed robbery had a mandatory minimum of at least 14 years; thus, the trial judge had no discretion to impose a sentence less than 14 years); State v. Kirkpatrick, 89 N.C. App. 353 (1988) (after being convicted of felonious possession of stolen property and of having achieved habitual felon status, the trial court sentenced the defendant to three years for possession and to 15 years for being a habitual felon; after the appellate court held that the trial court erred by separately sentencing the defendant for being a habitual felon, the trial court resentenced the defendant to 15 years for felonious possession while being a habitual felon; on a second appeal, the court cited Williams and held that the new felony possession sentence did not violate G.S. 15A-1335 because the habitual felon statute required sentencing as a Class C felony and that under the law then in effect, the presumptive sentence at that Class was 15 years).

This exception sometimes arises when the first judge sentences the defendant using the wrong sentencing grid or in the wrong cell on the grid, resulting in a sentence that is too short given the felony class and prior record level. Correcting this error on resentencing does not violate G.S. 15A-1335 because the proper sentence is statutorily mandated. See State v. Cook, __ N.C. App. __, 738 S.E.2d 773 (2013); State v. Powell, __ N.C. App. __, 750 S.E.2d 899 (2013).

When cases are consolidated under Structured Sentencing, the most serious offense controls. G.S. 15A-1340.15(b) (felonies); G.S. 15A-1340.22(b) (misdemeanors). Although a judge isn’t required to consolidate sentences, when the judge does so, the sentence for the most serious offense consolidated is considered to be statutorily mandated for purposes of G.S. 15A-1335. This rule holds even if fewer offenses are consolidated in the resentencing. State v. Skipper, __ N.C. App. __, 715 S.E.2d 271 (2011) (after the defendant was convicted of three crimes and found to be a habitual felon, the trial court consolidated the offenses and gave the defendant a sentence of 125─159 months; the appellate court vacated one of the convictions and remanded for resentencing; at resentencing the trial court consolidated the offenses and sentenced the defendant to 125─159 months; the court rejected the defendant’s argument that because he received the same sentence even after one of the convictions was vacated G.S. 15A-1335 was violated; the court reasoned that having consolidated the sentences, the trial court was required to sentence the defendant for the most serious offense, which it did at the initial sentencing and the resentencing).

A sentence is not statutorily mandated if a judge has discretion impose a sentence that is equal to or lighter than the original sentence. In State v. Holt, 144 N.C. App. 112 (2001), for example, the defendant was convicted of second-degree murder. At his first sentencing, the trial judge found that the aggravating factors outweighed the mitigating factor and sentenced the defendant in the aggravated range under Structured Sentencing as a Class B2 felon to a term of imprisonment of 196─245 months. The defendant appealed and the court of appeals held that because of the date of the offense, the FSA, not Structured Sentencing applied. The case then was remanded for resentencing under the FSA. At the resentencing, the trial court again determined that the aggravating factors outweighed the mitigating factors and sentenced the defendant in the aggravated range as a Class C felon under the FSA to a term of life imprisonment. The defendant challenged his new sentence, contending that it violated G.S. 15A-1335. The court of appeals concluded that the sentence imposed on resentencing—life imprisonment—was not statutorily mandated. The court noted that under the FSA, the presumptive sentence for a Class C felony was fifteen years but a Class C felon could have been punished by imprisonment up to 50 years or life, by a fine, or by both imprisonment and a fine. Thus, it concluded, “life imprisonment was not a statutorily mandated sentence.” Because the life sentence exceeded the original sentence of 196─245 months, the court vacated and remanded for a new sentencing hearing.

So there it is: The statutorily mandated exception to G.S. 15A-1335. If you’ve encountered issues under the statute that I didn’t address in this series of blog posts, let me know.