STATE OF NORTH CAROLINA
v. Pitt County
No. 93 CrS 28301
94 CrS 1047
94 CrS 1050
JAMES GREGORY FREEMAN
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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