An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1201


Filed: 2 August 2005


v .                         Cumberland County
                            No. 01 CRS 50233

    Appeal by defendant from judgment entered 5 December 2003 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 13 April 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General William P. Hart and Assistant Attorney General Jill F. Cramer, for the State.

    M. Alexander Charns for defendant.

    LEVINSON, Judge.

    Defendant (Michael Green) appeals from judgment entered 5 December 2003. We remand.
    In January of 2001, defendant was serving in the U.S. Army in Fayetteville, North Carolina. He lived with his girlfriend, co- defendant Alexandra Goehl, and his two young sons from a previous marriage. On 4 January 2001 defendant's five year old son died under suspicious circumstances. When the investigation revealed burns, bruises, and other indications of abuse, defendant was indicted for first degree murder and felony child abuse. On 5 June 2003 defendant pled guilty to second degree murder and felony child abuse, pursuant to a plea agreement with the State. By the termsof the plea agreement, defendant agreed to testify against his co- defendant. Prayer for judgment was continued until 5 December 2003, when a sentencing hearing was conducted. Several witnesses testified at the sentencing hearing, including the defendant, his parents, a police investigator who worked on the case, a psychologist who examined the defendant, and a former babysitter for defendant's sons.
    Following the presentation of evidence and arguments of counsel, the trial court entered judgment against defendant. The court found that defendant had no prior convictions, and thus was a prior record level I under N.C.G.S. § 15A-1340.14(c)(1). The court found the presence of two statutory aggravating factors listed in N.C.G.S. § 15A-1340.16: aggravating factor number seven, “[t]he offense was especially heinous, atrocious, or cruel”; and factor number eleven, “[t]he victim was very young.” The trial court found two statutory mitigating factors under N.C.G.S. § 15A- 1340.16(e): number fifteen, “defendant has accepted responsibility for [his] conduct; and number seventeen, “defendant supports [his] family.” The court also found the following non-statutory mitigating factors: defendant gave a post-arrest statement to the investigating officer; defendant has a history of being sexually abused; defendant was reared in an unstable home; and defendant has a diagnosis of personality disorder not otherwise specified with anti-social and dependent features.
    The trial court concluded the aggravating factors outweighed the mitigating factors, and imposed an aggravated sentence of 170to 213 months imprisonment. On 22 March 2004 defendant filed a pro se petition for review of his sentence by writ of certiorari, which was granted by this Court on 2 April 2004.

    Defendant argues first that he is entitled to a new sentencing hearing on the basis of the holding of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied, __ U.S. __, 159 L. Ed. 2d 851 (2004). Defendant contends the trial court erred by sentencing him in excess of the statutory maximum based on aggravating factors not submitted to the jury and not admitted by defendant. We agree.
    Defendant's sentence was aggravated based on the findings that “[t]he offense was especially heinous, atrocious or cruel,” and that “[t]he victim was . . . very young.” The trial court sentenced defendant in the aggravated range to a term of 170 to 213 months. The aggravating factors were not found beyond a reasonable doubt by the jury, and were not admitted by defendant. Therefore, we remand for resentencing in conformity with the rulings in Blakely and State v. Allen, __ N.C. __, __ S.E.2d __ (No. 485PA04) (filed 1 July 2005).
    Defendant argues next that he is entitled to a new sentencing hearing, on the grounds that the trial court erred by failing to find certain mitigating factors. We conclude defendant's argument has merit.     Preliminarily, “[w]e note that many of the cases analyzing trial courts' decisions concerning aggravating and mitigating factors were decided under the Fair Sentencing Act. Even though this case was heard under Structured Sentencing (N.C. Gen. Stat. Article 81B), the logic of the cases under the earlier act as to aggravating and mitigating factors remains valid.” State v. Byrd, 164 N.C. App. 522, 527, 596 S.E.2d 860, 863 (2004).
    Under N.C.G.S. § 15A-1340.16(a) (2003), the defendant “bears the burden of proving by a preponderance of the evidence that a [mitigating] factor exists.” Further, “the trial court is compelled to find the factor only if the evidence 'so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn.'” Byrd, 164 N.C. App. at 526, 596 S.E.2d at 863 (quoting State v. Jones, 309 N.C. 214, 220, 306 S.E.2d 451, 455 (1983)) (other citation omitted). Thus, “when evidence of the existence of a statutory mitigating factor is both uncontradicted and manifestly credible, the trial court's failure to find that factor must be deemed error.” State v. Pigott, 331 N.C. 199, 214, 415 S.E.2d 555, 564 (1992). Moreover, when the trial court erroneously fails to find a statutory mitigating factor, and the defendant is sentenced in excess of the presumptive range, he is always entitled to a new sentencing hearing:
        '[T]he weight to be given any factor is within the sound discretion of the sentencing judge. The judge is not required to engage in a numerical balancing process. By the same token, our appellate courts should not attempt to second-guess the sentencing judge . . . [or] engage in numerical balancing in order to determine whether a sufficient number ofaggravating factors remain[.]' . . . This rationale applies with equal force to a sentencing judge's erroneous failure to find a circumstance that the legislature has determined to have mitigating value. It is simply impossible for an appellate court to say what effect the error . . . had on the ultimate sentence. . . . For these reasons we conclude that whenever there is error in a sentencing judge's failure to find a statutory mitigating circumstance and a sentence in excess of the presumptive term is imposed, the matter must be remanded for a new sentencing hearing.

State v. Daniel, 319 N.C. 308, 314-15, 354 S.E.2d 216, 220 (1987) (quoting State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 700-01 (1983)).
    The defendant argues that the trial court erred by not finding the following mitigating factors from N.C.G.S. § 15A-1340.16(e) (2003):

    14.    The defendant has been honorably discharged from the United States Armed Services.

    . . . .

    19.    The defendant has a positive employment history or is gainfully employed.

    Regarding mitigating factor number fourteen, we note that the defendant never asked the trial court to find this mitigating factor, and that he did not present any evidence that he was honorably discharged from the U.S. Army. Accordingly, the trial court did not err by not finding mitigating factor fourteen.
    We next consider the court's refusal to find mitigating factor number nineteen, that the defendant “has a positive employment history or is gainfully employed.” The North Carolina Supreme Court has observed that evidence is usually found to be crediblewhen the “non-movant establishes proponent's case by admitting the truth of the basic facts upon which the claim of proponent rests.” Jones, 309 N.C. at 220, 306 S.E.2d at 455 (citing Flintall v. Insurance Co., 259 N.C. 666, 131 S.E.2d 312 (1963), and Davis v. Vaughn, 243 N.C. 486, 91 S.E.2d 165 (1956)). In the instant case, all the witnesses, both for the State and the defendant, testified that defendant was serving in the United States Army at the time of his arrest. Defendant specifically asked the trial court to find mitigating factor nineteen, on the basis that the defendant “had been employed with the U.S. Army since the early 1990[']s.” In response, the prosecutor conceded that “[a]s to number nineteen, I believe that he was gainfully employed at the time.” And, when the trial court spoke to the defendant during sentencing, he reminded defendant “you were a sergeant in the military.” Finally, on appeal, the State acknowledges that “[it] agrees with defendant's contention that at the time of the arrest, defendant was serving as a sergeant in the armed forces.”
    On this record, we conclude that the evidence of defendant's employment in the military was “ both uncontradicted and manifestly credible,” Jones, 309 N.C. at 220, 306 S.E.2d 455, and that the trial court erred by failing to find the existence of mitigating factor nineteen, that defendant was gainfully employed. We also note that the trial court's error was not cured by its finding of mitigating factor seventeen, that the defendant supports his family. A defendant may be employed, yet not support his family; or, he may support his family through some means other than gainfulemployment. Accordingly, the legislature identified two separate mitigating factors to address these two distinct aspects of a defendant's conduct. Because the trial court failed to find mitigating factor number nineteen, defendant is entitled to a new sentencing hearing.
    In view of this decision, we have no need to consider defendant's remaining argument on appeal. This matter is remanded for resentencing.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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