State v Barksdale, (04-1493) 09/06/2005

Appeal by defendant from judgments entered 21 July 2004 by Judge W. Douglas Albright in the Superior Court in Forsyth County. Heard in the Court of Appeals 22 August 2005.

Attorney General Roy Cooper, by Assistant Attorney General Stormie D. Forte, for the State.

Ligon and Hinton, by Lemuel W. Hinton, for defendant- appellant.

HUDSON, Judge.

    Defendant Kevin Lamont Barksdale was charged with four counts of breaking or entering a motor vehicle, four counts of felony uttering, financial card theft and misdemeanor financial card fraud. Defendant was also charged with having attained habitual felon status. The State's evidence tended to show that defendant broke and entered into certain vehicles to steal the property, credit cards, and checks located therein. Defendant also uttered the stolen checks, and purchased or attempted to purchase merchandise with the checks and credit cards. Defendant confessed to the crimes and expressed his remorse for having committed them.     At the close of the State's evidence and upon motion of defendant, the trial court dismissed the felony uttering charge in 03CRS58400. Defendant did not present any evidence. The jury found defendant guilty of the remaining seven Class I felonies and the one Class 1 misdemeanor. After defendant was arraigned on the habitual felon indictment, the trial court quashed the indictment for fatal defects. The court then sentenced defendant to seven consecutive terms of eight to ten months imprisonment, and another consecutive term of 120 days imprisonment for the misdemeanor conviction. Defendant appeals.
    On appeal, defendant argues that the trial court violated his statutory and constitutional rights by sentencing him to eight consecutive active sentences. Defendant contends that the trial court improperly considered (1) that he qualified to be an habitual felon, (2) that he decided to go to trial instead of pleading guilty, (3) that he failed to stipulate to his criminal record and required a hearing to determine his prior record points and prior record level, and (4) that he was on pretrial release when the crimes were committed. We disagree.
    N.C. Gen. Stat. § 15A-1340.12 provides the following instruction on sentencing,
        The primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender's culpability; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminalbehavior.
N.C. Gen. Stat. § 15A-1340.12 (2003). In State v. Morris, this Court stated that the trial court may also consider “such matters as the age, character, education, environment, habits, mentality, propensities and record of the defendant” to determine the sentence actually imposed. 60 N.C. App. 750, 754-55, 300 S.E.2d 46, 49 (1983). In addition, this Court has held, “the trial judge has the discretion to impose either consecutive or concurrent sentences.” State v. McKenzie, 122 N.C. App. 37, 48, 468 S.E.2d 817 (1996)(citing State v. Ysaguire, 309 N.C. 780, 785, 309 S.E.2d 436, 440 (1983)). It is well settled that the trial court is not required to make findings of mitigating or aggravating factors when the court sentences defendant within the presumptive range of sentences for his offense. State v. Brooks, 136 N.C. App. 124, 133, 523 S.E.2d 704, 710 (1999), disc. review denied, 351 N.C. 475, 543 S.E.2d 496 (2000). Finally, a trial court's decision, which is within statutory and constitutional limits, is reviewable only upon a showing of abuse of discretion.
    In the instant case, defendant was sentenced to eight consecutive sentences from the high end of the presumptive range of sentences. A thorough review of the record shows that the trial court did not improperly consider the factors alleged by defendant. First, the trial court decided to quash the habitual felon indictment because of an admitted defect in that indictment, and on several occasions the court noted that defendant had not attained habitual felon status. Neither is there any evidence to show thatthe trial court improperly penalized defendant for his decision not to stipulate to his prior record level. To the contrary, the trial court spoke frankly to defense counsel acknowledging the need for zealous representation of her client's interests. Finally, the record is devoid of any finding of any aggravating factors. Indeed, the record evidence here tends to show that the trial court was concerned that defendant had stolen from his neighbors and that his record showed a history of criminal conduct. The court acknowledged that defendant had a support system and was a good father to his children, but noted that something needed to be done to deter defendant from his criminal conduct. The record shows that the court properly utilized those factors permitted, see N.C. Gen. Stat. § 15A-1340.12; Morris, 60 N.C. App. at 754-55, 300 S.E.2d at 49; and determined, in its discretion, that consecutive terms of imprisonment in the presumptive range would be appropriate here.
    No error.
    Judges MCGEE and LEVINSON concur.
    Report per Rule 30(e).

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