Appeal by defendant from judgment filed 14 August 2002 by
Judge Henry E. Frye, Jr. in Guilford County Superior Court. Heard
in the Court of Appeals 29 October 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Teresa L. White, for the State.
Joal H. Broun for defendant-appellant.
BRYANT, Judge.
Robert Derone Spencer (defendant) appeals a judgment filed 14
August 2002 entered pursuant to a guilty plea to assault with a
deadly weapon inflicting serious injury.
At the conclusion of the sentencing hearing, the trial court
found as factors in aggravation that: (1) the victim suffered
serious injury that is permanent and debilitating and (2) as a
result of the incident, the victim incurred medical expenses “in
excess of $96,957.21, [and] even with insurance payments, the
amount still owed by the victim [was] $42,671.80.” As factors in
mitigation, the trial court found that: (1) defendant has entered
and is currently involved in or has successfully completed a drug
treatment program or an alcohol treatment program subsequent toarrest and prior to trial; (2) defendant has a support system in
the community; and (3) defendant has a good treatment prognosis and
a workable treatment plan is available. Finding the factors in
aggravation to outweigh the factors in mitigation, the trial court
then sentenced defendant to an active term of imprisonment within
the aggravated range of a minimum of 56 months and a maximum of 77
months. The trial court recommended work release and, as a
condition of post-release supervision or from work release
earnings, payment of restitution in the amount of $42,671.80 and
attorney's fees in the amount of $2,925.00. Defendant noted his
objections for the record to the trial court's findings of
aggravating factors and gave notice of appeal on this basis in open
court.
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The issues are whether the trial court erred in: (I) including
the payment of restitution as part of defendant's sentence and (II)
using the standard of preponderance of the evidence to determine
the existence of aggravating factors.
I
Defendant contends the trial court erred by ordering him both
to make restitution and to serve an active sentence. Although
defendant objected to the trial court's findings of aggravating
factors and his sentence in the aggravated range, he did not object
to the sentence with regard to the issue of restitution.
Defendant's contention, therefore, is not properly before this
Court.
State v. Hughes, 136 N.C. App. 92, 98, 524 S.E.2d 63, 66(1999);
see State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d
550, 563 (1997) (our Courts have chosen to review unpreserved
issues for plain error only when Rule 10(c)(4) of the Rules of
Appellate Procedure has been complied with and the issue involves
either errors in the trial judge's instructions to the jury or
rulings on the admissibility of evidence). Even if defendant had
objected, the contention would fail. In
Hughes, relied upon by
defendant, this Court held that a trial court may not
order both an
active term of imprisonment and payment of restitution.
Hughes,
136 N.C. App. at 98, 524 S.E.2d at 67. This Court, however,
expressly stated that a sentencing trial court may
recommend
payment of restitution as a condition of post-release supervision
or from work release earnings.
Id. As this is precisely what the
trial court did in the present case, defendant's argument is
without merit.
II
Defendant also contends that, in finding the aggravating
factors in this case, the trial court erred by applying the
standard of preponderance of the evidence under N.C. Gen. Stat. §
15A-1340.16 instead of proof beyond a reasonable doubt as provided
by
Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000)
and its progeny.
See N.C.G.S. § 15A-1340.16(a) (2001) (“[t]he
State bears the burden of proving by a preponderance of the
evidence that an aggravating factor exists”).
Defendant's reliance upon
Apprendi is misplaced because this
decision applies only when a sentencing enhancement schemeincreases the penalty for a crime beyond the maximum sentence
prescribed by statute.
State v. Lucas, 353 N.C. 568, 595, 548
S.E.2d 712, 730 (2001). While the finding of an aggravating factor
does enhance a sentence under the Structured Sentencing Act, the
penalty is not increased beyond the maximum statutory penalty
established by the Act itself. As applied to this case, the
highest possible maximum sentence for assault with a deadly weapon
inflicting serious injury, a class E felony, is 98 months,
calculated as the highest possible minimum term of imprisonment of
74 months and the corresponding maximum term of 98 months.
See
N.C.G.S. § 15A-1340.17(c), (e) (2001). Thus, the sentence imposed
by the trial court falls well within those parameters, and the
trial court properly applied the preponderance of the evidence
standard in finding aggravating factors.
No error.
Chief Judge EAGLES and Judge LEVINSON concur.
Report per Rule 30(e).
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