Appeal by defendant from judgment entered 10 January 2002 by
Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard
in the Court of Appeals 7 April 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert O. Crawford, III, for the State.
Maitri Klinkosum for defendant-appellant.
MARTIN, Judge.
Defendant was indicted upon charges of possession with intent
to manufacture, sell and deliver cocaine, carrying a concealed
weapon, carrying a concealed gun, and murder. Pursuant to a plea
arrangement, defendant pled guilty on 10 January 2002 to charges of
second degree murder, possession with intent to manufacture, sell
and deliver cocaine, carrying a concealed weapon and carrying a
concealed gun.
After counsel for defendant stipulated to a factual basis for
the charges, the State summarized the evidence against defendant.
Counsel for defendant and the State then presented sentencing
arguments. The trial court found as an aggravating factor in opencourt that defendant committed the offense while on pretrial
release, G.S. § 15A-1340.16(d)(12), but subsequently marked box
twelve (“defendant involved a person under the age of 16 in the
commission of the crime”) on the AOC form for findings of
aggravating factors. The trial court also found as a nonstatutory
mitigating factor that defendant was seventeen years old at the
time of the offense. After finding that the aggravating factor
outweighed the mitigating factor, the trial court consolidated the
charges for judgment and imposed a sentence of 196 to 245 months
imprisonment. Defendant appeals from the judgment.
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Defendant first contends the trial court erred by failing to
find one nonstatutory and five statutory mitigating factors.
Defendant's arguments are not persuasive.
“Where evidence in support of a mitigating factor is
uncontradicted, substantial and inherently credible, it is error
for the trial court to fail to find that mitigating factor. . . .
The defendant has the burden of establishing mitigating factors by
a preponderance of the evidence.”
State v. Grier, 70 N.C. App. 40,
48, 318 S.E.2d 889, 894-95 (1984) (citation omitted),
cert. denied,
318 N.C. 698, 350 S.E.2d 860 (1986). However, “statements made by
defense counsel during argument at the sentencing hearing do not
constitute evidence in support of statutory mitigating factors.”
State v. Swimm, 316 N.C. 24, 32, 340 S.E.2d 65, 71 (1986)
. The
State did not stipulate to the statements by counsel for defendant,
therefore those statements were insufficient to support findings ofmitigating factors.
See id. “Finding that a mitigating factor
exists is within the trial judge's discretion and will not be
disturbed on appeal absent a showing that the court's ruling was so
arbitrary that it could not be the result of a reasoned decision.”
State v. Kinney, 92 N.C. App. 671, 678, 375 S.E.2d 692, 696 (1989).
Because defendant failed to meet his burden of establishing the
existence of the six mitigating factors, the trial court did not
abuse its discretion in refusing to find those mitigating factors.
Defendant next contends the trial court erred by finding as an
aggravating factor that he committed the murder while on pretrial
release for another felony.
See N.C. Gen. Stat. § 15A-
1340.16(d)(12) (2001). He argues the State produced no documentary
or testimonial proof to support the trial court's finding of this
aggravating factor. In a separate argument, defendant argues the
trial court erred in finding as an aggravating factor that he had
involved a person under the age of sixteen in the commission of the
offense.
See N.C. Gen. Stat. § 15A-1340.16(d)(13) (2001).
“The State bears the burden of proving by a preponderance of
the evidence that an aggravating factor exists,”
G.S.§ 15A-
1340.16(a), and the trial court's finding of “an aggravating factor
must be supported by sufficient evidence to allow a reasonable
judge to find its existence by a preponderance of the evidence.”
State v. Hayes
, 102 N.C. App. 777, 781, 404 S.E.2d 12, 15 (1991).
Here, the file before the trial court contained documentary
evidence in the form of arrest warrants, indictments and
transcripts of plea which indicate defendant was arrested on 28March 2001 for possession with intent to manufacture, sell or
deliver cocaine. Those documents show defendant was released on a
secured bond, and he was subsequently arrested for murder on 6 May
2001. Ample evidence supports the trial court's finding in open
court that defendant committed the offense while on pretrial
release, and this assignment of error is overruled.
The State produced no evidence, and the trial court made no
finding in open court that defendant had involved a person under
the age of sixteen in the commission of the crime. We note that
this aggravating factor is box number twelve on the AOC felony
judgment sheet, whereas committing an offense while on pretrial
release is number twelve in the statutory listing of aggravating
factors.
See N.C. Gen. Stat. § 15A-1340.16(d)
(12). We therefore
remand the judgment to the trial court to correct this clerical
error such that the AOC felony judgment sheet properly reflects the
trial court's finding that “defendant committed the offense while
on pretrial release on another felony charge.”
See id.
In his remaining argument, defendant contends the trial court
erred in finding that the aggravating factor outweighed the
mitigating factor. He relies primarily upon his earlier argument
that the trial court erred by not finding six additional mitigating
factors. As previously discussed, the trial court properly did not
find those additional mitigating factors. The weighing of
aggravating and mitigating factors by the trial court is
discretionary.
See State v. Wampler, 145 N.C. App. 127, 549 S.E.2d
563 (2001). Upon our review of the transcript and the record onappeal, the trial court did not abuse its discretion by finding
that the one aggravating factor outweighed the one mitigating
factor. Because defendant has neither cited any authority nor
stated any reason or argument in support of his remaining
assignment of error, it is deemed abandoned. N.C.R. App. P.
28(b)(6) (2001).
Affirmed; Remanded for correction of clerical error.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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