STATE OF NORTH CAROLINA
v. Clay County
No. 02 CRS 50103
TRAVIS SHAWN CRISP,
Attorney General Roy Cooper, by Assistant Attorney General M.
Elizabeth Guzman, for the State.
McKinney & Tallant, P.A., by Zeyland G. McKinney, Jr., for
defendant-appellant.
STEELMAN, Judge.
Defendant, Travis Shawn Crisp, was charged with two counts of
trafficking in methamphetamine by possession, one count of
trafficking in methamphetamine by sale, one count of trafficking in
methamphetamine by delivery, one count of trafficking in
methamphetamine by manufacture, four counts of possession with
intent to sell and deliver methamphetamine, four counts of the sale
and delivery of methamphetamine, three counts of maintaining a
dwelling for controlled substances, two counts of maintaining a
vehicle for controlled substances, and one count of possession of
drug paraphernalia. Defendant subsequently pled guilty to all of
the charges, pursuant to a plea agreement in Clay County SuperiorCourt. The plea agreement provided that all of the charges would
be consolidated for judgment into one count of trafficking in
methamphetamine and that defendant would receive the statutorily
mandated sentence of seventy to eighty-four months imprisonment.
The agreement further provided, “[t]he Defendant will be allowed to
introduce evidence of substantial assistance at sentencing to
reduce his sentence.”
In accordance with the plea agreement, defendant's sentencing
hearing was held before Judge Ginn on 7 July 2003. Agent Tom Frye
of the Multiple Agency Narcotics Unit in Clay County, North
Carolina testified on defendant's behalf. Agent Frye testified
that he interviewed defendant over a two-day period, during which
defendant provided information about his past drug dealings and the
name of his methamphetamine source. The agent noted that defendant
also provided him with a large amount of historical information
about the Clay County drug trade, which resulted indirectly in a
number of arrests of others on drug charges. Agent Frye also
testified that defendant had been cooperative, had agreed to
forfeit over $20,000.00 in money and personal property seized as a
result of the search warrant executed on his residence, and had
made an excise tax payment of approximately $45,000.00 to the North
Carolina Department of Revenue. The agent explained that
defendant, however, refused to take an active role in any
controlled buys out of fear for his family's safety.
The judge did not make a finding of substantial assistance and
sentenced defendant to the statutorily mandated term of seventy toeighty-four months imprisonment. The judge also assessed a $50,000
fine. Defendant appeals.
On appeal, defendant contends the trial court erred in failing
to find that he had rendered “substantial assistance” to law
enforcement, and failing to reduce his sentence. We disagree.
N.C. Gen. Stat. § 90-95 (h)(5) provides:
(5) Except as provided in this subdivision, a
person being sentenced under this subsection
may not receive a suspended sentence or be
placed on probation. The sentencing judge may
reduce the fine, or impose a prison term less
than the applicable minimum prison term
provided by this subsection, or suspend the
prison term imposed and place a person on
probation when such person has, to the best of
his knowledge, provided substantial assistance
in the identification, arrest, or conviction
of any accomplices, accessories,
co-conspirators, or principals if the
sentencing judge enters in the record a
finding that the person to be sentenced has
rendered such substantial assistance.
N.C. Gen. Stat. § 90-95(h)(5)(2003). It is well settled that the
question of whether a defendant renders substantial assistance is
within the discretion of the trial court. State v. Wells, 104 N.C.
App. 274, 276, 410 S.E.2d 393, 394 (1991). Moreover, even if the
court finds that a defendant did render substantial assistance, the
very language of N.C. Gen. Stat. § 90-95(h)(5) vests the trial
court with the discretion to decide not to reduce a defendant's
sentence. State v. Willis, 92 N.C. App. 494, 498, 374 S.E.2d 613,
616 (1988), disc. review denied, 324 N.C. 341, 378 S.E.2d 808
(1989).
“In order to overturn a sentencing decision, the reviewing
court must find an 'abuse of discretion, procedural conductprejudicial to defendant, circumstances which manifest inherent
unfairness and injustice, or conduct which offends the public sense
of fair play.'” Id. (quoting State v. Myers and State v. Garris,
61 N.C. App. 554, 557, 301 S.E.2d 401, 403 (1983), cert. denied,
311 N.C. 767, 321 S.E.2d 153 (1984)). In the instant case, the
court heard extensive testimony by Agent Frye regarding defendant's
assistance to law enforcement in the investigation of Clay County's
illegal drug trade. However, the trial court did not make a
finding that defendant rendered “substantial assistance” within the
meaning of N.C. Gen. Stat. § 90-95(5)(h). Defendant does not
reference, and indeed, the record does not reveal, any conduct by
the trial court or surrounding circumstances that would meet the
standard set out in Myers and Garris and quoted in Willis.
Therefore, the trial court was within its discretionary authority
in not finding that defendant rendered “substantial assistance” and
thus, not reducing defendant's sentence.
AFFIRMED.
Judges HUDSON and THORNBURG concur.
Report per Rule 30(e).
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