An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 June 2006
STATE OF NORTH CAROLINA
v. Forsyth County
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.
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
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
For the reasons discussed herein, we find the trial court
did not err.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e)
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