Lineberger v. N.C. Dept. of Correction

• Decision Date: 04 March 2008
• Docket Number: No. COA07-3.,COA07-3.
• Citation: 657 S.E.2d 673
• Court: North Carolina Court of Appeals
• Parties: Jeffrey Bernard LINEBERGER, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF CORRECTION, a North Carolina State Agency, and The North Carolina Post-Release Supervision and Parole Commission, a North Carolina State Agency, Defendants.

657 S.E.2d 673

Jeffrey Bernard LINEBERGER, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF CORRECTION, a North Carolina State Agency, and The North Carolina Post-Release Supervision and Parole Commission, a North Carolina State Agency, Defendants.

No. COA07-3.

Court of Appeals of North Carolina.

March 4, 2008.

Appeal by defendants from order and judgment entered 7 June 2006 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 29 August 2007.

Glover & Petersen, P.A., by Ann B. Petersen, Chapel Hill, for plaintiff-appellee.

Attorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons, for defendants-appellants.

CALABRIA, Judge.

The North Carolina Department of Correction ("NCDOC") and the North Carolina Post-Release Supervision and Parole Commission ("Parole Commission") (collectively "defendants") appeal from an order and judgment denying defendants' motion for summary judgment and entering a declaratory judgment in favor of Jeffrey Bernard Lineberger ("plaintiff"). We affirm.

On 5 January 1994, in Mecklenburg County Superior Court, pursuant to a plea agreement, plaintiff was convicted of one count of common law robbery, one count of second-degree kidnapping, and one count of conspiracy to commit common law robbery. Plaintiff attained the status of an habitual felon on the common law robbery and second-degree kidnapping charges. The plea agreement provided that the charges be consolidated and the sentence not exceed forty years. Mecklenburg County Superior Court Judge Robert O. Lewis sentenced plaintiff to forty years in the NCDOC pursuant to the Fair Sentencing Act.

On 13 April 1994, plaintiff's parole case analyst informed plaintiff his earliest parole eligibility date would be 11 December 2000 and, because of the second-degree kidnapping offense, his case would be reviewed for parole 270 days prior to his maximum release date, 12 December 2013. On 22 August 2000, the NCDOC informed plaintiff his parole eligibility date was 10 December 2000. Plaintiff alleges this date was based on N.C. Gen. Stat. § 14-7.6 and N.C. Gen.Stat. § 15A-1371, providing that habitual felons are eligible for parole after serving seven years of their sentence. At that time, plaintiff was held in minimum custody, granted work release and preparing for a December 2000 review for release on parole.

On 28 November 2000, the Parole Commission informed plaintiff that his second-degree kidnapping offense had not been entered into the computer system and his parole eligibility date changed due to the addition of the kidnapping offense. The Parole Commission calculated plaintiff's eligibility date to be ninety days prior to his final release date, or 2 September 2011. The effect of this change resulted in plaintiff's demotion to medium custody and removal from work release.

On 19 February 2004, plaintiff filed a motion for appropriate relief to withdraw his guilty plea on the basis that the recalculation of his parole date disregarded the consolidated sentence and therefore was a breach of the plea agreement. On 27 April 2004, the court denied the motion for appropriate relief.

On 23 November 2005, plaintiff filed a complaint in Wake County Superior Court seeking, inter alia, "a declaratory judgment interpreting and construing N.C.G.S. § 14-1.1 (1993), N.C.G.S. § 14-7.1 et seq. (1993), N.C.G.S. § 15A-1340.4(b) & (f), N.C.G.S. § 15A-1371 (1993) and N.C.G.S. § 15A-1380.2 (1993); as those statutes relate to the calculation of Plaintiff's parole eligibility date." Defendants answered the complaint asserting that the recalculation corrected a computer error in parole eligibility dates.

On 8 March 2006, defendants moved for summary judgment. After a hearing on 11 April 2006, Superior Court Judge Donald W. Stephens denied defendants' motion for summary judgment and entered a declaratory judgment for the plaintiff. The trial court ordered defendants to recalculate plaintiff's parole eligibility date by either (1) considering plaintiff's forty-year sentence as an habitual felon sentence without regard to the ninety-day end of term parole provisions of N.C.G.S. § 15A-1380.2, or (2) if the Parole Commission applied N.C.G.S. § 15A-1380.2, then the ninety-day end-of-term parole provisions must be applied on the basis that plaintiff received a fifteen-year sentence for kidnapping not a forty-year sentence for kidnapping.

Defendants appeal the trial court's order denying summary judgment for defendants and granting a declaratory judgment in favor of plaintiff. Defendants did not assign error to the ruling on their summary judgment motion. Therefore, our review is limited to whether the trial court erred in its declaratory judgment in favor of the plaintiff. N.C.R.App. P. 10(a) (2007).

The dissent supplements the facts listed above by including prior grievances, actions, and petitions filed by the plaintiff before the commencement of the appeal. As to the supplemented proceedings, which were filed pro se, only the prior actions are mentioned in the record on appeal.¹ None of the petitions and grievances cited by the dissent could be located in the record.

Rule 9 of the North Carolina Rules of Civil Procedure limits our review to the record, transcript and any items filed with the record. "In appeals from the trial division of the General Court of Justice, review is solely upon the record on appeal, the verbatim transcript of proceedings, ... and any items filed with the record on appeal pursuant to Rule 9(c) and 9(d)." N.C.R.App. P. 9(a) (2007) (emphasis added). In addition to the record on appeal, appellate courts may take judicial notice of their own filings in an interrelated proceeding. However, judicial notice of an interrelated proceeding is limited to proceedings with the same parties, the same issues, and the parties refer to the interrelated case in the case under consideration. West v. G.D. Reddick, Inc., 302 N.C. 201, 202, 274 S.E.2d 221, 223 (1981). Appellate courts may take judicial notice ex mero motu on "any occasion where the existence of a particular fact is important...." Id., 302 N.C. at 203, 274 S.E.2d at 223. Facts which are either so notoriously true as not to be the subject of reasonable dispute or "capable of demonstration by readily accessible sources of indisputable accuracy" are subject to judicial notice. Id. (citing Kennedy v. Parrott, 243 N.C. 355, 358, 90 S.E.2d 754, 756 (1956)).

Here, there was no request by defendants to take judicial notice of the petitions, grievances and prior actions. Most of the federal opinions cited by the dissent are brief and unpublished, and do not provide enough information to determine that the issues are the same. See Lineberger v. York, No. 03-6456, 81 Fed.Appx. 460 (4th Cir.2003); Lineberger v. York, No. 03-6771, 76 Fed.Appx. 497 (4th Cir.2003); see also State v. Lineberger, ___ N.C. ___, 597 S.E.2d 771 (2004) (dismissing plaintiff's petition without analysis).

In Lineberger v. York, filed in the United States District Court, Middle District of North Carolina in 2003, plaintiff asserted a claim under 42 U.S.C. § 1983 and sought a declaratory judgment. However, the Middle District of North Carolina granted defendants' motion for summary judgment against plaintiff, in part because declaratory relief on the issue of parole calculation is not available under 42 U.S.C. § 1983. Lineberger v. York, No. 1:02CV00210, 2003 WL 23789232 (M.D.N.C. filed April 25, 2003). Since the federal court dismissed plaintiff's claim in part because declaratory relief was not available under 42 U.S.C. § 1983, and did not determine whether his parole was erroneously calculated, judicial notice of plaintiff's prior action in federal court is not "important" to his current action seeking declaratory relief. West, 302 N.C. at 203, 274 S.E.2d at 223.

Since copies of plaintiff's petitions, grievances, and prior actions (with the exception of Lineberger v. York, No. 1:02CV00210) were not included with the record on appeal and since the appellants did not make a request for judicial notice of the petitions, grievances and prior actions, we respectfully decline to base our review on matters outside the record as that would require deviation from the North Carolina Rules of Appellate Procedure.

I. Standard of Review

The standard of review in declaratory judgment actions where the trial court decides questions of fact is whether the trial court's findings are supported by any competent evidence. Cartner v. Nationwide Mutual Fire Ins. Co., 123 N.C.App. 251, 253, 472 S.E.2d 389, 390 (1996); Walker v. Penn Nat'l Sec. Ins. Co., 168 N.C.App. 555, 559, 608 S.E.2d 107, 110 (2005). Where the findings are supported by competent evidence, the trial court's findings of fact are conclusive on appeal. Walker, 168 N.C.App. at 559, 608 S.E.2d at 110. This is true even when there is evidence which "sustain[s] findings to the contrary." Cartner, 123 N.C.App. at 253, 472 S.E.2d at 390.

Whether or not the trial court's interpretation of the parole eligibility statutes as applied to this case was correct is a question of law, subject to de novo review. Teasley v. Beck, 155 N.C.App. 282, 288, 574 S.E.2d 137, 141 (2002) (citing County of Durham v. N.C. Dep't of Env't & Natural Resources, 131 N.C.App. 395, 396, 507 S.E.2d 310, 311 (1998)).

II. Defendants' First Argument

Defendants argue the declaratory judgment in favor of plaintiff was in error because: (a) a declaratory judgment may not be used to collaterally attack a prior judgment; (b) plaintiff's claim is barred by § 15A-1027; and (c) the trial court's interpretation of § 15A-1340.4 was in error.

A. Collateral Attack

Defendants argue that plaintiff's suit is a collateral attack on his habitual felon status as well as the robbery, kidnapping, and conspiracy convictions. We disagree.

"Questioning the validity of the original conviction is an impermissible collateral attack." State v. Flemming, 171 N.C.App. 413, 417, 615...