              IN THE SUPREME COURT OF NORTH CAROLINA
                                  No. 514PA08-3
                             Filed 19 December 2014

STATE OF NORTH CAROLINA

             v.

BOBBY E. BOWDEN



      On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 747 S.E.2d 617 (2013), affirming an

order entered on 8 May 2012 by Judge Gregory A. Weeks in Superior Court,

Cumberland County. Heard in the Supreme Court on 15 April 2014.


      Roy Cooper, Attorney General, by Joseph Finarelli, Special Deputy Attorney
      General, for the State-appellant.

      Staples S. Hughes, Appellate Defender, by Katherine Jane Allen, Assistant
      Appellate Defender, for defendant-appellee.


      NEWBY, Justice.

      In this case we determine whether the various credits defendant Bobby E.

Bowden has accumulated during his incarceration must be applied to reduce his

sentence of life imprisonment,       thereby   entitling   him   to   immediate   and

unconditional release.   Our previous holdings regarding the particular class of

inmates that includes defendant mandate the conclusion that defendant remains

lawfully incarcerated. Accordingly, we reverse the decision of the Court of Appeals.
                                  STATE V. BOWDEN

                                   Opinion of the Court



      On 20 December 1975, defendant was convicted of two counts of first-degree

murder and one count of armed robbery in Superior Court, Cumberland County,

and was later sentenced to death. On direct appeal in 1976, this Court vacated

defendant’s death sentence and remanded the case with directives to impose life

sentences for the two counts of first-degree murder, in accord with Woodson v.

North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). State v.

Bowden, 290 N.C. 702, 717, 228 S.E.2d 414, 424 (1976) (“Bowden I ”). Upon remand

of this case to the trial court, defendant received two life sentences to run

concurrently.

      Notably, defendant is one of a limited group of prisoners, referred to herein as

the Bowden-class inmates, who committed offenses between 8 April 1974 and 30

June 1978 and received death sentences that were later reduced to life

imprisonment. The version of section 14-2 of the North Carolina General Statutes

in effect during that time period stated that “[a] sentence of life imprisonment shall

be considered as a sentence of imprisonment for a term of 80 years in the State’s

prison.” N.C.G.S. § 14-2 (Supp. 1974). Defendant has accrued various credits while

incarcerated, including good time, gain time, and merit time. For Bowden-class

inmates serving a life sentence, the Department of Correction (“DOC”)1 has applied

these credits towards privileges like obtaining a lower custody grade or earlier


      1  Effective January 2012, the DOC was renamed the Department of Public Safety.
Act of June 4, 2011, ch. 145, sec. 19.1.(a), 2011 N.C. Sess. Laws 253, 535 (“Current
Operations and Capital Improvements Appropriations Act of 2011”).

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                                  STATE V. BOWDEN

                                   Opinion of the Court



parole eligibility, but not towards the calculation of an unconditional release date.

Lovette v. N.C. Dep’t of Corr., 366 N.C. 471, 737 S.E.2d 737 (per curiam), cert.

denied, ___ U.S. ___, 134 S. Ct. 394, 187 L. Ed. 2d 168 (2013); Jones v. Keller, 364

N.C. 249, 254, 698 S.E.2d 49, 54 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 2150,

179 L. Ed. 2d 935 (2011). The DOC applied some of defendant’s credits towards

earlier parole eligibility.   The Parole Commission has periodically reviewed

defendant’s parole eligibility according to law since 1987 and denied defendant

parole after each review. In December 2005 defendant filed a petition for writ of

habeas corpus ad subjiciendum, claiming he was entitled to immediate release from

prison because, after applying all his various credits, he had completed his eighty-

year life sentence. The trial court denied defendant’s petition by an order dated 25

January 2006.

      Defendant petitioned the Court of Appeals for review. Treating defendant’s

petition for writ of certiorari as a motion for appropriate relief, the Court of Appeals

vacated the 25 January 2006 order and remanded the matter for an evidentiary

hearing under N.C.G.S. § 15A-1420. Following that hearing, the trial court entered

an order on 27 August 2007 once again denying defendant’s claim for relief.

      Defendant appealed the denial of his motion for appropriate relief. The Court

of Appeals held that N.C.G.S. § 14-2 (1974) regards defendant’s life sentence as an

eighty-year sentence “for all purposes” “without any limitation or restriction.” State

v. Bowden, 193 N.C. App. 597, 600-01, 668 S.E.2d 107, 109-10 (2008) (“Bowden II”),


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                                  STATE V. BOWDEN

                                  Opinion of the Court



disc. rev. improvidently allowed per curiam, 363 N.C. 621, 683 S.E.2d 208 (2009).

The Court of Appeals reversed the trial court’s order and remanded “for a hearing to

determine how many sentence reduction credits defendant is eligible to receive and

how those credits are to be applied.” Id. at 601, 668 S.E.2d at 110.

      In response to this decision, the DOC calculated projected release dates for

Bowden and all other affected inmates and informed those inmates accordingly.

Nonetheless, in subsequent litigation involving other Bowden-class inmates, the

DOC maintained and successfully defended its position that credits had not been

and should not be applied towards the unconditional release of Bowden-class

inmates. Lovette, 366 N.C. at 472, 737 S.E.2d at 737; Jones, 364 N.C. at 260, 698

S.E.2d at 58; accord Brown v. N.C. Dep’t of Corr., 364 N.C. 319, 320, 697 S.E.2d 327

(2010) (per curiam).

      In this case, upon remand from the Court of Appeals, the trial court held a

hearing and entered an order on 8 May 2012, concluding that defendant had a

liberty interest in good time, gain time, and merit time credits that he earned

between 1975 and October 2009. The trial court ruled that all of defendant’s credits

should be applied to his sentence for all purposes, including calculating an

unconditional release date.    Further, the trial court concluded that the DOC’s

refusal to apply defendant’s credits in this way violated his rights under both the

Due Process Clause and the Ex Post Facto Clause of the United States Constitution.

Upon applying all of defendant’s credits to his eighty-year life sentence, the trial


                                          -4-
                                  STATE V. BOWDEN

                                  Opinion of the Court



court determined that defendant had served his entire sentence, that his

unconditional release date was 13 October 2009, and that he should have been

released on 29 October 2009. The trial court ordered the DOC to release defendant

unconditionally by 11 May 2012, but stayed its order the following day pending final

appellate review.

      On appeal the Court of Appeals affirmed the trial court. State v. Bowden, ___

N.C. App. ___, ___, 747 S.E.2d 617, 630 (2013). The Court of Appeals noted, inter

alia, that the DOC applied credits towards the calculation of defendant’s

unconditional release date following its decision in Bowden II in 2008 and this

Court’s silence on the merits of that case in 2009. Id. at ___, 747 S.E.2d at 619. To

support its determination, the Court of Appeals pointed to the presence of the word

“applied” in defendant’s computerized credit records and informal internal

discussions among DOC employees following Bowden II. Id. at ___, 747 S.E.2d at

621-22. The trial court and the Court of Appeals contended this evidence rendered

our previous decision in Jones, regarding an otherwise indistinguishable defendant,

inapplicable. Id. at ___, 747 S.E.2d at 621.

      The State sought review in this Court via a petition for writ of certiorari,

which we allowed to decide whether our decision in Jones controls the outcome of

this case.   State v. Bowden, 367 N.C. 267, 267, 749 S.E.2d 847, 848 (2013).

Defendant argues, as did the defendant in Jones, that when his various credits are

applied to his statutorily defined eighty-year life sentence, he is entitled to


                                          -5-
                                  STATE V. BOWDEN

                                   Opinion of the Court



immediate and unconditional release. See Jones, 364 N.C. at 252, 698 S.E.2d at 52-

53. Again like the defendant in Jones, defendant contends the DOC’s refusal to

apply his credits in this way infringes on his due process protected liberty interests

and subjects him to an unconstitutional ex post facto law. Id. at 256, 698 S.E.2d at

55.

      In   all   significant   ways,   the     issues     presented   by   this   case   are

indistinguishable from those resolved by our decision in Jones. In Jones the trial

court ruled that Alford Jones, a Bowden-class defendant who was convicted of first-

degree murder and whose death sentence was subsequently reduced to life

imprisonment, was entitled to receive credits for all purposes and to have those

credits applied towards his unconditional release. Id. at 251, 698 S.E.2d at 52.

Jones also argued that after Bowden II, the DOC applied his credits in calculating

an unconditional release date of which he was informed. This Court rejected that

reasoning and concluded that the DOC possessed “statutorily and constitutionally

permissible authority” to apply Jones’s credits “for limited purposes that did not

include calculating an unconditional release date.” Id. at 252, 698 S.E.2d at 53.

      Though we noted that the DOC does not have unfettered discretion, we

recognized that the General Assembly has delegated certain authority to the DOC

to govern prisoners and administer criminal sentences. Id. at 252-53, 698 S.E.2d at

53; see N.C.G.S. § 148-11 (1974) (“The Commissioner [of Correction] shall propose

rules and regulations for the government of the State prison system, which shall


                                             -6-
                                 STATE V. BOWDEN

                                 Opinion of the Court



become effective when approved by the Commission of Correction.”); id. § 148-11

(2013) (“The Secretary shall adopt rules for the government of the State prison

system.”); see also id. § 148-4 (1974) (“The Commissioner of Correction shall have

control and custody of all prisoners serving sentence in the State prison system, and

such prisoners shall be subject to all the rules and regulations legally adopted for

the government thereof.”); id. § 148-4 (2013) (same with exception of substituting

the Secretary of Public Safety for the Commissioner of Correction); id. § 148-13

(1974) (stating that the Department’s regulations include provisions governing

“rewards and privileges applicable to the several classifications of prisoners as an

inducement to good conduct [and] allowances of time for good behavior.”); id. § 148-

13 (2013) (authorizing the Secretary of Public Safety to “issue regulations regarding

. . . the privileges and restrictions applicable to each custody grade”).        The

application of credits earned during incarceration falls under the “strictly

administrative” discretion allotted to the DOC and remains “outside the purview of

the courts.” Jones, 364 N.C. at 255, 698 S.E.2d at 55 (citation and quotation marks

omitted). Recognizing this statutory delegation of administrative discretion, this

Court in Jones deferred to the DOC’s policies for governing prisoners so long as

those policies remained within constitutional bounds. Id. at 256-57, 698 S.E.2d at

55-56.   We noted that the DOC had never applied these credits towards the

calculation of an unconditional release date for a Bowden-class inmate. Id. at 254-

55, 698 S.E.2d at 54-55.


                                         -7-
                                  STATE V. BOWDEN

                                  Opinion of the Court



        The DOC’s exercise of authority in Jones did not exceed constitutional limits

despite the defendant’s claims that, inter alia, the DOC’s actions violated his due

process rights and subjected him to an unconstitutional ex post facto law. Id. at

256, 698 S.E.2d at 55. This Court concluded that a prisoner’s de minimis liberty

interest in having his various credits applied towards his desired purpose of

unconditional release must be balanced against the State’s corresponding and

compelling interest in public safety. Id. at 256-58, 698 S.E.2d at 55-56. As such,

the DOC may apply those credits for limited purposes, such as earlier parole

eligibility, but decline to reduce the remaining sentence. Id. at 254-55, 257, 698

S.E.2d at 54, 56. Ultimately, we determined that because he had “no State-created

right to have his time credits used to calculate his eligibility for unconditional

release[,] Jones’s due process rights ha[d] not been violated.” Id. at 257, 698 S.E.2d

at 56.     Likewise, the DOC’s policy to refuse to apply these credits towards

calculating an unconditional release date for a Bowden-class inmate serving a life

sentence did not constitute an ex post facto violation. Id. at 259, 698 S.E.2d at 57.

        In Jones we thoroughly reviewed and rejected the same arguments advanced

by defendant here—that a Bowden-class inmate serving a life sentence is entitled to

have his credits applied for all purposes, including immediate and unconditional

release.   We have since extended our holding in Jones to other Bowden-class

defendants to deny them the application of credits towards an unconditional release

date.    Lovette, 366 N.C. at 472, 737 S.E.2d at 737 (holding that Bowden-class


                                          -8-
                                   STATE V. BOWDEN

                                   Opinion of the Court



inmates convicted of second-degree murder and second-degree burglary were not

entitled to have their credits applied towards calculating an unconditional release

date); Brown, 364 N.C. at 320, 697 S.E.2d at 327 (holding that a Bowden-class

inmate convicted of first-degree felony murder was not entitled to have her credits

applied towards calculating an unconditional release date).           In erroneously

distinguishing Jones from the case at hand, the trial court and the Court of Appeals

placed great emphasis on the DOC’s attempt to interpret and implement the Court

of Appeals’ ruling in Bowden II by calculating a proposed release date.           But

defendant has no State-created right to his unconditional release based on an

agency’s good faith interpretation of, and actions taken to comply with, a ruling that

is later found to be contrary to law. The DOC is charged with ensuring public

safety and facilitating the orderly release and supervision of criminal defendants,

some of whom have been convicted of the most heinous crimes. We must not force

the DOC to reverse its long-standing policies in response to lower court directives

that prove inconsistent with those ultimately determined by this Court. To decide

otherwise would undermine the State’s ability to react to court decisions while still

seeking further judicial review.

      Defendant here, like Jones, is a member of the Bowden class of inmates who

are all serving life sentences. The nature and severity of the offenses warranting a

life sentence remains the same, and the DOC retains the same implicit discretion in

governing these inmates.       Moreover, the DOC bears the same significant


                                           -9-
                                  STATE V. BOWDEN

                                  Opinion of the Court



responsibility to ensure the release and subsequent supervision of only those

prisoners who are prepared to return safely to society. Because defendant’s status

is indistinguishable from that of the defendant in Jones, he must be treated equally

under the law. The DOC has never applied these credits towards the calculation of

an unconditional release date for a Bowden-class inmate. Therefore, we hold that

defendant, like Jones, remains lawfully incarcerated and is not entitled to release.

The decision of the Court of Appeals affirming the trial court’s order to the contrary

is reversed.



        REVERSED.

        Justice HUNTER did not participate in the consideration or decision of this

case.




                                         -10-
                                  STATE V. BOWDEN

                                 HUDSON, J., dissenting



514PA08-3 – State v. Bowden


      Justice HUDSON dissenting.


      The majority holds that Bobby Bowden must remain incarcerated, despite the

unchallenged fact that he has accumulated good time, gain time, and merit time

credits which, if applied, would have entitled him to release in October 2009. Here I

conclude that, unlike in Jones v. Keller, 364 N.C. 249, 698 S.E.2d 49 (2010), cert.

denied, ___ U.S. ___, 179 L. Ed. 2d 935 (2011), the North Carolina Department of

Correction (“DOC”) actually applied the prison credits to defendant Bowden’s

record, and it may not now take those credits away without violating his

constitutional rights. Accordingly, I respectfully dissent.

      The majority bases its decision primarily on this Court’s opinion in Jones v.

Keller, 364 N.C. 249, 698 S.E.2d 49. However, in my view, Jones does not control

the outcome of this case. Central to the outcome in Jones was the trial court’s

factual finding, based on competent evidence, that the DOC had not actually

applied credits to the defendant’s account for purposes of calculating his

unconditional release date. If it had done so, clear and binding precedent from the

Supreme Court of the United States would have required his release on the date as

calculated there. Here, however, the trial court found as fact that credits had been

applied for this purpose—a factual finding of paramount importance which the

majority has largely ignored. Because we are bound on appeal by that finding, just


                                         -11-
                                    STATE V. BOWDEN

                                   HUDSON, J., dissenting



as we are bound by the Supreme Court’s interpretations of federal constitutional

law, I conclude that defendant Bowden was entitled to release in October 2009 and

that his continued detention violates the United States Constitution.

       To begin with, the majority opinion conflicts with binding precedent from the

Supreme Court of the United States. As it did in Jones, the majority characterizes

the liberty interest at stake here as “de minimis.” State v. Bowden ___ N.C. ___,

___, ___ S.E.2d ___, ___ (2014) (“This Court concluded that a prisoner’s de minimis

liberty interest in having his various credits applied towards his desired purpose of

unconditional release must be balanced against the State’s corresponding and

compelling interest in public safety.”); Jones, 364 N.C. at 257, 698 S.E.2d at 56

(“Thus, [the defendant’s] liberty interest, if any, in having these credits used for the

purpose of calculating his date of unconditional release is de minimis, particularly

when contrasted with the State’s compelling interest in keeping inmates

incarcerated until they can be released with safety to themselves and to the

public.”). From this premise, it would seem naturally to follow that such credits are

entitled to little, if any, constitutional protection.

       But this is not what the Supreme Court of the United States has said. In

Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935 (1974), the Court addressed

whether good time credits authorized by state statute were protected by the Due

Process Clause of the Fourteenth Amendment. Id. at 553-58, 41 L. Ed. 2d at 949-

52. The Court opined:


                                            -12-
                                     STATE V. BOWDEN

                                   HUDSON, J., dissenting



                     We also reject the assertion of the State that
              whatever may be true of the Due Process Clause [of the
              Fourteenth Amendment] in general or of other rights
              protected by that Clause against state infringement, the
              interest of prisoners in disciplinary procedures is not
              included in that “liberty” protected by the Fourteenth
              Amendment. It is true that the Constitution itself does
              not guarantee good-time credit for satisfactory behavior
              while in prison. . . . But the State having created the right
              to good time and itself recognizing that its deprivation is a
              sanction authorized for major misconduct, the prisoner’s
              interest has real substance and is sufficiently embraced
              within Fourteenth Amendment “liberty” to entitle him to
              those minimum procedures appropriate under the
              circumstances and required by the Due Process Clause to
              insure that the state-created right is not arbitrarily
              abrogated.

Id. at 556-57, 41 L. Ed. 2d at 951 (internal citation omitted);        2   see also Weaver v.

Graham, 450 U.S. 24, 30-31, 67 L. Ed. 2d 17, 24 (1981) (“Thus, even if a statute

merely alters penal provisions accorded by the grace of the legislature, it violates

the [Ex Post Facto] Clause if it is both retrospective and more onerous than the law

in effect on the date of the offense.”). So despite the determination of the Supreme

Court of the United States that the liberty interest in prison credits “has real

substance” protected by the Fourteenth Amendment, the majority here holds that

this interest is “de minimis.” Failing even to mention Wolff, the majority concludes


       2 Wolff may have been abrogated in some respects, but not on this point. In fact, the
Supreme Court has recently cited Wolff for just this proposition. See Wilkinson v. Austin,
545 U.S. 209, 221, 162 L. Ed. 2d 174, 189 (2005) (citing Wolff, 418 U.S. at 556-558, 41 L. Ed.
2d at 951-52, for the proposition that there is a “liberty interest in avoiding withdrawal of
state-created system of good-time credits”)). Accordingly, there is no credible argument
that the passage of time, or other doctrinal developments, have lessened our obligation to
comply with Wolff.

                                            -13-
                                 STATE V. BOWDEN

                                HUDSON, J., dissenting



that the State can continue to imprison Bobby Bowden, regardless of the number of

credits he has earned to reduce his sentence, without violating the constitutional

promise of due process.

      The majority here can only justify characterizing defendant Bowden’s liberty

interest in prison credits as de minimis—despite the Supreme Court’s explicit

holding to the contrary—by inaccurately characterizing the facts found by the trial

court regarding what is at stake. As noted, the majority in Jones described the

defendant’s liberty interest as his interest “in having these credits used for the

purpose of calculating his date of unconditional release.”    364 N.C. at 257, 698

S.E.2d at 56. Today’s majority writes similarly. Here, however, the trial court

found that the credits had already been applied to defendant Bowden’s account—

and the difference between applying the earned credits, and not applying them, is

the difference between freedom and incarceration.        Certainly to defendant and

others behind bars, this interest is anything but “de minimis.”

      But my disagreement does not end with the Due Process Clause of the

Fourteenth Amendment. Today’s majority also ignores the opinion of the Supreme

Court of the United States in Lynce v. Mathis, 519 U.S. 433, 137 L. Ed. 2d 63 (1997).

There, the Court addressed the strikingly comparable question of whether the State

of Florida violated the Ex Post Facto Clause of Article I, Section 10 of the United

States Constitution when it awarded early release credits to state inmates, then




                                        -14-
                                  STATE V. BOWDEN

                                 HUDSON, J., dissenting



took those credits away. See id. at 435, 440, 137 L. Ed. 2d at 68, 72. The Court

summarized the relevant facts as follows:

                    In 1986 petitioner pleaded nolo contendere to a
             charge of attempted murder and received a sentence of 22
             years (8,030 days) in prison.         In 1992 the Florida
             Department of Corrections released him from prison
             based on its determination that he had accumulated five
             different types of early release credits totaling 5,668 days.
             Of that total, 1,860 days were “provisional credits”
             awarded as a result of prison overcrowding. Shortly after
             petitioner’s release, the state attorney general issued an
             opinion interpreting a 1992 statute as having
             retroactively canceled all provisional credits awarded to
             inmates convicted of murder or attempted murder.
             Petitioner was therefore rearrested and returned to
             custody. His new release date was set for May 19, 1998.

Id. at 435-36, 137 L. Ed. 2d at 68-69 (footnote call number omitted). Presented with

these facts, the Court concluded unanimously that awarding such credits, and then

revoking them, cannot comport with the constitutional protection against ex post

facto punishment. In an opinion written by Justice Stevens, and joined in full by

six other justices, the Court opined that the guarantee against increasing

punishment after the fact “is only one aspect of the broader constitutional protection

against arbitrary changes in the law.” Id. at 440, 137 L. Ed. 2d at 71. The Court

noted further that this protection also “places limits on the sovereign’s ability to use

its lawmaking power to modify bargains it has made with its subjects.” Id.

      Turning to the specific issue at hand, the Court went on to hold that these

dual protections against arbitrariness and compact-breaking apply to sentence



                                          -15-
                                  STATE V. BOWDEN

                                HUDSON, J., dissenting



reduction credits created and awarded by the State. It noted that “the operation of

the 1992 statute to effect the cancellation of overcrowding credits . . . was clearly

retrospective” and reasoned that this retroactivity narrowed the relevant question

to “whether those consequences disadvantaged petitioner by increasing his

punishment.” Id. at 441, 137 L. Ed. 2d at 72. The Court then concluded that the

petitioner was disadvantaged, and central to this conclusion was the fact that the

credits had already been awarded:

             The 1992 statute has unquestionably disadvantaged
             petitioner because it resulted in his rearrest and
             prolonged his imprisonment. Unlike [actions taken in a
             previous case], the 1992 Florida statute did more than
             simply remove a mechanism that created an opportunity
             for early release for a class of prisoners whose release was
             unlikely; rather, it made ineligible for early release a
             class of prisoners who were previously eligible—including
             some, like petitioner, who had actually been released.

Id. at 446-47, 137 L. Ed. 2d at 75-76 (emphasis in original). Importantly, it is

undisputed that here, like the defendant in Lynce, the application of the credits

Bobby Bowden has already earned would provide him with no mere “opportunity,”

but would entitle him to immediate release.

      As noted, this majority opinion of the United States Supreme Court was fully

endorsed by seven justices. Justice Thomas also wrote a brief opinion, joined by

Justice Scalia, concurring in part and concurring in the judgment. Critically, that

opinion also confirms the central relevance of the fact that the sentence reduction

credits had already been awarded:


                                         -16-
                                  STATE V. BOWDEN

                                HUDSON, J., dissenting



                    Unlike in [a previous case], the increase in
             petitioner’s punishment here was neither “speculative”
             nor “attenuated.” Petitioner pleaded nolo contendere to a
             charge of attempted murder and was duly sentenced.
             During the period of his confinement, petitioner
             accumulated release credits under a state statute adopted
             in response to prison overcrowding. Those credits enabled
             petitioner to be freed from prison before his sentence (as
             originally imposed) had run. . . .

                    Under these narrow circumstances, I agree with
             the Court that the State’s retroactive nullification of
             petitioner's previously accrued, and then used, release
             credits violates the Constitution’s ban on ex post facto
             lawmaking. . . . The present case involves not merely an
             effect on the availability of future release credits, but the
             retroactive elimination of credits already earned and
             used. Accordingly, I concur in part and concur in the
             judgment.

Id. at 450-51, 137 L. Ed. 2d at 77-78 (Thomas & Scalia, JJ., concurring in part and

concurring in the judgment) (emphasis in original).       In light of this concurring

opinion, it is clear that the Court was unanimous on this point. Today’s majority

thus ignores a recent legal holding that commanded nine votes at the Supreme

Court of the United States.

      The import of these cases, then, is also clear:        The State is under no

obligation to create or to award credits that reduce a prisoner’s sentence for a crime

for which he was lawfully convicted. But once it does so, it cannot then arbitrarily

and with no process take those credits back. I would hold that if the State does so,

it violates both the Due Process Clause of the Fourteenth Amendment and the Ex




                                         -17-
                                 STATE V. BOWDEN

                                HUDSON, J., dissenting



Post Facto Clause of Article I, Section 10 of the United States Constitution. These

principles continue to bind this Court and we are not free to disregard them.

      In my view, these cases compel this conclusion so clearly that a different

outcome would be possible only if the relevant facts were different. In Jones, the

facts were different.   That case, like this one, involved a defendant who was a

member of what has been called the Bowden-class of inmates. See, e.g., Jones, 364

N.C. at 262, 698 S.E.2d at 59 (Newby, J., concurring in the result). And as here, the

defendant argued that the State’s failure to apply the credits he had earned to

calculate his unconditional release date was unconstitutional and violated both his

right to due process and his right to be free from ex post facto punishment. See id.

at 256, 698 S.E.2d at 55 (majority). In Jones, the majority rejected both arguments,

based in large part on the trial court’s finding of fact that “the Department of

Correction has never used good time, gain time, or merit time credits in the

calculation of unconditional release dates for inmates who received sentences of life

imprisonment.”     Id. at 254, 698 S.E.2d at 54 (brackets and quotation marks

omitted). With that finding, the defendant in Jones missed landing squarely within

the holdings of the Supreme Court in Wolff and Lynce. He was held not to be

entitled to release.

      Here, the findings of fact are different: Judge Weeks found as fact what

Judge Rand did not. For example, Judge Weeks’ order granting defendant’s Motion

for Appropriate Relief included a heading titled “The Department of Correction’s


                                        -18-
                                  STATE V. BOWDEN

                                HUDSON, J., dissenting



historic application of Mr. Bowden’s sentence reduction credits shows:          (1) Mr.

Bowden received enough credits to unconditionally discharge his sentence on

October 13, 2009; and (2) those credits were applied to reduce his unconditional

release date.” A finding within that subsection of the order states:

                   Upon learning that Mr. Bowden was serving a term
             of years sentence, the Department of Correction applied
             and awarded all good, gain, and merit time sentence
             reduction credits previously earned by Mr. Bowden to
             reduce Mr. Bowden’s unconditional release date, resulting
             in a determination that Mr. Bowden’s sentence would
             expire on October 13, 2009.

A later portion of the order addresses the subsequent retraction of those awarded

and applied credits. A heading in the order is explicitly titled “The Department of

Correction revoked Mr. Bowden’s sentence reduction credits.”           A finding of fact

within that section then provides:

                    This Court finds that pursuant to [a memorandum
             issued by the Secretary of Correction], the Department of
             Correction revoked Mr. Bowden’s sentence reduction
             credits [including good, gain, and merit time credits],
             which had previously been awarded to him and applied to
             reduce his unconditional release date, and recalculated
             his unconditional release date such that it was reduced
             only by jail credits. As of the date of the entry of this
             Order, Mr. Bowden’s unconditional release date as posted
             on the “Offender Public Information” portion of the North
             Carolina Department of Correction website is July 23,
             2055.

(Footnote call number omitted.) These findings are fully supported by competent

evidence in the record, as detailed in the trial court’s order and noted by the Court



                                         -19-
                                  STATE V. BOWDEN

                                 HUDSON, J., dissenting



of Appeals. In essence, the State argues that defendant Bowden’s credits should not

be treated as “applied” because credits accumulated by other inmates were not

treated as “applied.” In my view, there is no plausible claim of ambiguity regarding

what Judge Weeks determined based on the evidence presented in this case. The

facts as found by the trial court are straightforward, and those quoted are joined by

many others in the trial court’s forty-six page order.

      Having carefully reviewed the trial court’s findings, I cannot avoid the

conclusion that these binding facts distinguish this case from Jones and place it

squarely within the purviews of Wolff and Lynce. The majority’s assertion that

“[t]he DOC has never applied these credits toward the calculation of the

unconditional release date of a Bowden-class inmate” is simply inconsistent with

the record here. Bowden, ___ N.C. at ___, ___ S.E.2d at ___. Instead of recognizing

the long-standing principle that we are bound on appeal by a trial court’s findings of

fact when those findings are either unchallenged or supported by competent

evidence, the majority has in essence grounded its discussion in facts that it wishes

the trial court had found, but did not. The majority has, at a minimum, departed

significantly from our well-established approach to review of a trial court’s factual

findings.

      Because the binding findings here establish that sentence reduction credits

were actually applied to calculate an unconditional release date for defendant, and

when that finding was absent in Jones, our opinion in Jones does not compel the


                                         -20-
                                  STATE V. BOWDEN

                                HUDSON, J., dissenting



outcome here. And because I conclude that controlling Supreme Court precedents,

applied to those findings of fact, require the release of Bobby Bowden, I would

affirm the Court of Appeals and the trial court. I respectfully dissent.

      Justice BEASLEY joins in this dissenting opinion.




                                         -21-
