State v Salgero, (03-87) 11/18/2003

Appeal by defendant from judgment entered 25 August 1997 by Judge Jerry R. Tillett in Pamlico County Superior Court. Heard in the Court of Appeals 10 November 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General George W. Boylan, for the State.

McCotter Ashton & Smith, P.A., by Kirby H. Smith, III and Rudolph A. Ashton, III, for defendant-appellant.

LEVINSON, Judge.

    Defendant entered a guilty plea to reckless driving to endanger, driving without an operator's license, driving while impaired, assault on a female, robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”). The terms of defendant's plea agreement provided that his offenses would be consolidated for judgment, with sentencing otherwise in the trial court's discretion. Consistent with the plea, the trial court entered judgment sentencing defendant to a single aggravated term of 90-117 months' imprisonment. By order entered 7 August 2002, we allowed defendanta belated appeal by writ of certiorari.
    The record reveals the following facts germane to the appeal: On 10 July 1997, defendant was charged with assault on a female for hitting Zulma Sanchez Pellor in the face on 4 July 1997. He appeared in court on the charge on 11 July 1997, and was released on unsecured bond pending trial, on the condition that he have “[n]o contact” with Pellor. Later on 11 July 1997, defendant committed his remaining offenses of driving while impaired, driving without a license, reckless driving, robbery with a dangerous weapon, and AWDWIKISI.
    On 26 August 1997, defendant pled guilty to the offenses listed above, including the 4 July 1997 assault on a female. At his plea hearing, defendant stipulated to the prosecutor's summary of facts, which revealed that after obtaining release on bond on 11 July 1997, defendant “promptly left the courthouse and went and acquired a 30-30 lever action rifle[.]” He used the rifle to hijack a bus. After locating Pellor, defendant exited the bus and shot Pellor in the chest. He then drove her vehicle from the scene until he encountered a van driven by a Mr. Woshatt. Defendant held Woshatt at gunpoint and forced him to drive the van a short distance before taking control of the van himself and driving through Bayboro, North Carolina toward New Bern. Defendant was apprehended after leading Bayboro police on a high-speed chase which ended when he lost control of the van and crashed into the front of a clothing store, seriously injuring a bystander. At the time of the incident, defendant was impaired by alcohol and did nothave a valid North Carolina driver's license.
    At sentencing, the State offered as an aggravating factor that defendant was on pretrial release for the 4 July 1997 assault on Pellor when he committed his 11 July 1997 offenses. The trial court asked the prosecutor about a second aggravating factor as follows:
        THE COURT: . . . [Defendant] could have been charged with kidnapping in this case?

        [PROSECUTOR]: That's correct, Your Honor.

        THE COURT: And was not.

        [PROSECUTOR]: That's correct.

        THE COURT: So that can be considered as an aggravating factor as well.

Following this colloquy, the court announced from the bench two aggravating factors: that “defendant committed this offense while on pretrial release on another charge” and “committed additional and other acts which in and of themselves would constitute separate independent crimes for which he was not charged[.]” The court also announced three findings in mitigation: that defendant accepted responsibility for his conduct, supported his family, and had a positive employment history. The court announced its weighing of the aggravating and mitigating factors as follows:
        The Court finds that each and every one of the aggravating factors outweighs all mitigating factors and is alone in and of itself [a] sufficient basis for imposing an aggravated sentence and for the sentences in fact imposed in this case, and that each aggravating factor[] in and of itself outweighs all mitigating. Make that finding specifically for the judgment.
After assigning defendant a Prior Record Level I, the court sentenced defendant within the aggravated range for his most serious offense, the Class C felony of AWDWIKISI. See N.C.G.S. §§ 14-32(a), 15A-1340.17(c), (e) (2001).
    Attached to the judgment was a worksheet of aggravating and mitigating factors, which contained the two aggravating factors announced at the hearing, including a specific finding that defendant “committed other acts that by themselves would constitute kidnapping for which he was not charged.” In addition to the three mitigating factors announced from the bench, the worksheet added two additional mitigating factors proffered by defense counsel at the plea hearing: that defendant's age or immaturity significantly reduced his culpability for his crimes and that he acted under strong provocation. Finally, although the worksheet contained a finding that the “factors in aggravation outweigh the factors in mitigation and that an aggravated sentence is justified[,]” it lacked the finding announced from the bench that each individual aggravating factor was alone sufficient to outweigh the mitigating factors and support defendant's sentence.
    Defendant first assigns plain error to the trial court's finding that he committed other acts which constitute a crime for which he was not charged. Defendant contends the court's finding fails to specify the precise nature of the uncharged criminal acts or the victim of the uncharged offense. To the extent the court believed he could have been charged with kidnapping, defendant contends the court improperly used the same evidence to convict himfor the charged offenses and to aggravate his punishment therefor. See N.C.G.S. § 15A-1340.16(d) (2001).
    We find no merit to defendant's claim. The trial court entered a written finding “[t]hat [defendant] committed other acts that by themselves would constitute kidnapping for which he was not charged.” (emphasis added). Moreover, the finding of an uncharged kidnapping is amply supported by the stipulated facts adduced at the plea hearing. Defendant's act of holding the bus driver at gunpoint and forcing him to drive around looking for Pellor was an act of restraint and removal separate and independent from the AWDWIKISI committed against Pellor and defendant's other offenses. See, e.g., State v. Hill, 139 N.C. App. 471, 483, 534 S.E.2d 606, 614 (2000). Moreover, contrary to defendant's assertion, the trial court is not prohibited “from using in aggravation evidence showing that the defendant committed a related bad act where the act did not result in an indictment.” State v. Jewell, 104 N.C. App. 350, 358, 409 S.E.2d 757, 762 (1991), aff'd per curiam, 331 N.C. 379, 416 S.E.2d 3 (1992).
    Defendant next claims that the court erred in finding as an aggravating factor that he was on pretrial release at the time of his offense. Defendant concedes he was on pretrial release for the 4 July 1997 assault on a female when he committed his 11 July 1997 offenses, but notes that the assault on a female conviction was consolidated with the other offenses for judgment. Because the assault on a female charge was included in the judgment, defendant claims he was not on pretrial release on “another charge” but “wason pre-trial release on the very charge for which he was being sentenced.”
    The transcript reveals defendant neither contested nor objected to this finding at his sentencing hearing as required to preserve the issue for appellate review under N.C.R. App. P. 10(b)(1). See State v. Kimble, 141 N.C. App. 144, 147-48, 539 S.E.2d 342, 345 (2000) (citing State v. Hughes, 136 N.C. App. 92, 98, 524 S.E.2d 63, 67 (1999), disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000)), disc. review denied, 353 N.C. 391, 548 S.E.2d 150 (2001). Moreover, although defendant assigns plain error in the record on appeal and in his brief to this Court, he offers no argument or analysis under the plain error standard. Therefore, this issue is not properly before us. Id. (citing State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000) (“Defendant's empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule.”)). We note, however, that the trial court sentenced defendant for his most serious offense, AWDWIKISI, which he committed on 11 July 1997. The court was permitted to “make[] findings of aggravating and mitigating factors for the most serious offense for which defendant is being sentenced” without making equivalent findings with regard to his lesser consolidated offenses. State v. Miller, 316 N.C. 273, 284, 341 S.E.2d 531, 538 (1986); see also State v. Wright, 319 N.C. 209, 214, 353 S.E.2d 214, 218 (1987). It is undisputed that defendant was on pretrial release on another charge when he committed thesentencing offense of AWDWIKISI on 11 July 1997. We see no plain error in this finding.
    Defendant also assigns plain error to the trial court's oral finding that each of the individual aggravating factors outweighed all mitigating factors and was alone sufficient to support his aggravated sentence. While such a finding would be a proper exercise of the trial court's discretion, see State v. Norman, 151 N.C. App. 100, 104, 564 S.E.2d 630, 633 (2002), we repeat that the trial court's worksheet of aggravating and mitigating factors does not include the finding to which defendant now objects. Instead, the worksheet states only that the “factors in aggravation outweigh the factors in mitigation and that an aggravated sentence is justified.” Furthermore, as discussed above, the worksheet includes two mitigating factors not included in the court's oral findings at the plea hearing. It is possible that the disparities between the court's oral and written findings are mere clerical errors. Because the trial court's written findings are more favorable to defendant than those announced from the bench, however, this Court's policy is to treat the written findings as reflecting the trial court's will. See State v. Morston, 336 N.C. 381, 410, 445 S.E.2d 1, 17 (1994) (“[W]e believe that the better course is to err on the side of caution and resolve in the defendant's favor the discrepancy between the trial court's statement in open court, as revealed by the transcript, and the sentencing form.”) (citing State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987)). Inasmuch as the contested finding wasnot reduced to writing on the sentencing worksheet, we overrule this assignment of error.
    Defendant next challenges the sufficiency of the trial court's written findings to support an aggravated sentence. In addition to the matters already addressed above, defendant shows that the trial court did not check the box on the judgment form indicating the imposition of an aggravated sentence. As a result, the judgment fails to reflect that the court “ma[de] Findings of Aggravating and Mitigating Factors set forth on the attached AOC-CR-605" worksheet. However, both the hearing transcript and the sentencing worksheet attached to the judgment record the court's determination that the aggravating factors outweighed the mitigating factors and warranted an aggravated sentence. The record thus unequivocally reveals that the unchecked box on the judgment is a clerical error that may be corrected on remand. See State v. Sellers, 155 N.C. App. 51, 59, 574 S.E.2d 101, 106-07 (2002); State v. Gell, 351 N.C. 192, 218, 524 S.E.2d 332, 349, cert. denied, 531 U.S. 867, 148 L. Ed. 2d 110 (2000).
    Finally, defendant argues the trial court committed plain error in sentencing him in the aggravated range. Because it is based upon the unsuccessful arguments set forth above, we find no merit to this claim. We further find no abuse of the trial court's discretion in the imposition of an aggravated sentence in this case. “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 disturbedunless 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)).
    No error; remanded for correction of a clerical error on the judgment.
    Chief Judge EAGLES and Judge BRYANT concur.
    Report per Rule 30(e).

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