An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-28


Filed: 6 January 2004

v .                                 Rowan County
                                    No. 01 CRS 52361

    Appeal by defendant from judgment entered 9 October 2002 by Judge Larry G. Ford in Rowan County Superior Court. Heard in the Court of Appeals 15 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

    Bruce T. Cunningham, Jr., for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Melissa Yvette Snow was tried before a jury at the 8 October 2002 Criminal Session of Rowan County Superior Court after being charged with discharging a weapon into occupied property. The State's evidence presented tends to show the following: Defendant and Jeffrey Neal (“Mr. Neal”) are the biological parents of their daughter Summer, who was 13 months old at the time of the incident. They were having domestic problems and were living apart in April 2001. Summer was generally being cared for by defendant.
    On the night of 24 April 2001, defendant's son Devin, not fathered by Mr. Neal, had a baseball game. Defendant left Summer with Mr. Neal to go to her son's baseball game which lasted from6:00 p.m. to 7:30 p.m. Defendant and Devin returned to Mr. Neal's trailer home at approximately 8:15 p.m. or 8:30 p.m. Devin immediately went over to Mr. Neal's neighbor's home, Lisa Roderick (“Lisa”), to play video games. Defendant stayed at Mr. Neal's home and talked with him and another woman who was visiting him.
     Between 9:00 or 9:30 p.m., defendant went to get Devin, and stayed to talk with Lisa for about 45 minutes to an hour while drinking beer. She then returned to Mr. Neal's home and saw him taking money from the women that had been visiting him. She recognized this as a drug sale from her own drug related experiences with Mr. Neal. Defendant became upset because she thought he would have changed since Summer was born. She said, “You haven't changed and I reckon you never will. I think it's time for us to go.” She left again, leaving Devin and Summer, and returned to Lisa's very upset. Defendant stayed at Lisa's for about 30 minutes.
Defendant returned to Mr. Neal's home at around midnight on 25 April 2001. She first woke Devin. She then went into the bedroom where Mr. Neal and Summer were sleeping and became irate, stating she was taking Summer. Mr. Neal said that he would not let defendant take Summer because she had been drinking. The argument then began to escalate, and defendant grabbed a 9-mm semiautomatic handgun off the headboard of the bed. Defendant pointed the gun at Mr. Neal and told him she was going to kill him, but then walked out of the home.     After defendant left the home, Mr. Neal took Summer and went to the kitchen window. He testified that he saw defendant standing on the front steps with the gun in her hand, that she then fumbled the gun, pointed it towards the trailer home, and fired two shots into the home. Defendant testified that before she shot the pistol, she saw Mr. Neal and Summer in the kitchen window. One of the bullets passed through the front door and two bedroom walls. The other bullet went through three walls. When defendant was arrested, she did not tell the police that the shooting was an accident or that Mr. Neal had assaulted her.
    Defendant put on evidence that when she was leaving the house with Summer, Mr. Neal was screaming that “[she] wasn't ever going to see her baby ever again.” She testified that Mr. Neal first drew the gun and pointed it at her, and when he was putting it down, she grabbed it from him and threw the gun out the front door. She testified that she too was doing a lot of screaming when leaving the house. She testified that when in the yard she picked up the gun, but never pointed it at the house or intended to shoot the house. The gun fired twice while in her hands.
    Defendant was convicted by a jury of discharging a weapon into occupied property, and sentenced to 24-36 months in the North Carolina Department of Corrections. This was a mitigated sentence, as the trial court determined the factors in mitigation outweighed the factor in aggravation.
    On appeal, two issues frame her seven assignments of error, both of which pertain to her sentencing. The first is that thetrial court erred in finding as an aggravating factor that a 9-mm semiautomatic handgun is a weapon which would normally be hazardous to the lives of more than one person pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(8) (2001); and second, that a jury should have decided the factual issue of whether defendant was on probation when she committed the offense, because this moved her from a Level II offender, eligible for probation, to a Level III offender, carrying a minimum sentence of 20 months' incarceration. For the reasons set out in this opinion, we conclude there to be no error on both issues.

Risk of Death to More than One Person

Before addressing the merits of defendant's assignments of error concerning the trial court's finding of an aggravating factor in the sentencing of defendant, we note here that defendant was given a mid-range mitigated sentence. Therefore, because this sentence is below the presumptive range for defendant's prior record or conviction level and class of offense, there is no direct right of appeal on this issue. N.C. Gen. Stat. § 15A-1444(a1) (2001); see State v. Brown, 146 N.C. App. 590, 593, 553 S.E.2d 428, 430 (2001), appeal dismissed, disc. review denied, 356 N.C. 306, 570 S.E.2d 734 (2002) (Defendant sentenced within the presumptive range is not entitled as a matter of right to appeal his sentence.). However, as the Court did in Brown, we will review this issue as if it had properly been petitioned for and accepted by writ of certiorari.     Pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(8), an aggravating factor will be imposed if the “defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.” The sentencing judge must “focus on two considerations: (1) [whether] a great risk of death [was] knowingly created, and (2) whether the weapon in its normal use is hazardous to the lives of more than one person.” State v. Carver, 319 N.C. 665, 667, 356 S.E.2d 349, 351 (1987). Thus, determining this aggravating factor in sentencing is a two-prong consideration for the trial court.
The weapon in its normal use

    Defendant argues that a 9-mm semiautomatic gun is not per se a normally hazardous weapon under N.C. Gen. Stat. § 15A- 1340.16(d)(8). She argues that in determining whether a weapon is normally hazardous to more than one person, the trial court should have considered the context in which the shots were fired. Specifically, defendant argues that the court should have been presented evidence as to the timing of the two shots fired by defendant.
    We believe defendant has incorrectly framed her argument, arguing, pursuant to the first prong of the test laid out in Carver, that the court must consider the context of how a weapon was used before it can be deemed normally hazardous. We do not read “normally” in the statute to require the trial court to consider the specific use of the weapon in the underlying offensebefore deeming it to be hazardous. In fact, our Supreme Court has already found a 9-mm semiautomatic handgun to be hazardous in its normal use.
    In State v. Bruton, our Supreme Court affirmed the trial court's finding that when defendant used a 9-mm semiautomatic handgun intentionally firing at two people, that the “defendant knowingly created a great risk of death to more than one person by means of a weapon which would normally be hazardous to the lives of more than one person.” State v. Bruton, 344 N.C. 381, 393, 474 S.E.2d. 336, 345 (1996). The Court in Bruton disposed of the first prong of Carver conclusively stating, “a semiautomatic pistol is normally used to fire several bullets in rapid succession and in its normal use is hazardous to the lives of more than one person.” Id.; see also State v. Rose, 327 N.C. 599, 605, 398 S.E.2d 314, 317 (1990); see generally State v. Antoine, 117 N.C. App. 549, 451 S.E.2d 368, disc. review denied, 340 N.C. 115, 456 S.E.2d 320 (1995). We hold, as our Supreme Court did in Bruton and Carver, that a semiautomatic pistol is per se hazardous to the lives of more than one person, and without more meets the first prong of Carver.
Knowingly Creating a Risk of Death

    Though defendant framed her argument pursuant to the first prong of Carver, the issue actually alleged in her brief seemingly goes to the second prong: whether defendant knowingly created a risk of death. This issue is not technically before us pursuant toNorth Carolina Rules of Appellate Procedure, Rule 28(a), but we here dispose of it in short order.
    Evidence of record suggested the following. On the night of 24 April 2001, defendant returned to Mr. Neal's trailer home around midnight, and demanded she be able to take Summer. When Mr. Neal did not allow defendant to take their daughter, defendant grabbed his gun from his headboard, unsheathed it, and pointed it him threatening to kill him. Summer was in the room at the time. Defendant then walked outside the home and pointed the gun at the home. Before firing into the dwelling, she knew both Summer and Mr. Neal were inside, and testified that she saw them together in the kitchen window before firing. She then fired, with both rounds hitting and going into the home.
    We believe a jury finding the above is sufficient to establish defendant knowingly created a risk of death to two people who were in close proximity inside the dwelling. In State v. Evans, 120 N.C. App. 752, 758-59, 463 S.E.2d 830, 834 (1995), disc. review denied, 343 N.C. 310, 471 S.E.2d 78 (1996), this Court held that indiscriminately firing a .38 caliber or a 9-mm handgun into a house occupied by five people knowingly created a risk of death to more than one person.
    We therefore conclude there was no error in the trial court's finding of the aggravating factor of knowingly creating a risk of death to more than one person, and overrule all assignments of error on that issue.
Fact Increasing Sentence to Mandatory Incarceration
    In her next issue on appeal, defendant contends she was denied by the trial court a jury determination of her probation status at the time of the offense. Because the trial judge found her to be on probation at the time of the offense and thus increased her from a level II offender to a level III offender, defendant went from being eligible for probation to being sentenced to a mandatory minimum term of 20 months. Defendant argues this violates the Fourteenth Amendment due process principles that underlie the United States Supreme Court opinion in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000). Thus, she contends it was plain error by the trial court not to give the determination of probation status to the jury.
    Justice Stevens' clear holding in Apprendi states: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455. Therefore, to implicate the due process issues in Apprendi, the trial judge must actually increase the penalty beyond the prescribed statutory maximum, and do so on a basis other than a prior conviction already proven beyond a reasonable doubt. We hold that the due process concerns raised in Apprendi are not at issue in this case.
     Due process and Apprendi are implicated when the trial judge, in the use of his discretion, sentences a defendant beyond the statutory maximum range based on factors not alleged in theindictment or given to a jury to establish as fact. This Court has adopted Apprendi as follows: “[T]he rule set forth in Apprendi is not violated unless the trial court, following its discretionary consideration of factors relating to both the offense and the offender, imposes a penalty that exceeds the maximum the defendant could receive, by statute, for the particular underlying offense.” State v. Guice, 141 N.C. App. 177, 191, 541 S.E.2d 474, 483 (2000) (emphasis added) [Guice I]. Defendant was sentenced in the mitigated range of 24-36 months for a Class E felony; the maximum range of a Class E felony is 74-98 months. See N.C. Gen. Stat. § 15A-1340.17 (2001). Therefore, despite the finding that defendant was on probation at the time of the offense, she was sentenced within the statutorily prescribed range, and this sentence was based upon a jury's finding of guilt beyond a reasonable doubt on all the elements of the crime charged.
    Additionally, defendant argues her sentence was unfair because the trial court's finding of defendant on probation at the time of the offense bumped her into the range of Prior Record Level III. The mandatory minimum sentence that she will be forced to serve due to this determination is 20 months when she would otherwise have been eligible for probation. We do not believe this is a discretionary finding of an aggravating factor, as was the concern in Apprendi and Guice, and see no due process implications. Whether or not someone is on probation is a status for which the trial court has no discretion in finding.    Aggravating factors, when found, can extend a sentence beyond the statutory maximum for the underlying crime, and in that regard act much like an additional element to a new crime. See Apprendi, 530 U.S. at 483 n.10, 147 L. Ed. 2d 450 n.10. Whether or not someone is on probation at the time of the offense is a fact wholly unrelated to the elements of the underlying offense, and dissimilar to an aggravating factor in that regard. When a trial court finds as fact that a defendant was or was not on probation, such a finding alone will never actually exceed the statutory sentencing framework, but potentially move the defendant within the framework into a new range. While it can be argued the effect is the same, the process lacks trial court discretion and for that reason does not implicate due process concerns.
    Finding a defendant on probation, based on prior convictions, the trial court is working within the statutory framework, observing, without discretion, facts in existence at the time of the offense. This Court has clearly assessed N.C. Gen. Stat. § 15A-1340.14(b)(7) (2001) concerning a defendant's prior record level for calculating felony sentencing:
        We believe the language of subsection (b)(7) is clear and unambiguous that if a defendant commits an offense while on probation, a point is assessed regardless of the type of conviction for which the probation was imposed. The trial court did not err by assessing defendant a prior record point for committing the offense while on probation.

State v. Leopard, 126 N.C. App. 82, 85, 483 S.E.2d 469, 471 (1997). In this case the testimony of the probation officer and documentsprovided to the court clearly showed as fact defendant was on probation at the time of the offense. The fact that defendant's prior record of offenses, for which guilt has been established, now pushes her into a sentencing range requiring mandatory incarceration does not by that fact alone implicate due process concerns. The trial court is merely following the calculus of North Carolina sentencing laws as is required.
    Finally, defendant argues that the court was required to find that she knew she was on probation at the time of the offense. N.C. Gen. Stat. § 15A-1340.14(b)(7) requires the trial court add a record point “[i]f the offense was committed while the offender was on supervised or unsupervised probation[.]” The clear language of the statute requires no knowledge by the offender that he or she is on probation and we hold there to be none.
    We hold there to be no error by the trial court on all issues raised by defendant, and conclude defendant received a fair trial.
    No error.
    Judge TYSON concurs.     
    Judge BRYANT concurs in the result.
    Report Per Rule 30(e).

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