1. Firearms and Other Weapons--firearm enhancement statute--first-degree
kidnapping
The trial court did not err by sentencing defendant to an additional sixty months in prison
for first-degree kidnapping pursuant to the firearm enhancement statute even though our Supreme
Court held in Lucas, 353 N.C. 568 (2001), that the State must allege the statutory factors
supporting the enhancement under N.C.G.S. § 15-1340.16A in an indictment, because: (1) the
decision in Lucas was expressly limited to cases that were not yet final; and (2) the judgment in
defendant's case was final at the time the decision in Lucas was filed.
2. Sentencing--aggravating factor--serious, permanent, and debilitating injury
The trial court did not abuse its discretion in a first-degree kidnapping case by finding the
aggravating factor that the victim suffered serious, permanent, and debilitating injury, because:
(1) the evidence that the victim had been shot was sufficient to prove the serious injury element
of first-degree kidnapping, and the evidence that the victim was paralyzed as a result of the
shooting was the additional evidence that supported the finding of the aggravating factor; and (2)
the same item of evidence was not used to prove both an element of the offense and an
aggravating factor in this case.
Attorney General Roy Cooper, by Assistant Attorney General
Robert C. Montgomery, for the State.
Lynne Rupp for defendant-appellant.
McGEE, Judge.
Perry Jamel Antwain Jones (defendant) was indicted for armed
robbery, attempted first degree murder, assault with a deadly
weapon with intent to kill inflicting serious injury, and first
degree kidnapping on 1 May 1995. Defendant pled guilty to first
degree kidnapping and assault with a deadly weapon inflictingserious injury and the State dismissed the remaining charges on 6
September 1995. The State presented a factual basis for
defendant's plea in open court and Judge George L. Wainwright, Jr.
accepted the plea.
The factual basis tended to show that defendant was playing
cards with friends at the home of Robert Lang (Lang) on 2 February
1995. Defendant left Lang's house and returned after the card
game. Defendant and Lang played a few more hands of cards and
defendant went to the bathroom and returned with a gun. Defendant
demanded his money back from Lang and Lang gave him about $200.00.
Defendant ordered Lang to go with him into the backyard, forcing
Lang at gunpoint to walk onto the porch. When Lang refused to go
into the backyard, defendant pushed Lang off the porch and began
shooting him. Lang fell to the ground but could not get up because
he had been shot. Lang remains paralyzed as a result of the
shooting.
Judge Wainwright made findings as to aggravating factors that
included the finding that Lang suffered serious injury that was
permanent and debilitating. Judge Wainwright also found as a
mitigating factor that defendant suffered from a mental condition
that reduced his culpability but that was insufficient to
constitute a defense. The trial court sentenced defendant to a
minimum of 108 months and a maximum of 139 months in prison for
first degree kidnapping. The trial court also added an enhanced
firearm penalty of 60 months in prison to the sentence, making the
sentence a minimum of 168 months and a maximum of 199 months in
prison. The trial court also sentenced defendant to a minimum of36 months and a maximum of 53 months in prison for assault with a
deadly weapon inflicting serious injury.
Judge Paul L. Jones amended defendant's judgment on 12 April
2001 to correct the sentence by making the maximum sentence
correspond with the minimum sentence according to the sentencing
grid. Defendant's corrected sentence was a minimum of 168 months
and a maximum of 211 months in prison for first degree kidnapping.
Defendant filed a petition for writ of certiorari on 19
February 2002 with this Court. We granted defendant's petition on
11 March 2002 for the purpose of reviewing the judgments entered
against defendant by Judge Wainwright on 6 September 1995.
[1] Defendant first argues the trial court erred in sentencing
defendant to an additional 60 months in prison pursuant to North
Carolina's firearm enhancement statute because the requisite facts
were not alleged in the indictment to which defendant pled guilty.
Defendant contends that imposition of the enhancement in this case
is a violation of his rights under the United States and North
Carolina constitutions.
Defendant bases his argument upon the rule established by our
Supreme Court in State v. Lucas, 353 N.C. 568, 548 S.E.2d 712
(2001), which followed decisions by the United States Supreme Court
in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999)
(holding that any facts that increase the maximum penalty for a
crime must be charged in an indictment), and Apprendi v. New
Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) (holding that the
rule established in Jones was applicable to state statutes under
the Fourteenth Amendment to the United States Constitution). Our Supreme Court held in Lucas 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, which may be the same indictment that
charges the underlying offense, and submit those factors to the
jury." Lucas, 353 N.C. at 597-98, 548 S.E.2d at 731. In Lucas,
the defendant's enhanced sentences for first degree kidnapping and
second degree burglary were vacated and remanded because the
defendant was not charged in an indictment with the statutory
factors supporting an enhancement. However, this ruling was
specifically limited to cases in which a defendant had not yet been
indicted, cases that were pending on direct review, and cases that
were not yet final as of the certification date of the opinion.
Id. at 598, 548 S.E.2d at 732.
Our Supreme Court filed its opinion in Lucas on 20 July 2001.
In the present case, the record indicates that defendant was
sentenced pursuant to a plea agreement on 6 September 1995.
Defendant was required at that time to give oral notice of appeal
at trial or file a written notice of appeal within fourteen days
after entry of the judgment in order to preserve his right of
appeal. N.C.R. App. P. 4(a). Defendant failed to give notice of
appeal during this time frame and his case was not pending on
appeal at the time of our Supreme Court's decision in Lucas.
Accordingly, the judgment in defendant's case was final at the time
the decision in Lucas was filed. While defendant's petition for a
writ of certiorari was granted by this Court on 11 March 2002, this
did not change the final judgment status of defendant's case forthe purpose of Lucas. Since the decision in Lucas was expressly
limited to cases that were not yet final, defendant's argument is
without merit.
[2] Defendant also argues the trial court erred in finding the
aggravating factor that Lang suffered serious, permanent, and
debilitating injury. Defendant contends that the serious injury
elevated the crime from second degree kidnapping to first degree
kidnapping and is statutorily prohibited from being used as an
aggravating factor.
Under the Structured Sentencing Act, the trial court must
consider evidence of aggravating and mitigating factors and may
impose a sentence in its discretion. N.C. Gen. Stat. § 15A-
1340.16(a) (2001). "A trial court's weighing of mitigating and
aggravating factors will not be disturbed on appeal absent a
showing that there was an abuse of discretion." State v. Wampler,
145 N.C. App. 127, 133, 549 S.E.2d 563, 568 (2001). "Evidence
necessary to prove an element of the offense shall not be used to
prove any factor in aggravation, and the same item of evidence
shall not be used to prove more than one factor in aggravation."
N.C. Gen. Stat. § 15A-1340.16(d); see State v. Holt, 144 N.C. App.
112, 547 S.E.2d 148 (2001), disc. review improvidently allowed, 355
N.C. 347, 560 S.E.2d 793 (2002).
Kidnapping is the unlawful, nonconsensual confinement,
restraint or removal from one place to another of a person for the
purpose of committing specified acts that are set forth in N.C.
Gen. Stat. § 14-39 (2001). See State v. Claypoole, 118 N.C. App.
714, 717, 457 S.E.2d 322, 324 (1995). "If the person kidnapped. . . was not released by the defendant in a safe place or had been
seriously injured or sexually assaulted, the offense is kidnapping
in the first degree." N.C.G.S. § 14-39(b). N.C. Gen. Stat. §
15A-1340.16(d)(19) (2001) lists "serious injury inflicted upon the
victim [that is] permanent and debilitating" as an aggravating
factor for consideration by the trial court.
In State v. Crisp, 126 N.C. App. 30, 483 S.E.2d 462, disc.
review denied, 346 N.C. 284, 487 S.E.2d 559 (1997), the defendant
was convicted of assault with a deadly weapon with intent to kill
inflicting serious injury and assault with a deadly weapon
inflicting serious injury. At sentencing, the trial court found as
an aggravating factor that the victims suffered serious injury that
was permanent and debilitating. In upholding the sentence imposed
by the trial court, our Court stated:
[T]he language of the statute, that "the
serious injury inflicted upon the victim is
permanent and debilitating" creates a
distinction between the suffering of the
victim at the time the serious injury is
inflicted and any long-term or extended
effects that arise due to that serious injury.
The gunshot wounds suffered by [the victims]
resulted in serious injuries at the time they
were inflicted, wholly apart from their
consequences. Richardson's paralysis and
Nordan's weakness and diminished ability to
use his arm were the long-term effects of
these injuries. Thus, the same evidence was
not used to support an element of the offense
and the aggravating factor.
Id. at 39, 483 S.E.2d at 468.
Our Supreme Court reached a similar result in State v.
Brinson, 337 N.C. 764, 448 S.E.2d 822 (1994). In Brinson, the
defendant attacked his cell mate, striking him in the jaw and
slamming his head into the jail bars. After hearing the victim'sneck pop, the defendant then slammed the victim's head onto the
floor several times. The victim was paralyzed below the chest as
a result of the attack. Our Supreme Court held that "[t]he
evidence relating to the victim's broken neck, aside from evidence
relating to the resulting paralysis, was sufficient to establish
the element of the crime that the defendant inflicted a 'serious
injury' upon the victim." Id. at 770, 448 S.E.2d at 826. The
Court also stated that "[t]he evidence relating to the broken neck,
however, was not used in making the finding that the 'injuries
sustained by the victim were extremely severe and permanent';
instead, that finding rested solely on the victim's paralysis."
Id.
In the case before us, the record shows that defendant forced
Lang to walk out onto the porch at gunpoint, where defendant pushed
Lang off of the porch and shot him. Lang fell to the ground but
was unable to get up because he had been shot. He is paralyzed as
a result of the shooting. The evidence supporting the finding of
the aggravating factor that the injury was permanent and
debilitating went beyond that necessary to prove the serious injury
element of first degree kidnapping. The evidence that Lang had
been shot was sufficient to prove the serious injury element of
first degree kidnapping. The evidence that Lang was paralyzed as
a result of the shooting was the additional evidence that supported
the finding of the aggravating factor. The same item of evidence
was not used to prove both an element of the offense and an
aggravating factor in this case. This assignment of error is
without merit. We have reviewed defendant's remaining assignment of error and
find it to be without merit.
Affirmed.
Judges McCULLOUGH and LEVINSON concur.
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