An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-255


Filed: 21 October 2003


         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

    Appeal by defendant from judgments entered 19 September 2002 by Judge Steve A. Balog in Superior Court in Rowan County. Heard in the Court of Appeals 6 October 2003.

    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).

*** Converted from WordPerfect ***