STATE OF NORTH CAROLINA
v
.
Moore County
Nos. 98 CRS 5873, 10482
COLLINS STEPHANIE WILSON
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Bruce T. Cunningham, Jr., for the defendant-appellant.
WYNN, Judge.
This is defendant's second appeal from his jury convictions of
felonious breaking or entering and felonious larceny, and of being
an habitual felon. In his previous appeal, this Court found no
error in defendant's trial, but granted his motion for appropriate
relief regarding sentencing, stating:
[T]he trial court's judgment “finding
defendant guilty of being an habitual felon”
and imposing sentence thereon was erroneous
and must be vacated. The sentences imposed
upon defendant's convictions of felonious
breaking or entering and felonious larceny
must likewise be vacated and remanded for
resentencing. Upon remand, the court shall
calculate defendant's proper prior record
level pursuant to N.C. Gen. Stat. § 15A-
1340.14 (1999) and shall impose sentences upon
the “underlying felon[ies] as . . . Class C
felon[ies.]”
State v. Wilson, 139 N.C. App. 544, 552, 533 S.E.2d 865, 871,
appeal dismissed and disc. review denied, 353 N.C. 279, 546 S.E.2d
395 (2000) (“Wilson I”) (citations omitted). Following remand for
resentencing, the trial court followed this Court's mandate and
sentenced defendant within the presumptive range. Defendant again
appeals; we find no error.
Defendant brings forth five assignments of error. He first
argues that the trial court erred, on remand, in denying his motion
to dismiss the underlying habitual felon indictment in 98 CRS
10482. However, this Court rejected the same argument by defendant
in Wilson I and found that the trial court committed no error at
trial (holding that “the procedures set forth in the Habitual Felon
Act comport with a criminal defendant's federal and state
constitutional guarantees”). Id. at 550, 533 S.E.2d at 870.
Accordingly, we reject this argument and defendant's first two
assignments of error.
Defendant next argues that since he presented credible,
uncontroverted evidence of two statutory mitigators, the trial
court erred in not imposing a sentence in the mitigated range.
However, this Court has repeatedly held that “the trial court is
required to take 'into account factors in aggravation and
mitigation only when deviating from the presumptive range in
sentencing.'” State v. Chavis, 141 N.C. App. 553, 568, 540 S.E.2d
404, 415 (2000) (quoting State v. Caldwell, 125 N.C. App. 161, 162,
479 S.E.2d 282, 283 (1997)). See State v. Campbell, 133 N.C. App.
531, 542, 515 S.E.2d 732, 739, disc. review denied, 351 N.C. 111,540 S.E.2d 370 (1999) (“a trial court is not required to justify a
decision to sentence a defendant within the presumptive range by
making findings of aggravation and mitigation,” even where evidence
of several mitigating, but no aggravating, factors are presented to
the court). Furthermore, we note that the outcome would not
necessarily be different even had the trial court found the
existence of the mitigating factors as advocated by defendant.
This Court has held that “upon a finding of one or more mitigating
factors and no aggravating factors, the question of whether to
reduce the sentence below the presumptive term, and if so, to what
extent, is within the trial court's discretion.” State v. Cain, 79
N.C. App. 35, 51, 338 S.E.2d 898, 907, disc. review denied, 316
N.C. 380, 342 S.E.2d 899 (1986).
Defendant cites no authority in support of his final argument;
accordingly, that argument (and defendant's assignment of error 4)
is deemed abandoned. N.C.R. App. P. 28(b)(6) (2002); see, e.g.,
State v. McNeill, 140 N.C. App. 450, 537 S.E.2d 518 (2000); State
v. Stevenson, 136 N.C. App. 235, 523 S.E.2d 734 (1999), disc.
review denied, 351 N.C. 368, 543 S.E.2d 144 (2000).
No error.
Judges HUDSON and THOMAS concur.
Report per Rule 30(e).
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