NO. COA03-862

STATE OF NORTH CAROLINA
                            Stokes County
     v.                        Nos. 02 CRS 51249, 51252,
                                51253, 51261, 51264,
ROBERT RAY STEWART                    51267, 52318-19
                                    
    

STATE OF NORTH CAROLINA                 
                            Stokes County
    v.                        Nos. 02 CRS 51248, 51257-
                                60, 51265-66
MARSHALL DEWITT MCGEE, III

    

STATE OF NORTH CAROLINA                 
                                
    v.                        Stokes County    
                            Nos. 02 CRS 51277-83
DUSTIN LEE DISHER                                 
    

    Appeal by defendants from judgments entered 9 April 2003 by Judge Lindsay R. Davis, Jr. in Superior Court, Stokes County. Heard in the Court of Appeals 22 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

    White and Crumpler, by Dudley A. Witt, for defendant appellant Robert Ray Stewart.

    James M. Bell for defendant-appellant Marshall Dewitt McGee, III.

    Grace Holton Tisdale & Clifton, P.A., by D. Kenneth Tisdale, Jr., for defendant-appellant Dustin Lee Disher.

    WYNN, Judge.    Defendants Robert Ray Stewart, Marshall DeWitt McGee, III, and Dustin Lee Disher (collectively hereinafter “Defendants”) argue the trial court erred in failing to consider their evidence of mitigating factors, and in failing to sentence them in the mitigated range of punishment. We find no substantive errors in the judgments of the trial court, but we remand four of the judgments for correction of clerical errors.
    The relevant facts of the instant appeal are as follows: On 9 June 2002, Defendants forcibly entered an occupied residence in Walnut Cove, North Carolina wearing masks and carrying weapons. They bound the three occupants of the residence, opened a safe on the premises, and removed guns, knives, cash and other valuables. Defendants were subsequently apprehended and indicted for their actions.
    On 9 April 2003, Defendants pled guilty pursuant to plea agreements. Stewart pled guilty to three counts of second-degree kidnapping, two counts of malicious conduct by a prisoner, safecracking, felony conspiracy, first-degree burglary, and robbery with a dangerous weapon. McGee pled guilty to three counts of second-degree kidnapping, safecracking, felony conspiracy, first- degree burglary, and robbery with a dangerous weapon. Disher pled guilty to three counts of second-degree kidnapping, safecracking, felony conspiracy, first-degree burglary, and robbery with a dangerous weapon. Defendants gave notice of appeal.
    _____________________________________________________
    We note initially that this Court dismissed McGee's appeal byorder on 28 August 2003. We therefore do not address the merits of McGee's appeal. We examine the convictions of Stewart and Disher in turn:

Stewart's Convictions

    Stewart argues the trial court erred in failing to find mitigating factors, and in failing to sentence him in the mitigated range. We disagree.
    Stewart's convictions resulted in four separate judgments and commitments. The trial court indicated at sentencing that in all four judgments it was sentencing Stewart from the presumptive range of punishment. In the first judgment (02 CRS 51249), the trial court consolidated two counts of malicious conduct by a prisoner, and one count each of safecracking, kidnapping, conspiracy, and first-degree burglary. Stewart, with a prior record level of II, was then sentenced to a minimum term of 61 months and a maximum term of 83 months as a Class D felon. The charts contained in sections 15A-1340.17(c) and (e) of the General Statutes show the trial court sentenced Stewart within the presumptive range of sentences for Class D felonies with prior record level II. It is well established that “the legislature intended the trial court to take into account factors in aggravation and mitigation only when deviating from the presumptive range in sentencing.” State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997). “Therefore, a trial court is not required to justify a decision to sentence a defendant within the presumptive range by making findings of aggravation and mitigation.” State v. Campbell, 133N.C. App. 531, 542, 515 S.E.2d 732, 739, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999). Thus, because the trial court sentenced Stewart within the presumptive range, we find no abuse of discretion.
    As to the remaining judgments, any error by the trial court inured to Stewart's benefit. In the second judgment (02 CRS 51261), Stewart was sentenced as a Class D, Level II felon for robbery with a dangerous weapon. However, despite indicating that it was sentencing Stewart from the presumptive range, the trial court actually sentenced Stewart from the mitigated range of punishment to a term of 60 to 81 months' imprisonment. In the third judgment (02 CRS 51267), the trial court inadvertently entered judgment on a charge of felony conspiracy, when judgment was supposed to be entered on one of the counts of kidnapping (02 CRS 51252). The trial court again sentenced Stewart from the mitigated range, to a term of 20 to 33 months' imprisonment, when its stated intent was to sentence Stewart from the presumptive range of punishment. In the fourth judgment (02 CRS 51254), the trial court once more sentenced Stewart from the mitigated range to a term of 20 to 33 months' imprisonment. Thus, Stewart has already received the benefit of any alleged error he seeks to correct on appeal, in that the trial court sentenced him in the mitigated range, despite its stated intent to sentence him to a presumptive term. Whether the trial court had authority to enter judgment in the mitigated range without making findings in support of mitigation is an issue not before this Court, and we do not addressit. Stewart's assignments of error are overruled.

Disher's Convictions

    Disher argues the trial court erred in failing to consider his evidence of mitigating factors. This argument fails on two grounds. First, in sentencing Disher, the trial court noted that defense counsel had requested a sentence from the mitigated range, but the court determined that “the nature of the circumstances simply don't allow it.” Thus, the trial court considered Disher's evidence, but simply declined to sentence him from the mitigated range.
    Second, as stated above, the trial court is not required to make findings in aggravation and mitigation when not deviating from the presumptive range of punishment. Campbell, 133 N.C. App. at 542, 515 S.E.2d at 739; Caldwell, 125 N.C. App. at 162, 479 S.E.2d at 283. Disher's convictions resulted in four separate judgments and commitments. In the first judgment (02 CRS 51248), the offenses of kidnapping, safecracking, conspiracy and burglary were consolidated for judgment and Disher was sentenced to a term of 60 to 81 months' imprisonment. In the second judgment (02 CRS 51260), Disher was likewise sentenced to a term of 60 to 81 months' imprisonment for the offense of robbery with a dangerous weapon. The charts contained in N.C. Gen. Stat. § 15A-1340.17(c) and (e) show the trial court sentenced Disher within the presumptive range of punishment for Class D, Level I felonies. In the third (02 CRS 51257) and fourth judgment (02 CRS 51258), Disher was sentenced for one count each of second-degree kidnapping to terms of 20 to 33months' imprisonment. These sentences were within the presumptive range of punishment for Class E, Level I felonies. Thus, because the trial court sentenced Disher within the presumptive range in all four judgments, we find no abuse of discretion.

Clerical Errors

    Although we detect no substantive error by the trial court, we note that there are clerical errors in four of the judgments. We remand these judgments for correction.
    In Stewart's first judgment and commitment (02 CRS 51249), the trial court erroneously substituted one of the convictions for kidnapping for the conviction for conspiracy. In Stewart's third judgment (02 CRS 51267), the trial court entered judgment on a charge of felony conspiracy, when judgment was supposed to be entered on one of the counts of kidnapping. In Disher's first judgment and commitment (02 CRS 51248), the trial court mistakenly omitted one of the counts of kidnapping, which was supposed to be consolidated into the first judgment. Additionally, the fourth judgment (02 CRS 51258) mistakenly consolidated two of the judgments for kidnapping. Accordingly, 02 CRS 51249, 02 CRS 51267, 02 CRS 51248 and 02 CRS 51258 are remanded for correction of these clerical errors.
    No error; remanded for correction of clerical errors in 02 CRS 51249, 02 CRS 51267, 02 CRS 51248 and 02 CRS 51258.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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