State v Jones, 168 NC App 408 (04-908) 02/01/2005

Appeal by defendant from judgment entered 8 March 2004 by Judge Charles C. Lamm in Gaston County Superior Court. Heard in the Court of Appeals 17 January 2005.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Richard E. Slipsky, for the State.

Bruce T. Cunningham, Jr. for defendant-appellant.

HUNTER, Judge

    This is defendant's second appeal in this case. A full recitation of the facts can be found at State v. Jones, 357 N.C. 409, 584 S.E.2d 751 (2003). Following a jury trial, defendant was convicted of robbery with a dangerous weapon, felonious breaking or entering, and the first degree murders of Donald James Hunt and Devan Lashawn Bynum under the felony murder rule. The jury recommended a sentence of death for the murder of Hunt and a sentence of life imprisonment for the murder of Bynum. The trial court entered judgments accordingly. Id. at 410-11, 584 S.E.2d at 753.    Defendant appealed to our Supreme Court alleging, among other things, that the trial court erred by instructing the jury on the pecuniary gain aggravating circumstance, id. at 418, 584 S.E.2d at 757, and that his sentence was disproportionate to the crime because he was not the triggerman. Id. at 422-23, 584 S.E.2d at 760. In Jones, our Supreme Court found that the trial court committed no error during guilt or innocence phase of defendant's trial, but found that the trial court committed plain error in the sentencing phase by improperly directing the jury to find the pecuniary gain aggravating circumstance based upon its determination that defendant committed robbery with a dangerous weapon. Id. at 422, 584 S.E.2d at 759-60. Our Supreme Court vacated defendant's death sentence and remanded the case to the trial court for a new capital sentencing proceeding. Id. at 423, 584 S.E.2d at 760. Because defendant's death sentence was vacated, our Supreme Court did not address defendant's argument that his death sentence was disproportionate to the crime. Id. at 422-3, 584 S.E.2d at 760.     At the resentencing hearing, the trial court sentenced defendant to another life sentence, to begin at the expiration of any and all sentences currently being served. Defendant appeals.
    In his sole assignment of error, defendant contends the imposition of two life sentences for two counts of first degree murder is constitutionally disproportionate when measured against the two life sentences imposed on the person who actually “was the triggerman.” We disagree.    In State v. Ysaguire, 309 N.C. 780, 309 S.E.2d 436 (1983), the defendant also requested a proportionality analysis of consecutive life sentences. Our Supreme Court held that “[o]nly in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment.” Id. at 786, 309 S.E.2d at 441. More importantly, our Supreme Court further noted that, “[t]he imposition of consecutive life sentences, standing alone, does not constitute cruel or unusual punishment. A defendant may be convicted of and sentenced for each specific criminal act which he commits.” Id. (citations omitted). Further, the imposition of the same sentence for an accomplice as for a co-perpetrator does not create a gross disproportionality and is not admissible as a mitigating factor in determining defendant's sentence. The Supreme Court of North Carolina has held that, “for purposes of sentencing, the fact that a codefendant received a lesser sentence 'was not admissible as a mitigating circumstance because such evidence did not pertain to “defendant's character, record, or the nature of his participation in the offense.”'” State v. Bonnett, 348 N.C. 417, 430-31, 502 S.E.2d 563, 573 (1998) (quoting State v. Bond, 345 N.C. 1, 34, 478 S.E.2d 163, 180 (1996) (citation omitted) (finding no error in imposition of death penalty on accomplice when co- conspirators who were actual shooters were given life sentences)).
    In the present case, defendant was convicted of two counts of first degree murder under N.C. Gen. Stat. § 14-17, which provides that a murder “committed in the perpetration or attemptedperpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree[.]” N.C. Gen. Stat. § 14-17 (2003). Our General Assembly has chosen to punish this serious offense as a Class A felony, punishable by death or life without parole. Id. It was within the trial court's discretion, upon remand, to impose two consecutive life sentences for those offenses. We do not find defendant's consecutive life sentences for defendant's two first degree murder convictions to be unconstitutionally excessive or so gross and disproportionate as to violate the constitutions of the United States or North Carolina. This assignment of error is overruled.
    No error.
    Judges ELMORE and STEELMAN concur.
    Report per Rule 30(e).

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