State v. Wilkerson

NO. COA13-365
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA

Cumberland County
v. Nos. 91 CRS 1552-53, 1578, 1893,
1895, 2408

TERRANCE WILKERSON

Review stemming from the allowance of a petition for the

issuance of a writ of certiorari filed by the State challenging an

order entered 17 December 2012 by Judge Mary Ann Tally in

Cumberland County Superior Court. Heard in the Court of Appeals

26 September 2013.

Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O’Brien, for the State.

Sarah Jessica Farber, for Defendant-Appellee.

ERVIN, Judge.

The State has sought appellate review of an order granting

Defendant Terrance Wilkerson’s motion for appropriate relief;

vacating judgments entered on 5 December 1991 stemming from

Defendant’s convictions for second degree burglary, three counts

of felonious breaking or entering, four counts of felonious

larceny, and two counts of possession of stolen property; and

resentencing Defendant to a term of 21 years imprisonment. On

appeal, the State contends that the trial court erroneously

concluded that the sentences contained in the original judgments
 -2-
entered in these cases resulted in the imposition of a cruel and

unusual punishment upon Defendant. After careful consideration of

the State’s challenges to the trial court’s order in light of the

record and the applicable law, we conclude that the trial court’s

order should be reversed and that this case should be remanded to

the Cumberland County Superior Court for reinstatement of the

original judgments imposed in these cases.

I. Factual Background

Between 14 December 1990 and 12 January 1991, Defendant broke

into several homes and stole various items of property. At the

time that he committed these criminal offenses, Defendant was

sixteen years old and had no prior criminal record.

On 13 January 1991, warrants for arrest were issued charging

Defendant with two counts of possession of stolen property, second

degree burglary, two counts of felonious breaking or entering, and

three counts of felonious larceny. On 2 April 1991, the Cumberland

County grand jury returned bills of indictment charging Defendant

with two counts of second degree burglary, four counts of felonious

breaking or entering, six counts of felonious larceny, and six

counts of possession of stolen property. On 4 December 1991,

Defendant entered pleas of guilty to one count of second degree

burglary, four counts of felonious larceny, three counts of

felonious breaking or entering, and two counts of possession of

stolen property. In return for Defendant’s guilty pleas, the State
 -3-
voluntarily dismissed the remaining charges that had been lodged

against him. At the conclusion of the proceedings that occurred

in connection with the entry of Defendant’s guilty pleas, Judge

William C. Gore, Jr., found as aggravating factors that “[t]he

defendant involved a person under the age of 16 in the commission

of the crime” and that “[t]he offense involved the actual taking

of property of great monetary value”; found as mitigating factors

that “[t]he defendant ha[d] no record of criminal convictions” and

that, “[a]t an early stage of the criminal process, the defendant

voluntarily acknowledged wrongdoing in connection with the offense

to a law enforcement officer”; determined that the “factors in

aggravation outweigh[ed] the factors in mitigation”; and entered

a judgment in the case in which Defendant had been convicted of

second degree burglary sentencing him to a term of 40 years

imprisonment. In addition, based upon the same findings in

aggravation and mitigation, Judge Gore consolidated one of

Defendant’s convictions for felonious breaking or entering and one

of Defendant’s convictions for felonious larceny for judgment and

sentenced Defendant to a consecutive term of ten years

imprisonment. Finally, Judge Gore entered judgments sentencing

Defendant to a concurrent term of three years imprisonment based

upon a conviction for felonious larceny, to a concurrent term of

three years imprisonment based upon consolidated convictions for

felonious breaking or entering and felonious larceny, to a
 -4-
concurrent term of three years imprisonment based upon a conviction

for possession of stolen property, to a concurrent term of three

years imprisonment based upon convictions for felonious breaking

or entering and felonious larceny, and to a concurrent term of

three years imprisonment based upon a conviction for possession of

stolen property. As a result, Judge Gore’s judgments effectively

required Defendant to serve a term of fifty years imprisonment

based upon these convictions.

On 27 June 2012, Defendant filed a motion for appropriate

relief in which he requested the court to “arrest” his sentences

and resentence him in such a manner as to avoid subjecting him to

cruel and unusual punishment. Defendant’s motion for appropriate

relief rested upon the contention that his fifty year sentence for

a series of nonviolent property crimes committed when he was

sixteen years old was grossly disproportionate to the maximum

sentence that he could receive in the event that he was sentenced

for committing the same crimes under the current sentencing

statutes and contravened the protections against the imposition of

cruel and unusual punishment contained in the Eighth Amendment to

the United States Constitution and N.C. Const. art. I, § 27.1 On

1AlthoughDefendant argued that his sentences violated N.C.
Const. art. I, § 27, in his motion for appropriate relief, the
trial court made no reference to this provision of the state
constitution in its order and Defendant has not advanced any
argument stemming from the state constitution in his brief. For
 -5-
25 July 2012, the trial court entered an order concluding that

“Defendant’s Motion for Appropriate Relief has merit, that summary

disposition is inappropriate, and that a hearing is necessary.”

The State filed a written response to Defendant’s motion for

appropriate relief on 24 August 2012 in which it requested that

Defendant receive no relief.

A hearing was held with respect to Defendant’s motion for

appropriate relief on 11 December 2012. On 17 December 2012, the

trial court entered an order granting Defendant’s motion for

appropriate relief on the grounds that, “[u]nder evolving

standards of decency,” the sentence embodied in the judgments

entered by Judge Gore was excessive and disproportionate to the

crimes for which Defendant had been convicted in violation of the

Eighth Amendment and was, for that reason, invalid. As a result,

the trial court vacated the judgments that had been entered by

Judge Gore, resentenced Defendant to a term of 21 years

imprisonment, gave Defendant credit for 21 years and 6 days in

pretrial confinement, and ordered that Defendant be immediately

released.

On 17 December 2012, the State filed petitions seeking the

issuance of a writ of certiorari authorizing appellate review of

the 17 December 2012 order and the issuance of a writ of

those reasons, we will treat this case as arising solely under the
relevant provision of the United States constitution.
 -6-
superseadeas staying the trial court’s order pending the

completion of the appellate review process. On 2 January 2013,

this Court granted the State’s petitions.

II. Substantive Legal Analysis

A. Appellate Jurisdiction

As an initial matter, we are required to address Defendant’s

contention that this Court lacked the authority to grant the

State’s petition for the issuance of a writ of certiorari. In

view of the fact that a panel of this Court has previously rejected

this contention in the course of granting the State’s certiorari

petition, we are required to do so as well. N.C.N.B. v. Virginia

Carolina Builders, 307 N.C. 563, 567, 299 S.E.2d 629, 631-32 (1983)

(stating that, “once a panel of the Court of Appeals has decided

a question in a given case[,] that decision becomes the law of the

case and governs other panels which may thereafter consider the

case” and that, “since the power of one panel of the Court of

Appeals is equal to and coordinate with that of another, a

succeeding panel of that court has no power to review the decision

of another panel on the same question in the same case”). In

addition, for the reasons set forth in detail below, we also

believe that this Court had the authority to grant the State’s

certiorari petition.

“The Court of Appeals shall have such appellate jurisdiction

as the General Assembly may prescribe.” N.C. Const. art. IV, §
 -7-
12(2). According to N.C. Gen. Stat. § 7A-32(c), this Court has

the authority to issue writs of certiorari “in aid of its own

jurisdiction, or to supervise and control the proceedings of any

of the trial courts of the General Court of Justice.” N.C. Gen.

Stat. § 32(c). As a result, given that a “[trial] court’s ruling

on a motion for appropriate relief pursuant to [N.C. Gen. Stat. §]

15A-1415 is subject to review . . . [i]f the time for appeal has

expired and no appeal is pending, by writ of certiorari,” N.C.

Gen. Stat. § 15A-1422(c)(3), see State v. Dammons, 128 N.C. App.

16, 22, 493 S.E.2d 480, 484 (stating that “[t]his Court may review

a trial court’s ruling on a motion for appropriate relief if ‘the

time for appeal has expired and no appeal is pending, by writ of

certiorari’”) (quoting N.C. Gen. Stat. § 15A-1422(c)(3)), disc.

review denied, 342 N.C. 660, 465 S.E.2d 547 (1997); State v.

Morgan, 118 N.C. App. 461, 463, 455 S.E.2d 490, 491 (1995) (stating

that “[a] trial ‘court’s ruling on a motion for appropriate relief

pursuant to [N.C. Gen. Stat. §] 15A-1415 is subject to review . . .

[i]f the time for appeal has expired and no appeal is pending, by

writ of certiorari’”) (citations omitted), and given that the

issuance of a writ of certiorari in situations such as this one is

necessary to “supervise and control” proceedings in the trial

courts, see Troy v. Tucker, 126 N.C. App. 213, 215, 484 S.E.2d 98,

99 (1997) (recognizing the existence of our supervisory

jurisdiction over the trial courts as authorized by N.C. Const.
 -8-
art. IV, § 12 and N.C. Gen. Stat. § 7A–32(c)); In re Robinson, 120

N.C. App. 874, 875, 464 S.E.2d 86, 87 (1995) (granting certiorari

“pursuant to [this Court’s] supervisory power under [N.C. Gen.

Stat. §] 7A–32(c)”), we clearly had ample authority to grant the

State’s request for the issuance of a writ of certiorari

authorizing review of the trial court’s order in this case.

In support of his contention to the contrary, Defendant cites

a previous decision by this Court refusing to issue a writ of

certiorari requested by the State on the grounds that the issuance

of the requested writ was not authorized by N.C. R. App. P.

21(a)(1), which provides that a writ of certiorari may be issued

in appropriate circumstances by either appellate court to “‘permit

review of the judgments and orders of trial tribunals when the

right to prosecute an appeal has been lost by failure to take

timely action, or when no right of appeal from an interlocutory

order exists, or for review pursuant to [N.C. Gen. Stat.] § 15A-

1422(c)(3) of an order of the trial court denying a motion for

appropriate relief.’” State v. Starkey, 177 N.C. App. 264, 268,

628 S.E.2d 424, 426, cert denied, __ N.C. __, 636 S.E.2d 196 (2006)

(quoting N.C. R. App. P. 21(a)(1). According to the logic

enunciated in Starkey, since N.C. R. App. P. 21 limits certiorari

review of orders granting or denying motions for appropriate relief

to orders denying such motions and since the State sought review

of an order granting a defendant’s motion for appropriate relief,
 -9-
we lacked authority to issue the requested writ. Id. As a result,

however, of the fact that Starkey conflicts with several decisions

of the Supreme Court that authorize review of trial court decisions

granting motions for appropriate relief filed by a defendant, our

decision in Starkey does not stand as an obstacle to the allowance

of the State’s certiorari petition. See State v. Whitehead, 365

N.C. 444, 445-46, 722 S.E.2d 492, 494 (2012) (granting the State’s

petition for the issuance of a writ of certiorari for the purpose

of reviewing a trial court order granting a motion for appropriate

relief); State v. Frogge, 359 N.C. 228, 230, 607 S.E.2d 627, 628-

29 (2005) (granting a petition for the issuance of a writ of

certiorari authorizing review of a trial court order granting a

defendant’s motion for appropriate relief), cert. denied, 531 U.S.

994, 121 S. Ct. 487, 148 L. Ed. 2d 459 (2000); State v. McDowell,

310 N.C. 61, 62, 310 S.E.2d 301, 301 (1984) (allowing a petition

for the issuance of a writ of certiorari filed by the State seeking

review of a trial court order granting defendant’s motion for

appropriate relief). As a result of the fact that the logic

adopted in Starkey would be equally applicable to the situations

at issue in Whitehead, Frogge, and McDowell, and since nothing in

N.C. R. App. P. 21 makes any distinction between our authority to

issue writs of certiorari in response to petitions filed by the

State seeking review of orders granting a motion for appropriate

relief and that of the Supreme Court, we believe that our decision
 -10-
in Starkey is inconsistent with prior and subsequent decisions of

the Supreme Court and is not, for that reason, controlling in the

present case.2 See State v. Davis, 198 N.C. App. 443, 449, 680

S.E.2d 239, 244 (2009) (this Court “decline[d] to follow” an

earlier Court of Appeals decision “inconsistent with prior

decisions of this Court and our Supreme Court”); Cissell v. Glover

Landscape Supply, Inc., 126 N.C. App. 667, 670 n.1, 486 S.E.2d

472, 473 n.1 (1997), rev’d on other grounds, 348 N.C. 67, 497

S.E.2d 283 (1998) (stating that, “because that case is inconsistent

with prior decisions of this Court and our Supreme Court, we

decline to follow it.”). Our conclusion to this effect is

reinforced by our recognition of the fact that the rules of

appellate procedure “shall not be construed to extend or limit the

2In addition, this Court has granted petitions for writs of
certiorari filed by the State for the purpose of seeking review of
orders allowing motions for appropriate relief in previous cases.
See State v. Bonsteel, 160 N.C. App. 709, __ S.E.2d __ (2003)
(unpublished) (granting the State’s petition for the issuance of
a writ of certiorari for the purpose of reviewing a trial court
order granting a defendant’s motion for appropriate relief); State
v. Rubio, __ N.C. App. __, 732 S.E.2d 393 (2012) (unpublished),
disc. review dismissed, __ N.C. __, 735 S.E.2d 824 (2013) (citing
N.C. Gen. Stat. § 15A-1422(c)(3) as the basis for asserting
jurisdiction over an order granting a defendant’s motion for
appropriate relief). Although we are not bound by our prior
unpublished decisions, see United Services Automobile Assn. v.
Simpson, 126 N.C. App. 393, 396, 485 S.E.2d 337, 339, disc. review
denied, 347 N.C. 141, 492 S.E.2d 37 (1997) (holding that this Court
is not bound by a prior unpublished decision of another panel of
this Court), we believe that Bonsteel and Rubio shed additional
light on our authority to grant the State’s request for certiorari
review of an order granting a defendant’s motion for appropriate
relief.
 -11-
jurisdiction of the courts of the appellate division as that is

established by law,” N.C. R. App. P. 1(c); the fact that our

authority to grant certiorari for the purpose of reviewing orders

granting or denying motions for appropriate relief is established

by N.C. Gen. Stat. § 15A-1422(c)(3); and the fact that the approach

adopted in Starkey, contrary to N.C. R. App. P. 1, treats N.C. R.

App. P. 21 as limiting the jurisdiction afforded to this Court by

the General Assembly. As a result, we have no hesitation in

concluding that this Court did, in fact, have the authority to

grant the State’s petition for the issuance of a writ of certiorari

in this case and will proceed to address the merits of the State’s

challenge to the trial court’s order.

B. Validity of Trial Court’s Order

1. Standard of Review

“When considering rulings on motions for appropriate relief,

we review the trial court’s order to determine ‘whether the

findings of fact are supported by evidence, whether the findings

of fact support the conclusions of law, and whether the conclusions

of law support the order entered by the trial court.’” Frogge,

359 N.C. at 240, 607 S.E.2d at 634 (quoting State v. Stevens, 305

N.C. 712, 720, 291 S.E.2d 585, 591 (1982)). “‘When a trial court’s

findings on a motion for appropriate relief are reviewed, these

findings are binding if they are supported by competent evidence

and may be disturbed only upon a showing of manifest abuse of
 -12-
discretion. However, the trial court’s conclusions are fully

reviewable on appeal.’” State v. Lutz, 177 N.C. App. 140, 142,

628 S.E.2d 34, 35 (2006) (quoting State v. Wilkins, 131 N.C. App.

220, 223, 506 S.E.2d 274, 276 (1998)). “Conclusions of law drawn

by the trial court from its findings of fact are reviewable de

novo on appeal.” Carolina Power & Light Co. v. City of Asheville,

358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004). Because the facts

underlying this case as described in the trial court’s findings of

fact are essentially undisputed, the only issue that we are

required to address in this case is whether the trial court

correctly concluded that, on the basis of the present record,

Defendant was entitled to relief from Judge Gore’s original

judgments on Eighth Amendment grounds.

2. Trial Court’s Jurisdiction Over Defendant’s Motion

In its initial challenge to the trial court’s judgment, the

State argues that the trial court lacked jurisdiction to vacate

Judge Gore’s original judgments. More specifically, the State

contends that no provision of N.C. Gen. Stat. § 15A-1415 authorized

the trial court to enter an order vacating Defendant’s original

judgments, resentencing Defendant, and ordering that he be

released. We do not find this aspect of the State’s argument

persuasive.

According to N.C. Gen. Stat. § 15A–1415(b), a convicted

criminal defendant is entitled to seek relief from a trial court
 -13-
judgment by means of a motion for appropriate relief filed more

than ten days after the entry of judgment on the basis of certain

specifically enumerated grounds. See N.C. Gen. Stat. § 15A–

1415(b). As we have recently stated, “N.C. Gen. Stat. § 15A–

1415(b) clearly provides that the eight specific grounds listed in

that statutory subsection are ‘the only grounds which the defendant

may assert by a motion for appropriate relief made more than 10

days after the entry of judgment,’” so that “a trial court lacks

jurisdiction over the subject matter of a claim for postconviction

relief which does not fall within one of the categories specified

in N.C. Gen. Stat. § 15A–1415(b).” State v. Harwood, __ N.C. App.

__, __, 746 S.E.2d 445, 450, disc. review dismissed, __ N.C. __,

748 S.E.2d 320 (2013).

In its order, the trial court concluded that it had the

authority to grant the requested relief pursuant to N.C. Gen. Stat.

§§ 15A-1415(b)(4) and (b)(8), which authorize an award of

postconviction relief in the event that “[t]he defendant was

convicted or sentenced under a statute that was in violation of

the Constitution of the United States or the Constitution of North

Carolina,” N.C. Gen. Stat. § 15A-1415(b)(4), or that “[t]he

sentence imposed was unauthorized at the time imposed, contained

a type of sentence disposition or a term of imprisonment not

authorized for the particular class of offense and prior record or

conviction level was illegally imposed, or is otherwise invalid as
 -14-
a matter of law.” N.C. Gen. Stat. § 15A-1415(b)(8). The fact

that Defendant did not cite N.C. Gen. Stat. § 15A-1415(b)(4) before

the trial court is irrelevant to the required jurisdictional

determination given the fact that the constitutional nature of

Defendant’s challenge to Judge Gore’s original judgments was

clearly stated in Defendant’s motion for appropriate relief and

the fact that the trial court has the authority, in appropriate

cases, to grant postconviction relief on its own motion. N.C.

Gen. Stat. § 15A-1420(d) (stating that, “[a]t any time that a

defendant would be entitled to relief by motion for appropriate

relief, the court may grant such relief upon its own motion”).

Similarly, the fact that the sentences imposed in Judge Gore’s

original judgments were not unauthorized, invalid, or otherwise

unlawful at the time that they were imposed does not, contrary to

the State’s argument, preclude an award of relief based on N.C.

Gen. Stat. § 15A-1415(b)(8) given that the reference to “at the

time imposed” in the relevant statutory language does not modify

the language authorizing a grant of relief in the event that the

defendant’s sentence “is otherwise invalid as a matter of law.”

In fact, acceptance of the State’s argument that the trial court

lacked the authority to enter the challenged order would

necessarily mean that trial judges have no authority to grant

postconviction sentencing relief on Eighth Amendment grounds after

the time for noting a direct appeal has expired, an outcome which
 -15-
we do not believe to have been within the General Assembly’s

contemplation and which is not consistent with our postconviction

jurisprudence. State v. Bonds, 45 N.C. App. 62, 64, 262 S.E.2d

340, 342 (stating that, “[i]f a judgment is invalid as a matter of

law, the courts of North Carolina have always had the authority to

vacate such judgments pursuant to petition for writ of habeas

corpus and, more recently, by way of postconviction proceedings”),

app. dismissed, 300 N.C. 376, 267 S.E.2d 687, cert. denied, 449

U.S. 883, 101 S. Ct. 235, 66 L. Ed. 2d 107 (1980). As a result of

the fact that Defendant has asserted in his motion for appropriate

relief that the sentences imposed in Judge Gore’s original judgment

are disproportionate to the offenses for which he was convicted in

violation of the Eighth Amendment and that those sentences were,

for that reason, invalid, the trial court clearly had jurisdiction

to reach the merits of Defendant’s challenge to Judge Gore’s

original judgments pursuant to N.C. Gen. Stat. §§ 15A-1415(b)(4)

and (b)(8).

This Court has recently addressed and rejected the same

argument in a case in which the trial court granted a defendant’s

motion for appropriate relief and vacated his life sentence, which

had been imposed upon him in 1973 as the result of his conviction

for second degree burglary, on the basis of a conclusion that,

“under evolving standards, [defendant’s] sentence violated the

Eighth Amendment and is invalid as a matter of law.” State v.
 -16-
Stubbs, __ N.C. App. __, __, __ S.E.2d __, __ (2014). Although

the State argued before this Court in that case, as it has here,

that nothing in N.C. Gen. Stat. § 15A-1415 authorized the trial

court to modify the defendant’s original sentence, Id. at __, __

S.E.2d at __, we concluded that “the trial court had jurisdiction

over the [original] judgment to consider whether defendant’s

sentence was ‘invalid as a matter of law.’” Id. at __, __ S.E.2d

at __ (quoting N.C. Gen. Stat. § 15A-1415(b)(8)).3 As a result,

in light of the literal language of N.C. Gen. Stat. §§ 15A-

1415(b)(4) and (b)(8) and our decision in Stubbs, we hold that the

trial court had jurisdiction to consider Defendant’s challenges to

Judge Gore’s original judgments on the merits.

3. Gross Disproportionality

Secondly, the State contends that, even if the trial court

had jurisdiction to consider the validity of Defendant’s challenge

to Judge Gore’s original judgments, it erred by determining that

3In
support of its argument that the trial court lacked the
authority to consider Defendant’s challenge to the judgments at
issue here, the State cites the Supreme Court’s decision in
Whitehead to the effect that, “[h]aving concluded that defendant
is not entitled to resentencing under the [Structured Sentencing
Act], we also note that defendant’s [motion for appropriate relief]
provides no appropriate grounds for resentencing under the [Fair
Sentencing Act].” Whitehead, 365 N.C. at 448, 722 S.E.2d at 495.
In this case, unlike Whitehead, Defendant has advanced a
constitutional, rather than a merely statutory, challenge to the
validity of Judge Gore’s original judgments, a fact which
distinguishes this case from Whitehead and gave the trial court
the authority to consider the merits of Defendant’s motion for
appropriate relief.
 -17-
the sentences that Defendant was currently serving subjected him

to cruel and unusual punishment in violation of the Eighth

Amendment. We agree.

The Eighth Amendment to the United States Constitution, which

has been made applicable to the states through the Fourteenth

Amendment, provides that “[e]xcessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII. “The concept of

proportionality is central to the Eighth Amendment. Embodied in

the Constitution’s ban on cruel and unusual punishments is the

‘precept of justice that punishment for crime should be graduated

and proportioned to [the] offense.’” Graham v. Florida, 560 U.S.

48, 59, 130 S. Ct. 2011, 2021, 176 L. Ed. 2d 825, 835 (2010)

(quoting Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544,

549, 54 L. Ed. 793, 798 (1910)). We view the concept of

proportionality according to “‘the evolving standards of decency

that mark the progress of a maturing society.’” Miller v. Alabama,

__ U.S. __, __, 132 S. Ct. 2455, 2463, 183 L. Ed. 2d 407, 417

(2012) (quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct.

285, 290 50 L. Ed. 2d 251, 259 (1976)). “The Eighth Amendment

does not[, however,] require strict proportionality between crime

and sentence. Rather, it forbids only extreme sentences that are

grossly disproportionate to the crime.” Harmelin v. Michigan, 501

U.S. 957, 1001, 111 S. Ct. 2680, 2705, 115 L. Ed. 2d 836, 869
 -18-
(1991) (Justice Kennedy, joined by Justices O’Connor and Souter,

concurring) (internal quotations and citations omitted). As a

result, “‘[o]nly in exceedingly unusual non-capital cases will the

sentences imposed be so grossly disproportionate as to violate the

Eighth Amendment’s proscription of cruel and unusual punishment.’”

State v. Clifton, 158 N.C. App. 88, 94, 580 S.E.2d 40, 45 (quoting

State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983)),

cert. denied, 357 N.C. 463, 586 S.E.2d 266 (2003). “[I]n the

absence of legal error, it is not the role of the judiciary to

engage in discretionary sentence reduction,” since “that power

resides in the executive branch, as established by the state

constitution and acts of the General Assembly,” Whitehead, 365

N.C. at 448, 722 S.E.2d at 496, and since “our General Assembly

has directed the Post-Release Supervision and Parole Commission to

review matters of proportionality” arising from the changes in the

statutory provisions governing the sentencing of convicted

criminal defendants that have been enacted in recent years.

Stubbs, __ N.C. App. at __, __ S.E.2d at __.4

4Although the State has argued at length that, “outside the
capital context, there is no general proportionality principle
inherent in the prohibition against cruel and unusual punishment,”
we believe that the relevant decisions of the United States Supreme
Court clearly state the “gross disproportionality” test discussed
in the text of this opinion for use in non-capital cases and do
not understand the State to be advancing a contrary assertion.
 -19-
As the United States Supreme Court has explained, “cases

addressing the proportionality of sentences fall within two

general classifications[:]” first, “challenges to the length of

term-of-years sentences given all the circumstances in a

particular case[;]” and second, “cases in which the Court

implements the proportionality standard by certain categorical

restrictions on the death penalty.” Graham, 560 U.S. at 59, 130

S. Ct. at 2021, 176 L. Ed. 2d at 836. “In the first classification

the Court considers all of the circumstances of the case to

determine whether the sentence is unconstitutionally excessive”

Id., with that determination beginning with a comparison of “the

gravity of the offense and the severity of the sentence.” Graham,

560 U.S. at 60, 130 S. Ct. at 2022, 176 L. Ed. 2d at 836 (citing

Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L. Ed. 2d at

871 (Justice Kennedy, joined by Justices O’Connor and Souter,

concurring)). “‘[I]n the rare case in which [this] threshold

comparison . . . leads to an inference of gross

disproportionality[,]’ the court should then compare the

defendant’s sentence with the sentences received by other

offenders in the same jurisdiction and with the sentences imposed

for the same crime in other jurisdictions.” Id. “Outside the

context of capital punishment, successful challenges to the

proportionality of particular sentences have been exceedingly
 -20-
rare.” Rummel v. Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133,

1138, 63 L. Ed. 2d 382, 390 (1980).

The trial court reached the conclusion that Defendant had

been subjected to cruel and unusual punishment based upon a

consideration of “(1) the gravity of the offense, (2) the harshness

of the penalty, and (3) the sentences for other crimes within the

jurisdiction.” In seeking to persuade us to uphold the trial

court’s order, Defendant notes that he was a juvenile at the time

that the offenses in question were committed, points out that he

would receive a significantly shorter term of imprisonment in the

event that he were to be sentenced under current law, and argues

that his sentence of 50 years imprisonment with the possibility of

parole based upon his convictions for second degree burglary,

felonious breaking or entering, felonious larceny, and possession

of stolen property was grossly disproportionate to the crimes

committed. We do not find Defendant’s argument persuasive.5

5The parties do not appear to agree upon the sentence upon
which we should focus our attention in analyzing the validity of
the State’s challenge to the trial court’s order. On the one hand,
Defendant’s argument rests upon the assumption that we should view
the sum total of the sentences embodied in Judge Gore’s original
judgments as a single term of imprisonment while the State appears
to suggest that we should focus our attention on the specific
sentence that Defendant is currently serving. As a result of the
fact that we do not believe that this difference of opinion has
any bearing on the ultimate outcome that we should reach in this
case, we will assume, without deciding, that the approach taken by
Defendant is the correct one.
 -21-
The first problem with the trial court’s order is that the

trial court claimed to have erroneously considered a comparison of

the sentence imposed upon Defendant with sentences imposed upon

others under more recent statutory sentencing provisions in the

course of determining whether Defendant’s sentence was grossly

disproportionate. However, a comparison of the sentence imposed

upon Defendant to the sentences that have been or could be imposed

upon other convicted felons is not relevant to the issues raised

by Defendant’s motion for appropriate relief until after a finding

of “gross disproportionality” had been made. See Graham, 560 U.S.

at 60, 130 S. Ct. at 2022, 176 L. Ed. 2d at 836 (stating that an

evaluation of the gravity of the offense for which the defendant

had been convicted and the severity of the sentence imposed upon

the defendant based upon that conviction for the purpose of

determining whether the defendant’s sentence was grossly

disproportionate must be undertaken before the court compares a

defendant’s sentence to the sentences of others for similar

offenses); Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L.

Ed. 2d at 871 (stating that “[a] better reading of our cases leads

to the conclusion that intrajurisdictional and interjurisdictional

analyses are appropriate only in the rare case in which a threshold

comparison of the crime committed and the sentence imposed leads

to an inference of gross disproportionality”) (Justice Kennedy,

joined by Justices O’Connor and Souter, concurring). For that
 -22-
reason, the extent to which Defendant would have been subject to

a less severe sentence in the event that he had been sentenced

under current sentencing law has no bearing upon the initial phase

of the required Eighth Amendment analysis. As a result, the trial

court erred by apparently failing to make a determination that

Defendant’s sentence was grossly disproportionate without taking

subsequent sentencing amendments into account before concluding

that Judge Gore’s original judgments should be vacated and that

Defendant should be resentenced.

In addition, we are unable to agree that Defendant has

established that the sentence embodied in Judge Gore’s original

judgments was grossly disproportionate. Although Defendant was a

juvenile at the time that he committed the offenses that led to

the challenged trial court judgments and although the offenses for

which Defendant was convicted were not violent in nature, he pled

guilty to one count of second degree burglary, three counts of

felonious breaking or entering, four counts of felonious larceny,

and two counts of possession of stolen property, resulting in a

total of ten felony convictions. Moreover, despite the fact that

Defendant’s convictions did, as he points out in his brief, result

from the commission of nonviolent property crimes, the fact that

he was convicted of committing ten felony offenses, the fact that

second degree burglary is a particularly serious offense involving

the breaking and entering of a residence in the nighttime with the
 -23-
intent to commit a felony or any larceny, State v. Beaver, 291

N.C. 137, 141, 229 S.E.2d 179, 181 (1976) (stating that “[t]he

distinction between the two degrees [of burglary] depends upon the

actual occupancy of the dwelling house or sleeping apartment at

the time of the commission of the crime”), and the fact that, in

two of the cases at issue here, Defendant was found to have taken

property of great value and involved a young person less than

sixteen years old in the criminal activity in which he was engaged,

are relevant to the constitutional validity of Judge Gore’s

decision to impose a particularly severe sentence in this case.

Simply put, in light of the number of felony offenses for which

Defendant was convicted, the fact that one of the offenses for

which Defendant was convicted was a particularly serious one, and

the fact that Defendant’s conduct involved great financial harm

and led to criminal activity on the part of a younger individual,

we are unable to say that the sentence embodied in Judge Gore’s

original judgments was “grossly disproportionate.” Our conclusion

to this effect is buttressed by a careful examination of the

reported appellate decisions addressing similar factual

circumstances, all of which suggest that this is not one of the

“exceedingly rare” and “extreme” cases in which the sentence upon

Defendant is “grossly disproportionate.” See Ewing v. California,

538 U.S. 11, 30-31, 123 S. Ct. 1179, 1190, 155 L. Ed. 2d 108, 123

(2003) (holding that a sentence of 25 years to life imprisonment
 -24-
for larceny pursuant to a “three strikes and you’re out” law did

not constitute cruel and unusual punishment in violation of the

Eighth Amendment); Harmelin, 501 U.S. at 1008-09, 111 S. Ct. at

2709, 115 L. Ed. 2d at 874 (holding that a sentence of life

imprisonment without the possibility of parole for possession of

cocaine was not so grossly disproportionate as to constitute cruel

and unusual punishment in violation of the Eighth Amendment)

(Justice Kennedy, joined by Justices O’Connor and Souter,

concurring); State v. Green, 348 N.C. 588, 612, 502 S.E.2d 819,

834 (1998), cert. denied, 525 U.S. 1111, 119 S. Ct. 883, 142 L.

Ed. 2d 783 (1999) (holding that a sentence of life imprisonment

with the possibility of parole based upon a thirteen year old

defendant’s conviction for first degree sexual offense did not

constitute cruel and unusual punishment in violation of the Eighth

Amendment); State v. Ford, 297 N.C. 28, 32, 252 S.E.2d 717, 719

(1979) (holding that a sentence of life imprisonment for first

degree burglary did not constitute cruel and unusual punishment in

violation of the Eighth Amendment); State v. Sweezy, 291 N.C. 366,

384-85, 230 S.E.2d 524, 536 (1976) (holding that a sentence of

life imprisonment for first degree burglary did not constitute

cruel and unusual punishment in violation of the Eighth Amendment);

Stubbs, __ N.C. App. at __, __ S.E.2d at __ (holding that a

defendant’s sentence of life imprisonment for a second degree

burglary committed when the defendant was a juvenile did not
 -25-
constitute cruel and unusual punishment in violation of the Eighth

Amendment); State v. Pettigrew, 204 N.C. App. 248, 258-59, 693

S.E.2d 698, 705, app. dismissed, 364 N.C. 439, 706 S.E.2d 467

(2010) (holding that a sentence of 32 to 40 years imprisonment for

two counts of first degree sexual offense committed when the

defendant was sixteen years old did not constitute cruel and

unusual punishment in violation of the Eighth Amendment). For all

of these reasons, we see no basis for concluding that this is one

of the “exceedingly rare noncapital cases” in which the sentence

imposed is “grossly disproportionate” to the crimes for which

Defendant stands convicted. As a result, we conclude that the

sentence imposed upon Defendant in this case, while undoubtedly

severe, is “not cruel or unusual in the constitutional sense,”

Green, 348 N.C. at 612, 502 S.E.2d at 834, and, for that reason,

hold that the trial court’s order should be reversed and that this

case should be remanded to the Cumberland County Superior Court

with instructions to reinstate Judge Gore’s original judgments.

III. Conclusion

Thus, for the reasons set forth above, we conclude that the

trial court erred by vacating Judge Gore’s original judgments,

resentencing Defendant, and ordering his immediate release. As a

result, the trial court’s order should be, and hereby is, reversed,

and this case should be, and hereby is, remanded to the Cumberland
 -26-
County Superior Court for reinstatement of Judge Gore’s original

judgments.

REVERSED AND REMANDED.

Judges ROBERT N. HUNTER, JR., and DAVIS concur.