An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-138


Filed: 18 November 2003


    v.                            Guilford County
                                No. 01 CRS 085982

    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.


    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.

    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.

    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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