An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1239


Filed: 3 May 2005


         v.                        Forsyth County
                                No. 03 CRS 53858

    On a writ of certiorari from judgment entered 6 August 2003 by Judge Henry E. Frye, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 25 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

    Daniel F. Read for defendant-appellant.

    ELMORE, Judge.

    Defendant was charged by indictment with two counts of assault with a deadly weapon on a government official and one count of hit and run driving. He pled guilty pursuant to a plea agreement containing the following terms: “State stipulates to one mitigating factor and will not oppose sentence in the presumptive range. State will refrain from seeking habitual felon status. State agrees to consolidate into one count for sentencing.” The court sentenced defendant to an active term of imprisonment of a minimum term of 47 months and a maximum term of 66 months for a single count of assault with a deadly weapon on a government official. The court made no findings of factors in mitigation or aggravation.
    On 19 December 2003 defendant filed a petition for a writ ofcertiorari. This Court allowed the petition on 13 January 2004 for the purpose of reviewing the sentence and prior record level determination.
    Defendant first contends that the court erred by failing to find a mitigating factor even though the State stipulated in the transcript of plea “to one mitigating factor.” He argues the court could have found that defendant admitted wrongdoing or accepted responsibility for his criminal conduct. However, when a court sentences a defendant within the presumptive range, it is not required to make findings of factors in mitigation and, absent an abuse of discretion, the appellate court will not review a contention that a mitigating factor should have been found. See State v. Streeter, 146 N.C. App. 594, 598, 553 S.E.2d 240, 242-43 (2001), cert. denied, 356 N.C. 312, 571 S.E.2d 211 (2002). We overrule this assignment of error.
    Defendant's remaining contention is that the court erred by sentencing him as a Class E felon when the offense of assault with a deadly weapon on a government official actually is a Class F felony. See N.C. Gen. Stat. § 14-34.2 (2003). Although the judgment states that the offense is a Class F felony, it is apparent that the court sentenced defendant as if the offense were a Class E felony. The court stated in open court that it is a Class E felony. Moreover, the presumptive range of minimums for a Class F felony, prior record level VI is 31 to 39 months. N.C. Gen. Stat. § 15A-1340.17(c) (2003). The minimum sentence of 47 months imposed by the court clearly exceeds that range and isconsistent with the presumptive range of minimum sentences for a Class E, prior record level VI felony of 47 to 59 months. Id. The State concedes that the court committed error and concurs that the matter should be remanded for resentencing.
    Remanded for resentencing.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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