STATE OF NORTH CAROLINA
v. Wayne County
No. 01 CRS 53605
KEVIN RAIFORD
Attorney General Roy Cooper, by Assistant Attorney General
Lorrin Freeman, for the State.
Lynne Rupp for defendant-appellant.
MARTIN, Judge.
Defendant appeals from a judgment imposing a term of
imprisonment entered after a jury found him guilty of robbery with
a dangerous weapon. The State's evidence tended to show that on
the morning of 24 May 2001, defendant and Donald Jerome Swinson
entered the La Palmita store on Potts Road in Dudley, North
Carolina, their faces covered with stockings. While defendant
stood at the door, Swinson drew a Derringer handgun, put it to the
store clerk's head and stole the money from the cash register.
Defendant and Swinson then ran from the store to a nearby church
and divided the money between them. They stopped briefly at
defendant's residence in Rollingwood Estates before walking to O'Quinn's Store to buy something to eat. Acting on the La Palmita
clerk's description of her assailants, Wayne County Sheriff's
Deputies Lynn Davis and Richard Blizzard apprehended defendant and
Swinson at O'Quinn's. Swinson, who testified at defendant's trial,
led police to the gloves, gun and stocking he used in the robbery,
which were buried near the church under a pile of leaves.
Defendant waived his Miranda rights and gave a written statement
admitting in detail to the robbery.
Defendant first claims the trial court improperly punished him
for exercising his right to a jury trial. At sentencing, the court
asked the prosecutor about the sentence Swinson had received for
the robbery. The prosecutor stated that Swinson had entered a
guilty plea in exchange for a sentence in the mitigated range,
whereupon the following exchange occurred:
THE COURT: In the mitigated range? Well--
[PROSECUTOR]: That was probably negotiated,
Judge.
THE COURT: Yeah, it was negotiated? But this
one wasn't though, was it?
[PROSECUTOR]: No, we tried it out, Judge.
THE COURT: Okay. Well, you should have got
the other judge.
As noted above, the court ultimately sentenced defendant within the
presumptive range.
A criminal defendant has a constitutional right to a jury
trial. See N.C. Const. art. I, § 24. Moreover, “[i]t is improper
for the trial court, in sentencing a defendant, to consider the
defendant's decision to insist on a jury trial.” State v.Peterson, __ N.C. App. __, __, 571 S.E.2d 883, 885 (2002) (citing
State v. Cannon, 326 N.C. 37, 39, 387 S.E.2d 450, 451 (1990)). A
defendant is entitled to re-sentencing “[w]here it can reasonably
be inferred from the language of the trial judge that the sentence
was imposed at least in part because defendant . . . insisted on a
trial by jury.” Cannon, 326 N.C. at 39, 387 S.E.2d at 451.
We find nothing in the trial transcript evincing an intention
by the trial court to penalize defendant for going to trial. The
court simply indicated it would not be as lenient as the judge who
had accepted the terms of Swinson's guilty plea. Here, the court's
sentencing decision was guided by a particular concern about the
proliferation of robberies involving handguns:
THE COURT: I will say this. That I take a
very dim view of robbery with pistols.
There's too much of it going on. It's too
easy now. People working in these
convenien[ce] stores, gas stations. I never
go in one at night . . .[,] although that's
not even safe anymore because this occurred in
the daytime, didn't it?
[COUNSEL]: Yes, sir. I believe so.
THE COURT: And the only way I know how to
send a message out that this is not going to
be tolerated is to sentence him so he thinks
about it the next time he uses poor judgment
and runs off with one of his unsavory friends
to do something like this. . . .
It is entirely proper for a trial court to consider the seriousness
of the defendant's offense in imposing a sentence within the
presumptive range prescribed by the legislature. See State v.
Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983). Defendant's
assignment of error is overruled. Defendant next avers the trial judge failed to sentence him in
the mitigated range, despite acknowledging in open court that his
offense was mitigated by his young age. Defendant cites the
following exchange as reflecting the court's finding on this issue:
THE COURT: [W]hat did you say, he was 18
years-old?
[COUNSEL]: Yes, sir, he turned 18 on May the
12th.
THE COURT: The government says you're grown
when you turn 18.
[COUNSEL]: Right.
THE COURT: It used to be 21 but they've
reduced it down to 18. You're a man now,
legally and physically, although sometimes not
mentally. And in this case I think the latter
was the case. I want to tell you something.
I can't imagine what compelled him to do this
kind of crazy mess . . . .
As the quoted passage makes clear, the trial court did not view
defendant's age to be a mitigating factor. Rather, the court
rejected counsel's suggestion that defendant was less culpable
because of his age, noting defendant's adult status under the law
and voicing dismay at his decision to participate in the robbery.
Defendant points to additional mitigating factors which he
claims were established by the evidence. However, “since the trial
judge imposed [a] presumptive sentence . . ., he was not required
to consider either aggravating or mitigating factors.” State v.
Hart, 105 N.C. App. 542, 549, 414 S.E.2d 364, 368, appeal dismissed
and disc. review denied, 332 N.C. 348, 421 S.E.2d 157 (1992).
Defendant shows no abuse of discretion by the court in sentencing
him within the presumptive range. Id. In his remaining argument on appeal, defendant asserts he
received ineffective assistance of counsel at trial. To sustain
such a claim, defendant must show both that his counsel's
performance was unreasonably deficient and that this deficiency had
a probable impact on the outcome at trial. Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984); State v.
Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985).
Defendant faults his trial counsel for failing to move to
suppress two pieces of evidence: (1) a show-up identification of
defendant and Swinson by the clerk of the La Palmita store and (2)
a statement defendant made to law enforcement before he was advised
of his Miranda rights, in which he implicated Lorenzo Peacock in
the robbery. In light of Swinson's testimony and defendant's own
signed confession recounting his participation in the robbery, we
find no reasonable probability of a different outcome at trial had
the challenged evidence been excluded. Because defendant was not
prejudiced by the alleged errors, we need not assess the
reasonableness of counsel's performance. See State v. Rogers, 355
N.C. 420, 562 S.E.2d 859 (2002).
The record on appeal contains additional assignments of error
not addressed by defendant in his brief to this Court. By rule, we
deem them abandoned. See N.C.R. App. P. 28(b)(6).
No error.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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