BRYANT, Judge.
Where there was competent record evidence to support the trial court's findings of fact, where those findings of fact supported the trial court's conclusions of law, and where the trial court properly distinguished defendant's case from the holding in Jones v. Keller, 364 N.C. 249, 698 S.E.2d 49 (2010), we affirm the 8 May 2012 order of the trial court.
On 15 December 1975, defendant Bobby Bowden was convicted of two counts of first-degree murder and one count of armed robbery and was sentenced to death for the homicide of two individuals on 7 August 1975. On appeal in 1976, the Supreme Court of North Carolina vacated defendant's death sentence and remanded the case with directives that judgments imposing life sentences be imposed for the two counts of first-degree murder. State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976) ("Bowden I"). Defendant was given two life sentences, to run concurrently.
In December 2005, defendant filed a Petition for Writ of Habeas Corpus ad Subjiciendum. Defendant claimed that he was entitled
Defendant filed a petition for writ of certiorari on 29 January 2007 to our Court. On 12 February 2007, our Court treated defendant's petition as a motion for appropriate relief, vacated the 25 January 2006 order, and remanded the matter for an evidentiary hearing pursuant to N.C. Gen.Stat. § 15A-1420. Following an evidentiary hearing on defendant's motion for appropriate relief held on 27 August 2007, the trial court entered an order denying defendant's claim for relief.
Defendant appealed the denial of his motion for appropriate relief to our Court. In State v. Bowden, 193 N.C. App. 597, 668 S.E.2d 107 (2008) ("Bowden II"), our Court noted that at the time defendant committed his offenses, section 14-2 of the North Carolina General Statutes provided that
Id. at 599, 668 S.E.2d at 109 (citation omitted). The Bowden II Court held that N.C. Gen.Stat. § 14-2 (1974) treats defendant's life sentence as an 80-year sentence for all purposes — without any limitation or restriction. Id. at 600-601, 668 S.E.2d at 109-10. Our Court also noted that "for reasons unclear to this Court, the [DOC] later retroactively changed the status of defendant's sentence reduction credits from `applied' to `pending.'" Id. at 598, 668 S.E.2d at 108. Our Court reversed the trial court's order and remanded for a "hearing to determine how many sentence reduction credits defendant is eligible to receive and how those credits are to be applied." Id. at 601, 668 S.E.2d at 110.
The State sought discretionary review of Bowden II, which was initially granted by the Supreme Court. State v. Bowden, 363 N.C. 258, 677 S.E.2d 161 (2009). On 9 October 2009, the Supreme Court entered an order that discretionary review had been improvidently allowed. State v. Bowden, 363 N.C. 621, 683 S.E.2d 208 (2009).
On remand, the trial court held a hearing on 15-16 March 2012 and entered a Memorandum Opinion and Order on 8 May 2012. The 8 May 2012 Memorandum Opinion and Order of the trial court concluded that defendant had a liberty interest in good time, gain time, and merit time sentence reduction credits which he earned between 1975 and October 2009. It also concluded that those sentence reduction credits were subject to constitutional protection under the Due Process Clause of the United States Constitution. Further, the trial court determined that defendant was entitled to have those sentence reduction credits deducted from his sentence for all purposes, including the calculation of his unconditional release date. The trial court concluded that the Department of Correction's ("DOC") revocation of defendant's sentence reduction credits violated his rights under the Due Process Clause and violated the Ex Post Facto Clause of the United States Constitution. The trial court then determined that defendant had served the entirety of his sentence, that his unconditional release date was 13 October 2009, and that he would be released on 29 October 2009(the date the mandate issued in his case). The trial court ordered that defendant be released unconditionally by 11 May 2012, no later than 5:00 p.m.
However, on 9 May 2012, the trial court entered an order granting the State's motion to stay the 8 May 2012 order until final appellate review.
On 30 May 2012, the State sought review of the trial court's 8 May 2012 order by filing a Petition for Writ of Certiorari which was entered 18 June 2012. It was granted by our Court by order entered 18 June 2012. Thereafter, both parties submitted a record and briefs to our Court.
State v. Heavner, ___ N.C.App. ___, ___, 741 S.E.2d 897, 903 (2013) (citation omitted).
The State argues that the trial court erred by concluding that defendant's case is distinguishable from the Supreme Court's holding in Jones v. Keller, 364 N.C. 249, 698 S.E.2d 49 (2010), based on findings not supported by competent evidence. We disagree.
Here, the trial court concluded that the outcome of the case was not controlled by the Jones decision:
The State argues that conclusion of law number 13 was made in error where there was no competent record evidence to support the conclusion that the DOC applied defendant's sentence reduction credits to reduce his unconditional release date and to support the conclusion that the Combined Records Division of the DOC had performed production runs to calculate defendant's unconditional release date.
First, the trial court in conclusion number 13 stated that the "DOC applied Mr. Bowden's good, gain, and merit time sentence reduction credits to reduce his unconditional release date." The evidence indicates that after Bowden II which established that defendant was serving a term of years sentence, the DOC applied defendant's good, gain, and merit time sentence reduction credits in order calculate an unconditional release date. This is supported by an e-mail sent on 9 October 2009 by DOC's Public Affairs Director Keith Acree to Secretary of Correction Alvin W. Keller, Jr. This e-mail stated that the North Carolina Supreme Court had declined to review Bowden II and that the decision of the Court of Appeals would stand. Attached to this e-mail was a list of "affected inmates," including defendant, and included a re-calculated, projected release date of 13 October 2009 for defendant. In addition, on 15 October 2009 Deputy Secretary James French wrote an e-mail to the Director of the Division of Prisons Robert "Bob" Lewis and the Chief Auxiliary Officer Mary Lu Rogers stating that as a result of Bowden II,
The trial court found that Bob Lewis sent an e-mail on 16 October 2009 addressed to all wardens, administrators, and superintendents providing that the Supreme Court's ruling in Bowden II had "caus[ed] the [DOC] to re-calculate the release dates of some life sentence inmates. A number of those inmates will be released later this month and others will be released in the coming months and years as their new release dates are reached."
In the second portion of conclusion number 13, the trial court concluded that "the Combined Records Division of the [DOC] performed production runs to calculate Mr. Bowden's unconditional release date."
On 14 October 2009, DOC employee Langley Rooney sent an e-mail to Applications Development Manager Donna Powell, stating that "[t]he order has come down to putting these inmates that have a projected release date in the past (or before 10/29/2009), out on
Next, the trial court concluded that "after applying all good, gain, and merit time sentence reduction credits to reduce Mr. Bowden's unconditional release date, the [DOC] determined that Mr. Bowden's sentence expired on October 13, 2009." This conclusion is supported by the unchallenged finding of fact that a 9 October 2009 letter from DOC Public Affairs Director Keith Acree to Secretary Keller, Deputy Secretary of Correction French, Deputy Director of Prisons Anderson, and Victim Services Director Dixon stated that defendant showed a projected release date of 13 October 2009.
Lastly, the trial court concluded that defendant was informed he would be released and was prepared to be released on 29 October 2009. This conclusion is supported by the unchallenged finding of fact that defendant testified that he was informed by his case manager at Tillery Correctional Facility, Ralph Hill, that his release date would be 29 October 2009. It is also supported by the unchallenged findings of fact that Superintendent Oliver Washington informed defendant on 13 October 2009 that he would be released on 29 October 2009 and that Superintendent Washington prepared defendant for release pursuant to a memorandum he had received from the Director of the Division of Prisons and other communications from DOC officials.
Based on the foregoing, we hold that the trial court's conclusion of law number 13 was supported by unchallenged findings of fact which were, in turn, supported by competent record evidence. Next, we address how the conclusions made within conclusion of law number 13 relate to our decision in Jones.
In Jones, the Supreme Court considered a limited group of prisoners, "each of whom committed first-degree murder between 8 April 1974 and 30 June 1978 and were sentenced to life imprisonment[.]" Jones, 364 N.C. at 252, 698 S.E.2d at 53. The Jones Court recognized that our General Assembly dedicated the responsibility of administration of Jones' sentence to the DOC. Id.
Id. at 252-53, 698 S.E.2d at 53(citations and quotations omitted).
The Jones Court further noted that DOC had never used sentence reduction credits, which included good time, gain time, or merit time, "in the calculation of unconditional release dates for inmates who received sentences of life imprisonment." Id. at 254, 698 S.E.2d at 54. "More specifically, [the] DOC acknowledge[d] that Jones earned gain and merit time, but state[d] that these credits were not applied to reduce the time to be served on his sentence in any way." Id. Per the DOC, the "gain and merit time were only recorded in case Jones's sentence was commuted by a governor, at which time they would be applied to calculate a release date" and good time was awarded "solely for the purposes of allowing [Jones] to move to the least restrictive custody grade and to calculate
The Jones Court held that Jones' liberty interest in good time, gain time, and merit time was limited and "[t]hus, his liberty interest, if any, in having these credits used for the purpose of calculating his date of unconditional release is de minimis, particularly when contrasted with the State's compelling interest in keeping inmates incarcerated until they can be released with safety to themselves and to the public." Id. at 257, 698 S.E.2d at 56. The Court noted that because Jones was eligible for parole and had received annual parole reviews without having been released by the Parole Commission, he had "received the process that is due him as an inmate eligible for parole, when the State's corresponding interest is assuring that inmates are safely released under supervision." Id.
The Supreme Court rejected Jones' argument contending there was a violation of his right to equal protection of the law — "that his equal protection right prohibits the State from treating inmates who committed first-degree murder between 8 April 1974 and 30 June 1978 and were sentenced to life imprisonment under N.C.G.S. § 14-2, [and] who are thus serving determinate sentences, differently from other inmates serving determinate sentences." Id. at 259, 698 S.E.2d at 57. The Supreme Court, based on rational basis scrutiny, held that
Id. at 260, 698 S.E.2d at 58.
Furthermore, the Jones Court noted that the ex post facto prohibition applies to "[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Id. at 259, 698 S.E.2d at 57 (citation omitted) (emphasis in original). However, Jones did not allege that any legislation or regulation had altered his award of sentence reduction credits, nor that the DOC changed its interpretation or its application of its regulations; therefore, there was no ex post facto violation. Based on the foregoing, the Jones Court held that Jones was legally incarcerated and reversed the decision of the superior court, ordering that Jones be released. Id. at 260, 689 S.E.2d at 58.
In our present case, the DOC actually awarded and applied defendant's good, gain, and merit time sentence reduction credits which he earned between 1975 and October 2009 to reduce defendant's unconditional release date. This is a significant distinction between the instant case and the Jones case. Jones' sentence reduction credits were used to reduce his parole eligibility date, to determine his custody classification, and to reduce his sentence in the event the governor commuted his sentence to a term of years. Defendant's sentence reduction credits on the other hand, were used to calculate his unconditional release date.
Here, defendant was never told that it was merely a possibility he might be released early as was the case in Jones. Defendant was actually informed that his sentence had expired and that he would be released on 29 October 2009. Defendant prepared for that release, and the DOC prepared for that release. Given these significant distinctions, we are unable to hold that the trial court erred by concluding that defendant's case is distinguishable from the Supreme Court's
The State challenges several of the trial court's findings of fact.
Here, the trial court entered an unchallenged finding of fact (finding of fact number 27) which stated that in October 2009, Alvin W. Keller, Jr., was the Secretary of Correction for the DOC, Jennie Lancaster the Chief Operating Officer, LaVee Hamer the General Counsel, James French the Deputy Secretary, Robert "Bob" Lewis the Director of the Division of Prisons, and Mary Lu Rogers the Chief Auxiliary Officer. It is well established that "[a]ny unchallenged findings of fact are deemed to be supported by competent evidence and are binding on appeal." State v. Osterhoudt, ___ N.C.App. ___, ___, 731 S.E.2d 454, 458 (2012) (citation and quotation marks omitted).
Finding of fact number 28, provided that:
The State argues that the trial court erred by entering finding of fact number 28 where there was no evidence in the record to support this finding. We disagree.
A thorough review of the record reveals that in an administrative memorandum dated 17 November 2009, Keller, serving as Secretary of the DOC, stated the following:
On 13 October 2009, Chief Auxiliary Officer Mary Lu Rogers sent an e-mail titled "URGENT Request Regarding Upcoming Inmate Releases" to superintendents of various prisons directing the recipients to call her office immediately. The e-mail further stated that "we have a total of 21 inmates at your locations who must be released this year — 20 this month" and directed the recipients of the e-mail "to move quickly to ascertain release plans and prepare for these releases."
On 14 October 2009, Deputy Secretary James French sent an e-mail instructing the superintendents "at the locations where we have lifers being released" to ask "their programs people [to] share" with the inmates being released information regarding Offender Employment and Training Initiatives.
On 15 October 2009, French sent an e-mail to Director of the Division of Prisons Bob Lewis and Mary Lu Rogers. The e-mail informed Lewis and Rogers that the Bowden II decision meant that "life sentences for a crime committed between April 4, 1974 and June 30, 1978 equal 80 years and that based on other sentencing laws the 80 year sentence is cut to 40 years" and that "[i]n addition the inmate is entitled to other sentence reduction credits earned for program or work participation while in prison." French also directed Rogers to give instructions based on this information to his field staff in order to respond to questions from inmates regarding their eligibility for release.
On 16 October 2009, Lewis sent a letter to "Wardens, Administrators, [and] Superintendents," also including Keller, Chief Operating Officer Jennie Lancaster, and French in the correspondence. The letter's subject referred to the Bowden II holding and stated the following, in pertinent part:
Lewis' letter went on to reiterate that the DOC was mandated to calculate the affected inmates' sentences in a manner consistent with the Bowden II holding and directed the recipients of the letter to relate the ruling to inmates and other interested parties. The record also indicates that on 16 October 2009, Rogers sent an e-mail to French and Lewis, pursuant to the Bowden II ruling, stating that they should "contact the affected agencies to make them aware of the impending release of these inmates who have been confined for many years and are in need of assistance."
On 19 October 2009, Lancaster sent an e-mail to recipients that included Keller, French, and General Counsel LaVee Hamer with the subject headline "Meeting on [W]ednesday for inmate releases." Through her e-mail, Lancaster scheduled a meeting "to review with each other the planning in place for the inmate releases on 10/29/09."
Based on the foregoing, there was competent evidence found within internal correspondence between DOC officials that the officials named in finding of fact 27 were responsible for and had the authority "to advise and instruct subordinates" throughout the DOC on how to carry out the DOC's rules, regulations, policies, procedures, and practices. Furthermore, an unchallenged finding of fact, which is binding on appeal, indicates that
See Osterhoudt, ___ N.C.App. at ___, 731 S.E.2d at 458(stating that unchallenged findings of fact are binding on appeal). The State's argument as to finding of fact number 28 is overruled.
Next, the State argues that there was no evidence to support findings of fact numbers 64, 65, and 70 which provided the following:
At both of defendant's motion for appropriate relief hearings, the 27 August 2007 hearing and the 15-16 March 2012 hearing before Judge Weeks, evidence was presented showing the DOC's sentence reduction credit records for defendant. The records established defendant's earned good, gain, and merit time from the years 1973 until 2002 and included the "status" of sentence reduction credits as "APPLIED." The DOC also produced, at each separate hearing, a differing version of defendant's sentence reduction credits that listed his 1973 credits' status as "APPLIED" but his 1975 through 2002 credits' status as "PENDING."
During the hearing before Judge Weeks, former Chief Information Officer Robert Brinson testified that he believed the sentence credits reports designated credits as "PENDING" were due to a computer system "glitch." The trial court entered an unchallenged finding of fact that
In addition, our Court in Bowden II noted that
Bowden II, 193 N.C.App. at 598, 668 S.E.2d at 108. There is competent evidence in the record to support the trial court's findings that the sentence reduction credits had been awarded and applied to defendant's sentence, that the status of the sentence reduction credits had been retroactively changed, and that the change was not due to a computer glitch. Therefore, we overrule the State's argument as to findings of fact numbers 64, 65, and 70.
The State argues that the trial court erred by entering conclusion of law number 10 and that the trial court's conclusions of law numbers 22 through 25,
Conclusion of law number 10 states the following:
A review of the record indicates that in coming to this conclusion, the trial court entered several unchallenged findings of fact regarding communications sent to Keller: (1) Finding of fact 35(a)-(b) provides that on 9 October 2009, "four hours after the Supreme Court issued its decision in Mr. Bowden's case, Department of Correction Public Affairs Director Keith Acree sent an e-mail to
The trial court also found that on 19 October 2009, "Director Lewis' memorandum was sent to all Superintendents, posted on the Director's Memo page via the web, and copied to Secretary of Correction Alvin W. Keller, Jr."; and (3) Finding of fact 39(a) states that on 19 October 2009, "Chief Operating Officer of the [DOC], Jennie Lancaster, sent an e-mail to various Department officials, including Secretary of Correction Alvin W. Keller, Jr."
The State argues that Secretary Keller did not make an admission by silence because the record fails to show that the communications relied on by the trial court were made in the "presence" of Secretary Keller and that there is no evidence that Secretary Keller either received or read these communications. To support its argument, the State relies on our holding in FCX, Inc. v. Caudill, 85 N.C. App. 272, 354 S.E.2d 767 (1987), for the contention that "mere possession of a written statement does not manifest an adoption of its contents." Id. at 279, 354 S.E.2d at 772.
Our Court in FCX noted that
Id. at 278, 354 S.E.2d at 772 (emphasis added). In the case before us, Secretary Keller's admission by silence falls into the latter category.
Id. at 279, 354 S.E.2d at 772-73 (citations omitted). The FCX Court noted that "[w]hether the statement is oral or written, the critical inquiry is whether a reasonable person would have denied it under the circumstances." Id. at 279, 354 S.E.2d at 773.
In the present case, there were multiple communications sent to Secretary Keller. None of these written statements elicited a response from Secretary Keller. The content of these written statements were of a
Next, the State argues the trial court erred by concluding that the DOC violated the Ex Post Facto Clause of the United States. The State contends that because the DOC never applied defendant's sentence reduction credits towards the calculation of his unconditional release date, those credits were not subsequently revoked such that defendant was subject to an ex post facto law. We disagree.
The challenged conclusions of law numbers 18 and 21 state the following:
As we have previously discussed, we held that there was competent evidence to support the trial court's finding that the DOC applied sentence reduction credits to defendant's unconditional release date.
Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (citations omitted). "To fall within the ex post facto prohibition, a law must be retrospective — that is, `it must apply to events occurring before its enactment' — and it `must disadvantage the offender affected by it[.]'" Lynce, 519 U.S. at 441, 117 S.Ct. at 896, 117 S.Ct. at 896 (citation omitted).
We hold that the present case fulfills both requirements. The DOC's revocation of defendant's sentence reduction credits after it applied his sentence reduction credits to calculate his unconditional release date was retrospective and disadvantaged defendant by "lengthen[ing] the period that someone in [defendant's] position must spend in prison." Id. at 442, 117 S.Ct. at 896 (citation omitted). These factors amounted to a violation of the Ex Post Facto Clause of the United States Constitution. See id. at 446, 117 S.Ct. at 898 (stating that because petitioner was awarded 1,860 provisional credits which were retroactively canceled as a result of a 1992 amendment, the 1992 amendment "has unquestionably disadvantaged petitioner because it resulted in his rearrest and prolonged his imprisonment" and amounted to an ex post facto clause violation). Therefore, this argument is overruled.
The State argues that through conclusions of law 14, 15, 16, 19, and 20, the trial court erroneously concluded that the DOC created a "legitimate expectation of release," created a liberty interest in those credits, and violated defendant's due process rights by "revoking" them when the DOC never applied sentence reduction credits to defendant's unconditional release date. We disagree.
The challenged conclusions of law state the following:
"The United States Supreme Court has held that [l]iberty interests protected by the Fourteenth Amendment may arise from two sources-the Due Process Clause itself and the laws of the States." Jones, 364 N.C. at 256, 698 S.E.2d at 55 (citations and quotations omitted).
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979) (citations and quotations omitted).
"While a prisoner retains basic constitutional rights, the Supreme Court has found that an inmate's liberty interests derived from the Fourteenth Amendment are limited, given the nature of incarceration[.]" Jones, 364 N.C. at 256, 698 S.E.2d at 55 (citations
Id. at 256-57, 698 S.E.2d at 55-56.
We note that we have already held above that competent evidence supports the finding that DOC applied defendant's sentence reduction credits to his unconditional release date. When the DOC applied defendant's good, gain, and merit time sentence reduction credits to reduce his unconditional release date, it "interpreted its regulations as permitting the award of different types of time credits for certain purposes, and has in fact, awarded those credits to [defendant] for those purposes." Id. at 257, 698 S.E.2d at 56. Because defendant once received the sentence reduction credits towards the calculation of his unconditional release date, a purpose for which he is entitled, the DOC's actions created a liberty interest in those credits subject to protection under the Due Process Clause of the United States Constitution. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) (stating that "the State having created the right to good time[,] ... the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment `liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated"). We believe that under the facts of the instant case, this liberty interest, unlike in Jones, is not limited in scope, but entitled to full constitutional protection.
Further, the DOC's actions "create[d] a legitimate expectation of release" subject to constitutional protection under the due process clause. See Greenholtz, 442 U.S. at 12, 99 S.Ct. at 2106 (stating that the "expectancy of release provided in this statute is entitled to some measure of constitutional protection); Board of Pardons v. Allen, 482 U.S. 369, 371-74, 107 S.Ct. 2415, 2417, 96 L.Ed.2d 303 (1987) (holding that a statute providing that the parole board shall release prisoners on parole when certain prerequisites were fulfilled created a liberty interest protected by the Due Process Clause.) The DOC's subsequent act of revoking defendant's sentence reduction credits violated his due process rights." See Wolff, 418 U.S. at 557, 94 S.Ct. at 2975. Therefore, we overrule the State's argument that the trial court's conclusions of law 14-16, 19, and 20 were made in error.
Based on the foregoing, we affirm the 8 May 2012 order of the trial court.
Affirmed.
Judge HUNTER, Jr., ROBERT N., concurs.
Judge McCULLOUGH concurs in a separate opinion.
McCULLOUGH, Judge, concurring with separate opinion:
I write separately, concurring in the case before this Court, which will now be labeled Bowden III. I was the author of State v. Bowden, 193 N.C. App. 597, 668 S.E.2d 107 (2008), which was filed on 4 November 2008. That case is referred to as Bowden II in the majority opinion. While discretionary review was originally accepted by our Supreme Court, that review was eventually withdrawn as having been improvidently granted by an order entered on 9 October 2009. Within a short period of time thereafter, the mandate of this Court's opinion in Bowden II became final. N.C.R.App. P. 32.
Thereafter, the N.C. Department of Correction ("DOC") issued credits to this appellant pursuant to a lawful court order. Under
Creech, 147 N.C.App. at 473-74, 556 S.E.2d at 589.
As the majority opinion makes clear, once credits against the appellee's sentence were applied due to the decision in Bowden II, the defendant acquired a liberty interest which cannot be rescinded arbitrarily without running afoul of the Ex Post Facto clause of the United States Constitution or violating due process. These are well-settled principles of constitutional law and the majority discusses the case law in more than sufficient detail. See Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 41 L.Ed.2d 935, 950 (1974); and Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).
At the time that Bowden II's ruling was ready for implementation, his case became politically controversial and further litigation developed. The case that went to our Supreme Court, Jones v. Keller, 364 N.C. 249, 698 S.E.2d 49 (2010), however, had a completely different factual scenario. There the Court gave deference to the DOC's interpretation of their own rules, regulations and the implementation of those rules. As the majority opinion demonstrates, credits had never been applied to the inmate involved in that litigation whereas this defendant-appellee has been awarded credits both before and after litigation. I write separately to stress that the applicability of Jones is irrelevant due to the law of the case doctrine set forth above.
Bowden II clearly held that life sentences were equivalent to a sentence of 80 years. This Court came to that conclusion after taking judicial notice of a statement in the State's brief in the case of State v. Richardson, 295 N.C. 309, 245 S.E.2d 754 (1978). I believe it is worth reviewing what we said in Bowden II on this issue:
Bowden II, 193 N.C.App. at 600, 668 S.E.2d at 109.
In Bowden II, we also noted that our holding was consistent with precedent established by our Supreme Court:
Id. at 600, 668 S.E.2d at 109-10.
Normally, appellate courts do not allow parties to take divergent positions, but in all subsequent litigation on this issue, the State has been allowed to take a position that is completely contrary to the position it took in Richardson. While the State's concession was not essential to the disposition of Bowden II, as there were 2 cases decided by our Supreme Court that essentially held that life sentences in the timeframe now under review were equivalent to 80-year sentences, it was a frank recognition by all parties that the statute meant what it said. In Bowden II on this point, we stated:
Bowden II, 193 N.C.App. at 601, 668 S.E.2d at 110.
It seems disingenuous for the State to argue otherwise now, after the decision became controversial. The rule of law cannot survive if parties are allowed to abandon positions taken in court merely because they are displeased with the result or their concession leads to a decision that later becomes controversial. I doubt that the citizens of North Carolina are placed at risk if a small number of geriatric prisoners are released after having served over 38 years in prison. Yet, the State has repudiated its own interpretation of the law to be able to make the arguments it has made in both Bowden II and this case, Bowden III, as well as the arguments made in Jones v. Keller. I believe that allowing a party to shift its argument due to controversy is a far greater danger to our State.
In all other respects, I fully concur in the majority opinion.
