concurring in the result only.
With respect to the merits of this appeal, I agree that the trial court should be affirmed, but I reach this conclusion on different grounds than that of the majority opinion. I concur fully with the majority opinion’s conclusion that this case does not represent a collateral attack on plaintiff’s 1994 criminal judgment imposing a sentence of 40 years. In order for this case to constitute a collateral attack, Lineberger would have to be seeking relief from his 40-year sentence. He is not. Regardless of the outcome of this case, Lineberger’s 40-year sentence remains intact. The only material question presented by Lineberger is how his parole eligibility should be calculated — an issue that the parties do not dispute may properly be resolved by an action for a declaratory judgment.
As support for their “collateral attack” contention, defendants rely upon the trial court’s determination that the 40-year sentence was unlawful. The trial court did not, however, purport to take any action or grant any relief after making that observation.
More importantly, that finding is simply immaterial to the resolution of this appeal. This appeal presents a forest-and-trees problem. Defendants’ various contentions on appeal distract from the core question: Whether defendants have presented any authority to support their contention that parole eligibility should be calculated based on an assumption that the 40-year sentence represented a 40-year sentence for second degree kidnapping? Since defendants have cited no authority supporting their fundamental position, I would affirm the trial court.
In this case, defendants take the position that, under the Fair Sentencing Act, N.C. Gen. Stat. § 15A-1380.2(h) (1994), Lineberger’s conviction for second degree kidnapping precludes him from receiving community service parole. That statute states simply: “No prisoner convicted under Article 7A of Chapter 14 of a sex offense, under G.S. 14-39, 14-41, or 14-43.3, or under G.S. 90-95(h) of a drug trafficking offense shall be eligible for community service parole.” There is no question that Lineberger was convicted under § 14-39 of second degree kidnapping.
The statute does not, however, specifically address the situation present in this case in which a consolidated judgment was entered for three separate charges, only one of which was second degree kidnapping. Defendants acknowledge that their calculation of parole eligibility is based on the assumption that § 15A-1380.2(h) bars commu*18nity service parole simply “[b]ecause the consolidated sentence is based in part on a kidnapping conviction.” (Emphasis added.)
Defendants’ argument in support of this interpretation of the statute states in its entirety:
When a defendant is convicted of two or more counts, the court may consolidate the offenses and impose a single judgment. See State v. Stonestreet, 243 N.C. 28, 31, 89 S.E.2d 734, 737 (1955). Under a consolidated sentence, if one of the counts upon which the conviction is based is set aside, the entire judgment must be remanded for resentencing even if the remaining counts would have been sufficient, standing alone, to justify the consolidated sentence. Id. In essence, a consolidated judgment stands as a unified whole.
Because Lineberger is serving a consolidated sentence, each day that he is incarcerated is service against the unified whole of the sentence, even though based on three convictions — common law robbery, conspiracy to commit armed robbery, and kidnapping. Because the consolidated sentence is a unified whole, it is not possible or rational to identify one day of incarceration as being service against Lineberger’s robbery conviction, the next day as being service against his conspiracy conviction, or the next day as being service against his kidnapping conviction. Each day of incarceration is simply service against the whole sentence and is not allocated to any individual conviction that supports the consolidated sentence. The kidnapping conviction stands as just as much a part of the reason that Lineberger is incarcerated pursuant to the consolidated sentence on day one of his prison term as it does on the last day when he is incarcerated under that consolidated sentence.
Given that Lineberger’s kidnapping conviction permeates the entirety of his consolidated sentence, it is rational and reasonable for the Commission to conclude that Lineberger is not eligible for parole until ninety days before his unconditional release date. The plain language of the applicable statutes demonstrates that Lineberger is barred from being considered for parole prior to this date.
(Emphasis added.)
This argument is noticeably lacking in the citation of applicable authority. Although defendants correctly describe Stonestreet, that *19opinion does not in any manner relate to or support defendants’ theory of “a unified whole.” Further, the reasoning contained in the following paragraphs of defendants’ brief — containing no citation of authority at all — is in fact directly contrary to the reasoning of our Supreme Court in Stonestreet and in other decisions.
In Stonestreet, the Supreme Court held that when two or more charges are consolidated for the purpose of a single judgment, “even though the plea of guilty or conviction on one is sufficient to support the judgment and the trial thereon is free from error, the award of a new trial on the other indictment(s) or count(s) requires that the cause be remanded for proper judgment on the valid count. Presumably this (the single judgment) was based upon consideration of guilt on both charges.” 243 N.C. at 31, 89 S.E.2d at 737 (internal quotation marks omitted). This basic principle regarding consolidated sentences was reiterated more recently by our Supreme Court in State v. Brown, 350 N.C. 193, 213, 513 S.E.2d 57, 70 (1999) (emphasis added):
[W]e further conclude that the judgment on this offense [of murder as an accessory] must be remanded for resentencing because the trial court consolidated it with the solicitation conviction, which we have now vacated, in imposing a single sentence of thirty years, and we cannot assume that the trial court’s consideration of two offenses, as opposed to one, had no affect on the sentence imposed.
I fail to see how this principle regarding resentencing supports defendants’ contention that the kidnapping conviction so permeates the single 40-year sentence that we must assume that parole eligibility should be calculated on the assumption that the entire 40 years was a sentence for second degree kidnapping.
The holdings would seem to support precisely the opposite proposition: that we cannot assume that the other two non-kidnapping convictions did not play a role in the length of the sentence. Defendants’ argument asks us to assume that the common law robbery (a class C felony because of Lineberger’s habitual felon status) and conspiracy convictions made no contribution to the 40-year sentence. I cannot reconcile defendants’ reasoning with Stonestreet or Brown. See also State v. Wortham, 318 N.C. 669, 674, 351 S.E.2d 294, 297 (1987) (“Since it is probable that a defendant’s conviction for two or more offenses influences adversely to him the trial court’s *20judgment on the length of the sentence to be imposed when these offenses are consolidated for judgment, we think the better procedure is to remand for resentencing when one or more but not all of the convictions consolidated for judgment has been vacated.”).
Because defendants have not demonstrated any legal basis for construing the 40-year sentence as being entirely attributable to the kidnapping charge, there is no reason to decide whether the trial court properly found, in finding of fact 7, that “there was no plea agreement as to the sentence Plaintiff would receive . ...” I note, however, that the record suggests that there is an issue of fact as to that question.
The transcript of plea states that the State and Lineberger agreed only to “cap the sentence at 40 years (i.e. sentence not to exceed 40 years).” In the hearing, Lineberger’s counsel confirmed “that the State recommends that the cases be consolidated for sentencing and the sentence is not to exceed forty years . . . .” These statements would suggest no agreement on a specific sentence apart from a cap. The trial judge, however, stated that he could “live with” 40 years. He then asked whether Lineberger understood that he would, in exchange for his plea of guilty, receive a 40-year sentence and whether he accepted that arrangement. In imposing the sentence, the trial judge stated that the charges would be “consolidated for purposes of judgment pursuant to the negotiated plea and negotiated sentence” and that “pursuant to that negotiated sentence, the judgement [sic] of the Court is that the Defendant be imprisoned in the State Department of Corrections for a term of forty years.” This statement could be construed as indicating the trial judge believed that he was imposing the 40-year sentence pursuant to a plea arrangement. On the other hand, however, the trial judge allowed Lineberger’s counsel to present argument on sentencing — argument that would be unnecessary if the parties had agreed to a 40-year sentence.
In short, although I believe the record would permit a finding that there was no plea arrangement as to a specific sentence, I cannot conclude that the issue is resolvable on summary judgment. Nevertheless, I do not believe that defendants have demonstrated that this is a material issue of fact. Even if the 40-year sentence is a lawful sentence, defendants have failed to establish that the entire 40 years should be considered attributable to the kidnapping charge and that the parole provisions relating to kidnapping should apply to the entire 40-year term.
*21Moreover, even if we assume, as the State contends, that the trial court acted under N.C. Gen. Stat. § 15A-1340.4(a) and imposed “a prison term pursuant to any plea arrangement as to sentence under Article 58 of [that] Chapter,” the State has made no showing that the State and Lineberger intended that the 40-year sentence be attributed entirely to kidnapping. Nothing in the record factually supports a finding that the 40-year sentence was reached by agreeing to a sentence of 40 years for kidnapping based on Lineberger’s habitual felon status, as opposed to calculating sentences for each charge and totaling them.
The latter approach is more consistent with the parties’ agreement that the State would not treat Lineberger as a habitual felon with respect to the conspiracy charge. Since habitual felon status would have only affected Lineberger’s sentence on the conspiracy charge, such a concession would be meaningless if the parties intended that the kidnapping charge account for the entire 40-year sentence. See State v. Hemby, 333 N.C. 331, 336, 426 S.E.2d 77, 79-80 (1993) (holding, with respect to a sentence imposed pursuant to a judgment consolidating indictments or convictions with equal presumptive terms, that “nothing else appearing in the record,” the Court would “for purposes of appellate review” allocate a Fair Sentencing Act sentence equally among each indictment or conviction (emphasis added)); State v. Nixon, 119 N.C. App. 571, 575, 459 S.E.2d 49, 51 (1995) (applying Hemby to hold that only 12 years of 36-year sentence was attributable to conviction of first degree kidnapping).
Rather than supply this Court with legal authority or evidence of the parties’ intent with respect to the 40-year sentence, defendants urge this Court simply to defer to their interpretation of the controlling statute. They have not, however, pointed to any statute or case authority to support their position. Nevertheless, their argument overlooks the rule of lenity.
“In general, when a criminal statute is unclear, the long-standing rule of lenity ‘forbids a court to interpret a statute so as to increase the penalty that it places on an individual when the Legislature has not clearly stated such an intention.’ ” State v. Crawford, 167 N.C. App. 777, 780, 606 S.E.2d 375, 377-78 (quoting State v. Boykin, 78 N.C. App. 572, 577, 337 S.E.2d 678, 681 (1985)), disc. review denied, 359 N.C. 412, 612 S.E.2d 324 (2005). Although our courts have not specifically considered the question, numerous other jurisdictions have applied the rule of lenity to statutes addressing parole eligibility. See, *22e.g., Bifulco v. United States, 447 U.S. 381, 400-01, 65 L. Ed. 2d 205, 209, 100 S. Ct. 2247, 2259 (1980) (to the extent questions existed regarding the availability of special parole terms as punishment for drug conspiracies, “they must be resolved in accord with the rule of lenity”); State v. Tarango, 185 Ariz. 208, 210, 914 P.2d 1300, 1302 (Ariz. 1996) (“The rule of lenity suggests an interpretation that permits parole eligibility.”); Fields v. Suthers, 984 P.2d 1167, 1172 (Colo. 1999) (holding that rule of lenity applies in construing parole eligibility statute).
By arguing that we should defer to defendants’ construction of the statutes, defendants are necessarily contending that the statutes are ambiguous and subject to construction. See Ledwell v. N.C. Dep’t of Human Res., 114 N.C. App. 626, 631, 442 S.E.2d 367, 370 (1994) (“ ‘Only where the language of the statute is unclear, ambiguous, or fails to answer the specific question at issue should deference be paid to a contested agency interpretation.’ ” (quoting Anderson v. N.C. Dep’t of Human Res., 109 N.C. App. 680, 683, 428 S.E.2d 267, 269 (1993))), disc. review improvidently allowed, 340 N.C. 103, 455 S.E.2d 159 (1995). Yet, if a penal statute is ambiguous, it must be construed in favor of lenity.2 Since defendants have failed to make any attempt to demonstrate that the General Assembly intended the result that they advocate, I see no basis for construing the statute in the manner urged by defendants, with its harsh results.
In sum, I believe that defendants have presented no legal authority that supports their calculation of Lineberger’s parole eligibility. Indeed, the sole case that they cite — like other opinions within that line of authority — contradicts defendants’ reasoning. Further, defendants’ approach cannot be reconciled with the rule of lenity. Because of the lack of support for the position that underlies all of defendants’ arguments, I believe it is unnecessary to address those arguments. I agree with the majority opinion that we should affirm the trial court. Because the question whether Linberger’s sentence is legal or not is immaterial to the issues in this appeal, I cannot agree with the dissent that this appeal represents a collateral attack on a judgment.
. Teasley v. Beck, 155 N.C. App. 282, 574 S.E.2d 137 (2002), disc. review denied, 357 N.C. 169, 581 S.E.2d 755 (2003), upon which defendants rely, did not address the rule of lenity. Significantly, although that opinion applied the United Supreme Court’s principle of deference to agency interpretations of ambiguous statutes, see Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843, 81 L. Ed. 2d 694, 703, 104 S. Ct. 2778, 2782 (1984), the Supreme Court has, as noted above, determined that the rule of lenity applies when parole eligibility is at issue.