in the Court of Appeals 5 September 2017.
by Defendant from order entered 26 September 2016 by Judge
Orlando F. Hudson, Jr. in Durham County Superior Court Nos.
06 CRS 59386 and associated cases 07 CRS 0004, 07 CRS 45414,
08 CRS 4803
Attorney General Joshua H. Stein, by Assistant Attorney
General Teresa M. Postell, for the State.
F. Read, for Defendant.
Carolina law requires a sentencing criminal court to enter an
order of commitment consistent with the judgment entered, and
a defendant is entitled to entry of such order nunc pro
tunc where no such order is entered. However, a
commitment order entered nunc pro tunc may not vary
the terms of the underlying judgment, including a requirement
that the defendant serve his sentence in the custody of a
state agency. Therefore, a defendant's sentence does not
begin until he is actually remitted to the custody of the
agency designated in and as required by the judgment.
M. Watson ("Defendant") appeals from an order
denying his Motion for Appropriate Relief ("MAR"),
requesting the superior court strike a detainer filed against
him and enter an order calculating his sentence as served. On
appeal, Defendant, who was in federal custody prior to and
following his sentencing in state court, argues that the
trial court was required to enter a commitment order
effective the date of the entry of the underlying criminal
judgment, as no commitment order was entered at that time. As
a result, Defendant reasons, the mandate in N.C. Gen. Stat.
§ 15A-1353(a) (2009) that "the date of the
[commitment] order is the date service of the sentence is to
begin" would require the trial court to hold that
Defendant's state sentence is served, as he has been in
federal custody for the entire length of his state sentence.
We agree with Defendant that the sentencing court was
required by state law to enter a commitment order at the time
of judgment and sentencing. However, because the judgment
required his sentence be served "in the custody of: N.C.
DOC[, ]" i.e., the North Carolina Department of
Correction,  and an order of commitment cannot vary the
terms of a judgment, we remand for entry of a commitment
order nunc pro tunc requiring his sentence begin
upon his release from federal custody.
FACTUAL AND PROCEDURAL HISTORY
committed the offense of Possession of a Firearm by a Felon
on 21 December 2006 and was taken into state custody.
Defendant posted bond and was released from custody the
following day. Defendant was indicted on that charge and as a
Habitual Felon on 2 January 2007.
May 2007, Defendant was again arrested for Possession of a
Firearm by a Felon and taken into state custody. Defendant
again posted bond, and was released from custody on 2 May
2007. Defendant was indicted on the second Possession of a
Firearm by a Felon charge and a second Habitual Felon charge
on 5 May 2008. The two Possession of a Firearm by a Felon
charges and the two Habitual Felon charges are referred to
collectively as the "State Charges."
Defendant's State Charges were pending, Defendant was
indicted on felony charges in the United States District
Court for the Eastern District of North Carolina on 24
September 2008 (the "Federal Case"). Per the
indictment filed in federal court, the Federal Case was
unrelated to the State Charges. Defendant was arrested and
taken into federal custody by a special agent with the
Federal Bureau of Investigation on 29 September 2009. A
detention order was entered in the Federal Case on 30
September 2008, and Defendant waived a detention hearing on
15 October 2008. Defendant pleaded guilty in the Federal Case
on 2 March 2009 and, following a continuance, was scheduled
for sentencing on 6 July 2009.
he pleaded guilty and while awaiting sentencing in the
Federal Case, Defendant pleaded guilty to the State Charges
on 18 May 2009. The trial court held a sentencing hearing
that day, and, per the plea, Defendant agreed to a
consolidated sentence of 80 months minimum and 105 months
maximum imprisonment. On 19 May 2009, the trial court entered
its judgment (the "Judgment") using Administrative
Office of the Courts form AOC-CR-601. Per the language of the
form, the Judgment ordered that Defendant "be imprisoned
. . . for a minimum term of: 80 months [and] for a maximum
term of: 105 months in the custody of: N.C. DOC[.]" The
trial court left unchecked boxes on the form indicating
Defendant's sentence would begin consecutive to any other
imposed sentences. The trial court also left unchecked the
boxes on the reverse of the form in the section titled
"ORDER OF COMMITMENT/APPEAL ENTRIES[, ]" which
would have either denoted notice of appeal of the judgment by
Defendant or ordered "the sheriff or other qualified
officer . . . [to] cause the [D]efendant to be delivered . .
. to the custody of the agency named [in the Judgment] to
serve the sentence imposed . . ." (emphasis added).
Following his sentencing in state court, judgment was entered
against the Defendant in the Federal Case on 12 November
2009, sentencing him to concurrent sentences of 180 and 120
months in the custody of the United States Bureau of Prisons.
Defendant began service of his federal sentence but, on 30
March 2016, the North Carolina Department of Public Safety
provided a detainer action letter to the United States
Department of Justice indicating a detainer was filed
concerning Defendant's sentence on the State
Charges. The letter, contrary to the Judgment,
stated that the Defendant's term of imprisonment for the
State Charges was "to run consecutive."
learning of the detainer, Defendant filed an MAR on 20 July
2016, requesting that he "be adjudged to have served all
his North Carolina time." At the MAR hearing, counsel
for Defendant stated that he was not asking for jail credit
towards the term of imprisonment imposed in the Judgment.
Instead, counsel for Defendant stated he was seeking entry of
a commitment order nunc pro tunc 12 May 2009, the
date of the Judgment, because no such order had been entered
at that time as required by N.C. Gen. Stat. §
15A-1353(a). Defendant's counsel further reasoned that,
because the statute stated "[u]nless otherwise
specified, the date of the [commitment] order is the date
service of the sentence is to begin[, ]" N.C. Gen. Stat.
§ 15A-1353(a), Defendant's sentence under the
Judgment should be calculated to have run beginning 12 May
trial court denied Defendant's motion by order entered 26
September 2016. Defendant filed a petition for writ of
certiorari to this Court for review of the trial ...