STATE OF NORTH CAROLINA
v. Wake County
No. 02 CRS 30639
DONZELLE RUSSELL, JR.
Attorney General Roy Cooper, by Special Deputy Attorney
General Lars F. Nance, for the State.
Moshera H. Mohamed for defendant-appellant.
TIMMONS-GOODSON, Judge.
On 6 May 2002, the Wake County grand jury indicted defendant
on a charge of murder. Defendant subsequently pled guilty on 4
October 2002 pursuant to a plea arrangement to a charge of
voluntary manslaughter. The trial court found defendant had a
prior record level of II and also found two aggravating factors and
five mitigating factors. After finding that those factors
counterbalanced each other, the trial court sentenced defendant to
a term of 77 to 102 months imprisonment. From the trial court's
judgment, defendant appeals.
Defendant contends the trial court erred by imposing a
sentence in the aggravated range without making the necessaryfindings to support the increased sentence. His argument is
unpersuasive.
Defendant pled guilty to a charge of voluntary manslaughter,
which is a class D felony. N.C. Gen. Stat. § 14-18 (2003). After
finding that defendant had a prior record level of II, the trial
court sentenced defendant to a minimum term of seventy-seven months
imprisonment. The presumptive range of minimum sentence durations
for a class D felony at prior record level II is sixty-one to
seventy-seven months. N.C. Gen. Stat. § 15A-1340.17(c) (2003).
Because defendant's minimum sentence of seventy-seven months is
within that presumptive range, the trial court was not required to
make findings as to aggravating and mitigating factors. N.C. Gen.
Stat. § 15A-1340.16(c) (2003); see State v. Streeter, 146 N.C. App.
594, 598, 553 S.E.2d 240, 242 (2001), cert. denied, 356 N.C. 312,
571 S.E.2d 211, cert. denied, ___ U.S. ___, 154 L. Ed. 2d 1071
(2003).
Although defendant's minimum term of imprisonment overlaps
with the lower end of the aggravated range of seventy-seven to
ninety-five months imprisonment for this felony class and prior
record level, see N.C. Gen. Stat. § 15A-1340.17(c), the trial court
was not required to find aggravating factors because defendant's
minimum term of imprisonment is within the presumptive range. See
State v. Ramirez, 156 N.C. App. 249, 259, 576 S.E.2d 714, 721,
disc. review denied, 357 N.C. 255, 583 S.E.2d 286 (2003). If a
trial court does find aggravating or mitigating factors, as the
trial court did here, the decision of whether to deviate from apresumptive term still rests in the trial court's discretion. N.C.
Gen. Stat. § 15A-1340.16(a) (2003); State v. Bivens, 155 N.C. App.
645, 648, 573 S.E.2d 259, 261-62 (2002), disc. review denied, 356
N.C. 680, 577 S.E.2d 895 (2003). Upon our review of the record, we
find no abuse of discretion by the trial court. This assignment of
error is overruled.
No error.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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