An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1162


Filed: 18 May 2004


         v.                        Pitt County
                                No. 93 CrS 28301
                                    94 CrS 1047
                                    94 CrS 1050

    On a writ of certiorari from judgments entered 25 February 1994 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 10 May 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General R. Marcus Lodge, for the State.

    Paul Pooley, for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant pled guilty on 25 February 1994 to two counts of common law robbery and one count of second degree kidnapping. The court sentenced defendant under the Fair Sentencing Act to ten years, ten years and thirty years, to run consecutively. On 6 April 2001 this Court issued a writ of certiorari limited to the purpose of reviewing defendant's sentences.
    The evidence of the State shows that at approximately 3:00 p.m. on 3 January 1994, a man, using a passkey, entered a guest room at the Hampton Inn in Greenville, which was occupied at the time by a female traveler. The intruder pushed the room's occupant on the bed, bound and gagged her, fondled her breasts, and askedher for money. The woman gave him her purse. The intruder took her money and the keys to her minivan. He left the motel driving her minivan, which was located at approximately 7:00 p.m. near a school in Winterville.
    At approximately 2:00 a.m. on 4 January 1994, a man threw a cinder block through a glass door and entered the Pantry convenience store beside Pitt Community College. The man put his hands around the throat of the store clerk, brought her to the cash register, and forced her to empty the register. The man also took three cartons of cigarettes and fled. A canine unit tracked the man from the store to an apartment complex in Winterville, where police arrested him. The police placed the man's photograph in a lineup. A few days later the Hampton Inn victim selected the man's photograph as the person who had come into her room and taken her property. The man depicted in the photograph was defendant. He was arrested on 14 January 1994 for the robbery of the Hampton Inn victim. After arriving at the police station on 14 January 1994, defendant gave a written statement admitting commission of the crimes at the Hampton Inn and The Pantry.
    As the sole factor in aggravation of the sentences, the court found that defendant has prior convictions of offenses punishable by more than sixty days confinement. The court made no findings of mitigating factors.
    Defendant contends the court abused its discretion by failing to find as a mitigating factor that defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process. Under the Fair Sentencing Act, by which defendant was sentenced, a court could find as a statutory mitigating factor that “[p]rior to arrest or at an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer.” N.C. Gen. Stat. § 15A- 1340.4(a)(2)1 (1993) (repealed effective 1 January 1995). In construing this provision, our Supreme Court stated that “'the criminal process' begins upon either the issuance of a warrant or information, or upon the return of a true bill of indictment or presentment, or upon arrest, whichever comes first.” State v. Graham, 309 N.C. 587, 589-90, 308 S.E.2d 311, 314 (1983)(emphasis added.) When the voluntary acknowledgment of wrongdoing occurs after the earliest of the foregoing events, the court still has the discretion to make the finding if it considers the acknowledgment was made at a stage sufficiently early to have mitigating value. State v. Hayes, 314 N.C. 460, 472-73, 334 S.E.2d 741, 748-49 (1985). A court's discretionary decision will not be disturbed unless it is shown the “ruling was so arbitrary that it could not have been the result of a reasoned decision.” State v. Thompson, 314 N.C. 618, 626, 336 S.E.2d 78, 82 (1985).
    Here, defendant acknowledged wrongdoing after he was arrested; thus, a finding of the mitigating factor was within the discretion of the sentencing judge. However, the record also shows that although defendant had been arrested for the robbery of The Pantry hours after the robbery occurred, he did not acknowledge wrongdoing with respect to that robbery until several days later. Defendantdid not acknowledge wrongdoing with respect to the Hampton Inn incident until twelve days after the incident. Thus, we cannot say the trial court abused its discretion in refusing to find the factor in mitigation.
    Defendant's remaining contention is that the indictments and sentencing procedure violate the federal and state constitutions because they allow a judge, instead of a jury, to make findings of factors in aggravation and mitigation. This contention is not supported by an assignment of error and is not properly before us. Defendant has filed a motion to amend the record on appeal to add an assignment of error raising this issue. We deny the motion, as the issue was not raised in the trial court. We will not consider a constitutional issue which is raised for the first time on appeal. State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001).
    No error.
    Judges MCGEE and BRYANT concur.
    Report per Rule 30(e).

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