Criminal Practice — Sentencing – Concurrent or Consecutive – Judge’s Discretion – Local Facility & DAC

The record shows that the trial court mistakenly believed that it could not run defendant’s 120-day DWI sentence—which must be served in local confinement—concurrently with his 51 to 74-month sentence for speeding to elude arrest and attaining habitual-felon status, which was to be served in the Division of Adult Correction. Given that the trial court retains the discretion to determine whether to impose concurrent or consecutive sentences and that nothing in the relevant statutes requires that a sentence served in a local confinement facility run consecutively to a sentence served in the Division of Adult Correction, we conclude that the trial court erred by failing to exercise its discretion in the erroneous belief that it had no discretion as to whether to order that defendant’s sentences run consecutively or concurrently.

We vacate the judgments and remand for a new sentencing hearing. However, we find no error in the trial court’s denial of defendant’s motion to dismiss the charge of speeding to elude arrest.

Defendant argues that the state failed to show he had an intent to elude the deputy who attempted to stop his car. Defendant contends the evidence supports a reasonable conclusion that he was merely traveling to his residence at the end of a dead-end road. Defendant also maintains that the state did not present evidence of excessive speed or other maneuvers to lose the deputy and avoid apprehension.

Nonetheless, viewed in the light most favorable to the state, the evidence tends to show that defendant saw the deputy in his rearview mirror; “threw his hands up in the air”; did not pull over in response to the deputy’s light, sirens, or orders to do so; and traveled approximately three-quarters of a mile, while swerving, to his residence, where he was apprehended. This evidence supports a reasonable inference that defendant intended to elude arrest.

State v. Shuford (Lawyers Weekly No. 012-298-21, 14 pp.) (Valerie Zachary, J.) Appealed from Catawba County Superior Court (Karen Eady-Williams, J.) Elizabeth Curran O’Brien for the state; Gilda Rodriguez for defendant. 2021-NCCOA-483