An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1172


Filed: 15 June 2004


         v.                        Halifax County
                                No. 01 CRS 54502

    On a writ of certiorari to review the judgment entered 13 May 2002 by Judge Frank R. Brown in the Superior Court in Halifax County. Heard in the Court of Appeals 7 June 2004.

    Attorney General Roy Cooper, by Assistant Attorney General P. Bly Hall, for the State.

    William D. Spence, for defendant-appellant.

    HUDSON, Judge.

    Defendant was charged with the attempted first-degree murder of Charlie Herbert Evans, and subsequently entered a plea of no contest to a lesser offense of assault with a deadly weapon with intent to kill inflicting serious injury pursuant to a plea agreement. The charge of attempted first-degree murder and all other charges against defendant arising out of the incident were dismissed.
    During the entry of plea, the trial court reviewed defendant's transcript of plea and then accepted the plea. The State gave a brief statement of the evidence without any objection from defendant. Defendant stipulated that he was a prior record levelII offender. After hearing the arguments of counsel, the trial court found one aggravating factor: that defendant joined with more than one other person in committing the offense and was not charged with committing conspiracy. The court also found one mitigating factor: that defendant voluntarily admitted wrongdoing in connection with the offense to a law enforcement officer at an early stage of the criminal process. The trial court further found that the aggravating factor outweighed the mitigating factor and sentenced defendant to an aggravated term of 120-153 months imprisonment. Defendant's petition for writ of certiorari was allowed by order of this Court entered 3 April 2003.
    Defendant argues that the trial court erred in finding as an aggravating factor that he “joined with more than one other person in committing the offense and was not charged with committing a conspiracy.” Specifically, defendant argues that the evidence was not sufficient to establish the existence of this aggravating factor by a preponderance of the evidence. We agree.
    It is well settled that the State bears the burden of proving an aggravating factor by a preponderance of the evidence. State v. Kemp, 153 N.C. App. 231, 239, 569 S.E.2d 717, 722, disc. review denied, 356 N.C. 441, 573 S.E.2d 158 (2002). Likewise, a defendant bears the burden of proving a mitigating factor by a preponderance of the evidence. State v. Noffsinger, 137 N.C. App. 418, 429, 528 S.E.2d 605, 612 (2000).
    “[T]rial courts cannot find an aggravating factor where the only evidence to support it is the prosecutor's mere assertion that the factor exists.” State v. Radford, 156 N.C. App. 161, 164, 576S.E.2d 134, 137 (2003). Moreover, in State v. Swimm, the North Carolina Supreme Court stated, “absent a stipulation by the prosecution, statements made by defense counsel during argument at the sentencing hearing do not constitute evidence that would support a finding of . . . mitigating factors.” 316 N.C. 24, 32, 340 S.E.2d 65, 71 (1986) (quoting Radford, 156 N.C. App. at 165, 576 S.E.2d 137).
    The record before us is sparse. Though the State moved this Court to take judicial notice of charging documents, transcripts of sentencing hearing, and judgment and commitments of other persons who joined in the assault of the victim in support of the aggravating factor, the motion must be denied. In Benbow, the Supreme Court cautioned that “at any sentencing hearing held pursuant to a plea of guilty, reliance on evidence from the trials of others connected with the same offense is improper absent a stipulation.” State v. Benbow, 309 N.C. 538, 549, 308 S.E.2d 647, 653-54 (1983). Here, as in Benbow, there is no stipulation to any of the evidence proffered by the State in its motion. Accordingly, we are precluded from considering this evidence which was not properly before the trial court.
    The record tends to show that defendant's entry of plea was the fourth and final plea hearing arising out of the September 2001 assault on Charlie Herbert Evans heard by Judge Frank Brown during the 13 May 2002 criminal session of superior court. The trial court questioned defendant under oath during review of his transcript of plea. Judge Brown then heard the prosecutor's statement of the factual basis for the plea. The prosecutor statedas follows:
        Your Honor, this is the fourth and final defendant involved in the assault on Mr. Evans. This defendant is the brother of Darcell Hill. And the testimony at probable cause was that this defendant along with his brother both struck the blows to the back of Mr. Evans' head and, upon doing that, left with the other two co-defendants and were later apprehended. This defendant also did give a statement involving his involvement in this case.
Defendant's attorney then stipulated to defendant's prior record level, but did not stipulate to the State's statement of the factual basis for the plea. Later defense counsel stated:
        Judge, this young man is 22 years of age. If Your Honor please, as I've been out of the courtroom, I don't know what you may have heard from the other co-defendants, what you may or may not have heard. If Your Honor please, we did have a preliminary hearing. My client has given a statement, but my client's statement does not acknowledge or does not say that he used any type of instrument in striking Mr. Evans. He did admit striking Mr. Evans with his hand. Judge, the evidence at the preliminary hearing was very confusing by Mr. Evans as to who did what. There was no evidence whatsoever, as I recall, at any preliminary hearing, that my client had any kind of a weapon or any type of a cleaver or any type of a knife in his hand at any time by Mr. Evans. But my client was in fact there, Judge. And he is a Level II, and he did admit to the officers that he was there and did admit striking Mr. Evans with his fist, if Your Honor please.
The prosecutor made a statement in which he requested that three aggravating factors be found: (1) defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy; (2) the offense was especially heinous, atrocious, or cruel; and (3) the victim of the offense sufferedserious injury that is permanent and debilitating.
    On this record, we agree with defendant that there is not sufficient evidence to support the aggravating finding found by the court. Defendant did not stipulate to the prosecutor's statement of the evidence. Nor do the arguments of defense counsel constitute sufficient evidence to support the court's aggravating factor. See Swimm, 316 N.C. 24 at 32, 340 S.E.2d at 71.
    Remanded for resentencing.
    Judges STEELMAN and THORNBURG concur.
    Report per Rule 30(e).

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