Appeal by defendant from judgment entered 10 May 2001 by Judge
J. B. Allen, Jr. in Lee County Superior Court. Heard in the Court
of Appeals 27 January 2005.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General William P. Hart and Assistant Attorney
General Karen A. Blum, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellant.
HUNTER, Judge.
William Van Trusell (“defendant”) appeals from a judgment
entered consistent with a jury verdict for armed robbery on the
basis that the trial court: (1) erred in amending an indictment
from attempted robbery with a dangerous weapon to robbery with a
dangerous weapon; (2) abused its discretion in sua sponte entering
a prayer for judgment continued; and (3) erred in granting the
State's prayer for judgment. We conclude there was no error in
defendant's trial, prayer for judgment continued, or sentencing on
the motion praying judgment.
The evidence tends to show that on the evening of 27 December
1996, several individuals were gathered at the apartment of Joyce
Williams (“Williams”), including Darius Lucas (“Lucas”) and Jimmy
McLean (“McLean”). During the course of the evening, defendant
came to Williams' apartment, inquiring as to the whereabouts of a
Walter Bethea (“Bethea”). Defendant left, but returned in the
early morning hours of 28 December 1996 with Clifton Martin
(“Martin”).
Upon his return, defendant confronted the group at the
apartment, demanding to know the whereabouts of a sum of money and
of Bethea. When told Bethea was not there, defendant and Martin
drew guns and told everyone to empty their pockets. AlthoughMcLean originally told police defendant took nothing, he testified
at trial that defendant took six or seven dollars from him. Lucas
testified that Martin took a pager and thirty dollars. Defendant
led McLean through the apartment at gunpoint, and threatened to
kill McLean if he did not tell defendant Bethea's whereabouts.
McLean suggested Bethea might be at the neighboring apartment of
Lorenzo Armstrong (“Armstrong”). Defendant and McLean then left
Williams' and went to Armstrong's apartment. Armstrong told
defendant that Bethea was no longer there, and McLean ran from the
apartment. Defendant fired seven bullets, but did not hit McLean.
The record shows that defendant was indicted on 3 February
1997 for robbery with a dangerous weapon of Lucas, attempted
robbery with a dangerous weapon of McLean, first degree kidnapping,
and assault with a deadly weapon. The case came to trial on 28
April 1997. At the close of the State's evidence, the district
attorney made a motion to amend the indictment to conform to the
evidence presented at trial, amending “attempted robbery with a
dangerous weapon” for the robbery of McLean to “robbery with a
dangerous weapon.” This motion was granted.
On 30 April 1997, the jury returned verdicts of guilty as to
both charges of robbery with a dangerous weapon, first degree
kidnapping, and assault with a deadly weapon. For the charge of
robbery with a dangerous weapon of Lucas, defendant was sentenced
to 77 to 102 months imprisonment. For the charge of first degree
kidnapping, defendant was sentenced to 100 to 129 months, plus a
sixty to eighty-one month firearm enhancement to begin at theexpiration of the 100 to 129 month sentence. The trial court sua
sponte continued judgment on the second charge of robbery with a
dangerous weapon of McLean and assault with a deadly weapon.
Defendant appealed his convictions of first degree kidnapping
and robbery with a dangerous weapon of Lucas. In State v. Trusell,
351 N.C. 347, 524 S.E.2d 804 (2000), the North Carolina Supreme
Court reversed this Court's decision, 133 N.C. App. 446, 525 S.E.2d
243 (1999), finding that the trial court committed plain error in
instructing the jury on a different theory than that stated in the
indictment for first degree kidnapping. Defendant's case was
remanded for resentencing for second degree kidnapping.
On 14 April 2000, defendant was resentenced to 89 to 116
months for second degree kidnapping, including a sixty month
firearm enhancement. Defendant appealed the sentence in State v.
Trusell, 144 N.C. App. 445, 548 S.E.2d 560 (2001), and this Court
affirmed the sentence.
On 3 May 2001, the State filed a Motion Praying Judgment for
the robbery with a dangerous weapon of McLean. On 10 May 2001,
defendant was sentenced to sixty-nine to ninety-two months for the
charge of robbery with a dangerous weapon, with sentence to begin
at the expiration of all sentences being served by defendant.
Defendant was granted a writ of certiorari, filed with this Court
8 January 2004, as to the conviction and sentencing for the robbery
with a dangerous weapon of McLean.
I.
[1] Defendant first contends the trial court erred in amending
the indictment for attempted robbery with a dangerous weapon to
robbery with a dangerous weapon. We disagree.
N.C. Gen. § 15A-923(e) (2003) states that “[a] bill of
indictment may not be amended.” Our Supreme Court has interpreted
this statute to mean “only that an indictment may not be amended in
a way which 'would substantially alter the charge set forth in the
indictment.'”
State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822,
824 (1994) (citations omitted). An indictment has been held to be
constitutionally sufficient if it apprises the defendant of the
charge against him with enough certainty to enable him to prepare
his defense, to protect him from subsequent prosecution for the
same offense, and to enable the court to know what judgment to
pronounce in the event of conviction.
See State v. Snyder, 343
N.C. 61, 65-66, 468 S.E.2d 221, 224 (1996). Defendant contends
amendment of the indictment from attempted robbery with a dangerous
weapon to robbery with a dangerous weapon is a substantial
alteration.
The crimes of both attempted robbery with a dangerous weapon
and robbery with a dangerous weapon are governed by N.C. Gen. Stat.
§ 14-87(a) (2003):
Any person or persons who, having in
possession or with the use or threatened use
of any firearms or other dangerous weapon,
implement or means, whereby the life of a
person is endangered or threatened, unlawfully
takes or attempts to take personal property
from another or from any place of business,
residence or banking institution or any other
place where there is a person or persons in
attendance, at any time, either day or night,or who aids or abets any such person or
persons in the commission of such crime, shall
be guilty of a Class D felony.
Id. Our courts have held that the essential elements of the crime
of robbery with a dangerous weapon are: “(1) the unlawful taking
or attempted taking of personal property from another; (2) the
possession, use or threatened use of 'firearms or other dangerous
weapon, implement or means'; and (3) danger or threat to the life
of the victim.”
State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367,
373 (1978) (emphasis added). The essential elements of the crime
of attempted robbery with a dangerous weapon are:
“(1) the unlawful
attempted taking of personal
property from another;
(2) the possession, use or threatened use of a
firearm or other dangerous weapon, implement
or means; and
(3) danger or threat to the life of the
victim.”
State v. Rowland, 89 N.C. App. 372, 376, 366 S.E.2d 550, 552 (1988)
(emphasis added) (citation omitted). Further, our Supreme Court
has held that “[a]n attempt to take money or other personal
property from another under the circumstances delineated by G.S.
14-87 constitutes, by the terms of that statute, an
accomplished
offense, and is punishable to the same extent as if there was an
actual taking.”
State v. Spratt, 265 N.C. 524, 525, 144 S.E.2d
569, 571 (1965). Thus, our Courts have found the elements of
attempted robbery with a dangerous weapon to be the same as robbery
with a dangerous weapon. As a showing of a taking is not a necessary element of the
crime of robbery with a dangerous weapon, an indictment amended
from attempted robbery with a dangerous weapon to robbery with a
dangerous weapon sufficiently apprises the defendant of the charge
against him with enough certainty to enable him to prepare his
defense, and to protect him from subsequent prosecution for the
same offense. Further, as the classifications and punishments of
the crimes of attempted robbery with a dangerous weapon and robbery
with a dangerous weapon are identical, such an amendment to an
indictment does not deprive the court of knowledge as to the
judgment to pronounce in the event of conviction. Therefore, as
the indictment did not substantially alter the charge, we find that
the trial court did not err in amending the indictment for robbery
with a dangerous weapon.
II.
[2] Defendant next contends the trial court abused its
discretion in
sua sponte entering a prayer for judgment continued.
Defendant argues that such a practice is archaic and a violation of
defendant's rights under numerous provisions of both the United
States and North Carolina Constitutions, and as such, constitutes
an abuse of discretion. We disagree.
Our Supreme Court has affirmed that North Carolina courts have
the power to continue prayer for judgment without the defendant's
consent, so long as no conditions are imposed upon the defendant.
See State v. Griffin, 246 N.C. 680, 682, 100 S.E.2d 49, 51 (1957). This Court is bound by prior decisions of our Supreme Court.
See
Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993).
Here, the trial court entered a prayer for judgment continued
as to one charge of robbery with a dangerous weapon and as to the
charge of assault with a deadly weapon. The trial court imposed no
conditions on defendant in entering the prayer for judgment
continued. Further, we note defendant did not object to entry of
the prayer for judgment continued. As determined by our Supreme
Court, such an action by the trial court does not constitute an
abuse of discretion.
See Griffin, 246 N.C. at 682, 100 S.E.2d at
51. Therefore, this assignment of error is without merit.
III.
[3] Defendant finally contends the trial court erred in
granting the State's prayer for judgment, as such entry of judgment
penalized defendant for exercising his right of appeal and
constituted both judicial and prosecutorial vindictiveness. We
disagree.
Our courts have not yet addressed the question of when a
motion praying judgment may constitute judicial or prosecutorial
vindictiveness which violates a defendant's rights to due process.
We therefore briefly review the jurisprudence of the United
States Supreme Court with regard to these issues.
In
North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656
(1969), the United States Supreme Court established that:
Due process of law, then, requires that
vindictiveness against a defendant for having
successfully attacked his first conviction
must play no part in the sentence he receivesafter a new trial. And since the fear of such
vindictiveness may unconstitutionally deter a
defendant's exercise of the right to appeal or
collaterally attack his first conviction, due
process also requires that a defendant be
freed of apprehension of such a retaliatory
motivation on the part of the sentencing
judge.
Id. at 725, 23 L. Ed. 2d at 669 (footnote omitted). As a result,
the Court established a prophylactic rule, creating a rebuttable
presumption of vindictiveness when a judge imposed a more severe
sentence upon a defendant after a new trial.
Id. at 726, 23 L. Ed.
2d at 670.
Following
Pearce, the United States Supreme Court also
addressed the context of prosecutorial vindictiveness in
Blackledge
v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628 (1974), and similarly
concluded that a rebuttable presumption of vindictiveness on the
part of the prosecutor existed when a more serious charge was
substituted for the original charge from which the defendant had
appealed and received a trial
de novo.
Id. at 28-29, 40 L. Ed. 2d
at 634-35.
The holdings in the
Pearce line of progeny, however, have been
severely limited in subsequent jurisprudence of the Supreme Court.
In
Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d 865 (1989), the
Court noted that, “[w]hile the Pearce opinion appeared on its face
to announce a rule of sweeping dimension, our subsequent cases have
made clear that its presumption of vindictiveness 'do[es] not apply
in every case where a convicted defendant receives a higher
sentence on retrial.'”
Smith, 490 U.S. at 799, 104 L. Ed. 2d at
872 (quoting
Texas v. McCullough, 475 U.S. 134, 138, 89 L. Ed. 2d104, 110 (1986)). As recognized in
Chaffin v. Stynchcombe, 412
U.S. 17, 36 L. Ed. 2d 714 (1973), the
Pearce presumption was not
designed to prevent imposition of an increased sentence on retrial
“for some valid reason associated with the need for flexibility and
discretion in the sentencing process,” but rather was “premised on
the apparent need to guard against
vindictiveness in the
resentencing process.”
Id. at 25, 36 L. Ed. 2d at 723. As a
result, in
Smith, the United States Supreme Court held that the
Pearce presumption is limited to circumstances where there is a
“'reasonable likelihood' that the increase in sentence is the
product of actual vindictiveness on the part of the sentencing
authority. Where there is no such reasonable likelihood, the
burden remains upon the defendant to prove actual
vindictiveness[.]”
Smith, 490 U.S. at 799, 104 L. Ed. 2d at 873
(citations omitted). Further, in
United States v. Goodwin, 457
U.S. 368, 73 L. Ed. 2d 74 (1982), the Court held that such a
presumption of vindictiveness is warranted only when applicable in
all cases.
See Goodwin, 457 U.S. at 381, 73 L. Ed. 2d at 85.
In
Pearce, the Court found a presumption necessary. The Court
stated that it would be “'unfair to use the great power given to
the court to determine sentence to place a defendant in the dilemma
of making an unfree choice'” as to whether to pursue an appeal,
because of the possibility a retaliatory motive would lead to an
increased sentence on the conviction if a new trial was received.
Pearce, 395 U.S. at 724, 23 L. Ed. 2d at 669 (citations omitted).
Likewise, in
Blackledge, the Court noted that a prosecutor had aconsiderable stake in discouraging appeals to obtain a trial
de
novo, because of the increased expenditure of resources before a
conviction became final and the possible result of a defendant
going free.
Blackledge, 417 U.S. at 27, 40 L. Ed. 2d at 634. As
a result, the Court concluded the “opportunities for vindictiveness
in this situation are such as to impel the conclusion that due
process of law requires a rule analogous to that of the
Pearce
case.”
Id.
In
Smith, however, the United States Supreme Court found a
presumption inappropriate “when a greater penalty is imposed after
trial than was imposed after a prior guilty plea, [as] the increase
in sentence is not more likely than not attributable to the
vindictiveness on the part of the sentencing judge.”
Smith, 490
U.S. at 801, 104 L. Ed. 2d at 873-74. The Court noted that “in the
course of proof at trial the judge may gather a fuller appreciation
of the nature and extent of the crimes charged[,]” and that “after
trial, the factors that may have indicated leniency as
consideration for the guilty plea are no longer present.”
Smith,
490 U.S. at 801, 104 L. Ed. 2d at 874. As a result, the Court
found those factors distinguished
Smith from cases such as
Pearce
and
Blackledge, and found there were enough “justifications for a
heavier second sentence that it cannot be said to be more likely
than not that a judge who imposes one is motivated by
vindictiveness.”
Smith, 490 U.S. at 802, 104 L. Ed. 2d at 874.
In light of this precedent, we therefore examine the instant
case to determine whether a presumption of vindictiveness would beproper, under the now limited holding in
Pearce, when a prosecutor
moves for and a trial court grants a prayer for judgment following
a successful appeal as to a separate conviction. As noted in
Smith
and
Goodwin, there must be a reasonable likelihood that such a
prayer for judgment is the result of actual vindictiveness in all
cases for such a presumption to arise.
See Smith, 490 U.S. at 799,
104 L. Ed. 2d at 873;
Goodwin, 457 U.S. at 381, 73 L. Ed. 2d at 85.
We find that imposition of a sentence on a conviction where a
prayer for judgment continued was originally granted by the trial
court in its discretion presents a situation more analogous to that
of
Smith than to
Pearce and
Blackledge. The factors frequently
considered by the trial court in granting a prayer for judgment
continued, such as the length and severity of sentences for other
convictions entered at the same time, may be altered by a
successful appeal of other convictions. In so concluding, we note
that our courts have previously affirmed the imposition of a
sentence from a prayer for judgment continued following an appeal
of a separate conviction. In
State v. Graham, 225 N.C. 217, 34
S.E.2d 146 (1945), our Supreme Court considered the imposition of
a sentence on a conviction for possession of an intoxicating liquor
following an appeal vacating a separate conviction for
manufacturing an intoxicating liquor, when a prayer for judgment
continued had been entered as to the possession charge. There the
Court noted that “[i]t is familiar learning that a judge may
suspend judgment over a criminal
in toto until another term.”
Graham, 225 N.C. at 219, 34 S.E.2d at 147.
Graham stated that
entry of such a sentence was without error as:
The defendant has been duly convicted of
a violation of the criminal law of the State.
This Court has found no error in the trial on
the count charging unlawful possession of
liquor for the purpose of sale. He may not
complain that there has been some delay in
exacting the penalty, for he cannot in this
manner discharge the debt he owes society for
the breach of its rules of good conduct.
Graham, 225 N.C. at 220, 34 S.E.2d at 147-48. Similarly, in
State
v. Lea, 156 N.C. App. 178, 576 S.E.2d 131 (2003), this Court found
no prejudice in sentencing the defendant on assault convictions
five years after a prayer for judgment continued was entered, when
the defendant's original sentence for attempted second degree
murder was vacated.
See Lea, 156 N.C. App. at 178-80, 576 S.E.2d
at 132-33. The
Lea Court noted that by praying judgment when the
defendant's active sentences were set aside, “the State sought to
ensure that defendant suffered some consequences for his criminal
conduct.”
Lea, 156 N.C. App. at 181, 576 S.E.2d at 133.
Thus, as there are sufficient justifications for entry of a
sentence on a conviction where judgment was continued when a
separate conviction is set aside, it cannot be said to be more
likely than not that a prosecutor who moves for, or a judge who
imposes the sentence is motivated by vindictiveness. We therefore
decline to recognize a presumption of vindictiveness when a trial
court sentences on a prayer for judgment following appeal of a
separate conviction. The United States Supreme Court has recognized that when a
presumption of vindictiveness does not exist, actual vindictiveness
may be found on the individual facts of the case.
See Smith, 490
U.S. at 803, 104 L. Ed. 2d at 875;
Goodwin, 457 U.S. at 384, 73 L.
Ed. 2d at 87-88. The Supreme Court in
Goodwin stated that a
finding of no presumption “do[es] not foreclose the possibility
that a defendant in an appropriate case might prove objectively
that the prosecutor's . . . decision was motivated by a desire to
punish him for doing something that the law plainly allowed him to
do.”
Goodwin, 457 U.S. at 384, 73 L. Ed. 2d at 87 (footnote
omitted). The Court noted, however, that “'only in a rare case
would a defendant be able to overcome the presumptive validity of
the prosecutor's actions through such a demonstration.'”
Id. at
384, n19, 73 L. Ed. 2d at 87, n19. Our state courts have also
recognized the difficulty of proof in such a showing. “'A judgment
will not be disturbed because of sentencing procedures unless there
is a showing of abuse of discretion, procedural conduct prejudicial
to defendant, circumstances which manifest inherent unfairness and
injustice, or conduct which offends the public sense of fair
play.'”
State v. Lane, 39 N.C. App. 33, 38, 249 S.E.2d 449, 452-53
(1978) (citations omitted).
We therefore examine the record for evidence that the
decisions of the prosecutor and trial court, in moving for and
entering sentence on the prayer for judgment for the robbery with
a dangerous weapon, were improperly motivated by a desire to punish
defendant for appeal of his conviction of first degree kidnappingand subsequent resentencing to a lesser sentence for second degree
kidnapping.
In the State's Motion Praying Judgment, the stated ground for
entry of sentence as to the second charge of robbery with a
dangerous weapon was an alleged error in the record in defendant's
prior appeal for conviction of kidnapping. The State contended in
its motion that the reversal and remand for resentencing on the
kidnapping charge was based on the faulty record compiled by the
prosecutors. The motion stated:
The basis of the reversal of the First Degree
Kidnapping charge was the failure of the
indictment for First Degree Kidnapping to
state that the victim was not released in a
safe place. In fact, the indictment used at
trial did state this, but due to the
prosecutors failure to adequately review the
record of appeal, the indictment that went up
on appeal -- which had been superseded by the
indictment used at trial -- did not have the
required wording. . . .
At the hearing on the matter, the prosecutor stated that, by
his mistake, the appellate record used contained the original
indictment for kidnapping, rather than the superseding indictment
used by the trial court to properly instruct the jury as to first
degree kidnapping. The prosecutor stated that as a result, the
State prayed judgment as to defendant's conviction for robbery with
a dangerous weapon to “recover the time that was lost due to the
state's mistake on kidnapping.”
The trial court stated at the hearing that he recalled the
case in question, and that a superseding indictment was obtained
before trial which properly alleged the elements of first degreekidnapping. The trial court also stated that the appellate court
was not privy to the proper record in rendering its decision.
After inquiry as to the difference between the sentence defendant
originally received prior to the appeal and the sentence received
after remand for resentencing as to the kidnapping charge, the
trial court sentenced defendant on the robbery with a dangerous
weapon charge to a term of sixty-nine to ninety-two months, to be
served at the conclusion of his other sentences. This sentence
effectively equaled the difference in time between defendant's
original sentence and his subsequent reduced sentence after appeal.
The trial court specifically noted that one reason he had “PJC'd
th[e] armed robbery conviction was I felt like he got enough time
at that time[.]”
In the sentencing order, the trial court further confirmed
that the reversal of the prior appeal formed the basis for the
resentencing, noting:
10. That the defendant is now facing a
sentence of 168 months minimum and 218
months maximum. Again, noting that at
the original trial the defendant had a
sentence of 237 months minimum and 312
months maximum.
11. That had the proper bill of indictment
97CRS197A been sent up on appeal, that
there is a very good case that this
matter would have never been sent back
for resentencing, and the defendant would
be facing that sentence given in May of
1997 of 237 months minimum and 312months
[sic] maximum.
12. That the court vividly remembers this
case, being the trial Judge, and has now
reviewed al the evidence. And the Court
will put on the record that theundersigned Judge in May of 1997 entered
a prayer for judgment continued on the
armed robbery charge in 97CRS198 because
the court in its discretion and in
sentencing felt that 237 months minimum
and 312 months maximum was an appropriate
judgment.
Although the record indicates some spurious motivation on the
part of the prosecutor to correct his own error in sending the
wrong appellate record for review by this Court, the trial court
articulated a legitimate reason for sentencing defendant on the
robbery with a dangerous weapon charge. The trial court stated at
both the hearing and in the written order that the prayer for
judgment continued was entered because the trial court, in its
discretion, believed at the original sentencing hearing that
defendant's sentence was appropriate without the additional time
from the robbery charge. However, due to the remand for
resentencing for second degree rather than first degree kidnapping,
which resulted in a lesser sentence for that offense, the trial
court reconsidered the appropriateness of the prayer for judgment
continued as to the robbery with a dangerous weapon conviction and,
it its discretion, sentenced defendant on that conviction. As the
record reveals some legitimate reason for the entry of judgment, we
therefore find defendant failed to demonstrate actual
vindictiveness.
As a presumption of vindictiveness in sentencing on a prayer
for judgment following defendant's successful appeal of another
conviction does not exist, and as defendant fails to surmount the
high bar to demonstrate actual vindictiveness, no due processviolation occurred in defendant's sentencing for robbery with a
dangerous weapon.
For the reasons stated herein, we find no error in the
amendment of the charge of robbery with a dangerous weapon, nor in
defendant's sentence as to that charge.
