State v. Hearst

• Decision Date: 16 August 2002
• Docket Number: No. 684PA01.,684PA01.
• Citation: 356 N.C. 132,567 S.E.2d 124
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. William Anthony HEARST.

567 S.E.2d 124

356 N.C. 132

STATE of North Carolina v. William Anthony HEARST.

No. 684PA01.

Supreme Court of North Carolina.

August 16, 2002.

Roy Cooper, Attorney General, by Christopher W. Brooks, Assistant Attorney General, for the State.

William H. Leslie, Assistant Public Defender, for defendant-appellant.

N.C. Prisoner Legal Services, Inc., by Kari L. Hamel and Susan H. Pollitt, Raleigh, amicus curiae.

LAKE, Chief Justice.

On 7 June 1998, defendant, William Anthony Hearst, was indicted for felony possession with intent to sell and deliver a controlled substance. He was also indicted for the misdemeanors of resisting a public officer, assault on a government official, no operator's license, and hit and run property damage. On 13 July 1999, defendant pled guilty to the charges. The trial court determined that defendant's prior record level was II and sentenced defendant in the presumptive range of six to eight months. The trial court suspended defendant's sentence, placed him on supervised probation for sixty months, and assigned him to the Intensive Supervision Program for twelve months.

On 11 August 1999, defendant's probation officer filed a probation violation report. On 26 August 1999, the trial court modified defendant's terms of probation and ordered him to attend the Intensive Motivational Program of Alternative Correctional Treatment (IMPACT). Defendant spent eighty-one days at IMPACT and successfully completed the program on 18 November 1999. Defendant's probation officer filed two more violation reports, on 21 February and 29 February 2000. On 10 August 2000, the trial court ordered that defendant's probation be revoked and that the suspended sentence of six to eight months be activated. Pursuant to N.C.G.S. § 15-196.1, defendant requested both the eighty-one days spent at IMPACT and twenty-five days spent in prior confinement for the charges be credited against his sentence. The trial court allowed the twenty-five days' credit but denied credit for the eighty-one days.

Defendant appealed to the Court of Appeals, which affirmed the trial court's denial of credit toward defendant's activated sentence for the eighty-one days spent at IMPACT. Defendant subsequently filed a notice of appeal with this Court based upon a substantial constitutional question pursuant to N.C.G.S. § 7A-30(1) and a petition for discretionary review pursuant to N.C.G.S. § 7A-31(c). On 31 January 2002, this Court dismissed ex mero motu defendant's notice of appeal but allowed his petition for discretionary review.

In defendant's first assignment of error, he contends the Court of Appeals erred in affirming the trial court's denial of credit toward defendant's activated sentence for the eighty-one days spent at IMPACT. Specifically, defendant argues that he was "committed to or confined in a state or local correctional, mental or other institution" while at IMPACT and that he was therefore entitled to the credit. See N.C.G.S. § 15-196.1 (2001). We agree.

N.C.G.S. § 15-196.1, titled "Credits Allowed," is the statute which controls the trial court's application of credit for time served in sentencing defendants upon probation revocation. This statute provides:

The minimum and maximum term of a sentence shall be credited with and diminished by the total amount of time a defendant has spent, committed to or in confinement in any State or local correctional, mental or other institution as a result of the charge that culminated in the sentence. The credit provided shall be calculated from the date custody under the charge commenced and shall include credit for all time spent in custody pending trial, trial de novo, appeal, retrial, or pending parole, probation, or post-release supervision revocation hearing: Provided, however, the credit available herein shall not include any time that is credited on the term of a previously imposed sentence to which a defendant is subject.

N.C.G.S. § 15-196.1 (emphasis added).

In State v. Farris, 336 N.C. 552, 444 S.E.2d 182 (1994), this Court interpreted N.C.G.S. § 15-196.1 in regard to whether time served as a special condition of probation should be credited against a suspended sentence activated upon revocation of probation. The trial court in that case placed the defendant on special probation pursuant to N.C.G.S. § 15A-1351 with an active sentence of ninety days. Id. at 553, 444 S.E.2d at 183. N.C.G.S. § 15A-1351 allows a trial court to order a defendant to submit to a period or periods of imprisonment in a local confinement facility or in the custody of the Department of Correction as a condition of special probation. N.C.G.S. § 15A-1351(a) (2001). This Court rejected the State's argument that imprisonment imposed as a condition of special probation is like any other probation condition and thus should not be credited against an activated sentence. Farris, 336 N.C. at 555,444 S.E.2d at 184. In Farris, we concluded that the language of N.C.G.S. § 15-196.1 demonstrated "the legislature's intention that a defendant be credited with all time defendant was in custody and not at liberty as the result of the charge." Id. at 556, 444 S.E.2d at 185.

The State contends, in the instant case, that defendant was not "committed to or confined" while in IMPACT and thus was not entitled to credit. Specifically, the State argues that statutory changes made to the IMPACT program in December 1998 demonstrate the legislature's intent that the IMPACT program not be a period of confinement or imprisonment. The State further contends that based upon this Court's opinion in Farris, the key issue is whether defendant was "in custody" while in IMPACT. According to the State's argument, the nature of the program itself, and defendant's testimony at his probation violation hearing, demonstrate he was not "in custody" and therefore was not entitled to jail credit.

N.C.G.S. § 15A-1343(b1) lists special conditions of probation. One of the special conditions of probation includes the IMPACT program. See N.C.G.S. § 15A-1343(b1)(2a) (2001). Under the original language in N.C.G.S. § 15A-1343(b1), a defendant ordered to attend IMPACT must "submit to a period of confinement in a facility operated by the Department of Correction for a minimum of 90 days or a maximum of 120 days under special probation ... with the Intensive Motivational Program of Alternative Correctional Treatment." N.C.G.S. § 15A-1343(b1)(2a) (amendment effective 1 December 1998).

In a section of the Operations and Capital Improvement Appropriations Act of 1998 titled "Convert IMPACT to Residential Program," the North Carolina General Assembly amended the IMPACT program. Act of Oct. 30, 1998, ch. 212, sec. 17.21, 1997 N.C. Sess. Laws 937, 1,200 (amending N.C.G.S. §§ 15A-1343(b1) and 15A-1343.1). The amended version of N.C.G.S. § 15A-1343(b1)(2a) requires a defendant to "[s]ubmit to a period of residential treatment" in the IMPACT program, rather than "a period of confinement." The remainder of the statute did not change in any substantial form.

The legislature also amended N.C.G.S. § 15A-1343.1, which sets out criteria for selecting and sentencing defendants to IMPACT. Id. The amendment added language stating that IMPACT "shall be a residential program" as defined by N.C.G.S. § 15A-1340.11(8). This statute defines "residential program" as a program where a defendant "is required to reside in a facility for a specified period and to participate in activities such as counseling, treatment, social skills training, or employment training, conducted at the residential facility or at other specified locations." N.C.G.S. § 15A-1340.11(8) (2001) (emphasis added).

On appeal, the Court of Appeals agreed with the State and concluded that the "General Assembly's action in converting IMPACT to a residential program ... acknowledged that participation in IMPACT is a lesser sanction than commitment to or confinement in a state institution." State v. Hearst, 147 N.C.App. 298, 302, 555 S.E.2d 357, 360 (2001). In reaching this determination, the Court of Appeals noted that it recently considered N.C.G.S. § 15-196.1 in relation to house arrest and held that time spent under house arrest does not constitute confinement and is not entitled to credit. Id. at 301, 555 S.E.2d at 359 (citing State v. Jarman, 140 N.C.App. 198, 206, 535 S.E.2d 875, 880 (2000)). The Court of Appeals also found that defendant was "no more entitled to credit for time spent in the IMPACT program than he is for time spent during required visits with his probation officer." Hearst, 147 N.C.App. at 303,555 S.E.2d at 361. Therefore, based upon the above determinations, the Court of Appeals held that the IMPACT program was not "sufficiently incarcerative as to be `custodial'" and that defendant was not entitled to credit against his active sentence. Id. We disagree.

"`Criminal statutes are to be strictly construed against the State.'" State v. Raines, 319 N.C. 258, 263, 354 S.E.2d 486, 489 (1987) (quoting State v. Glidden, 317 N.C. 557, 561, 346 S.E.2d 470, 472 (1986)). "The intent of the legislature controls the interpretation of a statute." State v. Green, 348 N.C. 588, 596, 502 S.E.2d 819, 824 (1998), cert. denied, 525 U.S. 1111, 119 S.Ct. 883, 142 L.Ed.2d 783 (1999). "Words in a statute generally must be construed in accordance with their common and ordinary meaning, unless a different meaning is apparent or clearly indicated by the context." Raines, 319 N.C. at 262, 354 S.E.2d at 489 (citing State v. Koberlein, 309 N.C. 601, 605, 308 S.E.2d 442, 445 (1983)). In addition, in Raines, this Court stated the following:

"The object in construing penal, as well as other statutes, is to ascertain the legislative intent.... The words must not be narrowed to the exclusion of what the legislature intended to embrace.... When the words ... include various classes of persons, there is no authority which would justify a court in restricting them to one class and excluding others, where the purpose

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