An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-790


Filed: 3 June 2003


         v.                        Forsyth County
                                Nos. 01 CRS 15469
JOHN WELDON BAXTER                        01 CRS 54114
                                    01 CRS 55981

    Appeal by defendant from judgment entered 30 January 2002 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 12 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Thomas H. Moore, for the State.

    James N. Freeman, Jr. for defendant appellant.


    John Weldon Baxter (“defendant”) was charged with conspiracy to sell and deliver cocaine. This charge came approximately one month after defendant was released pending trial on charges of possession with intent to manufacture, sell and deliver cocaine, the sale of cocaine, and having attained the status of habitual felon. Defendant subsequently pled guilty to all of the substantive offenses and admitted to being an habitual felon. This plea was not a part of any plea agreement with the State.
    During the entry of plea, the State summarized the evidence supporting the charges against defendant. The court found that a factual basis existed for the plea and accepted the tendered plea. At sentencing, the State argued that the court should find as an aggravating factor that defendant had engaged in the conspiracy to sell cocaine while on pretrial release. Defendant argued that the court should find as a mitigating factor that he admitted his responsibility for the crimes charged by his plea. Defense counsel also noted that defendant's sentence should not be lengthy as the crimes charged were non-violent. Finally, counsel noted that defendant was the father of four minor children, and “want[ed] to support his children.” No witnesses testified in support of, or in opposition to these aggravating and mitigating factors. After considering the evidence and the arguments of counsel, the trial court found one aggravating and one mitigating factor. The court determined that the one aggravating factor outweighed the one mitigating factor. The trial court then sentenced defendant to a minimum term of 144 months and a maximum of 182 months of imprisonment. Defendant appeals.


    In his sole assignment of error, defendant argues that the trial court erred in failing to find as mitigating factors that he had accepted responsibility for his criminal conduct and that he supported his family, pursuant to North Carolina General Statutes sections 15A-1340.16(e)(15) and (17), respectively. Defendant contends that uncontradicted evidence supported these findings. We disagree.
    Under North Carolina General Statutes section 15A-1340.16(a), a defendant bears the burden of proving, by a preponderance of theevidence, the existence of a mitigating factor. N.C. Gen. Stat. § 15A-1340.16(a)(2001). The State bears a similar burden of proving the existence of an aggravating factor. Id. The trial court need not consider a mitigating or aggravating factor, unless the evidence in support of that factor is uncontradicted, substantial and manifestly credible. State v. Hilbert, 145 N.C. App. 440, 444, 549 S.E.2d 882, 885 (2001). Moreover, the trial court is allowed wide latitude in making a decision as to the existence of a mitigating or aggravating factor. See State v. Barton, 335 N.C. 741, 750, 441 S.E.2d 306, 311 (1994). “It is well settled that the balance struck in weighing the aggravating against the mitigating factors is a matter within the sound discretion of the trial judge and 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. Howard, 99 N.C. App. 347, 348-49, 393 S.E.2d 139, 141 (1990) (quoting State v. Parker, 315 N.C. 249, 255, 337 S.E.2d 497, 502-03 (1985)).
    In the instant case, defendant acknowledged wrongdoing by willingly proceeding on a bill of information instead of an indictment in one case, and pleading guilty instead of going to trial. Defendant did not present any evidence, and indeed, there is none in the record to show that he acknowledged wrongdoing to law enforcement. In rendering judgment, the trial court made one finding in aggravation and one factor in mitigation. The court made the following statement in open court: “Mitigating factor, he accepted responsibility. . . . Consolidate everything into the lastcase, most recent 01-CRS-55981. Mitigating factor is, of course, that he did admit and accept responsibility at an early stage. Aggravating factor, he was on pretrial release while he was doing this. Aggravating outweigh[s] the mitigating.” While the court made a mitigating finding under North Carolina General Statutes section 15A-1340.16(e)(15), the “Felony Judgment Findings of Aggravating and Mitigating Factors” form lists the mitigating factor under North Carolina General Statutes section 15A- 1340.16(e)(11)--“The defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer . . . at an early stage of the criminal process.” We do not believe that the court intended to find any more than the one mitigating factor under North Carolina General Statutes section 15A-1340.16(e)(15). Nor does the evidence support any other mitigating factor. Indeed, we believe the notation on the aggravating and mitigating factors form to be a clerical error, and suggests that this matter be remanded for correction of that error by the trial court. See Hilbert, 145 N.C. App. at 446-47, 549 S.E.2d at 886 (remanding for correction of clerical error in judgment that erroneously listed aggravating and mitigating factors).
    As to the court's failure to make a finding under North Carolina General Statutes section 15A-1340.16(e)(17), we note that defendant did not present the requisite evidence to warrant the finding of such a mitigating factor. Here, defense counsel informed the court that defendant was the father of four minor children, and that he wanted to support them. Defendant failed toproffer any evidence to show that he did, in fact, provide any financial support for these children. Accordingly, we conclude that the trial court did not err in failing to make a finding in mitigation that defendant supported his family.
    Having so concluded, this matter is remanded to the superior court for correction of the clerical error to reflect the court's finding in mitigation under North Carolina General Statutes section 15A-1340.16(e)(15), instead of North Carolina General Statutes section 15A-1340.16(e)(11). In all other respects, the judgment entered on defendant's guilty plea is affirmed.
    Affirmed; remanded for correction of clerical error in judgment.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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