State v Sessoms, (02-1365) 07/15/2003

Appeal by defendant from judgment entered 25 March 2002 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 7 July 2003.

Attorney General Roy Cooper, by Daniel P. O'Brien, Assistant Attorney General, for the State.

Irving Joyner for defendant-appellant.

STEELMAN, Judge.

    Defendant, Jimmy Ray Sessoms, appeals convictions of second- degree kidnapping and robbery with a dangerous weapon. Defendant pled guilty pursuant to a plea arrangement to both charges and in exchange, the State agreed that the charges would be consolidated for judgment and that judgment would be continued until 25 March 2002. For the reasons discussed herein, we affirm the trial court.
    The State's evidence tended to show that on 23 August 2001, defendant arrived unannounced at the residence of Vicky Lynn Jones (Jones), the sister of his wife. Though Jones was surprised to see defendant, she let him in when he explained that he was in the neighborhood on his lunch break and wanted to come inside to getsomething to drink. Once inside, the two chatted for a while. Shortly thereafter, however, defendant pulled a gun on Jones and forced her upstairs into a bedroom. Defendant threw her onto the bed and demanded that she take her clothes off. When she resisted, defendant threw her to the floor and threatened to kill her. Defendant next tied Jones up with white cording that he had brought along with him and attempted to gag her. After putting on yellow Playtex gloves, defendant demanded money and jewelry. He found and took some money as well as some of Jones's jewelry. Defendant then put a gun to Jones's head and threatened to blow her head off. He took her into the garage of her residence, where he forced her into the floor of the back seat of her car. Defendant intended to drive Jones to his van, but when he arrived at the site where his van was parked, there were people nearby. Defendant continued to drive around, while repeatedly threatening Jones.
    At some point, Jones's vehicle shut off and would not restart. When an unidentified man stopped to lend assistance, Jones got his attention and alerted him to her situation. The man, under the guise of getting some jumper cables, left and notified law enforcement. When officers arrived, defendant had cut the rope binding Jones's hands and allowed her to get out of the car. Jones was, however, visibly distraught. She had scrapes and abrasions on her face, legs and wrists. A search of defendant revealed a .25 caliber handgun and white cording in his back pocket. Playtex gloves were found in Jones's car, with some other gloves belonging to defendant. Cash and jewelry from Jones's house were found underthe car seat. After being taken into custody, defendant told officers that he robbed Jones because he needed money for bills. He insisted that he was going to leave her on the side of the road.     Defendant did not contest the State's factual basis for the crimes charged, but presented additional information as to his motives for committing the crime. Defendant, through counsel, stated that he committed the crimes out of duress, after being threatened by Jones's ex-husband at gun point. According to defendant, Jones's ex-husband told him to kidnap and terrorize Jones and if he did not, he would kill defendant and his whole family. Defense counsel admitted, however, that he had been unable to corroborate this story, and was uncertain whether defendant had ever had any contact with Jones's ex-husband.
    At sentencing, the defense argued for the existence of the following mitigating factors: duress, coercion, that he was suffering from a mental condition, and that he was helping the State in a separate prosecution. Defendant requested a sentence in the mitigated range. The State argued for the aggravating factor that defendant took advantage of a position of trust in order to gain entry into Jones's home on 23 August 2001.
    After hearing the arguments of counsel, the trial court found two mitigating factors and one aggravating factor. After concluding that the one aggravating factor outweighed the two mitigating factors, the court sentenced defendant to an aggravated term of 80 to 105 months in prison for both convictions. Defendant appeals.     Defendant has failed to bring forth his first assignment of error, and it is therefore abandoned. See N.C.R. App. P. 28(b)(6).     In his second assignment of error, defendant argues that the trial court erred in finding aggravating factor 15 (that defendant took advantage of a position of trust or confidence to commit the offense) because there was not sufficient evidence to support such a finding. We do not address this assignment of error.
    We note at the outset that this issue is not properly before the Court, since defendant did not object to these findings during the sentencing hearing and has not assigned plain error in his assignment of error. See State v. Kimble, 141 N.C. App. 144, 147, 539 S.E.2d 342, 345 (2000), disc. review denied, 353 N.C. 391, 548 S.E.2d 150 (2001). Indeed, it is doubtful that plain error review is even available here, as plain error is available only for issues involving jury instructions or rulings on the admissibility of evidence. See State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). We decline to address this assignment of error on its merits.
    In his third assignment of error, defendant argues that the trial court improperly sentenced him to a term of imprisonment which exceeded the sentence authorized by our General Statutes. Again, defendant failed to properly preserve this issue for appellate review, as his assignment of error sets forth a different ground for review than that argued on appeal. See N.C.R. App. P. 10(a), 10(c)(1), 28(b)(5).
    Defendant's third assignment of error in the record on appealis as follows: “The Trial Judge erred when he sentenced the defendant to a term of imprisonment of 80-105 for Kidnapping and Robbery with a Dangerous Weapon where, pursuant to the negotiated plea, the active sentences for the two offenses were to be consolidated.” However, in his appellate brief, he argues that the sentence “exceed[s] the sentence authorized by the North Carolina General Assembly.” Moreover, even if the matter were properly before the Court, a review of the sentencing minimums of section 15A-1340.17(c) and the corresponding maximums of section 15A- 1340.17(e), shows that the trial court properly sentenced defendant to a minimum of 80 months' imprisonment and a corresponding statutory maximum of 105 months' imprisonment. Thus, this assignment of error is without merit.
    AFFIRMED.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***