State v. Daniels, 203 N.C. App. 350 (Apr. 6, 2010)

After being found guilty of first-degree rape and first-degree kidnapping, the defendant was sentenced to consecutive terms of 307-378 months for the rape and 133-169 for the kidnapping. On appeal, the court held that the trial judge erred by allowing the same sexual assault to serve as the basis for the rape and first-degree kidnapping convictions. The court remanded for a new sentencing hearing, instructing the trial judge to either arrest judgment on first-degree kidnapping and resentence on second-degree kidnapping, or arrest judgment on first-degree rape and resentence on first-degree kidnapping. The trial judge chose the first option, resentencing the defendant to 370-453 months for first-degree rape and to a consecutive term of 46-65 months for second-degree kidnapping. The resentencing violated G.S. 15A-1335 because the trial court imposed a more severe sentence for the rape conviction after the defendant’s successful appeal. The court rejected the State’s argument that when applying G.S. 15A-1335, the court should consider whether the aggregated new sentences are greater than the aggregated original sentences.