An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                              NO. COA13-626
                     NORTH CAROLINA COURT OF APPEALS

                          Filed:    21 January 2014


STATE OF NORTH CAROLINA

      v.                                 Rutherford County
                                         No. 11 CRS 2459
RODNEY LEE WILLIS,
     Defendant.


      Appeal by defendant from judgment entered 29 October 2012

by Judge Laura J. Bridges in Rutherford County Superior Court.

Heard in the Court of Appeals 9 December 2013.


      Roy Cooper, Attorney General,                by   Ann    Stone,      Assistant
      Attorney General, for the State.

      J. Thomas Diepenbrock, for defendant-appellant.


      MARTIN, Chief Judge.


      Defendant    Rodney    Lee    Willis    appeals         from   the    judgment

entered    upon   the   revocation     of    his    probation        for   indecent

liberties with a child.         For the reasons stated herein, we must

vacate the judgment and remand this case to the trial court for

entry of a new judgment consistent with this opinion.

      On 4 August 2010, defendant pleaded guilty to one count of
                                                 -2-
incest and one count of indecent liberties with a child.                                            The

trial    court      entered         a     judgment      upon        the       incest       conviction

imposing an active sentence of 20 to 24 months imprisonment with

credit      for     the       413       days     defendant          spent       in     prejudgment

confinement.             As    to       the    indecent        liberties         with       a    child

conviction,        the       trial      court     entered       a     judgment         imposing      a

suspended sentence of 26 to 32 months imprisonment and placing

defendant on supervised probation for 30 months.                                           The trial

court    did      not    award      credit       for    the    time       defendant         spent   in

prejudgment        confinement            against       his     sentence             for    indecent

liberties with a child.                   The judgments did not indicate whether

the     probationary            sentence          was     to        run        concurrently         or

consecutively with the sentence of active imprisonment.

       On   31     August       2012,      the    State       filed       a    violation        report

alleging that defendant willfully violated the conditions of his

probation.         Defendant admitted to the alleged violations at a

hearing     held        on    29    October       2012.         Based          upon    defendant’s

admission,        the    trial       court     revoked        defendant’s         probation         and

activated his suspended sentence of 26 to 32 months imprisonment

with    credit      for       the    63   days     defendant         spent       in    confinement

awaiting hearing on the probation violation.                              Defendant appeals.

                               _________________________

       Defendant’s sole argument on appeal is that the trial court
                                      -3-
failed    to   fully   credit   his    activated     sentence    for    indecent

liberties with a child.          Specifically, defendant contends the

trial court erred by failing to credit his activated sentence

for indecent liberties with a child with the 413 days he spent

in    prejudgment   confinement   as    a   result    of   the   charges     that

culminated in the sentences imposed on 4 August 2010.

       We review alleged sentencing errors to determine “‘whether

[the] sentence is supported by evidence introduced at the trial

and sentencing hearing.’”         State v. Deese, 127 N.C. App. 536,

540, 491 S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A-

1444(a1) (Cum. Supp. 1996)).          A defendant is entitled to credit

against his sentence for “the total amount of time a defendant

has     spent . . . in     confinement      in     any     State       or   local

correctional . . . institution as a result of the charge that

culminated in the sentence.”          N.C. Gen. Stat. § 15-196.1 (2013).

“The language of section 15-196.1 manifests the legislature’s

intention that a defendant be credited with all time defendant

was in custody and not at liberty as the result of the charge.”

State v. Farris, 336 N.C. 552, 556, 444 S.E.2d 182, 185 (1994).

       Where a defendant has spent time in custody as the result

of multiple charges that culminate in concurrent sentences, each

concurrent sentence is “credited with so much of the time as was

spent in custody due to the offense resulting in the sentence.”
                                           -4-
N.C. Gen. Stat. § 15-196.2 (2013).                A probationary sentence runs

concurrently with a sentence of imprisonment imposed at the same

time, unless otherwise specified by the trial court.                          N.C. Gen.

Stat. § 15A-1346(b) (2013).               In addition, a suspended sentence

that is activated upon revocation of probation is credited with

the time the defendant spent in confinement for the violation of

probation.       State v. Belcher, 173 N.C. App. 620, 623, 619 S.E.2d

567, 569 (2005).             A defendant is therefore entitled to credit

against his or her sentence for all time spent in confinement on

a   particular        charge,    whether    prejudgment          or    postconviction.

State v. Reynolds, 164 N.C. App. 406, 408, 595 S.E.2d 788, 789

(2004).

       The record in this case reveals that defendant spent 413

days in prejudgment confinement as a result of both the incest

and indecent liberties with a child charges that culminated in

the sentences imposed on 4 August 2010 as well as 63 days in

confinement awaiting hearing on the probation violation.                             The

trial    court       properly   credited     defendant’s         activated     sentence

with     the    63    days    defendant     spent       in     confinement     for   the

violation of probation.            See Belcher, 173 N.C. App. at 623, 619

S.E.2d    at    569.      The    trial   court    should       have,    however,     also

credited       the   activated    sentence       with    the    413    days   defendant

spent     in     prejudgment      confinement.               Because    the    original
                                            -5-
judgments did not           specify whether the sentences were                         to run

concurrently or consecutively, the sentences ran concurrently.

See N.C. Gen. Stat. § 15A-1346(b).                        The concurrent sentences,

therefore,     should      have     both    been     credited       with     413      days   of

prejudgment confinement.             See N.C. Gen. Stat. § 15-196.2; State

v.   Dudley,    319       N.C.    656,     660,    356     S.E.2d    361,       364    (1987)

(holding     that    defendant       given    two        concurrent     life       sentences

“should have been credited on both life sentences with time

spent   in   jail     awaiting      trial”).             Accordingly,      we     hold   that

defendant     is    entitled       to    credit     for     the     time     he    spent     in

prejudgment        confinement       against        his     sentence       for      indecent

liberties    with     a    child.        Thus,     we     must    vacate     the   judgment

entered upon revocation of defendant’s probation and remand this

case to the trial court for entry of a new judgment crediting

defendant’s     activated         sentence        with    413    days   of      prejudgment

confinement.

      Vacated and remanded.

      Judges ERVIN and MCCULLOUGH concur.

      Report per Rule 30(e).
