Pinyatello v. State

• Decision Date: 28 June 1972
• Docket Number: No. 7210SC514,7210SC514
• Citation: 189 S.E.2d 574,14 N.C.App. 706
• Parties: Joseph Michael PINYATELLO v. STATE of North Carolina.
• Court: North Carolina Court of Appeals

Page 574

189 S.E.2d 574

14 N.C.App. 706

Joseph Michael PINYATELLO v. STATE of North Carolina.

No. 7210SC514.

Court of Appeals of North Carolina.

June 28, 1972.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Andrew A. Vanore for the State.

Tharrington & Smith, by Roger W. Smith, Raleigh, for petitioner.

MALLARD, Chief Judge.

Petitioner was charged in a bill of indictment, proper in form, returned at a January 1967 Session of Superior Court held in Wake County, with the violation of the safecracking and safe robbery statute on 21 November 1966. This statute reads as follows:

'Any person who shall by the use of explosives, drills, or other tools unlawfully force open or attempt to force open or 'pick' the combination of a safe or vault used for storing money or other valuables, shall, upon conviction thereof, receive a sentence, in the discretion of the trial judge, of from ten years to life imprisonment in the State penitentiary.' G.S. § 14--89.1.

During the second week of a session of superior court which began in May 1967 in Wake County, the petitioner was tried and found guilty as charged. At that time, he was represented by his own privately retained attorney. From a judgment of imprisonment of not less than twenty years nor more than twenty-five years, the petitioner, on 8 June 1967, appealed to the Supreme Court, and an appearance bond of $20,000 and a cost bond of $200 were set. In its opinion filed 12 January 1968 and reported in 272 N.C. 312, 158 S.E.2d 596 (1968), the Supreme Court of North Carolina found no error in his trial. Commitment was issued on 18 January 1968 and petitioner began serving the sentence.

Petitioner Pro se filed a motion dated 9 February 1972 in the Superior Court of Wake County in which he alleged that as a matter of law he was entitled, under the provisions of G.S. § 15--186.1, to 'credit as time served on the sentence imposed June 7, 1967 of 20 to 25 years of the time from June 7, 1967 until January 18, 1968, a total of seven (7) months and eleven days spent in physical custody and confinement awaiting the determination of the appeal taken in this cause to the Supreme Court of North Carolina.' He further alleged that he was arrested and placed in jail on 23 November 1966 for the offense resulting in his conviction and remained in physical custody and confinement until 7 June 1967, a period of six months and fifteen days, and that he was entitled to credit for this time as time served on the prison sentence imposed. He alleged that G.S. § 15--176.2, enacted with an effective date of 19 July 1971, creates 'an unlawful discrimination forbidden by the Equal Protection of the Law clause of the Fourteenth Amendment to the United States Constitution and Article 1, Section 19 of the North Carolina Constitution, between those defendants tried after its enactment and those tried prior to its enactment, see the rationable of Cole v. North Carolina, 419 F.2d 127 (4th Cir. 1969), wherein a similar statute (G.S. § 15--186.1 at that time) was declared to create an unlawful discrimination forbidden by constitutional case law principles.' In this 'motion' the petitioner does not assert that the reason he did not give bond was because of indigency; however, the defendant is now an indigent and is represented by court-appointed counsel.

Without making any findings of fact, Judge Canaday, after hearing the matter on the motion, entered an order dated 14 February 1972 containing the following:

'It appearing to the Court that the Statute (G.S. § 15--186.1) upon which petitioner relies, is not retroactive; the Court concludes that the petitioner's petition should be and the same is herewith, denied.'

This court allowed certiorari on 7 March 1972.

G.S. § 15--184 provides that '(t)he sentence shall begin as of the date of the issuance of the commitment.' This statute was in effect on 18 January 1968 when the defendant was committed to prison.

G.S. § 15--184 was amended by Section One of Chapter 266 of the Session Laws of 1969. This amendment related to a defendant receiving credit toward the satisfaction of a sentence imposed upon him for the time he had spent in custody Pending appeal and contained the following: 'This provision shall apply to all trials commenced after the ratification of this amendment.' It was ratified on 22 April 1969.

Also, at the 1969 Session of the General Assembly, Section One of said Chapter 266 was stricken in Chapter 888 of the 1969 Session Laws and G.S. 15--186.1 was enacted. The pertinent parts of G.S. 15--186.1 were as follows:

'* * * In the event the defendant had not been admitted to bail pending the appeal, he shall receive credit towards the satisfaction of the sentence for all the time he has spent in custody Pending the appeal, except when the sentence is death or life imprisonment. * * * This provision Shall apply to all trials commenced after the Ratification of this Section.' (Emphasis added.)

This Act was amended in 1971 and the foregoing language was deleted.

By Chapter 957 of the Session Laws of 1971, the General Assembly enacted a new section of the General Statutes codified as G.S. § 15--176.2. The pertinent parts of this section read:

'The term of a definite sentence or the minimum and maximum term of an indeterminate sentence shall be credited with and diminished by the amount of time the defendant spent in confinement prior to the commencement of such sentence as a result of the charge that culminated in the sentence. The credit herein provided shall be calculated from the date custody under the charge commenced to the date the sentence commences. * * * Upon sentencing, the judge presiding shall determine the credits to which the defendant is entitled, and the clerk of court in which the defendant is sentenced shall transmit to the Department of Correction or to the sheriff of the county, together with the commitment, a statement of pretrial credits to which the defendant shall be entitled. * * * This provision shall apply to all trials commenced after the ratification of this section.' (Emphasis added.)

It is clear from the language used in the enactment of the foregoing laws that the General Assembly of 1969 and 1971 did not intend for G.S. § 15--186.1 and G.S. § 15--176.2 to have retroactive effect. Both of these statutes were enacted after this petitioner had been tried and sentenced and appealed from his conviction (which was upheld by the Supreme Court of North Carolina) and after commitment had issued on 18 January 1968.

The argument that these two statutes (G.S. § 15--176.2 and G.S. § 15--186.1) create an unlawful discrimination between defendants tried subsequent to their enactment and those tried prior thereto is, in our opinion, without merit. The General Assembly of North Carolina has the right to change the laws relative to the punishment for conduct it describes as crimes, and has the right to say when the punishment shall begin, unless prohibited by the Constitution of the United States. See Atlantic Coast Line R. Co. v. Brotherhood of Loc. Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970). We are not aware of any constitutional prohibition upon the power of the General Assembly of North Carolina to...