A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).


NO. COA01-1297

NORTH CAROLINA COURT OF APPEALS

Filed: 3 September 2002

STATE OF NORTH CAROLINA

v .                             Pitt County
                                No. 98 CRS 51497
NATHAN MAURICE GREEN

    Appeal by defendant from judgment entered 15 March 2001 by Judge Quentin T. Sumner in Superior Court, Pitt County. Heard in the Court of Appeals 14 August 2002.

    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 In an unpublished opinion filed in 2000, our Court upheld defendant's conviction but found that the trial court improperly calculated his prior record level points and thus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).

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