An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1288


Filed: 20 June 2006


        v.                        Forsyth County
                                No. 04 CRS 59546
                                 04 CRS 59836-37
SHAWN CHRISTOPHER PORTER                  04 CRS 59894

    Appeal by defendant from judgment entered 31 January 2005 by Judge Michael E. Helms in Forsyth County Superior Court. Heard in the Court of Appeals on 17 May 2006.

Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State.

            Appellate Defender Staples Hughes, by Assistant Appellate Defender Keischa M. Lovelace for defendant-appellant.

    STEELMAN, Judge.

    On 31 January 2005, defendant pled guilty to four counts of robbery with a dangerous weapon, one count of attempted robbery with a dangerous weapon, and one count of common law robbery. The State stipulated to the existence of a mitigating factor. The trial court found defendant to be a level IV for felony sentencing and entered four judgments, imposing sentences of 94to 122 months active imprisonment to be served consecutively. Each sentence was from the mitigated range. Defendant appeals.
In defendant's first argument, he contends the trial court erred in failing to find as a statutory mitigating factor that defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but significantly reduced the defendant's culpability for the offense, pursuant to N.C. Gen. Stat. § 15A-1340.16(e)(3) (2006). We disagree.
The trial court is required to consider evidence of statutory mitigating factors. State v. Spears, 314 N.C. 319, 321, 333 S.E.2d 242, 244 (1985). However the decision to impose a sentence less than the presumptive range is a matter vested in its discretion, and we will not overturn the trial court's decision absent a clear showing of abuse of discretion. N.C. Gen. Stat. § 15A-1340.16(a), State v. Clifton, 125 N.C. App. 471, 480, 481 S.E.2d 393, 399 (1997). The trial court must find a mitigating factor where the evidence is uncontradicted, substantial and manifestly credible. Spears, 314 N.C. at 321, 333 S.E.2d at 244. Defendant bears the burden of proving by a preponderance of the evidence that the mitigating factor exists. State v. Canty, 321 N.C. 520, 523, 364 S.E.2d 410, 413 (1988).Defendant's assertion that the trial court should have found his mental condition to be a mitigating factor is based on the report from a court ordered examination to determine whether he was competent to stand trial. This report, dated 10 November 2004 by Melanie Coble, a certified forensic screener, found defendant was mentally competent to proceed. It was based upon one interview with defendant. Coble recited defendant's self- reported symptoms, which included “auditory and visual hallucinations, anxiety, social phobia, aggression, and depression.” She expressed her opinion that: “[Defendant] appears to meet the diagnostic criteria for Bi-Polar Disorder with psychotic features, Cocaine and Alcohol Abuse.”
Defendant's assertion that this report establishes a link between his mental condition and his culpability overstates the report's conclusions. Coble does not suggest reduced culpability, nor is it clear from her report that the data gathered would support such a determination. On the contrary, her report states that: “[defendant] does understand the charges against him and he is ready to 'do his time.' He stated that he knows how to spend time incarcerated because that is what he has been used to during his life.” The report further states that, “He is able to think rationally about his options though hestates he needs help and has been unable to get help outside of the prison system.”
The purpose of the evaluation and report was to determine whether defendant was competent to stand trial. There is no indication that Ms. Coble conducted an evaluation to determine whether there was a link between defendant's mental condition and his culpability for any of the six robbery charges. The order referring defendant for an evaluation is absent from the record. It is clear from the record, though, that the trial court weighed and considered defendant's request that this statutory mitigating factor be found, but chose not to make such a finding. It was defendant's burden to show the existence of this statutory mitigating factor, and that it “significantly reduced” his culpability for the offense. We discern no abuse of discretion by the trial court in denying this request.
In defendant's second argument, he contends the trial court committed reversible error by failing to find his history of mental illness, coupled with the statements of the forensic screener, supported a non-statutory mitigating factor. We disagree.
The trial court may find “any other mitigating factor reasonably related to the purposes of sentences.” N.C. Gen.Stat. § 15A-1340.16(e)(21). It enjoys wide latitude in determining non-statutory aggravating and mitigating factors. Canty, 321 N.C. at 524, 364 S.E.2d at 413. The standard of review on appeal is abuse of discretion. Spears, 314 N.C. at 322-323, 333 S.E.2d at 244. Our Supreme Court has held the quality of evidence that would produce reversible error when offered in support of a statutory mitigating factor does not necessarily do so when offered in support of a non-statutory factor. Id. at 322-323, 333 S.E.2d at 244.
To establish error for failure to find a non-statutory mitigating factor, defendant must show the trial court abused its discretion. In matters of discretion, we will not disturb the decision of a trial judge unless the defendant can show the judgment was so arbitrary that “it could not have been the result of a reasoned decision.” Canty, 321 N.C. at 524, 364 S.E.2d at 413. For the reasons stated above, the trial court's failure to find the forensic screening report dispositive of a non-statutory mitigating factor did not constitute an abuse of discretion. Defendant's second argument is without merit.
In defendant's third argument, he contends the trial court erred in relying on an erroneous sentencing worksheet to calculate his prior record level. We disagree.We first note that defendant stipulated he was a prior record level IV. A stipulation is one of the accepted means for establishing a defendant's prior convictions (N.C. Gen. Stat. § 15A-1340.14(f)(1) (2006)). Nonetheless, defendant argues the worksheet submitted by the State shows three misdemeanor convictions on 16 October 2000, one for indecent exposure and two for assault on a government officer, and all of these convictions were incorrectly counted towards his prior record level points. Defendant further argues the indecent exposure conviction and an unrelated conviction for injury to personal property, shown on the worksheet as Class 1 misdemeanors, are in reality Class 2 misdemeanors. Under N.C. Gen. Stat. § 15A-1340.14(a)(5) only Class 1 misdemeanors count as prior record points for purposes of felony structured sentencing. Defendant concedes in his brief that even if these asserted errors are all resolved in his favor, he still has 10 prior record points, which places him as a felony level IV for sentencing.
Defendant asserts the trial court's decision-making process as to what the minimum term of sentence should be was unnecessarily and impermissibly influenced by the errors in his prior record. The defendant was a prior record level IV, and was properly sentenced as such from the mitigated range. We declinedefendant's invitation to engage in speculation as to whether the difference between 10 and 12 sentencing points might have impacted defendant's sentence. This assignment of error is without merit.
    For the reasons discussed herein, we find the trial court did not err.

    Judges MCGEE and ELMORE concur.
    Report per Rule 30(e)

*** Converted from WordPerfect ***