An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-782


Filed: 4 April 2006


         v.                        Pitt County
                                No. 05 CRS 00113

    Appeal by defendant from judgments entered 10 January 2005 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 27 February 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General Thomas R. Miller for the State.

    Paul T. Cleavenger for defendant-appellant.

    ELMORE, Judge.

    On 10 January 2005 defendant pled guilty to second degree murder and second degree sexual offense pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 27 L. Ed. 2d. 162, 171 (1970). In his written plea agreement, defendant “acknowledge[d] and stipulate[d] that factors in aggravation and mitigation exist in this case and will be considered by the judge in sentencing.” At sentencing, defendant stipulated to the lone aggravating factor ultimately found by the trial court: that he “took advantage of a position of trust or confidence, including a domestic relationship, to commit the offense.” See N.C. Gen. Stat. § 15A-1340.16(d)(15) (2005). After accepting defendant's Alford plea, the court sentenced him toconsecutive, aggravated prison terms of 196 to 245 months for second degree murder and 92 to 120 months for second degree sexual offense.
    On appeal, defendant claims the sentencing court committed plain error by allowing the prosecutor to read a letter written by the child victim's maternal aunt on behalf of several family members who lived in Canada and who were unable to attend the hearing. Defendant avers the admission of this “passionate” hearsay evidence was not authorized under N.C. Gen. Stat. § 15A- 1334(b). He also notes that “[t]here is no indication that the letter had been shared with the defense” prior to the sentencing.
    While assigning “plain error” in the record on appeal, see N.C.R. App. P. 10(c)(4), defendant fails to articulate the plain error standard of review or to make any argument thereunder in his brief to this Court. See State v. Wiley, 355 N.C. 592, 624, 565 S.E.2d 22, 44 (2002) (citing State v. Cummings, 352 N.C. 600, 636- 37, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001)), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). Moreover, defendant's argument supporting his assignment of error is based entirely upon a decision of this Court which was reversed by the North Carolina Supreme Court, State v. Phillips, 88 N.C. App. 526, 533, 364 S.E.2d 196, 200 (1998), reversed, 325 N.C. 222, 224, 381 S.E.2d 325, 326 (1989). Nonetheless, we have reviewed the substance of defendant's claim and conclude it is without merit.
    “'In order to rise to the level of plain error, the error . .. must be so fundamental that (i) absent the error, the jury probably would have reached a differed verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.'” State v. Knott, 164 N.C. App. 212, 217, 595 S.E.2d 172, 175 (2004) (quoting State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997)). Defendant cannot show error, much less fundamental or plain error, in the admission of the relatives' letter at sentencing. As the State observes, the Phillips Court upheld the use of victim impact statements at non-capital sentencing proceedings, as follows:
        N.C.G.S. § 15A-825 provides for the use of victim impact statements and, pursuant to N.C.G.S. § 15A-1334(b) which provides that formal rules of evidence do not apply at sentencing hearings, hearsay evidence can be used at such hearings. The use of hearsay evidence at sentencing hearings does not violate the Constitution of the United States. In Booth v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440 (1987) the United States Supreme Court held that the Eighth Amendment to the United States Constitution proscribes the use of victim impact statements at the penalty phase of death cases but specifically said it implied no opinion as to the use of such evidence in non-capital cases. The Sixth Amendment does not include the right to discovery or notice of evidence to be presented.

Phillips, 325 N.C. at 224, 381 S.E.2d at 326. Here, as in Phillips, “the trial court did not find an aggravating factor based on the evidence adduced by the victim impact statement[.]” Id.; accord State v. Rice, 129 N.C. App. 715, 723, 501 S.E.2d 665, 669- 70, disc. review denied, 349 N.C. 374, 525 S.E.2d 189 (1998). Regarding defendant's complaint that the record lacks evidence thathe received notice of the letter, we note that the record likewise does not reflect that he was denied such notice. See generally State v. Adams, 335 N.C. 401, 409, 439 S.E.2d 760, 764 (1994) (“[I]t is the appellant who has the burden in the first instance of demonstrating error from the record on appeal.”) (citing State v. Milby and State v. Boyd, 302 N.C. 137, 141, 273 S.E.2d 716, 719 (1981)). Furthermore, defendant had no constitutional right to advance notice of the letter and neither objected nor sought a continuance when the State introduced it at the hearing. See Phillips, 325 N.C. at 224, 381 S.E.2d at 326; Rice, 129 N.C. App. at 723, 501 S.E.2d 665, 669-70. Finally, we note that the victim's mother and grandfather testified in court about the victim and their immense pain and suffering at her loss.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).

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