Under pre-Structured-Sentencing law, can the Post-Release Supervision and Parole Commission combine an inmate's multiple consecutive armed robbery sentences into one aggregated term for parole-eligibility computation under G.S. 15A-1354(b), even when the consecutive sentences were imposed at the same sentencing hearing?

Plain-English summary

Sam F. Boyd, the executive director of NC's Post-Release Supervision and Parole Commission, asked the AG two questions about how to compute parole eligibility for inmates serving consecutive armed robbery sentences imposed under pre-Structured-Sentencing law:

1. Could the Commission aggregate consecutive armed robbery sentences imposed for armed robberies committed before October 1, 1994, using the general aggregation rule in G.S. § 15A-1354(b)?
2. If an inmate received consecutive armed robbery sentences at the same sentencing hearing, did that fact change the answer?

Special Deputy AG Jacob L. Safron, signing for Attorney General Michael F. Easley, answered No to both questions.

The legal map went like this. Structured Sentencing took effect October 1, 1994. Before then, the armed robbery statute, G.S. § 14-87, included subsections that imposed sentence-stacking rules specific to armed robbery. The 1979 version, G.S. § 14-87(c) (repealed effective July 1, 1981), required armed robbery sentences to run consecutively with and begin at the expiration of any other sentence the person was already serving. The 1981 Fair Sentencing rewrite carried the same rule into G.S. § 14-87(d), which was then repealed effective October 1, 1994. Both subsections used the same key language: armed robbery sentences "shall run consecutively with and shall commence at the expiration of any other sentences being served by the person sentenced hereunder."

The Court of Appeals had read that language strictly in State v. Leeper, 59 N.C. App. 199 (1982). G.S. § 14-87(d) was unambiguous: anyone convicted of armed robbery must receive at least fourteen years, "notwithstanding any other provision of law," and the sentence must run consecutively to anything else the inmate was serving. The court applied the specific-over-general canon: where one statute deals with a subject in detail (armed robbery) and another statute deals with the same subject in general terms (felony sentencing generally), the particular statute controls in the particular situation unless it clearly appears the General Assembly intended the general act to control.

G.S. § 15A-1354(b), the general aggregation provision, tells the Department of Correction to treat consecutive sentences "as though [the defendant] has been committed for a single term," combining the maximum and minimum terms of the consecutive sentences. That single-aggregated-term treatment is what produces the early-parole-eligibility math the Commission was being asked to apply.

The AG concluded that the specific armed robbery rule controlled. G.S. § 14-87(c) and (d) required armed robbery sentences to run consecutively and to begin only at the expiration of any prior sentence. That specific rule overrode the general aggregation computation in G.S. § 15A-1354(b). The result: armed robbery sentences could not be aggregated. The inmate begins serving the armed robbery sentence at the end of any prior sentence (or upon being "paper paroled" to the armed robbery sentence).

The opinion went on to overrule a December 7, 1993 advisory opinion from Associate AG William McBlief. The 1993 opinion had drawn a line based on the timing of the sentencing hearing: aggregation applied if the consecutive sentences were imposed at the same hearing, but not if imposed at different hearings. The 1995 opinion said the same-hearing distinction was wrong. The specific rule in G.S. § 14-87(d) controlled regardless of whether the consecutive sentences were imposed at the same hearing or at different hearings.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion specifically addresses pre-Structured-Sentencing armed robberies (offenses committed before October 1, 1994). NC sentencing law for offenses committed on or after October 1, 1994 is governed by Structured Sentencing, which has its own consecutive/concurrent and post-release supervision rules. Armed robbery is now classified as a Class D felony under the current G.S. § 14-87(a). For any current question about parole or post-release supervision computation for a specific inmate, the Department of Adult Correction's Combined Records office and counsel familiar with the controlling-offense-date analysis should be consulted. State v. Leeper remains good law on the specific-over-general canon as applied to armed robbery sentences imposed under former G.S. § 14-87(d).

Common questions

Q: Why does the offense date matter?
A: Structured Sentencing applies to offenses committed on or after October 1, 1994. Fair Sentencing and the older 1979 framework apply to offenses committed before then. An inmate serving time for armed robberies that span the boundary may have some sentences governed by old law and some by new law. The 1995 opinion addresses only the pre-October-1-1994 sentences, where the old G.S. § 14-87(c) and (d) consecutive-sentence rules apply.

Q: What is "aggregation" of sentences for parole purposes?
A: G.S. § 15A-1354(b) tells the Department of Correction to add together the minimums (and the maximums) of consecutive sentences, then treat the inmate as if serving "a single term" with the combined minimum and maximum. Parole eligibility under the old law was often computed from a fraction of the minimum. If three 14-year sentences are aggregated into one 42-year combined term, parole eligibility shifts compared to running them as three separate 14-year terms.

Q: Why does the specific-over-general canon matter here?
A: Two statutes appear to address the same question (how to treat consecutive sentences for purposes of parole computation). G.S. § 14-87(d) is the specific one (armed robbery sentences run consecutively, beginning at expiration of any other sentence). G.S. § 15A-1354(b) is the general one (treat consecutive sentences as a single aggregated term). When two statutes appear to conflict and one is more specific, courts and AGs default to the specific one unless the legislature clearly intended otherwise. State v. Leeper applied that canon to armed robbery in 1982.

Q: What was wrong with the December 1993 opinion?
A: The 1993 opinion drew a line between sentences imposed at the same hearing (aggregate) and sentences imposed at different hearings (do not aggregate). The 1995 opinion said that line had no statutory basis. G.S. § 14-87(d) said armed robbery sentences run consecutively with "any other sentences being served by the person sentenced hereunder." It did not carve out same-hearing sentences. So aggregation was not available for armed robbery sentences regardless of the timing of the sentencing hearings.

Q: What does "paper paroled" mean?
A: A bookkeeping device. The Parole Commission can grant parole on a prior sentence even while the inmate continues to serve a later sentence. The inmate is "paroled on paper" off the prior sentence; the inmate keeps serving the next sentence. Under G.S. § 14-87(d), an inmate begins serving an armed robbery sentence only when the prior sentence is done (whether by expiration or by paper parole). After paper parole on the prior sentence, the armed robbery sentence starts running.

Q: Does this opinion affect post-October-1-1994 armed robbery sentences?
A: No. The repealed G.S. § 14-87(d) and the predecessor § 14-87(c) governed pre-1994 offenses. The current G.S. § 14-87(a) defines armed robbery as a Class D felony, and Structured Sentencing rules govern consecutive sentences and post-release supervision for offenses committed on or after October 1, 1994. The 1995 opinion is limited by its terms to the pre-Structured-Sentencing regime.

Background and statutory framework

NC's sentencing system has gone through three major iterations relevant to this opinion: the pre-1981 indeterminate scheme with G.S. § 14-87(c), the 1981-1994 Fair Sentencing era with G.S. § 14-87(d), and the post-October-1-1994 Structured Sentencing regime under G.S. § 14-87(a). Across the first two iterations, the General Assembly singled out armed robbery for harsher sentencing treatment, including a mandatory consecutive-sentence rule that ran armed robbery sentences after any other sentence the defendant was already serving.

The Post-Release Supervision and Parole Commission, established as part of the Structured Sentencing reform, took over the discretionary parole and post-release supervision functions from the older Parole Commission. The Commission was still responsible for old-law parole eligibility computations for inmates serving pre-1994 sentences. That is the context of the 1995 opinion: the Commission was working through how to apply G.S. § 15A-1354(b) (a Structured-Sentencing-era aggregation rule) to inmates serving armed robbery sentences under the old G.S. § 14-87(c) or (d).

The 1995 opinion is a useful application of the specific-over-general canon at the boundary between two sentencing regimes. State v. Leeper had already settled that G.S. § 14-87(d) was specific and unambiguous; the AG simply extended that holding to the aggregation question and rejected the same-hearing/different-hearing distinction the 1993 advisory opinion had drawn.

Citations

• G.S. § 14-87 (Robbery with firearms or other dangerous weapons)
• G.S. § 14-87(a) (post-October-1-1994 definition; Class D felony)
• G.S. § 14-87(c) (repealed effective July 1, 1981; required armed robbery sentences to run consecutively, beginning at expiration of any other sentence)
• G.S. § 14-87(d) (repealed effective October 1, 1994; Fair Sentencing version; same consecutive-sentence rule and 14-year minimum)
• G.S. § 15A-1340.7 (Fair Sentencing good-behavior credit)
• G.S. § 15A-1354(b) (general consecutive-sentence aggregation rule; treat as single term combining minimums and maximums)
• G.S. § 148-13 (gain time credit)
• 1993 Sess. Laws, ch. 539, § 1359 (rewrite of G.S. § 14-87 for Structured Sentencing)
• 1979 Sess. Laws, ch. 760, § 5 (repealed G.S. § 14-87(c) effective July 1, 1981)
• State v. Leeper, 59 N.C. App. 199, 296 S.E.2d 7, cert. denied, 307 N.C. 272, 299 S.E.2d 218 (1982) (G.S. § 14-87(d) is unambiguous; specific-over-general canon)
• State v. Jones, 227 N.C. 402, 42 S.E.2d 465 (1947) (General Assembly intended more severe punishment for armed robbery)
• State v. Legette, 292 N.C. 44, 58, 231 S.E.2d 896, 904 (1977) (deference to General Assembly's policy judgment on armed robbery punishment)

Source

• Landing page: https://ncdoj.gov/opinions/post-release-supervision-and-parole-commission-armed-robbery-aggregation-of-sentences/

Original opinion text

DATE: August 1, 1995

SUBJECT: POST-RELEASE SUPERVISION AND PAROLE COMMISSION; ARMED ROBBERY; AGGREGATION OF SENTENCES

REQUESTED BY: SAM F. BOYD, EXECUTIVE DIRECTOR, POST-RELEASE SUPERVISION AND PAROLE COMMISSION

QUESTIONS:

1. CAN THE POST RELEASE SUPERVISION AND PAROLE COMMISSION AGGREGATE, PURSUANT TO G.S. § 15A-1354(b), THE SENTENCES IMPOSED FOR ARMED ROBBERIES COMMITTED PRIOR TO OCTOBER 1, 1994?

2. IF AN INMATE IS SENTENCED TO CONSECUTIVE ARMED ROBBERY SENTENCES AT THE SAME SENTENCING HEARING, SHOULD HIS SENTENCES BE AGGREGATED PURSUANT TO G.S. § 15A-1354(b)?

CONCLUSIONS:

1. No

2. No

Structured Sentencing became effective October 1, 1994. G.S. § 14-87(d), Armed Robbery, which provided that "Sentences imposed pursuant to this sections shall run consecutively with and shall commence at the expiration of any sentence being served by the person being sentenced hereunder" was repealed and prospectively replaced [See § 1359 of Ch. 539 of the Session Laws of 1993] by G.S. § 14-87(a) which now provides:

"Any person or persons who, having in possession or with the use or threatened use of any firearm or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or at night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D. Felony."

1.

G.S. § 14-87(c) (repealed by Session Laws 1979, Ch. 760, § 5, effective July 1, 1981), read, in pertinent part:

"Any person who has been convicted of a violation of G.S. 14-87(a) [armed robbery] shall serve the first seven years of his sentence without benefit of parole, probation, suspended sentence, or any other judicial or administrative procedure except such time as may be allowed as a result of good behavior, whereby the period of actual incarceration of the person sentenced is reduced to a period of less than seven years. Sentences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any other sentences being served by the person sentenced hereunder.

"Notwithstanding any other provision of law, neither the Parole Commission nor any other agency having responsibility for release of inmates prior to the expiration of sentences shall authorize the release of an inmate sentenced under this section prior to his having been incarcerated for seven years except such time as may be allowed as a result of good behavior." (Emphasis added).

Effective July 1, 1981, with the introduction of Fair Sentencing, G.S. § 14-87, Robbery with firearms or other dangerous weapons, was rewritten as follows:

"Notwithstanding any other provision of law, with the exception of persons sentenced as committed youthful offenders, a person convicted of robbery with firearms or other dangerous weapons shall serve a term of not less than seven years in prison, excluding gain time granted under G.S. 148-13. A person convicted of robbery with firearms or other dangerous weapons shall receive a sentence of at least 14 years in the State's prison and shall be entitled to credit for good behavior under G.S. 15A-1340.7. The sentencing judge may not suspend the sentence and may not place the person sentenced on probation. Sentences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder." (Emphasis added).

Prior to the Structured Sentencing rewrite effective October 1, 1994, a sentence for armed robbery was consecutive. G.S. § 14-87(c) (repealed effective July 1, 1981) and G.S. § 14-87(d) (repealed effective October 1, 1994), both provided that "Sentences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any other sentences being served by the person sentenced hereunder."

In State v. Leeper, 59 N.C. App. 199, 296 S.E.2d 7, cert. denied, 307 N.C. 272, 299 S.E.2d 218 (1982), in considering the application of G.S. § 14-87(d), the Court of Appeals stated that:

"The language of N.C. Gen. Stat. 14-87(d) is unambiguous and its effect is clear. Any person convicted of armed robbery must receive no less than a fourteen-year sentence, notwithstanding any other provision of law. Thus, there is no room for judicial construction on this point. . . .

"These factors lead to the conclusion that the General Assembly intended to impose a minimum sentence for armed robbery greater than the presumptive sentence for a Class D felony and also intended that the minimum be irreducible, except for credit for good behavior, 'notwithstanding any other provision of law. . . .' N.C. Gen. Stat. 14-87(d).

"Where one statute deals with a subject in detail with reference to a particular situation (in this case, armed robbery) and another statute deals with the same subject in general and comprehensive terms (felonies), the particular statute will be construed as controlling in the particular situation unless it clearly appears that the General Assembly intended to make the general act controlling in regard thereto. . . . In this case the Legislature clearly intended the provisions of N.C. Gen. Stat. 14-87(d) to control over the conflicting provisions of the Fair Sentencing Act.

"The North Carolina Supreme Court has previously recognized that the General Assembly intended to provide more severe punishment for armed robbery offenses when it enacted N.C. Gen. Stat. 14-87. State v. Jones, 227 N.C. 402, 42 S.E.2d 465 (1947). The statutory construction which we have set forth is in accordance with the legislature's firm stand on the punishment of persons committing armed robbery. 'It is not for us to say that the policy judgement of the General Assembly with respect to punishment for armed robbery is wrong. Armed robbery is a crime of violence and those who take the risk must assume the consequences involved.' State v. Legette, 292 N.C. 44, 58, 231 S.E.2d 896, 904 (1977).

"As the General Assembly has chosen to remove much of the discretionary power which judges previously exercised in the sentencing process we must hold that the fourteen-year sentence for armed robbery specified in N.C. Gen. Stat. 14-87(d) is a minimum which may not be reduced under the Fair Sentencing Act except by credit for good behavior."

G.S. § 15A-1354(b) refers to consecutive terms. It provides:

". . . .In determining the effect of consecutive sentences imposed under the authority of this Article and the manner in which they will be served, the Department of Correction must treat the defendant as though he has been committed for a single term with the following incidents:

(1) The maximum prison sentence consists of the total of the maximum terms of the consecutive sentences; and

(2) The minimum term it any, consists of the total of the minimum terms of the consecutive sentences."

The language, "shall run consecutively and shall commence at the expiration of any other sentences being served by the person sentenced hereunder," "deals with a subject in detail with reference to a particular situation (in this case, armed robbery)" while G.S. 15A-1354(b) "deals with the same subject in general and comprehensive terms" and, therefore, G.S. 14-87(d) "will be construed as controlling in the particular situation" and negates the computation provisions of § 15A-1354. As a result, armed robbery sentences are not subject to being aggregated and inmates sentenced for armed robbery only begin serving time at the completion of the prior sentence or upon having been "paper paroled" to the armed robbery sentence.

2.

On December 7, 1993, an advisory opinion was issued to the Parole Commission by William McBlief, Associate Attorney General, concerning two distinctively different situations. One requiring aggregation and one negating aggregation based on the timing of the sentencing hearing. This opinion held that if the inmate received consecutive sentences at the same sentencing hearing, the Parole Commission should aggregate for parole eligibility computation. The opinion further held that if at different sentencing hearings, aggregation does not apply. To the extent the opinion of December 7, 1993 held that if the inmate received consecutive sentences at the same sentencing hearing, the Parole Commission should aggregate for parole eligibility computation, the opinion is overruled.

MICHAEL F. EASLEY
Attorney General

Jacob L. Safron
Special Deputy Attorney General