An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-38


Filed: 21 January 2003


         v.                        Guilford County
                                Nos. 93 CRS 20795
                                    93 CRS 42688
                                    93 CRS 61655

    On a writ of certiorari from judgment entered 11 January 1994 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 23 December 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

    Everett & Hite, L.L.P., by Kimberly A. Swank, for defendant- appellant.

    HUDSON, Judge.

    Defendant pled guilty on 11 January 1994 to second degree murder, possession with intent to sell or deliver cocaine, and possession of a firearm by a felon. The court consolidated the convictions and sentenced defendant under the Fair Sentencing Act to an active term of thirty years. As the sole factor in aggravation, the court found that defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days confinement. As factors in mitigation, the court found that defendant was suffering from a physical condition which significantly reduced his culpability and that defendant wassupporting his family. The court found the aggravating factor outweighed the two mitigating factors in imposing a sentence in excess of the presumptive term for the greatest offense. This Court allowed defendant's petition for a writ of certiorari seeking review of the judgment on 4 January 2001.
    Defendant contends that the court improperly found defendant's record of prior convictions as the aggravating factor because evidence of the prior convictions was necessary to prove the consolidated offense of possession of a firearm by a felon. In support of this contention, defendant relies upon the provision of the Fair Sentencing Act stating that “[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation.” N.C. Gen. Stat. § 15A-1340.4(a) (1993).
    The circumstances of this case are very similar to those of State v. Farlow, 336 N.C. 534, 444 S.E.2d 913 (1994). In that case, the court consolidated for sentencing convictions of second degree sexual offense with convictions of taking indecent liberties with a minor. As a factor in aggravation, the court found that the victim was very young. The defendant contended that this finding was improper because the victim's age was necessary to prove an element of the offense of taking indecent liberties with a minor. Our Supreme Court rejected this argument and held that the sentencing court could enhance the sentence for the more serious offense of second degree sexual offense with the finding of the aggravating factor, since evidence of the victim's age was not necessary to establish an element of second degree sexual offense, even though this offense had been consolidated for judgment with the indecent liberties counts. Id. at 541, 444 S.E.2d at 918. Here, evidence that defendant had a record of prior convictions was not necessary to prove an element of the greater offense of second degree murder. Thus, the sentencing court could properly make this finding to enhance the sentence. This contention is overruled.
    Defendant also contends that the State failed to present competent evidence to support the finding that defendant had prior convictions. He argues that although the prosecutor indicated to the court he had a copy of defendant's record, nothing in the transcript indicates that the record was admitted into evidence. He also argues that the prosecutor's summary of the evidence of defendant's prior convictions was not competent evidence.
    Under the Fair Sentencing Act, a defendant's prior record of convictions may be proved by stipulation of the parties, or by an original or certified copy of the court record. N.C. Gen. Stat. § 15A-1340.4(e) (1993). The present record shows that defendant's counsel stipulated to the record of defendant's prior convictions. Defendant did not object when the prosecutor orally summarized defendant's prior criminal history to the court. Finally, the indictment charging defendant with possession of a firearm by a felon stated that defendant had a prior conviction of possession of cocaine, an offense punishable by up to five years imprisonment. When a defendant pleads guilty, in finding factors in aggravation or mitigation the sentencing court may also consider factual allegations contained in the indictment or other criminal process. State v. Flowe 107 N.C. App. 468, 472, 420 S.E.2d 475, 478, disc. review denied, 332 N.C. 669, 424 S.E.2d 412 (1992). We overrule this contention.
    Chief Judge EAGLES and Judge MCCULLOUGH concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***