STATE OF NORTH CAROLINA
v. Forsyth County
No. 03 CRS 53858
RONALD EUGENE THOMAS
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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