STATE OF NORTH CAROLINA
v
.
Pitt County
No. 98 CRS 51497
NATHAN MAURICE GREEN
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Staples S. Hughes, Appellate Defender, by Assistant Appellate
Defenders, Daniel R. Pollitt and Aaron Edward Carlos, for the
defendant-appellant.
WYNN, Judge.
Following resentencing, upon a conviction of first degree
arson, defendant brings the following issues on appeal: (I) Was the
sole factor found in aggravation of his sentence unsupported by the
evidence?; (II) Did the trial court err by finding an aggravating
factor that defendant committed the offense while on pretrial
release from charges that had been dismissed by time of the
sentencing hearing?; (III) Did the evidence compel a finding of
the statutory mitigating factor that defendant and the victim had
an extenuating relationship?; (IV) Did the trial court erroneously
conclude that the aggravating factor outweighed the mitigatingfactor?; and (V) Did the trial court erroneously fail to conduct a
de novo resentencing hearing? We answer each issue, no.
Therefore, we uphold defendant's resentence.
The facts show that after defendant's conviction on the charge
of first degree arson, Superior Court Judge Richard Parker
sentenced defendant to a term of imprisonment of a minimum of 117
months and a corresponding maximum of 150 months. In an
unpublished opinion filed in 2000, our Court upheld defendant's
conviction but found that the trial court improperly calculated his
prior record level points and thus remanded defendant's case to the
trial court for a new sentencing hearing. See State v. Green, 139
N.C. App. 635, 537 S.E.2d 866 (2000).
At the resentencing hearing, Superior Court Judge Quentin T.
Sumner made findings of aggravation and mitigation, and found that
the factor of aggravation (“defendant committed the offense while
on pretrial release on another charge.” N.C. Gen. Stat. § 15A-
1340.16(d)(12)(2001)) outweighed the factors of mitigation. The
judge originally sentenced defendant to a term of imprisonment
from the aggravated range of a minimum of 129 months and a
corresponding maximum of 136 months. However, because this
sentence exceeded the original sentence issued by Judge Parker, and
therefore violated N.C. Gen. Stat. § 15A-1335 (1999), defendant
asked for the same sentence previously issued by Judge Parker.
Thereafter, Judge Sumner sentenced defendant to a minimum term of
117 months and a corresponding maximum of 135 months. Defendant
appealed this judgment. While pending appeal, on 16 March 2001, defendant's case was
called back before Judge Sumner, where it was brought to the
attention of the trial court that the maximum term of imprisonment
did not correspond to the minimum term of imprisonment. The trial
court amended judgment and entered the correct corresponding
maximum term of 150 months. Defendant again entered notice of
appeal.
On appeal, defendant first contends that he is entitled to a
new sentencing hearing because the trial court's finding of the
sole aggravating sentencing factor (defendant was on pretrial
release at the time of the subject offense) is not supported by the
evidence. Defendant argues that State did not proffer into
evidence any documentary records, materials, transcripts, or
exhibits from the original April 1999 trial and sentencing hearing
to prove the aggravating factor. We find that the record contains
sufficient evidence to support the trial court's finding of this
factor in aggravation.
The record shows that at the resentencing hearing, the State
requested that the trial court find a factor of aggravation,
because defendant committed the arson offense while on pretrial
release for breaking and entering charge and a possession with
intent to sell or deliver cocaine charge. After obtaining the
criminal files, the State handed defendant's files to the trial
court.
In his brief, defendant attacks the use of his criminal files
because they were not formally introduced into evidence. Defendantcites State v. Williams, to support his argument that insufficient
evidence was presented to support the finding of this aggravating
factor. 92 N.C. App. 752, 376 S.E.2d 21, disc. review denied, 324
N.C. 251, 377 S.E.2d 762 (1989). In Williams, the only evidence
presented to the trial court to support the finding of defendant's
prior conviction was the prosecutor reading the defendant's court
files to the trial court.
However, in contrast to the facts in State v. Williams, in the
present case, although the files were not formally introduced into
evidence, defendant's file was handed to the trial court.
Moreover, a careful review of the record indicates the trial court
did review the files and discussed the files with both sides. The
“formal rules of evidence do not apply at the hearing.” N.C. Gen.
Stat. § 15A-1334 (2001); State v. Smaw, 96 N.C. App. 98, 384 S.E.2d
304 (1998).
Significantly, defendant did not object to the trial court's
use of these files, nor did he object to the method used to
establish his record, nor challenge in any way the accuracy of the
record at the sentencing hearing. Additionally, after defendant's
criminal files were delivered, the record shows that while
defendant's counsel did not agree that defendant was on pretrial
release for the possession with intent to sell or deliver charge,
he admitted to the trial court that defendant was on pretrial
release for “that” which under the context of the discussion
appears convincingly to have referred to the breaking and entering
charge. Thus, in addition to our holding that the criminal recordswere properly considered by the trial court and defendant failed to
object to the finding of the aggravating factor, we further find
that the statements made by the attorney representing defendant
“may be reasonably construed as a stipulation by defendant” that he
was on pretrial release when he committed the first degree arson
offense. State v. Eubanks, __ N.C. App. ___, ___ S.E.2d ___ (16
July 2002)(defendant and prosecutor all had prior level worksheet,
and the trial court specifically asked defendant if he had any
problems with the worksheet). Therefore, we conclude that the
trial court had sufficient evidence to support the finding of this
factor of aggravation and thus this assignment of error is
rejected. See State v. Bynum, 65 N.C. App. 813, 815, 310 S.E.2d
388, 390, review denied, 311 N.C. 404, 319 S.E.2d 275 (1984).
Next, defendant contends that he is entitled to a new
sentencing hearing because the trial court's finding of the sole
aggravating factor that he committed the arson offense while on
pretrial release under N.C. Gen. Stat. § 15A-1340.16(d) is
erroneous in law. He contends that the trial court violated his
due process and fundamental fairness rights because at the time of
this finding, the underlying charges supporting his pretrial
release had been either dismissed by the State or rejected by a
jury. We disagree.
In State v. Webb, 309 N.C. 549, 308 S.E.2d 258 (1983), our
Supreme Court upheld the constitutionality of the pretrial release
aggravating factor when defendant brought a due process challenge
to the face of the statute by stating, it is to be expected that he would, while the
question of his guilt is pending, be
particularly cautious to avoid commission of
another criminal offense. If he is not and is
convicted of another offense, his status as a
pretrial releasee in a pending case is a
legitimate circumstance to be considered in
imposing sentence. The legislature may
constitutionally require that it be
considered. One demonstrates disdain for the
law by committing an offense while on release
pending trial of an earlier charge, and this
may indeed be considered an aggravating
circumstance.
Id. at 559, 308 S.E.2d at 258.
Subsequently, this Court extended the logic of Webb in State
v. Robertson, 115 N.C. App. 249, 262, 444 S.E.2d 643, 650 (1994).
The Robertson court held that a trial court's finding of the
pretrial release aggravating factor that “[the] fact that defendant
was subsequently acquitted of the prior charge does not undermine
the rationale for finding as an aggravating factor that defendant
committed this offense while on pre-trial release.” See also State
v. Allen, 112 N.C. App. 419, 435 S.E.2d 802 (1993) (defendant was
on pretrial release for a misdemeanor when he committed the
offenses to which he was being sentenced).
In the present case, defendant committed the offense of first
degree arson while on pretrial release for a felony offense. In
light of State v. Webb and State v. Robertson, we hold that the
trial court properly determined defendant was on pretrial release
when he committed the first degree arson offense regardless of his
later status on the pretrial release charge because defendant's
guilt of the pretrial release charge is not relevant. See State v.
Webb; State v. Robertson; see also State v. Parks, 324 N.C. 94,376 S.E.2d 4 (1989); State v. Allen. Therefore, we reject this
assignment of error.
Next, defendant contends that the trial court erred by failing
to find the statutory mitigating factor that defendant and one of
the victims had an extenuating relationship. We disagree.
N.C. Gen. Stat. § 15A-1340.4(a)(2)(i) (2001) provides for a
statutory mitigating factor where “[t]he defendant acted under
strong provocation, or the relationship between the defendant and
the victim was otherwise extenuating.” “The statute was meant to
apply under 'circumstances that morally shift part of the fault for
a crime from the criminal to the victim.'” State v. Neville, 108
N.C. App. 330, 333, 423 S.E.2d 496, 498 (1992) (quoting State v.
Martin, 68 N.C. App. 272, 276, 314 S.E.2d 805, 807 (1984)).
“The defendant bears the burden of persuasion for mitigating
factors where he seeks a term below the presumptive range. . . .
Trial judges have discretion and latitude in determining whether a
mitigating circumstance exists.” State v. Hughes, 136 N.C. App.
92, 100, 524 S.E.2d 63, 68 (1999), review denied, 351 N.C. 644, 543
S.E.2d 878 (2000). The trial court is required to find a statutory
mitigating factor when “'the evidence so clearly establishes the
fact in issue that no reasonable inferences to the contrary can be
drawn,' and that the credibility of the evidence' is manifest as a
matter of law.'” State v. Jones, 309 N.C. 214, 220, 306 S.E.2d
451, 455 (1983)(quoting North Carolina Nat. Bank v. Burnette, 297
N.C. 524, 536-37, 256 S.E.2d 388, 395 (1979)). “A trial court has
wide discretion in determining the existence of mitigating factorsbecause it 'observes the demeanor of the witness and hears the
testimony.'” State v. Robertson, 115 N.C. App. 249, 262, 444
S.E.2d 643, 650 (1994) (quoting State v. Heatwole, 333 N.C. 156,
163, 423 S.E.2d 735, 739 (1992)).
In the present case, defendant does not dispute the facts but
contends the severity of his crime is lessened because his actions
were due to distress over his relationship with the victim. At the
resentencing hearing, to show that defendant and the victim had a
sexual relationship before the November 1998 arson, defendant
submitted a 10 November 1998 statement made to the police
concerning a dispute between defendant and the victim; unverified
letters from the victim to defendant; and a dismissed arrest
warrant that the victim took out against defendant on the day of
the arson. Even if these facts supported a showing of an
extenuating relationship, the record fails to show credible,
uncontradicted evidence that morally shifted part of the fault of
the arson to the victim. See State v. Neville. Thus, we decline
to extend this mitigating factor where there is no evidence to
support a finding that defendant's acts were less culpable. We
cannot conclude, therefore, that the trial court committed
reversible error in failing to find that the relationship between
defendant and the victim was an extenuating circumstance and a
mitigating factor pursuant to N.C. Gen. Stat. §
15A-1340.4(a)(2)(i). See State v. Neville; State v. Seagroves, 78
N.C. App. 49, 336 S.E.2d 684 (1985), disc. review denied, 316 N.C.
384, 342 S.E.2d 905 (1986). Accordingly, we reject this assignmentof error.
Next, defendant contends that he is entitled to a new
sentencing hearing because the trial court erroneously concluded
the aggravating factor outweighed the mitigating factors and
erroneously sentenced defendant in the aggravated range. We
disagree.
"The sentencing judge, even when required to find factors
proved by uncontradicted, credible evidence, may still attribute
whatever weight he deems appropriate to the individual factors
found when balancing them and arriving at a prison term." State v.
Jones, 309 N.C. 214, 219, 306 S.E.2d 451, 455 (1983); see also
State v. Allen, 112 N.C. App. 419, 428, 435 S.E.2d 802, 807 (1993).
"A sentencing judge properly may determine in appropriate cases
that one factor in aggravation outweighs more than one factor in
mitigation and vice versa." State v. Parker, 315 N.C. 249, 258,
337 S.E.2d 497, 502 (1985). “The balance struck by the sentencing
judge in weighing the aggravating against the mitigating factors,
being a matter within his discretion, will not be disturbed unless
it is manifestly unsupported by reason, or so arbitrary that it
could not have been the result of a reasoned decision.” State v.
Parker, 315 N.C. at 258-59, 337 S.E.2d at 502-03 (internal
citations omitted); see also State v. Daniels, 319 N.C. 452, 355
S.E.2d 136 (1987). Moreover, 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. State v. Swimm, 316 N.C. 24, 31, 340 S.E.2d65, 70 (1986).
In the present case, the trial court was presented with ample
evidence to support the finding of the factor of aggravation that
defendant committed this offense while on pretrial release for the
breaking and entering charge. Moreover, there is a rational basis
for this sentence, defendant set fire to an apartment complex
during the morning hours, where the victim was staying with a
female and her two children; furthermore, other people lived in the
apartment complex. Defendant has not shown, nor have we found, any
abuse of discretion by the trial court in weighing the mitigating
and aggravating factors, thus we must reject this assignment of
error.
In his final argument, defendant contends that he is entitled
to a new sentencing hearing because the trial court erroneously
failed to conduct a de novo resentencing proceeding. Defendant
argues that there is no logical or legitimate reason why the trial
court decided upon the 117 month sentence. Defendant further
argues that it is inconceivable that the trial court randomly
picked this odd 117 month minimum sentence during resentencing. We
disagree.
“It has been established that each sentencing hearing in a
particular case is a de novo proceeding.” State v. Abbott, 90 N.C.
App. 749, 751, 370 S.E.2d 68, 69 (1988). On resentencing,
the judge makes a new and fresh determination
of the presence in the evidence of aggravating
and mitigating factors. The judge has
discretion to accord to a given factor either
more or less weight than a judge, or the same
judge, may have given at the first hearing.However, in the process of weighing and
balancing the factors found on rehearing the
judge cannot impose a sentence greater than
the original sentence.
State v. Mitchell, 67 N.C. App. 549, 551, 313 S.E.2d 201, 202
(1984).
In the present case, the trial court stated:
This is a re-sentencing hearing and based on
that point the State is not bound by anything
that went up on appeal. This is a “new re-
sentencing hearing” mandated by the
illustrious Appellate Court in this matter. I
don't [think] that you can hand strap the
State at this point and tell them they can't
present any additional evidence to this Court
in terms of sentencing that they wish for the
Court to consider. I think that is taking that
a bit too far.
. . . .
I am going to allow Mr. Perry the opportunity
to assist us in [a] re-sentencing hearing to
set new evidence that the State deems the
Court should be aware of in terms of
sentencing this man at this point.
At the hearing, defendant had the opportunity to present his
case; he admitted he committed arson and introduced letters into
evidence. The trial judge stated that he wanted to make sure that
defendant was satisfied with his day in court:
THE COURT: If you feel you want to tell me
something else -- I want you to be sure that
you have been satisfied, you have had your day
in court.
[DEFENDANT]: I am happy.
THE COURT: Yes.
[DEFENDANT]: I am happy just for the fact
that I am down here.
After hearing all of the evidence, Judge Sumner sentenceddefendant to a term of imprisonment above Judge Parker's original
sentence. Afterwards, defendant informed the trial court of N.C.
Gen. Stat. § 15A-1335 that prohibits a trial court from imposing
a more severe sentence at a resentencing hearing. Ultimately, the
trial court reduced defendant's sentence to the original sentence
entered by Judge Parker.
After a careful review of the record, we conclude that the
resentencing hearing was a de novo proceeding; the evidence at the
resentencing hearing was not identical to that presented at the
first sentencing hearing. Moreover, the initial sentence imposed
by the trial court shows that the trial court's sentencing was de
novo. Before ultimately fashioning the sentence for defendant, the
trial judge corrected an earlier sentence that contravened N.C.
Gen. Stat. § 15A-1335. The record shows that the trial judge
applied reasoning in his decision to sentence defendant to the same
sentence as the original sentencing court. See State v. Mason, 125
N.C. App. 216, 480 S.E.2d 708, review denied, 3436 N.C. 286, 487
S.E.2d 563 (1997) (the defendant received the same sentence on
resentencing); State v. Mitchell (the defendant received the same
sentence on resentencing). Thus, we reject defendant's assignment
of error.
No Error.
Judges HUDSON and CAMPBELL concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***