An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-168

NORTH CAROLINA COURT OF APPEALS

Filed: 18 October 2005

STATE OF NORTH CAROLINA

         v.                        Mecklenburg County
                                Nos. 03CRS236048-49
WILLIE D. WILLIAMS,
    Defendant.
    

    Appeal by Defendant from judgments entered 13 October 2004 by Judge Richard D. Boner in Superior Court, Mecklenburg County. Heard in the Court of Appeals 3 October 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Angel E. Gray, for the State.

    Bryan Gates, Jr., for defendant-appellant.

    WYNN, Judge.

    Where it can be reasonably inferred that the sentence imposed on a defendant was based on the defendant's insistence on a jury trial, the defendant is entitled to a new sentencing hearing. State v. Gantt, 161 N.C. App. 265, 588 S.E.2d 893 (2003). In this case, the trial court's statements to defense counsel and Defendant merely clarified the record that Defendant had been offered a plea agreement, and he knowingly declined the offer. Accordingly, we find no error by the trial court.
    Defendant Willie D. Williams was charged with two counts of armed robbery, assault with a deadly weapon with intent to kill inflicting serious injury, and assault with a deadly weaponinflicting serious injury. Before trial, the State and Defendant engaged in plea negotiations and a plea conference was held with the trial court. Defendant, however, rejected all of the State's offers, and Defendant elected to plead not guilty and proceed to trial.
    The evidence at trial tended to show that on the evening of 15 June 2003, Defendant and another male assaulted and robbed Jimmy Furtick, Jr. and Furtick's friend, identified only as “Jersey.” Specifically, Defendant held a twelve-gauge shotgun on Furtick, while removing five or ten dollars from Furtick's pockets. Thereafter, Defendant beat “Jersey” in the head with the shotgun. Defendant's accomplice had a pistol, which he used to hit Furtick on the side of the head. When Furtick tried to escape, he was shot in the outside, upper portion of his left leg. Defendant and his accomplice then fled the scene.
    The jury found Defendant guilty of robbery with a dangerous weapon and the lesser-included offense of assault with a deadly weapon inflicting serious injury. The trial court entered judgments on the jury's verdicts, sentencing Defendant to consecutive, presumptive sentences of 117 to 150 months imprisonment for the armed robbery conviction, and forty-six to sixty-five months imprisonment for the assault conviction. Defendant appeals.
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    On appeal, Defendant argues only that the trial court improperly imposed a harsher sentence based upon his decision toexercise his right to a jury trial. Defendant directs this Court's attention to the trial court's remarks during the charge conference as support for his position to that end.
    It is well settled that a defendant has the right to plead not guilty and he should not be punished for exercising that right. State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). Accordingly, where it can be reasonably inferred that the sentence imposed on a defendant was based on the defendant's insistence on a jury trial, the defendant is entitled to a new sentencing hearing. Gantt, 161 N.C. App. 265, 588 S.E.2d 893.
    During the charge conference and before closing arguments, the trial court had the following exchange with defense counsel:
        THE COURT: . . . I think the record -- we probably ought to put on the record that counsel for the State and for the defendant had a plea conference with the Court, and that the Court was asked what sentence might be entered if the defendant pled to all charges, and that was communicated to counsel.

        And, Mr. Sanders, I assume you've communicated that to your client; is that correct?

        MR. SANDERS: Yes, Your Honor. I communicated to him exactly what the Court had offered, 120 to 153 months. Mr. Williams does not want to accept that as a plea offer.

        THE COURT: Mr. Williams, do you understand what the Court -- what the result of the plea conference were?

        THE DEFENDANT: Sir?

        THE COURT: Do you understand what the results of the plea conference were?

        THE DEFENDANT: Yes, sir.

        THE COURT: And you've talked with your counselabout the plea offer, and it's your decision not to accept it; is that correct?

        THE DEFENDANT: Yes, sir.

        THE COURT: And is that your plea and voluntary decision? That is, has anyone promised you anything to get you to turn the plea offer down?

        THE DEFENDANT: No, sir.
At sentencing, the trial court allowed Defendant to present evidence as to mitigating factors.
    Similar facts and circumstances have been analyzed by our Court in State v. Poag, 159 N.C. App. 312, 583 S.E.2d 661, appeal dismissed and disc. review denied, 357 N.C. 661, 590 S.E.2d 857 (2003), and Gantt, 161 N.C. App. 265, 588 S.E.2d 893. In Poag, the trial court had a discussion with the defendant about a pending plea offer, noting that “if [he] accept[ed] the plea . . . the time for the robbery would run with or at the same time as the time for the murder and the attempted murder.” 159 N.C. App. at 323, 583 S.E.2d at 670. The defendant refused the State's plea offer and proceeded to trial, after which the defendant was convicted and sentenced to consecutive sentences. Id. at 323-24, 583 S.E.2d at 670. On appeal, the defendant argued that the court unconstitutionally punished him for exercising his right to a jury trial by ordering that his sentences be served consecutively instead of concurrently. Id. at 323, 583 S.E.2d at 669. This Court disagreed, holding that the trial court's comments were merely an effort to “make the plea bargain more definitive and eliminate any question that defendant might have about theresulting sentence that the trial court would impose in its discretion.” Id. at 324, 583 S.E.2d at 670. The Court concluded that the comments were not such as to show an unconstitutional decision to punish defendant for his decision to exercise his right to a trial by jury. Id.
    In Gantt, the trial court made the following statement prior to sentencing the defendant:
        At the beginning of the trial I gave you one opportunity where you could have exposed yourself probably to about 70 months but you chose not to take advantage of that. I'm going to sentence you to a minimum of 96 and a maximum of 125 months in the North Carolina Department of Corrections.
161 N.C. App. at 272, 588 S.E.2d at 898. Again, this Court held that the trial court's statements did not rise to the level of those statements our appellate courts have determined to be improper considerations of a defendant's exercise of his right to a jury trial. Id.
    Though Defendant references several cases in which our appellate courts have held that the trial court's remarks show a decision to impose a harsher penalty based upon a defendant's decision to proceed with a jury trial, the facts of those cases are readily distinguishable from the instant case. See State v. Young, 166 N.C. App. 401, 411-12, 602 S.E.2d 374, 380-81 (2004) (remanded for resentencing where the trial judge stated prior to trial that if the defendant pled guilty to all charges then he would be sentenced in the mitigated range, but if he proceeded to trial he would be sentenced at least within the presumptive range); State v.Williams, 98 N.C. App. 68, 73-74, 389 S.E.2d 830, 833 (1990) (remanded for resentencing where the trial judge sentenced the defendant in the aggravated range for failing to “express remorse” to the victim). Indeed, the facts of this case are more similar to those of Poag and Gantt. Poag, 159 N.C. App. at 324, 583 S.E.2d at 670; Gantt, 161 N.C. App. at 272, 588 S.E.2d at 898. A thorough review of the record shows that the trial court here engaged in the subject exchange with the parties to clarify, on the record, that Defendant had been offered a plea agreement and that Defendant knowingly declined that offer. Hence, we conclude the trial court did not improperly sentence Defendant to a harsher punishment because of his decision to exercise his right to a trial by jury. Defendant's argument to the contrary fails.
    Having so concluded, we hold that Defendant received a fair trial, free from prejudicial error.
    No error.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

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