State v Peterson, 168 NC App 597 (03-1513) 02/15/2005

Appeal by defendant from judgments entered 28 April 2003 by Judge Paul L. Jones in Wayne County Superior Court. Heard in the Court of Appeals 25 October 2004.

Attorney General Roy Cooper, by Assistant Attorney General Belinda A. Smith, for the State.

Jeffrey Evan Noecker for defendant-appellant.

TIMMONS-GOODSON, Judge.

    Defendant was convicted by a jury on 26 April 2001 of three counts of statutory rape, five counts of taking indecent liberties with a minor, two counts of participating in prostitution of a minor, and attaining habitual felon status. He was originally sentenced by Judge Paul L. Jones to two life terms of imprisonment plus multiple terms totaling 1,594 to 1,986 months, all sentences to run consecutively. At the sentencing hearing, Judge Jones made inappropriate comments concerning defendant's exercise of his right to a trial by jury. On appeal, this Court vacated the judgments and remanded the matter for a new sentencing hearing. State v. Peterson, 154 N.C. App. 515, 571 S.E.2d 883 (2002). The mattercame before Judge Jones for resentencing on 28 April 2003. For the three counts of statutory rape, Judge Jones sentenced defendant anew to three prison terms of a minimum of 384 months and a maximum of 470 months. For the remaining offenses, elevated to Class C felonies because of defendant's habitual felon status, Judge Jones sentenced defendant anew to seven prison terms of a minimum of 121 months and a maximum of 155 months. Judge Jones ordered all sentences to run consecutively.
    The sole issue in this appeal is whether Judge Jones erred by denying defendant's motion to disqualify or recuse himself. On 11 March 2003 defendant filed a motion for recusal contending that Judge Jones's comments at the first sentencing hearing constituted grounds for disqualifying Judge Jones from re-sentencing defendant. At the call of the matter for hearing on 28 April 2003, Judge Jones orally denied the motion and proceeded to conduct the sentencing hearing.
    “When a defendant makes a motion that a judge be recused, 'the burden is upon the party moving for disqualification to demonstrate objectively that grounds for disqualification actually exist. Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially.'” State v. Scott, 343 N.C. 313, 325, 471 S.E.2d 605, 612 (1996)(quoting State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987)). The bias, prejudice or interest refers to the mental attitude of the judge toward the party and not toward the subject matter of theproceeding. State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993).
    Defendant contends that Judge Jones was prejudiced or biased against him. In support of this contention he cites statements made by Judge Jones at the original sentencing hearing and quoted in this Court's opinion. For example, Judge Jones stated that defendant had shown himself to be a “master manipulator and con artist” and “attempted to be a con artist with the jury.” He also made the following comments to defendant: “[N]ormally, I will say that there's a special place in hell reserved for villains like you. Meanwhile, it's my intent that you will never walk in this society again as a free man because your crimes were deplorable and you're going to get that type of sentence.” He also cites a statement made by Judge Jones at the resentencing hearing regarding this Court's opinion whereby Judge Jones commented, “I think Ms. Cleo could have done a better job of making that decision.”
    We need not address Judge Jones's comments in deciding this appeal. We recently emphasized that “a trial judge is not to be disqualified simply because he is familiar with the proceedings and supplements the record with observations.” State v. McRae, 163 N.C. App. 359, 363, 594 S.E.2d 71, 75 (2004). If it can be determined, based upon a review of the record, that the defendant received a fair and impartial hearing, then a ruling denying a motion to disqualify or recuse will not be disturbed. Id. at 365, 594 S.E.2d at 76.
    After carefully reviewing the record, we hold Judge Jonesconducted a fair and impartial resentencing hearing. He allowed defendant the opportunity to testify and to make his case for a mitigated sentence. After hearing defendant's testimony and the arguments of counsel, Judge Jones sentenced defendant to the lowest possible minimum term within the presumptive range for each offense. By electing to sentence defendant within the presumptive range for all of the offenses, Judge Jones was not required to make any findings of factors in aggravation or mitigation. See State v. Rich, 132 N.C. App. 440, 452-53, 512 S.E.2d 441, 450 (1999). This assignment of error is overruled.
    No error.
    Judges CALABRIA and LEVINSON concur.
    Report per Rule 30(e).

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