An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-61


Filed: 06 September 2005


         v.                        Cumberland County
                                No. 02 CRS 66870

    Appeal by defendant from judgments entered 25 October 2004 by Judge James Floyd Ammons, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 15 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for the State.

    Paul T. Cleavenger for defendant-appellant.

    STEELMAN, Judge.

    Defendant appeals from two judgments entered upon the revocation of his probation. The record reflects that defendant was placed on supervised probation on 15 April 2004, after pleading guilty to common law robbery, felonious breaking and entering, and conspiracy to commit common law robbery. Upon his admission to the violations alleged in reports filed by his probation officer on 15 October 2004, the trial court activated his consecutive prison sentences of sixteen to twenty months for common law robbery and ten to twelve months for the consolidated offenses of breaking and entering and conspiracy.
    On appeal, defendant claims the court erred in each judgmentby imposing the maximum presumptive sentence -- which is also the minimum aggravated sentence -- without supporting findings of aggravating factors. See N.C. Gen. Stat. § 15A-1340.17(c)(2004). He argues that where a sentence falls within both the aggravated and presumptive ranges, the court should be required to make findings in aggravation and mitigation under N.C. Gen. Stat. § 15A- 1340.16(c) (2004).
    In State v. Ramirez, we held that a trial court is not required to find aggravating factors when imposing a sentence at the top of the presumptive range, even though the sentence also falls within the aggravated range due to the overlap in the Structured Sentencing grid. 156 N.C. App. 249, 259, 576 S.E.2d 714, 721 (citing State v. Streeter, 146 N.C. App. 594, 598-99, 553 S.E.2d 240, 243 (2001), cert. denied, 356 N.C. 312, 571 S.E.2d 211 (2002)), disc. review denied, 357 N.C. 255, 583 S.E.2d 286, cert. denied, 540 U.S. 991, 157 L. Ed. 2d 388 (2003). Because the trial court in this case did not depart from the presumptive sentencing range under N.C. Gen. Stat. § 15A-1340.17(c), no findings were necessary. “The fact that the trial court could have found aggravating factors and sentenced defendant to the same term does not create an error in defendant's sentence.” Id. at 259, 576 S.E.2d at 721.
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***