State v Bogle, (03-1574) 04/05/2005

Appeal by defendant from judgments entered 13 May 1998 by Judge Shirley L. Fulton in Gaston County Superior Court. Heard in the Court of Appeals 1 November 2004.

Attorney General Roy Cooper, by Assistant Attorney General Caroline Farmer, for the State.

Teeter Law Firm, by Kelly Scott Lee, for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Kenneth Lee Bogle, Jr., pled guilty on 13 May 1998 to second-degree murder. Defendant also entered Alford pleas to two counts of first-degree burglary, two counts of felonious larceny, one count of attempted robbery with a dangerous weapon, and one count of first-degree kidnaping.
    Defendant stipulated to a factual basis for entry of the pleas. This tended to show that defendant and Gina England Baker (Baker) had previously dated. In the early morning hours of 26 December 1996, defendant went to Baker's home, which was occupied at that time by Baker, her daughter, and a guest of Baker's, who were all asleep. Baker woke up, apparently recognized defendant,and told him to leave. Defendant then proceeded to glue Baker's windows and doors shut. Before defendant left, he stole Christmas presents out of Baker's car. That afternoon, defendant went to a restaurant and consumed several alcoholic drinks. Defendant then returned to Baker's home, confronted her, and threw a brick through her window. Defendant left again and went to a friend's home in South Carolina. Defendant's friend advised him not to go back to Baker's home. Once his friend left for work, defendant returned to Baker's home for the third time.
    Baker called 911. The dispatcher heard the victim cry out and scream, while hearing defendant yell obscenities and ask the victim personal questions. A police unit was dispatched to Baker's residence. An officer found Baker severely beaten and bleeding. Baker was taken to the hospital where she died from the injuries defendant had inflicted. Due to the severity and extensiveness of the injuries Baker sustained to her head and chest area, the medical examiner was unable to determine exactly how many times she was struck, but determined the number to be no less than twelve.
    When officers arrested defendant, they found the stolen Christmas presents in his car. They also found a pair of defendant's pants and shoes, all with Baker's blood on them. Defendant admitted to a friend that he had gotten into another fight with Baker and struck her.
    Following the State's summary of the facts, the trial court found a factual basis upon which to accept the entry of defendant's guilty plea to each charge. The court found defendant wascompetent, entered his plea freely and voluntarily, made an informed choice, and was satisfied with his attorney's services. The trial judge found only one aggravating factor, that each of the crimes were “especially heinous, atrocious,” and cruel, pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(7). She found there to be no mitigating factors.
    The trial court imposed active sentences from the aggravated range as follows: (1) 196 to 245 months for second-degree murder; (2) 80 to 105 months for each of the two counts of first-degree burglary; (3) 8 to 10 months for each of the two counts of felonious larceny; (4) 92 to 120 months for first-degree kidnaping; and (5) 80 to 105 months for attempted robbery with a dangerous weapon. Each sentence was to run consecutively. This resulted in the imposition of sentences totaling 544 months minimum and 700 months maximum, which was the sentence specified in defendant's plea arrangement.
    On 15 July 1999, this Court granted defendant's petition for writ of certiorari. However, defendant's appeal was limited to the issues of “whether [defendant's] sentence is supported by the evidence introduced at the trial and sentencing hearing and whether [defendant's] sentence is authorized by his prior record or conviction level” in accordance with N.C. Gen. Stat. § 15A-1444(a1) and (a2).
    In defendant's first assignment of error he contends there was insufficient factual basis presented at the plea hearing to support the trial court's acceptance of his Alford pleas to the charges offirst-degree burglary, felonious larceny, first-degree kidnapping, and attempted robbery with a dangerous weapon. Defendant does not contest that there was a sufficient factual basis to support the trial court's acceptance of his guilty plea to the murder charge.
    By the express terms of the order granting certiorari in this matter and N.C. Gen. Stat. § 15A-1444, defendant's appeal is limited to “whether [his] sentence is supported by the evidence introduced at the trial and sentencing hearing.” This essentially limits defendant's appeal to issues of sentencing. It does not authorize an appeal regarding the guilty pleas themselves. Since defendant's first assignment of error goes beyond the scope permitted by the writ of certiorari and N.C. Gen. Stat. § 15A- 1444(a)(2), we dismiss it without further consideration.
    In defendant's second assignment of error, he contends the evidence presented at the sentencing hearing did not support the trial court's finding of the aggravating factor that all the crimes for which he was charged were especially heinous, atrocious, or cruel. We agree.
    The burden is on the State to establish the existence of any aggravating factor by a preponderance of the evidence. N.C. Gen. Stat. § 15A-1340.16(a) (2003). Defendant in this case did not stipulate to the existence of any aggravating factors.
    Defendant does not assert that the State failed to present sufficient evidence from which the trial court could find the murder was especially heinous, atrocious, or cruel, nor does he assert that it was improper for the trial court to sentence him inthe aggravated range on the murder charge. However, defendant does contend it was improper for the court to apply the same aggravating factor to the other crimes for which he was sentenced: the two counts of first-degree burglary, the two counts of felonious larceny, the one count of attempted robbery with a dangerous weapon, and the one count of first-degree kidnaping.
    In State v. Long, the trial judge applied the same set of aggravating factors to each offense for which it sentenced the defendant. 316 N.C. 60, 66, 340 S.E.2d 392, 396 (1986). Our Supreme Court expressed its strong disapproval of “the indiscriminate use of factors present in one offense to aggravate other offenses.” Id. It directed that “[c]are must be taken to see that all aggravating factors are relevant to the offenses to which they are applied.” Id. Thus, the aggravating factor must be present in each of the crimes for which it was found, and which the court used to aggravate the defendant's sentence.
    At the plea hearing, the district attorney specifically stated the aggravating factor that the crime was especially heinous, atrocious, or cruel, applied to the murder charge. When determining if an offense was especially heinous, atrocious or cruel, the focus must be whether the “'facts of the case disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense.'” State v. Atkins, 311 N.C. 272, 274, 316 S.E.2d 306, 307 (1984). (citations omitted). The State pointed to the “beating, the screaming that she went through that was documented on the 911tape, and the manner in which he treated her by yelling obscenities at her and asking her questions about her life during the process of beating her at a minimum of twelve times about the head[,]” as support for its request for a finding in aggravation. The district attorney never asserted this aggravating factor applied to the other crimes for which defendant entered an Alford plea and was being sentenced. Nor did the district attorney present any evidence demonstrating the other crimes were especially heinous, atrocious, or cruel. There was no evidence presented at the plea hearing which would support the trial court's finding that the aggravating factor applied to the offenses for which it sentenced defendant, other than for second-degree murder.
    When the trial court errs in making a finding of aggravation and imposes a sentence in excess of the presumptive range, the case must be remanded for a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983). We remand this matter to the trial court for a new sentencing hearing on the crimes of (1) first-degree burglary (98 CRS 13944); (2) felonious larceny (98 CRS 13944); (3) felonious larceny (98 CRS 13945); (4) first-degree kidnapping (98 CRS 13946); (5) attempted robbery with a dangerous weapon (98 CRS 13947); and (6) first-degree burglary (98 CRS 13948).
    Defendant failed to argue that his sentence was not authorized based on his prior record and conviction level as permitted by writ of certiorari, and therefore that argument is deemed abandoned. N.C. R. App. P. 28(b)(6).     AFFIRMED AS TO SECOND-DEGREE MURDER; REMANDED FOR NEW SENTENCING HEARING ON THE REMAINING CHARGES.

    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***