STATE OF NORTH CAROLINA
v. Rowan County
Nos. 01 CRS 51251-52
WILLIAM DAVID SMITH, 01 CRS 8813-14
Defendant. 02 CRS 1632, 1638
02 CRS 1643-48
02 CRS 1650, 1652
02 CRS 1654
Attorney General Roy Cooper, by Assistant Attorney General
Jane Rankin Thompson, for the State.
Miles & Montgomery, by Mark Montgomery, for defendant-
appellant.
HUDSON, Judge.
Defendant was convicted of five counts of first degree sexual
offense with a child and ten counts of taking indecent liberties
with a child. Defendant was sentenced to two consecutive terms of
twenty-one to twenty-six months imprisonment for two of the
indecent liberties convictions, followed by a consolidated sentence
of ten years, pursuant to the Fair Sentencing Act, for the
remaining eight indecent liberties convictions. Defendant also
received two consecutive terms of life imprisonment for the sexual
offense convictions, to run at the end of the ten years. The court
held a hearing to address aggravating and mitigating factors, andfound as the only aggravating factor that defendant had a prior
conviction. The court found no mitigating factors. The trial
court then sentenced defendant to an aggravated sentence of ten
years imprisonment. Defendant appeals.
Defendant's sole argument on appeal is that the trial court
erred by failing to find as a factor in mitigation that he was
honorably discharged from the United States Armed Services.
Defendant asserts that his counsel informed the trial court he was
honorably discharged, and that this constituted sufficient basis
for the trial court to find this mitigating factor. Defendant
notes that the trial court relied on the same sort of
representation by the prosecutor in finding the sole aggravating
factor that defendant had a prior conviction.
After careful review of the record, briefs and contentions of
the parties, we find no error. Our Supreme Court has stated that
“statements made by defense counsel during argument at the
sentencing hearing do not constitute evidence in support of
statutory mitigating factors.” State v. Swimm, 316 N.C. 24, 32,
340 S.E.2d 65, 71 (1986). The only evidence of defendant's
honorable discharge came from the statements of his counsel during
the sentencing hearing. Thus, there was no evidence upon which the
trial court could find the existence of this mitigating factor. We
note defendant's contention that the trial court based the finding
of an aggravating factor on similar unsworn statements by the
prosecutor. However, a review of the transcript reveals that one
of the detectives who investigated the case testified thatdefendant had been convicted of at least one other sexual offense
in 1993. Thus, there was sworn testimony in the record to support
the finding of this aggravating factor. Accordingly, the
assignment of error is overruled.
We additionally note that there is a clerical error in the
judgment. Under Fair Sentencing, the offense of taking indecent
liberties with a minor was a Class H felony. The judgment
erroneously lists it as a Class F felony. The trial court
correctly categorized the offense as a Class H felony during the
sentencing hearing, found the existence of the aggravating factor,
although without checking the box to indicate the weighing of the
factors. (If the box was checked, it is not legible in the record
on appeal). In light of the one aggravating factor, the court
correctly sentenced defendant to the maximum term of ten years
imprisonment. Thus, it appears that the errors are merely clerical
and do not require resentencing, but we remand the matter for
correction of the clerical error.
No error; remanded for correction of clerical error in the
judgment.
Judges MCGEE and GEER concur.
Report per Rule 30(e).
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