321 N.C. 115 | N.C. | 1987
Defendant was initially tried at the 6 February 1984 Criminal Session of Superior Court, Alamance County, before Judge Robert Hobgood and a jury. He was convicted of first degree rape, first degree sexual offense and first degree kidnapping. Judge Hobgood sentenced him to life imprisonment in both the first degree rape and first degree sexual offense cases, the sentences to run concurrently, and to thirty years’ imprisonment in the first
Upon appeal this Court concluded that the jury must have relied on the sexual offense or the rape in order to find the sexual assault element of first degree kidnapping. Further concluding that the legislature had not authorized cumulative punishments for both first degree kidnapping and a crime which formed a necessary element of the kidnapping, the Court remanded the case for a new sentencing hearing. The Court directed the trial court either to arrest judgment on the first degree kidnapping conviction and resentence defendant for second degree kidnapping or to arrest judgment on one of the sexual assault convictions. State v. Freeland, 316 N.C. 13, 340 S.E. 2d 35 (1986).
Judge Ellis conducted the new sentencing hearing on 7 July 1986. He elected pursuant to this Court’s directions to arrest judgment in defendant’s first degree rape case.
Defendant now contends that under State v. Belton, 318 N.C. 141, 347 S.E. 2d 755 (1986), Judge Ellis was required either to arrest judgment on both of the sexual assault convictions or to arrest judgment on the first degree kidnapping conviction and re-sentence defendant for second degree kidnapping. We recently rejected this same argument in State v. Young, 319 N.C. 661, 356 S.E. 2d 347 (1987), distinguishing Belton from both Freeland and Young.
On the authority of our initial Freeland decision and Young the decision of Judge Ellis is
Affirmed.
