Sentencing--aggravating factor_-failure to present to jury--stipulation
The trial court did not err in a double indecent liberties with a child and second-degree
sex offense case by entering an aggravated sentence after defendant's pleas of guilty even though
the factor was not alleged in the indictment or presented and proven to a jury beyond a
reasonable doubt, because defendant stipulated to the aggravating factor that defendant took
advantage of a position of trust or confidence when he agreed to be sentenced in the aggravated
range and did not object to the trial court's finding of the aggravating factor.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General John G. Barnwell, for the State.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for
defendant-appellant.
HUNTER, Judge.
David Edwin Dierdorf (“defendant”) appeals from his
convictions of two counts of indecent liberties with a child and
one count of second degree sex offense entered upon defendant's
pleas of guilty. Defendant argues the trial court erred in
sentencing him in the aggravated range. We affirm the judgment of
the trial court. At his plea hearing, defendant orally stipulated that he would
“be sentenced in the aggravated range for each conviction totaling
three convictions.” Defendant's written plea agreement states that
“[u]pon the defendant's guilty pleas the defendant stipulates that
he shall be sentenced in the aggravated range for each conviction
(total of 3 convictions)[.]” At sentencing, the trial court found
as an aggravating factor that defendant “took advantage of a
position of trust or confidence to commit the offense.” Defendant
did not object.
Defendant contends the trial court violated his due process
rights by sentencing him in the aggravated range, as the
aggravating factor used by the trial court was not alleged in the
indictment, and the factor was not presented and proven to a jury
beyond a reasonable doubt. We do not agree.
Although findings of fact made by the trial court may not be
used to increase the penalty for a crime beyond the statutory
maximum, the trial court “may still sentence a defendant in the
aggravated range based upon the defendant's admission to an
aggravating factor enumerated in N.C.G.S. § 15A-1340.16(d).” State
v. Allen, 359 N.C. 425, 439, 615 S.E.2d 256, 265 (2005). Moreover,
sentencing factors that might lead to a sentencing enhancement do
not have to be alleged in the indictment. Id. at 438, 615 S.E.2dat 265. Thus, the issue is whether defendant here stipulated to
the existence of the aggravating factor.
During a plea hearing, “a defendant need not make an
affirmative statement to stipulate to his or her prior record level
or to the State's summation of the facts, particularly if defense
counsel had an opportunity to object to the stipulation in question
but failed to do so.” State v. Alexander, 359 N.C. 824, 829, 616
S.E.2d 914, ___ (2005); see also State v. Mullican, 329 N.C. 683,
685, 406 S.E.2d 854, 855 (1991) (holding that the defendant's
failure to object to the State's summation of the evidence equated
to a stipulation to the evidence).
In the present case, defendant specifically agreed to be
sentenced in the aggravated range. A plea arrangement or bargain
is “[a] negotiated agreement between a prosecutor and a criminal
defendant whereby the defendant pleads guilty to a lesser offense
or to one of multiple charges in exchange for some concession by
the prosecutor, usu[ally] a more lenient sentence or a dismissal of
the other charges.” Black's Law Dictionary 1190 (8th ed. 2004);
Alexander, 359 N.C. at 830-31, 616 S.E.2d at ___. “The
economically sound and expeditious practice of plea bargaining
should be encouraged, with both sides receiving the benefit of that
bargain.” Alexander, 359 N.C. at 831, 616 S.E.2d at ___.
Moreover, defendant did not object to the State's summation of thefacts, nor to the trial court's finding of an aggravating factor.
Because defendant agreed to be sentenced in the aggravated range
and did not object to the trial court's finding of an aggravating
factor, we conclude that defendant stipulated to the existence of
the aggravating factor.
As defendant stipulated to the aggravating factor used by the
trial court in the imposition of an aggravated sentence, we hold
the trial court did not err in entering an aggravated sentence. We
therefore affirm the judgments of the trial court.
Affirmed.
Judges TYSON and STEELMAN concur.
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