State v. Watson, COA17-253

• Decision Date: 06 March 2018
• Docket Number: No. COA17-253,COA17-253
• Citation: 812 S.E.2d 392,258 N.C.App. 347
• Parties: STATE of North Carolina v. Jamal M. WATSON, Defendant.
• Court: North Carolina Court of Appeals

258 N.C.App. 347

812 S.E.2d 392

STATE of North Carolina

v.Jamal M. WATSON, Defendant.

No. COA17-253

Court of Appeals of North Carolina.

Filed: March 6, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Teresa M. Postell, for the State.

Daniel F. Read, Durham, for Defendant.

INMAN, Judge.

North 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.

Jamal 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,¹ 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.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant 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.

On 1 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."

While 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").² 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.

After 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.³ The letter, contrary to the Judgment, stated that the Defendant's term of imprisonment for the State Charges was "to run consecutive."

Upon 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 2009.

The 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 court's order, which was granted 29 December 2016.

II. ANALYSIS

A. State's Motion for Judicial Notice

The State, by motion filed with its brief, requests this Court take judicial notice of the following documents from the Federal Case: (1) an indictment; (2) an arrest warrant; (3) an order of detention; (4) a waiver of detention hearing; (5) a superseding indictment; (6) a plea agreement; and (7) a motion and order continuing sentencing. We grant the State's motion.

Our Rules of Evidence set forth certain specific requirements allowing for judicial notice in our state’s trial courts. Rule 201(b) requires that "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." N.C. Gen. Stat. § 8C-1, Rule 201(b) (2015). A trial court must take judicial notice under Rule 201 where it is "requested by a party and [the court is] supplied with the necessary information." N.C. Gen. Stat. § 8C-1, Rule 201(d) (2015).

As for appellate courts, Rule 9 of the North Carolina Rules of Appellate Procedure states that our "review is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to this Rule 9." N.C. R. App. P. 9(a) (2017). However, "[a]ppellate courts may take judicial notice ex mero motu on ‘any occasion where the existence of a particular fact is important ....’ " Lineberger v. N.C. Dep't of Correction , 189 N.C. App. 1, 6, 657 S.E.2d 673, 677 (2008) (quoting West v. G.D. Reddick, Inc. , 302 N.C. 201, 203, 274 S.E.2d 221, 223 (1981) ). Facts subject to judicial notice are those "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[.]’ " Lineberger , 189 N.C. App. at 6, 657 S.E.2d at 677 (quoting West , 302 N.C. at 203, 274 S.E.2d at 223 ).

North Carolina law clearly contemplates that our courts, both trial and appellate, may take judicial notice of documents filed in federal courts. For example, the North Carolina Utilities Commission is permitted by statute to take judicial notice of "decisions of State and federal courts, ... public information and data published by official State and federal agencies ..., and such other facts and evidence as may be judicially noticed by justices and judges of the General Court of Justice." N.C. Gen. Stat. § 62-65(b) (2015). We have also held that questions relating to criminal custody and dates of incarceration may warrant the taking of judicial notice of such facts. See State v. Surratt , 241 N.C. App. 380, 385, 773 S.E.2d 327, 331 (2015) ("[T]his court elects to take judicial notice of defendant's release date for the indecent liberties conviction .... We also take judicial notice of the fact that defendant was not actually released from incarceration on 24 September 1995.").

The facts and documents introduced with the State's motion are "capable of demonstration by reference to a readily accessible source of indisputable accuracy." West , 302 N.C. at 203, 274 S.E.2d at 223. The federal court filings are all retrievable in the form provided by the State from Public Access to Court Electronic Records ("PACER")⁴ and, with the exception of Defendant's motion to...