STATE OF NORTH CAROLINA
v
.
PHILLIP EUGENE BOYD
Attorney General Michael F. Easley, by Assistant Attorney
General Robert C. Montgomery, for the State.
Daniel Shatz for defendant-appellant.
HUNTER, Judge.
This opinion supersedes and replaces our unpublished opinion
in this case filed 29 December 2000. The following is a brief
recitation of the facts necessary to the issues presented in this
appeal. This case arose from defendant's encounter with his
girlfriend, Onjaya Scott, and her friend, Jacqueline Murphy, on 13
May 1995. On the night of 12 May 1995, Ms. Murphy was spending the
night with Ms. Scott in Ms. Scott's apartment. The State's
evidence tended to show that during the early morning of 13 May
1995, defendant entered the apartment, struck Ms. Scott in the
face, pointed a gun at Ms. Murphy, and held the two women in the
apartment for approximately two and one-half hours. During this
time, he threatened to kill the women if they tried to run, and
savagely beat Ms. Murphy with a rolling pin, fracturing both of her
hands.
Defendant was convicted of one count of simple assault on Ms.
Scott, one count of assault with a deadly weapon with intent to
kill inflicting serious bodily injury on Ms. Murphy, two counts of
second degree kidnapping, and two counts of being an habitual
felon. In defendant's first appeal, another panel of this Court
found no error in defendant's trial, but vacated the sentence and
awarded him a new sentencing hearing. State v. Boyd (COA96-662,
unpublished opinion filed 6 May 1997), 126 N.C. App. 226, 491
S.E.2d 563, disc. review denied, 346 N.C. 550, 488 S.E.2d 811
(1997). In a second appeal, defendant contested his resentencing.
Another panel of this Court again vacated his sentences and
remanded for still another sentencing hearing. State v. Boyd
(COA98-197, unpublished opinion filed 29 December 1998), 131 N.C.App. 879, 516 S.E.2d 652 (1998). In the present appeal, we are
asked to review defendant's sentence.
The resentencing at issue here was conducted on 3 May 1999.
The court imposed two consecutive sentences on defendant. The
first sentence is based on defendant's conviction in 95CRS 14675 of
Ms. Murphy, enhanced to a Class C felony by reason of defendant's
habitual felon status. As to this offense, defendant received a
minimum of 86 and a maximum of 113 months' imprisonment. The
second sentence relates to the following consolidated offenses:
(1) second degree kidnapping of Ms. Scott in 95CRS 14676, enhanced
to a Class C felony by reason of habitual felon status, (2) assault
with a deadly weapon inflicting serious injury on Ms. Murphy in
95CRS 14674, a Class E felony, and (3) simple assault on Ms. Scott
in 95CRS 13585, a misdemeanor. For these consolidated offenses,
defendant received a minimum of 108 and a maximum of 139 months'
imprisonment. Pursuant to N.C. Gen. Stat. § 15A-1340.16A, the
firearm enhancement section of the Structured Sentencing Act, the
sentencing judge enhanced the punishment for these consolidated
offenses by sixty months. Defendant's sentence for the
consolidated offenses then became a minimum of 168 and a maximum of
211 months' imprisonment.
The firearm enhancement section of the Structured Sentencing
Act provides:
(a) If a person is convicted of a Class
A, B1, B2, C, D, or E felony and the court
finds that the person used, displayed, or
threatened to use or display a firearm at the
time of the felony, the court shall increase
the minimum term of imprisonment to which theperson is sentenced by 60 months. The court
shall not suspend the 60-month minimum term of
imprisonment imposed as an enhanced sentence
under this section and shall not place any
person sentenced under this section on
probation for the enhanced sentence.
(b) Subsection (a) of this section does
not apply in any of the following
circumstances:
(1) The person is not sentenced to an
active term of imprisonment.
(2) The evidence of the use, display, or
threatened use or display of a
firearm is needed to prove an
element of the underlying Class A,
B1, B2, C, D, or E felony.
(3) The person did not actually possess
a firearm about his or her person.
N.C. Gen. Stat. § 15A-1340.16A (1999).
At the outset, we address defendant's contention that evidence
of the display or threatened use of a firearm in this case was
necessary to prove the element of restraint in the underlying
felony of second degree kidnapping, in violation N.C. Gen. Stat. §
15A-1340.16A(b)(2). Our own Supreme Court has made clear that even
where a defendant displayed a firearm when he kidnapped and raped
the victim, “the use or display of a firearm is not an essential
element of second-degree kidnapping” and thus, a trial court is
“not precluded from relying on evidence of defendant's use of the
firearm and enhancing defendant's term of imprisonment pursuant to
the firearm enhancement section [in N.C. Gen. Stat. § 15A-
1340.16A(b)(2)].” State v. Ruff, 349 N.C. 213, 216-17, 505 S.E.2d
579, 581 (1998). Defendant's argument is without merit. Defendant next contends his sentence under the firearm
enhancement provision in N.C. Gen Stat. § 15A-1340.16A must be
vacated in light of the United States Supreme Court's recent
decision in Apprendi v. New Jersey, because it subjected him to
increased punishment which was not charged in the indictment, not
submitted to a jury and not proven beyond a reasonable doubt.
Apprendi v. New Jersey, 530 U.S. ___, 147 L. Ed. 2d 435 (2000).
For the reasons stated in State v. Lucas, 353 N.C. 568, 548 S.E.2d
712, we agree with defendant's contention on this issue. In Lucas,
our Supreme Court held that “in every instance where the State
seeks an enhanced sentence pursuant to N.C.G.S. § 15A-1340.16A, it
must allege the statutory factors supporting the enhancement in an
indictment . . . and submit those factors to the jury.” Id. at
597-98, 548 S.E.2d at 731. Accordingly, since defendant's
indictment failed to allege the statutory factors supporting
enhancement, the imposition of the firearm enhancement penalty to
defendant's sentence in this case is vacated and the case is
remanded for resentencing consistent with the Supreme Court's
decision in Lucas.
Defendant next contends the trial court erred by using the
aggravating factor that Ms. Murphy suffered permanent and
debilitating injuries to increase defendant's sentence as to the
consolidated judgment. Defendant concedes he raised this issue in
his previous appeal. Indeed, a prior panel of this Court addressed
defendant's contention and found no error in applying theaggravating factor to the entire consolidated judgment. “According
to the doctrine of the law of the case, once an appellate court has
ruled on a question, that decision becomes the law of the case and
governs the question both in subsequent proceedings in a trial
court and on subsequent appeal.” Weston v. Carolina Medicorp,
Inc., 113 N.C. App. 415, 417, 438 S.E.2d 751, 753 (1994).
Accordingly, this issue is not properly before this panel of our
Court and we will not address it.
In his next assignment of error, defendant contends that
during his second resentencing, the sentencing judge failed to
apply the statutory mitigating factor that defendant supports his
family pursuant to N.C. Gen. Stat. § 15A-1340.16(e)(17). Citing
State v. Swimm, 316 N.C. 24, 340 S.E.2d 65 (1986), defendant points
to the sentencing judge's statement that “[t]he Court cannot find
a mitigating factor” to establish that the judge was operating
under a misapprehension that he was precluded from considering
mitigating factors not found at a previous sentencing hearing. In
Swimm, our Supreme Court held that “[a] resentencing hearing is a
de novo proceeding at which the trial judge may find aggravating
and mitigating factors without regard to the findings made at the
prior sentencing hearing.” Id. at 31, 340 S.E.2d at 70.
As the State maintains, the sentencing judge's statement is
largely ambiguous. It could either imply that the sentencing judge
thought he was not allowed to find a mitigating factor, or it may
be read as a finding that the court did not, after consideration,find a mitigating factor. We find the latter interpretation more
reasonable. The statement was made directly after the sentencing
judge finished making its own findings as to the applicable
aggravating factors in defendant's case. The State also points out
that the sentencing judge began the hearing by asking the parties
whether there would be any further evidence presented, and by
accepting an affidavit in support of the mitigating factor now at
issue. Furthermore, the sentencing judge heard defendant's
argument as to why the new mitigating factor should be found and
the court's written findings state that “after considering the
evidence and arguments presented at the trial and sentencing
hearing, [the court] finds that the aggravating and mitigating
factors marked, if any, were proven by a preponderance of the
evidence.” These facts tend to indicate that the trial court was
not operating under a misapprehension of the law, but clearly
understood that the resentencing hearing was a de novo proceeding.
Defendant has not met his burden on appeal to show error. See,
e.g., State v. Small, 301 N.C. 407, 430-31, 272 S.E.2d 128, 142-43
(1980).
Defendant also contends that an affidavit he submitted to the
trial court in the previous resentencing sufficiently established
the mitigating factor that defendant supports his family under N.C.
Gen. Stat. § 15A-1340.16(e)(17). A defendant has the burden of
proving by a preponderance of the evidence the existence of
mitigating factors. State v. Canty, 321 N.C. 520, 523, 364 S.E.2d410, 413 (1988). A trial judge is given wide latitude in
determining the existence of mitigating factors. Id. at 523, 364
S.E.2d at 413. The trial court's failure to find a mitigating
factor is error only when the evidence so clearly establishes the
fact in issue such that “no other reasonable inferences can be
drawn from the evidence.” Id. at 524, 364 S.E.2d at 413.
Defendant's affidavit stated that while he was imprisoned, he
settled a civil lawsuit for $2,000.00 and directed the proceeds to
be disbursed to his former wife for the benefit of his minor child.
This being the only evidence submitted indicating that defendant
supported his minor child, it is quite possible that this is the
only time defendant has offered support in favor of his minor
child. Thus, defendant's evidence does not so clearly establish
that defendant supports his family such that no other reasonable
inference can be drawn. The sentencing judge thus did not err in
refusing to find this mitigating factor.
In summary, we vacate the judgment entered for enhanced
firearm penalty in cases 95CRS 13585, 95CRS 14674 and 95CRS 14676,
and remand these cases for resentencing in accordance with our
Supreme Court's decision in State v. Lucas.
Vacated and remanded for resentencing.
Judges GREENE and WYNN concur.
*** Converted from WordPerfect ***