             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-253

                                Filed: 6 March 2018

Durham County, Nos. 06 CRS 59386 and associated cases 07 CRS 0004, 07 CRS
45414, 08 CRS 4803

STATE OF NORTH CAROLINA

            v.

JAMAL M. WATSON, Defendant.


      Appeal by Defendant from order entered 26 September 2016 by Judge Orlando

F. Hudson, Jr. in Durham County Superior Court. Heard in the Court of Appeals 5

September 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Teresa M.
      Postell, for the State.

      Daniel F. Read, for Defendant.


      INMAN, Judge.


      North Carolina law requires a sentencing criminal court to enter an order of

commitment consistent with the judgment entered, and a defendant is entitled to

entry of such order nunc pro tunc where no such order is entered. However, a

commitment order entered nunc pro tunc may not vary the terms of the underlying

judgment, including a requirement that the defendant serve his sentence in the

custody of a state agency. Therefore, a defendant’s sentence does not begin until he
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                                         Opinion of the Court



is actually remitted to the custody of the agency designated in and as required by the

judgment.

       Jamal M. Watson (“Defendant”) appeals from an order denying his Motion for

Appropriate Relief (“MAR”), requesting the superior court strike a detainer filed

against him and enter an order calculating his sentence as served. On appeal,

Defendant, who was in federal custody prior to and following his sentencing in state

court, argues that the trial court was required to enter a commitment order effective

the date of the entry of the underlying criminal judgment, as no commitment order

was entered at that time. As a result, Defendant reasons, the mandate in N.C. Gen.

Stat. § 15A-1353(a) (2009) that “the date of the [commitment] order is the date service

of the sentence is to begin” would require the trial court to hold that Defendant’s state

sentence is served, as he has been in federal custody for the entire length of his state

sentence. We agree with Defendant that the sentencing court was required by state

law to enter a commitment order at the time of judgment and sentencing. However,

because the judgment required his sentence be served “in the custody of: N.C. DOC[,]”

i.e., the North Carolina Department of Correction,1 and an order of commitment


       1  In 2012, the North Carolina General Assembly consolidated the North Carolina Department
of Correction with several other state agencies to form the Department of Public Safety, which includes
the “The Division of Adult Correction, which shall consist of the former Department of Correction.”
Current Operations and Capital Improvements Appropriations Act of 2011, ch. 145, sec. 19.1.(b), 2011
N.C. Sess. Laws 535. See also N.C. Gen. Stat. §§ 143B-600 & 143B-630 (2017) (establishing the
Department of Public Safety and creating the Division of Adult Correction and Juvenile Justice
therein). Thus, we use “N.C. DOC” to refer to both the North Carolina Department of Corrections and
its successor agency, the North Carolina Department of Public Safety, Division of Adult Correction
and Juvenile Justice.

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cannot vary the terms of a judgment, we remand for entry of a commitment order

nunc pro tunc requiring his sentence begin upon his release from federal custody.

                     I. FACTUAL AND PROCEDURAL HISTORY

        Defendant committed the offense of Possession of a Firearm by a Felon on 21

December 2006 and was taken into state custody. Defendant posted bond and was

released from custody the following day. Defendant was indicted on that charge and

as a Habitual Felon on 2 January 2007.

        On 1 May 2007, Defendant was again arrested for Possession of a Firearm by

a Felon and taken into state custody. Defendant again posted bond, and was released

from custody on 2 May 2007. Defendant was indicted on the second Possession of a

Firearm by a Felon charge and a second Habitual Felon charge on 5 May 2008. The

two Possession of a Firearm by a Felon charges and the two Habitual Felon charges

are referred to collectively as the “State Charges.”

        While Defendant’s State Charges were pending, Defendant was indicted on

felony charges in the United States District Court for the Eastern District of North

Carolina on 24 September 2008 (the “Federal Case”).2 Per the indictment filed in

federal court, the Federal Case was unrelated to the State Charges. Defendant was




        2 The State filed a motion to take judicial notice of public records contemporaneously with its
brief. The motion requests this Court take judicial notice of various indictments, a warrant, and
several orders filed and entered in the Federal Case. As set forth infra Part II.A., we grant the State’s
order and include facts contained in these records throughout our recitation of the procedural history
of the case.

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arrested and taken into federal custody by a special agent with the Federal Bureau

of Investigation on 29 September 2009. A detention order was entered in the Federal

Case on 30 September 2008, and Defendant waived a detention hearing on 15 October

2008. Defendant pleaded guilty in the Federal Case on 2 March 2009 and, following

a continuance, was scheduled for sentencing on 6 July 2009.

        After he pleaded guilty and while awaiting sentencing in the Federal Case,

Defendant pleaded guilty to the State Charges on 18 May 2009. The trial court held

a sentencing hearing that day, and, per the plea, Defendant agreed to a consolidated

sentence of 80 months minimum and 105 months maximum imprisonment. On 19

May 2009, the trial court entered its judgment (the “Judgment”) using Administrative

Office of the Courts form AOC-CR-601. Per the language of the form, the Judgment

ordered that Defendant “be imprisoned . . . for a minimum term of: 80 months [and]

for a maximum term of: 105 months in the custody of: N.C. DOC[.]” The trial court

left unchecked boxes on the form indicating Defendant’s sentence would begin

consecutive to any other imposed sentences. The trial court also left unchecked the

boxes   on   the   reverse   of   the   form   in   the    section   titled   “ORDER   OF

COMMITMENT/APPEAL ENTRIES[,]” which would have either denoted notice of

appeal of the judgment by Defendant or ordered “the sheriff or other qualified officer

. . . [to] cause the [D]efendant to be delivered . . . to the custody of the agency named

[in the Judgment] to serve the sentence imposed . . .” (emphasis added).



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          Following his sentencing in state court, judgment was entered against the

Defendant in the Federal Case on 12 November 2009, sentencing him to concurrent

sentences of 180 and 120 months in the custody of the United States Bureau of

Prisons. Defendant began service of his federal sentence but, on 30 March 2016, the

North Carolina Department of Public Safety provided a detainer action letter to the

United States Department of Justice indicating a detainer was filed concerning

Defendant’s sentence on the State Charges.3 The letter, contrary to the Judgment,

stated that the Defendant’s term of imprisonment for the State Charges was “to run

consecutive.”

          Upon learning of the detainer, Defendant filed an MAR on 20 July 2016,

requesting that he “be adjudged to have served all his North Carolina time.” At the

MAR hearing, counsel for Defendant stated that he was not asking for jail credit

towards the term of imprisonment imposed in the Judgment. Instead, counsel for

Defendant stated he was seeking entry of a commitment order nunc pro tunc 12 May

2009, the date of the Judgment, because no such order had been entered at that time

as required by N.C. Gen. Stat. § 15A-1353(a). Defendant’s counsel further reasoned

that, because the statute stated “[u]nless otherwise specified, the date of the

[commitment] order is the date service of the sentence is to begin[,]” N.C. Gen. Stat.




          3   Defendant included the detainer action letter, but not the detainer itself, in the record on
appeal.

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§ 15A-1353(a), Defendant’s sentence under the Judgment should be calculated to

have run beginning 12 May 2009.

      The trial court denied Defendant’s motion by order entered 26 September 2016.

Defendant filed a petition for writ of certiorari to this Court for review of the trial

court’s order, which was granted 29 December 2016.

                                   II. ANALYSIS

A. State’s Motion for Judicial Notice

      The State, by motion filed with its brief, requests this Court take judicial notice

of the following documents from the Federal Case: (1) an indictment; (2) an arrest

warrant; (3) an order of detention; (4) a waiver of detention hearing; (5) a superseding

indictment; (6) a plea agreement; and (7) a motion and order continuing sentencing.

We grant the State’s motion.

      Our Rules of Evidence set forth certain specific requirements allowing for

judicial notice in our state’s trial courts. Rule 201(b) requires that “[a] judicially

noticed fact must be one not subject to reasonable dispute in that it is either (1)

generally known within the territorial jurisdiction of the trial court or (2) capable of

accurate and ready determination by resort to sources whose accuracy cannot

reasonably be questioned.” N.C. Gen. Stat. § 8C-1, Rule 201(b) (2015). A trial court

must take judicial notice under Rule 201 where it is “requested by a party and [the




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court is] supplied with the necessary information.” N.C. Gen. Stat. § 8C-1, Rule

201(d) (2015).

        As for appellate courts, Rule 9 of the North Carolina Rules of Appellate

Procedure states that our “review is solely upon the record on appeal, the verbatim

transcript of proceedings, if one is designated, and any other items filed pursuant to

this Rule 9.” N.C. R. App. P. 9(a) (2017). However, “[a]ppellate courts may take

judicial notice ex mero motu on ‘any occasion where the existence of a particular fact

is important . . . .’ ” Lineberger v. N.C. Dep’t of Correction, 189 N.C. App. 1, 6, 657

S.E.2d 673, 677 (2008) (quoting West v. G.D. Reddick, Inc., 302 N.C. 201, 203, 274

S.E.2d 221, 223 (1981)). Facts subject to judicial notice are those “which are either

so notoriously true as not to be the subject of reasonable dispute or ‘capable of

demonstration by readily accessible sources of indisputable accuracy[.]’ ” Lineberger,

189 N.C. App. at 6, 657 S.E.2d at 677 (quoting West, 302 N.C. at 203, 274 S.E.2d at

223).

        North Carolina law clearly contemplates that our courts, both trial and

appellate, may take judicial notice of documents filed in federal courts. For example,

the North Carolina Utilities Commission is permitted by statute to take judicial

notice of “decisions of State and federal courts, . . . public information and data

published by official State and federal agencies . . . , and such other facts and evidence

as may be judicially noticed by justices and judges of the General Court of Justice.”



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N.C. Gen. Stat. § 62-65(b) (2015). We have also held that questions relating to

criminal custody and dates of incarceration may warrant the taking of judicial notice

of such facts. See State v. Surratt, 241 N.C. App. 380, 385, 773 S.E.2d 327, 331 (2015)

(“[T]his court elects to take judicial notice of defendant’s release date for the indecent

liberties conviction . . . . We also take judicial notice of the fact that defendant was

not actually released from incarceration on 24 September 1995.”).

        The facts and documents introduced with the State’s motion are “capable of

demonstration by reference to a readily accessible source of indisputable accuracy.”

West, 302 N.C. at 203, 274 S.E.2d at 223. The federal court filings are all retrievable

in the form provided by the State from Public Access to Court Electronic Records

(“PACER”)4 and, with the exception of Defendant’s motion to continue sentencing,

they all bear file stamps from the Clerk of the U.S. District Court for the Eastern

District of North Carolina or the signature of a district court judge. Further, they all

display the file number referenced by Defendant in his brief and displayed on other

federal filings already included in the record on appeal.




        4 PACER is “an electric public access service that allows users to obtain case and docket
information online from federal appellate, district, and bankruptcy courts . . . .” PACER, Public Access
to Court Electronic Records, https://www.pacer.gov/ (last visited 19 February 2018). The service “is
available to anyone who registers for an account[,]” id., and a PACER account permits attorneys and
pro se parties to file documents directly with the federal court. Administrative Office of the U.S.
Courts, PACER User Manual 24 (June 2017). It is “available 24 hours a day, seven days a week,
including weekends and holidays[,]” and “provides real-time access to information entered into the
court’s database.” Id. at 24-25.

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       The documents and the contents thereof also bear upon a fact critical to the

disposition of this case: when and whether Defendant was in the custody of the State.

Both parties’ arguments reflect that the issue of State custody is material to the

disposition of this appeal and, as set forth infra Part II.C., we agree. The documents

provided therefore meet the requirements necessary to take judicial notice on appeal

upon the State’s motion. Lineberger, 189 N.C. App. at 6-7, 657 S.E.2d at 677-78

(outlining the requirements for taking judicial notice on appeal but declining to do so

where no motion for judicial notice was filed and the fact in question was not

important to resolution of the appeal).

       Lastly, we note that there is no apparent prejudice to Defendant in taking

judicial notice of these documents. Defendant did not oppose the State’s motion to

take judicial notice, as was his right under our Rules. N.C. R. App. P. 37(a) (2017).

Nor did Defendant file a reply brief to the State’s appellee brief, which relied on the

documents in the motion to take judicial notice in arguing that Defendant’s initial

brief contained factual errors concerning custody. N.C. R. App. P. 28(h) (2017).

Furthermore, both parties provided the MAR court with documents from the Federal

Case at the hearing, and several such documents are already included in the record

on appeal.5 Given that the documents provided are subject to judicial notice and in


       5 Specifically, the judgment in the Federal Case was attached to Defendant’s MAR and
introduced as an exhibit at the MAR hearing. Defendant’s counsel also provided at least two “packet[s]
of documents” to the MAR court, but it is unclear from the transcript how many such packets were



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                                     Opinion of the Court



the absence of any apparent prejudice to Defendant, we grant the State’s motion and

take judicial notice of the provided documents from the Federal Case.

B. Standard of Review

       Defendant contends that this appeal is subject to de novo review, while the

State argues abuse of discretion is the proper standard. The State is correct that, as

a general matter, a denial of an MAR is subject to review under the abuse of discretion

standard. State v. Elliott, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (2006). However,

“[t]his Court reviews the trial court’s conclusions of law in an order denying an MAR

de novo.” State v. Martin, ___ N.C. App. ___, ___, 781 S.E.2d 339, 344 (2016) (citing

State v. Jackson, 220 N.C. App. 1, 8, 727 S.E.2d 322, 329 (2012)). Thus, “if the issues

raised by Defendant’s challenge to [the trial court’s] decision to deny his [MAR] are

primarily legal rather than factual in nature, we will essentially use a de novo

standard of review in evaluating Defendant’s challenges to [the court’s] order.”

Jackson, 220 N.C. App. at 8, 727 S.E.2d at 329 (first and third alteration in original)

(internal citation and quotation marks omitted).

       Here, Defendant challenges the trial court’s MAR order on legal, rather than

factual grounds, asserting that N.C. Gen. Stat. § 15A-1353(a) requires the entry of a

commitment order in this action and determines when his sentence for the State



provided or what was in them. At the very least, Defendant’s counsel’s comments at the hearing
demonstrate that one packet included a document showing that a detainer had been filed against
Defendant. However, we are unable to determine from the record and transcripts whether all the
documents provided by Defendant’s counsel to the MAR court have been included in this appeal.

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Charges begins to run. See, e.g., State v. Hayes, ___ N.C. App. ___, ___, 788 S.E.2d

651, 652 (2016) (“issues of statutory construction are questions of law which we

review de novo on appeal[.]” (internal citation omitted)). Because resolution of

Defendant’s appeal requires interpretation of the statute in question to resolve

whether denial of the MAR was proper, we employ de novo review.

C. The Trial Court Erred in Denying Defendant’s Request for Entry of a Commitment

Order Nunc Pro Tunc Consistent With the Judgment

      N.C. Gen. Stat. § 15A-1353 governs orders of commitment upon sentences of

imprisonment, which “remand[] a defendant to prison in order to carry out a

judgment and sentence.”        Black’s Law Dictionary (10th ed. 2014) (defining

“Commitment Document”).        Under the plain language of the statute, “[w]hen a

sentence includes a term or terms of imprisonment, the court must issue an order of

commitment setting forth the judgment. Unless otherwise specified in the order of

commitment, the date of the order is the date service of the sentence is to begin.” N.C.

Gen. Stat. § 15A-1353(a).

      Defendant argues that the statute’s language is mandatory, and requires entry

of an order of commitment. We agree. “[O]rdinarily, the word ‘must’ and the word

‘shall,’ in a statute, are deemed to indicate a legislative intent to make the provision

of the statute mandatory[.]” State v. House, 295 N.C. 189, 203, 244 S.E.2d 654, 662

(1978).   Thus, the statute’s command that “the court must issue an order of



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commitment setting forth the judgment” mandates entry of such an order upon

imposition of a term of imprisonment. N.C. Gen. Stat. § 15A-1353(a) (emphasis

added).

      Here, the trial court entered its Judgment imposing a term of imprisonment

on Defendant, but it failed to enter an order of commitment for N.C. DOC to take

custody of Defendant for service of that term. Defendant requested entry of such an

order at his MAR hearing, but his motion was denied. Because the trial court was

required to enter a commitment order but did not, Defendant was entitled to the

“other appropriate relief” of a commitment order entered nunc pro tunc 19 May 2009

at his MAR hearing. N.C. Gen. Stat. § 15A-1417(a)(4) (2015).

      Defendant is incorrect, however, in asserting that his sentence should be

calculated beginning 19 May 2009. The statute provides that “[u]nless otherwise

specified in the order of commitment, the date of the order is the date service of the

sentence is to begin[,]” not the date that the sentence “does begin” or “begins.” N.C.

Gen. Stat. § 15A-1353(a) (emphasis added).        Indeed, we doubt that an order of

commitment could conclusively establish the date that a term of imprisonment begins

at all, as it is the judgment that authorizes imprisonment and sets forth its length,

terms, and conditions. Our Supreme Court has held that:

             A valid judgment of a court of competent jurisdiction is the
             real and only authority for the lawful imprisonment of a
             person who pleads or is found guilty of a criminal
             offense. . . . The purpose of a commitment is to advise the


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             prison authorities of the provisions of the judgment. Since
             a commitment has no validity except that derived from the
             judgment, to the extent it fails to set forth or certify the
             judgment accurately the commitment is void and the
             judgment itself controls.

In re Swink, 243 N.C. 86, 90, 89 S.E.2d 792, 795 (1955) (emphasis added) (citation

omitted); see also State v. McAfee, 198 N.C. 507, 508-09, 152 S.E. 391, 392 (1930)

(“The essential point of a judgment imposed in a criminal action is the punishment

and the time when the sentence shall actually begin is not material because it is only

directory. If for any cause the sentence is not executed at the time named the defendant

may again be brought before the court and a new period may be prescribed.” (emphasis

added)); State v. Jackson, 14 N.C. App. 579, 582, 188 S.E.2d 539, 541 (1972) (“A valid

judgment is the only authority for the lawful imprisonment of a person and when the

commitment fails to set forth the judgment correctly it is void and the judgment itself

controls.” (citing Swink, 243 N.C. 86, 89 S.E.2d 792)). Thus, if a judgment establishes

that a term of imprisonment must be served in the custody of a particular State

agency, it follows that such a term cannot begin until custody is actually remitted to

that agency or its successor. As such, the commitment order’s date setting forth when

a term “is to begin,” N.C. Gen. Stat. § 15A-1353(a), simply “advise[s]” the authorities

as to when custody should be remitted to the designated custodial agency, and its

terms cannot vary or depart from the provisions of the underlying judgment. Swink,

243 N.C. at 90, 89 S.E.2d at 795. This reading comports with another subsection of



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                                   Opinion of the Court



the same statute, which establishes that “[u]nless a later time is directed in the order

of commitment, . . . the sheriff must cause the defendant to be placed in custody of

the agency specified in the judgment on the day service of [the] sentence is to begin

or as soon thereafter as practicable.” N.C. Gen. Stat. § 15A-1353(c) (2015).

      Our holding is consistent with our Supreme Court’s decision in State v.

Cockerham, 2 Ired. Law 204, 24 N.C. 204 (1842). There, a defendant was sentenced

to two months imprisonment “from and after 1 November next[,]” but was not actually

taken into custody and imprisoned consistent with that language. Id. at 205, 24 N.C.

at 205. After those two months had elapsed, the defendant was ordered taken into

custody at the next term of court to serve his two month sentence. Id. at 204, 24 N.C.

at 204. On appeal, our Supreme Court drew essentially the same distinction that we

draw between modern judgments and orders of commitment, holding that “[t]he

judgment is the penalty of the law, as declared by the court, while the direction, with

respect to the time of carrying it into effect, is in the nature of an award of

execution[.]” Id. at 205, 24 N.C. at 205. On such a distinction, and irrespective of the

fact that the two months had elapsed, the Supreme Court held that “[u]pon the

defendant appearing in court and his identity not being denied, and it being admitted

that the sentence of the court had not been executed, it was proper to make the

necessary order for carrying the sentence into execution.” Id. at 205, 24 N.C. at 205.




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      Here, the Judgment sentenced Defendant to a minimum of 80 months and

maximum of 105 months imprisonment “in the custody of: N.C. DOC[.]” By the very

terms of the Judgment, Defendant’s sentence requires him to spend at least 80

months in the custody of the N.C. DOC, and such a term necessarily cannot begin to

run until he is actually remitted into the agency’s custody. Thus, while Defendant is

entitled to a commitment order under N.C. Gen. Stat. § 15A-1353(a), neither the date

of that order nor the delay in its entry can begin Defendant’s sentence in

contravention of the express terms of the Judgment. See McAfee, 198 N.C. at 508,

152 S.E. at 392 (“Why a commitment was not issued promptly . . . does not appear;

but the delay cannot defeat the object of the prosecution or exempt the defendant from

liability to punishment.” (emphasis added)); see also Swink, 243 N.C. at 90, 89 S.E.2d

at 795; Cockerham, 2 Ired. Law at 205, 24 N.C. at 205; Jackson, 14 N.C. App. at 582,

188 S.E.2d at 541. The date Defendant’s sentence begins (or began) to run is therefore

the date at which he is (or was) actually taken into custody by the N.C. DOC.

      Reviewing the record, transcripts, and the documents of which we take judicial

notice, it appears Defendant was not remitted into the custody of the N.C. DOC, let

alone State custody, at the time he was sentenced and the Judgment was entered or

anytime thereafter. While Defendant was in State custody on the two dates he was

arrested for the different State Charges, Defendant was released from custody on

bond on the day following each arrest. See, e.g., Burgwyn v. Hall, 108 N.C. 489, 490,



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348,13 S.E. 222, 222 (1891) (“[T]he defendant may, under an order of arrest duly

obtained, be arrested and held in custody, unless he shall, as he may do in the way

prescribed, give bail . . . .”); State v. Howell, 166 N.C. App. 751, 753, 603 S.E.2d 901,

903 (2004) (construing “release” as used in a statute within the article of the Criminal

Procedure Act governing bail to mean “ ‘to set or make free’ from the supervision and

control of the court, as well as from imprisonment” (citation omitted)). Defendant

was next taken into custody by the federal government when he was arrested by an

FBI agent on 29 September 2008. The federal government’s custody of Defendant

continued, as an order of temporary detention pending hearing was entered on 30

September 2008, and Defendant waived the subsequent detention hearing on 15

October 2008. Nothing in the record indicates Defendant was ever released from

federal custody, and he did not contest this fact, introduced by the State in its brief

and motion to take judicial notice, through a reply brief or opposition to the State’s

motion.

      Defendant’s sole basis for arguing that he was in State custody at the time he

was sentenced on the State Charges is a statement from the judge at sentencing that

“[Defendant’s] in custody.”     We are unpersuaded.       First, the transcript of the

sentencing hearing appears incomplete, as it begins in medias res rather than at the

calling of Defendant’s case.     Second, the transcript failed to capture a bench

conference that occurred immediately following this statement. Third, the statement



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does not disclose whose custody Defendant was in, and fourth, a state court judge

cannot, by oral proclamation, place a defendant already in un-relinquished federal

custody into state custody. See, e.g., Ponzi v. Fessenden, 258 U.S. 254, 260-61, 66

L.Ed. 607, 611 (1922) (“[A defendant] may not complain if one sovereignty waives its

strict right to exclusive custody of him for vindication of its laws in order that the

other may also subject him to conviction of crime against it. Such a waiver is a matter

that addresses itself solely to the discretion of the sovereignty making it . . . . In the

case at bar, the Federal District Court first took custody of Ponzi. . . . Until the end

of his term and his discharge, no state court could assume control of his body without

the consent of the United States.” (citation omitted) (emphasis added)). Thus, absent

any indication that the federal government relinquished or waived custody of

Defendant, the trial court was without authority to order the State to assume it.6

       Indeed, the record below shows that the State did not assume custody of

Defendant. As noted by the Defendant, no order of commitment was ever entered

directing the sheriff to take Defendant under his control and deliver Defendant to

N.C. DOC. Nor did the N.C. DOC take Defendant into custody by other means

between his sentencing and the time of the MAR hearing. At that hearing, the State



       6  While Defendant was present in state court for entry of his plea and sentencing, this alone
does not demonstrate a waiver of custody by the United States. See, e.g., United States v. Evans, 159
F.3d 908, 912 (4th Cir. 1998) (noting that a writ of habeas corpus ad prosequendum allows a federal
prisoner to appear in state court to face state criminal charges, but that the United States “does not
relinquish its custodial authority over the prisoner when the prisoner is sent to the receiving
jurisdiction”).

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introduced as an exhibit a certified copy of Defendant’s “pen pack” maintained by the

N.C. DOC, which shows Defendant was last in the agency’s custody on 21 July 2006.

Defendant’s counsel acknowledged at the MAR hearing that the State did not assume

custody at the time of sentencing, stating “[s]ometime in May of 2009 he was

transferred from court here back to federal – to federal custody to await trial there.”

Because the evidence shows Defendant was never remitted into the custody of the

N.C. DOC and his sentence cannot begin to run consistent with the Judgment until

he is so remitted, we hold that Defendant’s sentence for the State Charges had not

begun to run at the time of the MAR hearing.

      Defendant argues that the result of our holding is contrary to the plea agreed

to by Defendant and the State, as he pleaded guilty to an “active sentence.” However,

the designation of a sentence as active has no bearing on the issues raised by

Defendant on appeal.      The relevant definitional statute governing Defendant’s

sentencing defines “[a]ctive punishment” as “[a] sentence in a criminal case that

requires an offender to serve a sentence of imprisonment and is not suspended.” N.C.

Gen. Stat. § 15A-1340.11 (2015). Such a sentence was imposed on Defendant by the

Judgment, and he must serve it. Properly calculating when Defendant’s service of

that sentence begins is entirely unrelated to whether the sentence is active or

suspended.




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      Defendant cites Kiendra v. Hadden, 763 F.2d 69, 72-73 (2nd Cir. 1985), to

support his argument that his sentence has already been served. We are not bound

by federal circuit court decisions. See In re Truesdell, 313 N.C. 421, 428-29, 329

S.E.2d 630, 634-35 (1985).      Also, Defendant’s reliance on Kiendra is otherwise

misplaced. The Fourth Circuit discussed but did not adopt Kiendra in United States

v. Grant, 862 F.3d 417 (4th Cir. 2017), when it upheld a district court’s denial of a

prisoner’s request for credit towards a federal sentence. 862 F.3d at 420-21 (“We note

at the outset of our analysis that we are not at all sure a federal common law right to

credit for time erroneously spent at liberty currently exists. As the First Circuit has

noted, legal developments in the decades since White [v. Pearlman, 42 F.2d 788 (10th

Cir. 1930),] cast some doubt on the current validity of the doctrine.”           (citation

omitted)). Finally, two other federal circuit courts have categorically rejected the

argument that a defendant should be deemed to have served his sentence as of the

date of sentencing due to a delay in commencement. Little v. Holder, 396 F.3d 1319,

1321-22 (11th Cir. 2005) (“[A] delay in the commencement of a sentence cannot, by

itself, constitute service of that sentence.” (citation omitted)); Leggett v. Fleming, 380

F.3d 232, 235 (5th Cir. 2004) (“[T]his court has expressly held that a prisoner is not




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                                         Opinion of the Court



entitled to a credit when there is merely a delay in the execution of one’s sentence.”

(citations omitted)).7

        Here, there is no indication that the federal government surrendered

Defendant to State custody and the State refused to exercise it. Furthermore, the

petitioner in Kiendra was committed at the time of his federal sentencing to federal

custody, and that order was not followed; here, no commitment order was entered,

and, even if it had been, it could not have contravened the Judgment’s mandate that

Defendant serve his sentence in the custody of N.C. DOC. Rather than frustrate the

judgments of the state and federal courts in this case, our decision vindicates them.

The state court ordered Defendant to serve his sentence in the custody of N.C. DOC

prior to the imposition of any federal sentence, meaning it was neither consecutive




        7 The facts in Kiendra are also distinguishable. There, the petitioner was convicted of a federal
crime, with the sentence to begin upon expiration of a state sentence he was then serving. 763 F.2d
at 70. The federal government filed a detainer with the state where the petitioner was imprisoned
but, when the state authorities presented him to federal marshals, the marshals refused to accept him
into their custody. Id. at 70. The petitioner was later arrested and convicted again in state court,
which, aware of the unserved federal sentence, sentenced defendant to serve his state sentence in a
federal penitentiary concurrent with the unserved federal sentence. Id. at 70-71. The state presented
the petitioner to federal marshals for imprisonment on three more occasions, and the marshals refused
custody each time. Id. at 71. However, once the petitioner had served his state sentence in state
prison rather than the intended federal prison, the marshals took custody of the petitioner and
imprisoned him in a federal penitentiary to serve his federal sentence. Id. at 71. The Kiendra court
held that the petitioner should receive credit on his federal sentence running from the date he was
first committed by the federal court, as holding otherwise would be contrary to the federal court’s
intention that the petitioner’s sentence begin on the date he was originally committed and to the state
court’s intention that his state sentence run concurrently with the federal sentence. Id. at 72-73.




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                                       STATE V. WATSON

                                       Opinion of the Court



nor concurrent to the as-yet non-existent federal sentence.8 And North Carolina law

does not allow time in federal custody to be credited towards a state sentence. See,

e.g., State v. Lewis, 231 N.C. App. 438, 447, 752 S.E.2d 216, 222 (2013) (“Because no

statute specifically authorizes credit for time spent in federal custody, the trial court

had no discretion under the Structured Sentencing Act to reduce defendant’s sentence

for his time in federal custody.”). Thus, the Judgment is effectuated by Defendant

serving his sentence in N.C. DOC custody without consideration of the federal

sentence. As to the federal sentence itself, the United States District Court for the

Eastern District of North Carolina ordered that sentence “be served consecutively

with any state charges the defendant is currently serving time for[,]” obviously

evincing an intention that the federal sentence run separate and consecutive with

any state sentence, such as the Judgment.

                                     III. CONCLUSION

       Defendant is entitled to the appropriate relief of an order of commitment

entered nunc pro tunc 19 May 2009, the date he was sentenced under the Judgment,

and the trial court which initially sentenced Defendant, as well as the trial court

presiding at his MAR hearing, erred in failing to do so contrary to a statutory




       8 “When multiple sentences of imprisonment are imposed on a person at the same time or when
a term of imprisonment is imposed on a person who is already subject to an undischarged term of
imprisonment, including a term of imprisonment in another jurisdiction, the sentences may run either
concurrently or consecutively, as determined by the court.” N.C. Gen. Stat. § 15A-1354 (2009)
(emphasis added).

                                               - 21 -
                                  STATE V. WATSON

                                  Opinion of the Court



mandate. N.C. Gen. Stat. § 15A-1353(a). However, the Judgment requires Defendant

to serve a minimum of 80 months and maximum of 105 months imprisonment in the

custody of the N.C. DOC, and his sentence cannot be said to run until he is remitted

into the agency’s custody.    We therefore remand for entry of such an order of

commitment, with the instruction that the order state Defendant’s sentence is to

begin on the date he is released from federal custody.

      REMANDED WITH INSTRUCTIONS.

      Judges BRYANT and DAVIS concur.




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