STATE OF NORTH CAROLINA
v
.
Nash County
99 CRS 7340, 7341
RYLAN ANDERSON
Attorney General Roy Cooper, by Special Deputy Attorney
General Steven M. Arbogast, for the State.
Terry W. Alford for defendant-appellant.
McGEE, Judge.
Rylan A. Anderson (defendant) was indicted in July 1999 for
first-degree murder and robbery with a dangerous weapon. Defendant
subsequently pled guilty to second-degree murder and robbery with
a dangerous weapon. According to the plea agreement, defendant was
to be sentenced at the discretion of the trial court, but within
the aggravated range of the sentencing guidelines. The trial court
imposed consecutive, aggravated sentences of 196-245 months in
prison for second-degree murder and 64-86 months in prison for the
robbery. Defendant appealed, arguing that, inter alia, the trial
court had failed to make findings of aggravating and mitigating
factors as required by the Structured Sentencing Act. This Court
agreed with defendant and on 15 April 2003, in an unpublishedopinion, remanded the case to the trial court for re-sentencing.
Upon remand, the matter was heard on 15 May 2003 in the
Superior Court of Nash County before the Honorable Quentin T.
Sumner, who had presided over the original sentencing hearing. The
case was placed on the "add-on" calendar for that week.
Defendant's trial counsel, who had only recently been notified of
the re-sentencing hearing, informed the trial court that counsel
was not prepared to proceed at that time because counsel had not
had time to review the transcript or trial notes from the original
sentencing hearing.
The trial court concluded that it would review the transcript
of the original sentencing hearing and make findings of aggravation
and mitigation. When the trial court resumed on 16 May 2003, the
trial court stated that it had reviewed the transcript and had
determined defendant's arguments in mitigation, and listed each
mitigating factor individually. The trial court then asked
defendant, "Is that all you ask for[?]" Defendant's counsel once
again stated that counsel had not had time to review a transcript
of the original hearing nor to review notes from that hearing.
Defendant's counsel stated that as to the mitigating factors,
"we're not in a position to answer that yes or no." The trial
court again asked whether defendant requested that the trial court
consider any additional factors in mitigation. Defendant's counsel
responded that they were not prepared to go forward and that there
might be additional mitigating factors that had arisen in the last
thirteen months since defendant's original sentencing. The trial court declined defendant's request to conduct a
completely new sentencing hearing and thereafter found all the
mitigating factors as requested in the original hearing and three
factors in aggravation. The trial court imposed a "sentence from
the aggravated range as previously entered in this case. No
modification, no amendment further needed or necessary other than
the inclusion of these factors in aggravation and mitigation as
found." Defendant appeals.
Defendant first argues that the trial court erred in refusing
to continue the sentencing hearing to allow defendant adequate time
to present evidence of mitigating factors. He notes that counsel
for defendant repeatedly informed the trial court that they were
unprepared to proceed with the re-sentencing hearing.
At the outset, we note that defendant did not file a written
motion to continue with the trial court and he may not now assign
as plain error the failure to continue the sentencing hearing.
"[P]lain error review is limited to errors in a trial court's jury
instructions or a trial court's rulings on admissibility of
evidence[,]" State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168,
230 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001),
cert. denied, 358 N.C. 157, 593 S.E.2d 84 (2004), and neither
exception is applicable in this instance.
Even if defendant's counsel's statements to the trial court
are considered to be a motion to continue, we conclude the trial
court did not err in denying the motion. "A motion for continuance
is ordinarily addressed to the discretion of the trial judge andhis ruling thereon is not subject to review absent abuse of
discretion." State v. Cradle, 281 N.C. 198, 207, 188 S.E.2d 296,
302, cert. denied, 409 U.S. 1047, 34 L. Ed. 2d 499 (1972). But,
"when [a] motion is based on a right guaranteed by the Federal and
State Constitutions, the question presented is one of law and not
of discretion, and the decision of the court below is reviewable."
Id. at 207, 188 S.E.2d at 302. Defendant argues that he was
deprived of a fair trial as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and by Article I,
Sections 19, 23 and 24 of the North Carolina Constitution.
N.C. Gen. Stat. § 15A-1334(a) (2003) explicitly provides that
a defendant, only "upon a showing which the judge determines to be
good cause, [may] obtain a continuance of [a] sentencing hearing."
"'Continuances should not be granted unless the reasons therefor
are fully established. Hence, a motion for a continuance should be
supported by an affidavit showing sufficient grounds.'" Cradle, 281
N.C. at 208, 188 S.E.2d at 303 (citations omitted). On appeal, a
defendant "must specifically demonstrate how his case would have
been better prepared had the continuance been granted or show that
he was materially prejudiced by the denial of the motion." State
v. Smith, 155 N.C. App. 500, 505, 573 S.E.2d 618, 622 (2002), disc.
review denied, 357 N.C. 255, 583 S.E.2d 287 (2003). Defendant
failed to present to the trial court any specific justification for
a continuance and only speculated to the trial court that there
might be additional evidence in mitigation that might be
discovered. After a thorough review of the record and transcripts,we find no indication that defendant was deprived of his
constitutional rights. Further, we conclude the trial court did
not abuse its discretion in declining to grant a continuance had
there, in fact, been a motion. This assignment of error is without
merit.
Defendant next contends that the trial court erred in refusing
to conduct a new sentencing hearing, complete with the presentation
of evidence, upon remand from this Court. Defendant assigns as
error the trial court's decision to simply read the transcript of
the original hearing and issue its findings in mitigation and
aggravation accordingly.
This Court has recognized that each sentencing hearing is a de
novo proceeding and, that upon re-sentencing, the trial court must
make a "new and fresh determination of the sufficiency of the
evidence underlying each factor in aggravation and mitigation,
including those factors previously found and affirmed by the
appellate court." State v. Daye, 78 N.C. App. 753, 755, 338 S.E.2d
557, 559 (1986). Such an independent determination may require "no
more than a review of the record and transcript of the trial or
original sentencing hearing, at least when no additional evidence
is offered at the [re-sentencing] hearing." Id.; see also State v.
Abbott, 90 N.C. App. 749, 751, 370 S.E.2d 68, 69 (1988).
In the case before this Court, neither the State nor defendant
offered additional evidence. The trial court asked defendant
multiple times whether its assessment of the factors offered in
mitigation were correct and whether defendant had anythingadditional to add. Defendant indicated to the trial court only
that there might be additional evidence in mitigation that was yet
to be discovered. Because defendant only hinted at the possibility
of new evidence, and based on our holding in Daye, we find the
trial court did not err in reviewing the transcript of the prior
sentencing hearing and then making findings of mitigating and
aggravating factors. Defendant's assignment of error is overruled.
In his final argument, defendant contends that the trial court
failed to give due consideration to the mitigating factors and
ultimately abused its discretion in failing to exercise its
discretion. In effect, defendant argues that the trial court
simply sentenced defendant to the same punishment as in the
original hearing without giving renewed consideration to any
mitigating factors. We disagree.
Our Supreme Court concluded that "a sentencing judge need not
justify the weight he or she attaches to any factor." State v.
Parker, 315 N.C. 249, 258, 337 S.E.2d 497, 502 (1985). The
weighing process is within the trial court's sound discretion and
will not be overturned unless "'manifestly unsupported by reason,'
or 'so arbitrary that it could not have been the result of a
reasoned decision.'" Id. at 258-59, 337 S.E.2d at 502-3 (citation
omitted). As we noted, the trial court did not err in re-
sentencing defendant after reviewing the transcript of the prior
sentencing hearing. The fact the trial court imposed the same
sentence as in the original sentencing hearing is not a basis for
this Court to disturb the trial court's decision. Defendantbargained for a sentence in the aggravated range and the trial
court complied with the plea agreement in re-sentencing. We
conclude defendant's assignment of error is without merit.
Affirmed.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***