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NO. COA05-244DISTRICT FIFTEEN-A
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
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V.) From Alamance
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JIMMY LAWRENCE SHUE)
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DEFENDANT-APPELLANT’S BRIEF
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QUESTIONS PRESENTED
I.SHOULD THE TRIAL COURT HAVE ENTERED JUDGMENT AND SENTENCED MR. SHUE FOR TAKING INDECENT LIBERTIES WITH N.H. AND ASSAULT ON P.H. AFTER MR. SHUE PARTIALLY WON HIS APPEAL?
II.SHOULD THE TRIAL COURT HAVE DISMISSED THE CHARGE OF ASSAULTING THE CHILD P.H.?
STATEMENT OF THE CASE
The Defendant, Jimmy Lawrence Shue, was arrested for assault on a child under twelve years of age, second degree kidnapping, indecent liberties with a child and first degree kidnapping on or about March 25, 2002. Mr. Shue was indicted on the charges of taking indecent liberties with the child, N.H., and first degree kidnapping of N.H. on April 1, 2002. He was also indicted on April 22, 2002, on the charges of assault on P.H., a child under twelve years of age, second degree kidnapping of P.H. and taking indecent liberties with P.H.
Furthermore, Mr. Shue was indicted on the following charges:
- Assault on B.F., a child under the age of twelve years, second degree kidnapping of B.F. and indecent liberties with B.F.; and
- First degree statutory sex offense with T.M., indecent liberties with T.M., second degree kidnapping of T.M. and assault on T.M., a child under twelve years of age.
All matters were joined for trial without objection and Mr. Shue was tried on said charges before a jury at the October 7 through October 15, 2002, Criminal Sessions of the Superior Court of Alamance County, the Honorable J.B. Allen, Jr. presiding. The jury acquitted Mr. Shue of all charges involving the minors B.F. and T.M. Mr. Shue was, however, found guilty of the charges of taking indecent liberties with N.H. and second degree kidnapping of N.H. He also was found guilty of assault of P.H., a child under twelve years of age, and taking indecent liberties with the child P.H.
Mr. Shue was sentenced on October 15, 2002 for second degree kidnapping of N.H. to a presumptive active term of imprisonment of 25 months minimum, 39 months maximum in the North Carolina Department of Correction; the trial court continued prayer for judgment as to the guilty verdict for taking indecent liberties with N.H. Mr. Shue also was sentenced on October 15, 2002 for taking indecent liberties with P.H. to a presumptive active term of imprisonment of 16 months minimum, 20 months maximum in the North Carolina Department of Correction to begin at the expiration of his term of imprisonment for second degree kidnapping of N.H. The trial court continued prayer for judgment as to the guilty verdict for assault on P.H., a child under twelve years of age.
Mr. Shue gave Notice of Appeal on October 15, 2002. On February 17, 2004, this Court reversed Mr. Shue’s conviction for taking indecent liberties with P.H., and affirmed his conviction of Second Degree Kidnapping of N.H. in State v. Shue, 163 N.C.App. 58, 592 S.E.2d 233 (2002). The Supreme Court denied the State’s request for a writ of certiorari. State v. Shue, 358 N.C. 380, 597 S.E.2d 773 (2004).
On or about May 21, 2004, the State subsequently moved the trial court to pray judgment on the guilty verdicts for taking indecent liberties with N.H. and assault on a P.H., a child under twelve years of age. Prayer for judgment had been continued in these matters by the trial court on October 15, 2002.
Mr. Shue was resentenced during the June 7, 2004, Criminal Session of the Superior Court of Alamance County, the Honorable J.B. Allen, Jr., presiding. The trial court, over Mr. Shue’s objections, entered judgment as to the guilty verdicts for taking indecent liberties with N.H. and assault on P.H., a child under twelve years of age. Mr. Shue was sentenced for taking indecent liberties with N.H. to a presumptive term of imprisonment of 16 months minimum, 20 months maximum in the North Carolina Department of Correction to run at the expiration of the sentence for second degree kidnapping of N.H. Mr. Shue also was sentenced for assault on P.H., a child under twelve years of age, to a 60-day active sentence to run concurrent with his active sentence for taking indecent liberties with N.H. Mr. Shue entered notice of appeal in open court on June 7, 2004.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
This is an appeal from the final judgment of the superior court pursuant to N.C.G.S. § 7A-27(b).[1]
STATEMENT OF THE FACTS
The recitation of facts essential to understanding Mr. Shue’s case was previously presented in the parties’ briefs and this Court’s opinion in State v. Shue, 163 N.C.App. 58, 592 S.E.2d 233 (2002). Except to specific facts necessary to develop the arguments below, Mr. Shue incorporates by reference herein said facts as previously presented to this Court.
Facts Relating to Taking Indecent Liberties With N.H.
The five-year-old N.H. testified that he did not know what happened with Mr. Shue in the bathroom at Ham’s restaurant in Burlington, North Carolina, (v.I. tp. 60), and did not know what telling the truth is, (v.I. tp. 71), but in any event said that Mr. Shue touched N.H.’s penis with both hands. V.I. Tp. 63. N.H. said that a “man came in and tried to help him tinkle.” V.I. Tp. 84. The man did not hurt N.H. or tickle his “private spot.” V.I Tp. 78.
N.H.’s eight-year old brother P.H. and nine-year-old K.R. were asked to check on N.H. V.II Tp. 22; V.II Tp. 38. P.H testified that he saw Mr. Shue in the bathroom stall with N.H. even though the door was shut. V.I. Tp. 94. K.R. saw two set of feet in the bathroom stall. N.H. was doing his usual “crazy talking” while in the stall. V.II Tpp. 22-3. P.H. gave two different descriptions of the shirt worn by Mr. Shue. V.II Tp. 14. K.R. described the clothes worn by Mr. Shue differently than did P.H. V.II Tp. 34. K.R. recalled Mr. Shue telling N.H. to “be quiet.” V.II Tp. 24. When questioned why he had not previously mentioning anything about Mr. Shue telling N.H. to be quiet, K.R. indicated that he just remembered this statement the day before he gave his testimony. V.II Tp. 31. P.H. and K.R. returned from the bathroom and said that a man was in the stall with N.H. V.II Tp. 47.
P.H. told his mother, L.H., that the man in the stall with N.H. was the same one that followed him all night. V.II Tp. 53. N.H. later told his mother that a man helped him “go tinkle”, (v.II tp. 53), that he did not ask for help as he had already urinated and that the man touched his “boy parts.” N.H. however told Burlington Police Officer Robin Harlucowicz that the man had “helped him.” V.II Tp. 304.
Facts Relating to the Assault of P.H.
Eight-year-old P.H. testified that the Ham’s bathroom stall door lock was broken and he asked for help. V.I Tp. 87. A man, ostensibly Mr. Shue, came in the stall and helped him lock the door. V.I. Tp. 90. The man reached out his hand and P.H. pulled away before he got close. The man looked scared and walked out of the bathroom after P.H. pulled his arm away. Although P.H. was not hurt, (v.I tp. 93), he said he felt scared when Mr. Shue tried to touch his arm. V.I. Tp. 102. P.H. had previously told Harlucowicz that Mr. Shue had in fact grabbed his arm. V.II Tp. 278.
ARGUMENT
I.THE TRIAL COURT SHOULD NOT HAVE ENTERED JUDGMENT AND SENTENCED MR. SHUE FOR TAKING INDECENT LIBERTIES WITH N.H. AND ASSAULT ON P.H. AFTER MR. SHUE WAS PARTIALLY SUCCESSFUL IN HIS APPEAL
Assignment of Error No. 3, Rp. 38.
The indictment in 02 CRS 52625 consisted of two counts:
- Count I-Indecent liberties with N.H; and
- Count II-First degree kidnapping of N.H.
Rp. 9. The trial court dismissed the charge of first degree kidnapping of N.H. and permitted the charge of second degree kidnapping to be considered by the jury. V.II Tp. 349. The jury returned verdicts of guilty to taking indecent liberties with N.H. and second degree kidnapping of N.H. Rp. 13. The trial court sentenced Mr. Shue to an active term of imprisonment of 25 months minimum and a maximum of 39 months as to Count II, the second degree kidnapping charge. The trial court continued prayer for judgment as to Count I, the indecent liberties with a minor charge, since it found the conduct to be part of the second degree kidnapping conviction. V.III Tp. 584. The State did not object to the trial court continuing prayer for judgment as to the charge of taking indecent liberties with N.H.
The indictment in 02 CRS 52626 consisted of three counts:
- Count I-Assault on a child under twelve years of age [P.H.];
- Count II-Second degree kidnapping of P.H.; and
- Count III-Indecent liberties with P.H.
Rp. 10. The trial court dismissed the charge of second degree kidnapping of P.H. and submitted the charges of assault of a child under twelve years of age and taking indecent liberties with P.H. to the jury. V.III Tp. 349. The jury returned guilty verdicts as to assault on the child P.H. and taking indecent liberties with P.H. Rp. 14. The trial court sentenced Mr. Shue on Count II, taking indecent liberties with P.H., to an active term of imprisonment of 16 months minimum, 20 months maximum, to begin at the expiration of the sentence for second degree kidnapping of N.H. V.III Tpp. 854-5. The trial court considered the assault on a child [P.H.] to be similar or part of the indecent liberties charge and continued prayer for judgment as to Count I. V.III Tp. 585. Again, the State did not object to the trial court continuing prayer for judgment as to the assault count of the indictment.
Only after this Court reversed Mr. Shue’s conviction for taking indecent liberties with P.H. in State v. Shue, 163 N.C.App. 58, 64, 592 S.E.2d 233, 237 (2004), and the Supreme Court denied the State’s request for a writ of certiorari in State v. Shue, 358 N.C. 380, 597 S.E.2d 773 (2004), did the State move the trial court to enter judgment as to taking indecent liberties with N.H and assault on a P.H., a child under twelve years of age. Rpp. 17-18. Mr. Shue respectfully contends that the trial court’s entry of judgment in these matters violates his right to Due Process and the statutory mandates of N.C.G.S. §§ 15A-1335 and 15A-1416(b)(1).
- Entry of Judgment for Taking Indecent Liberties with N.H. After Mr. Shue’s Partially Successful Appeal of Taking Indecent Liberties with P.H. Violates Due Process.
Mr. Shue’s original sentence was 25 months minimum, 39 months maximum for second degree kidnapping of N.H. He received a consecutive sentence of 16 months minimum, 20 months maximum for taking indecent liberties with P.H. Although this Court vacated Mr. Shue’s conviction for taking indecent liberties with P.H., this Court upheld his conviction and sentence for second degree kidnapping of N.H. Shue, 163 N.C.App. at 64, 592 S.E.2d at 237. The State then moved for entry of judgment as to the charge of taking indecent liberties with N.H. citing as grounds that this Court reversed Mr. Shue’s conviction for taking indecent liberties with P.H. Rp. 17.
At the hearing on the State’s motion for entry of judgment, the State indicated:
MR. BOONE: …We’re simply asking the Court to impose a judgment in the indecent liberties with a child case that the Court previously continued prayer for judgment on. We’re asking the Court to impose a 16 to 20 month active sentence to run at the expiration of the kidnapping charge, in essence, giving Mr. Shue the exact same sentence that he had received upon the initial entry of judgment back at the original trial…We’re asking that N.H., the judgment in the indecent liberties case be imposed so that the sentence that was imposed before is the same sentence he received then.
V.IV Tpp. 4-5. At one point during the hearing, the trial court queried:
THE COURT: What was the sentence in the one that was reversed?
MR. BOONE: 16 to 20.
THE COURT: 16 to 20. So if the Court chose to follow your recommendation he would not get any more than what he got when he was originally sentenced.
MR. BOONE: No, sir.
V.IV Tp. 24. The trial court then made the following judgment:
The Court—after hearing argument from the State and the defendant, the Court—on the PJC of N.H., the Court enters a judgment of 16 months minimum, 20 months maximum and this sentence to run at the expiration of the kidnapping charge.
V.IV Tpp. 34-5. The trial court therefore sentenced Mr. Shue for taking indecent liberties with N.H although this Court had left undisturbed his original conviction under this indictment. Consequently, Mr. Shue has been sentenced to an additional 16 to 20 months for his conduct involving N.H. only after his successful appeal of the P.H. matter. This violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
On resentencing, a trial judge cannot impose a term of years greater than the term of years imposed by the original sentence. State v. Hemby, 333 N.C. 331, 335, 426 S.E.2d 77, 78 (1993). Here, the original sentence imposed on Mr. Shue for his conduct with N.H. was enhanced by 16 to 20 months as a result of his successful appeal of the P.H. matter. The imposition of a penalty upon a defendant for having successfully pursued a statutory right of appeal is a violation of due process of law. North Carolina v. Pearce, 395 U.S. 711, 712, 89 S.Ct. 2072, 2080 (1969). After this Court vacated Mr. Shue’s conviction for taking indecent liberties with P.H., the State could not exact any further penalty against Mr. Shue for any conduct involving P.H. beyond at most a misdemeanor assault on a child sentence. Although the aggregate sentence for Mr. Shue’s conduct with the two boys remained unchanged, he received an additional penalty regarding his conduct with N.H., i.e., conduct alleged in the same indictment for which Mr. Shue already is being punished. The State did not offer any reason or justification for sentencing Mr. Shue to an additional 16 to 20 months for his conduct with N.H. beyond the naked power to impose an additional sentence. Id. 395 U.S. at 726, 89 S.Ct. at 2081. Mr. Shue therefore is entitled to have vacated his 16 to 20 month sentence for taking indecent liberties with N.H.
- The Trial Court’s Entry of Judgment and Sentencing Mr. Shue to an Additional 16 to 20 Months for Taking Indecent Liberties with N.H. Violates the Mandate of N.C.G.S. § 15A-1335.
Although Mr. Shue’s aggregate sentence for his conduct with both N.H. and P.H. remained unchanged after the trial court entered judgments on the matters in which prayer for judgment had been previously continued, Mr. Shue’s sentence for conduct involving N.H. was improperly increased by 16 to 20 months. North Carolina General Statute Section 15A-1335, Resentencing after appellate review, mandates:
When a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.
(Emphasis added). This statute embodies generally the holding of the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 as discussed in Section IA of this brief. N.C.G.S. § 15A-1335, Criminal Code Commission Commentary.
Mr. Shue was found guilty by a jury of second degree kidnapping and taking indecent liberties with N.H. These offenses arose from the same conduct and were included in the same indictment; to wit: Mr. Shue supposedly closed the bathroom stall door and touched N.H’s penis. The trial court originally continued prayer for judgment as to the taking indecent liberties of N.H. because it found the offenses arose out of the same conduct. See V.III Tpp. 584-5. The State did not object to the PJCs or the trial court’s findings.
After this Court upheld Mr. Shue’s conviction for second degree kidnapping of N.H., the State argued to the trial court to enter judgment for taking indecent liberties with N.H. and impose an active sentence of 16 to 20 months to replace the identical sentence that had been imposed and reversed by this Court for Mr. Shue’s taking indecent liberties with P.H. The State argued to the trial court that aggregate sentence would be unchanged. V.IV Tpp. 4-5; V.IV Tp. 24. The trial court then followed the State’s recommendation and sentenced Mr. Shue for taking indecent liberties with N.H. to an additional 16 to 20 months in prison to run consecutive to Mr. Shue’s sentence for second degree kidnapping that this Court had previously upheld. V.IV Tpp. 34-5; Rpp. 21-22.
This Court rejected the same argument by the State in State v. Nixon, 119 N.C.App. 571, 573, 459 S.E.2d 49, 51 (1995). Resentencing a defendant to a term of imprisonment greater than the term attributable to the original indictment, i.e., the indictment involving the conduct with N.H., is not permissible. Id. 119 N.C.App. at 574, 459 S.E.2d at 51. When multiple sentences are involved, N.C.G.S. § 15A-1335 bars the trial court from imposing an increased sentence for any of the convictions, even if the total term of imprisonment does not exceed that of the original sentence. State v. Oliver, 155 N.C.App. 209, 211, 573 S.E.2d 257, 258 (2002)(citing State v. Nixon). Aside from the requirements of N.C.G.S. § 15A-1416(b) as discussed in Section IC of this Brief, there was no statutory impediment for the trial court to impose concurrent terms of imprisonment on Mr. Shue for second degree kidnapping and indecent liberties of N.H. during resentencing. See N.C.G.S. §§ 14-39, 14-202.1. The trial court, however, impermissibly increased his sentence for offenses arising out of the same conduct involving N.H. Mr. Shue’s 16 to 20 month sentence for taking indecent liberties with N.H. therefore should be vacated.
C. The Trial Court Erred by Entering Judgments for Taking Indecent Liberties with N.H. and Assault on the Child P.H. since the State Failed to Allege Sufficient Grounds for Imposition of Sentence.
Following this Court’s previous decision in Mr. Shue’s case, the State moved for entry of judgment in the talking indecent liberties with N.H. and assault on P.H. matters. The grounds cited by the State in its motion was that this Court reversed Mr. Shue’s conviction for indecent liberties with P.H. and that the North Carolina Supreme Court denied the State’s request for a writ of certiorari. Rp. 17. During the hearing for entry of judgment, the State essentially reiterated the same argument. The trial court subsequently entered judgment against Mr. Shue for taking indecent liberties with N.H. and assault on the child P.H.
Although the State’s motion for entry of judgment cites no statutory authority to base its pleading, it would appear that this motion would constitute a motion by the State for appropriate relief. North Carolina General Statute Section 15A-1416, Motion by the State for appropriate relief, provides in pertinent part:
(b) At any time after verdict the State may make a motion for appropriate relief for:
(1) The imposition of sentence when prayer for judgment has been continued and grounds for the imposition of sentence are asserted.
(2) The initiation of any proceeding authorized under Article 82, Probation; Article 83, Imprisonment; and Article 84, Fines, with regard to modification of sentences. The procedural provisions of those Articles are controlling.