STATE OF NORTH CAROLINA
v. Durham County
No. 02 CRS 51899
CHRISTOPHER BEST
Attorney General Roy Cooper, by Special Deputy Attorney
General R. Marcus Lodge, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Matthew D. Wunsche, for defendant appellant.
McCULLOUGH, Judge.
On 7 April 2003, defendant was indicted for robbery with a
dangerous weapon. A superseding indictment charging him with
robbery with a dangerous weapon was entered on 25 August 2003. On
21 July 2004, defendant entered into a plea agreement with the
State. Prayer for judgment was continued until 7 September 2004
for the purposes of sentencing.
On 8 September 2004, defendant appeared in court for
sentencing. At the hearing, defendant requested that the court
consider extraordinary mitigation pursuant to N.C. Gen. Stat.
§ 15A-1340.13(g) (2005). The trial court responded as follows:
All right. I'm going to be very specific
in this because the request has been made forme to find extraordinary mitigation. For that
to happen, under 1340.13(g), I have to find
first that the extraordinary mitigating
factors of a kind significantly greater than
in the normal case are present.
That is true in this case, because he
provided additional information that led to
the arrest of individuals for selling
controlled substances.
Two, that the factors substantially
outweigh any factors in aggravation.
There's also no question here, because
there are mitigat[ing] factors involved in the
case to substantially outweigh aggravating
factors.
And three, that it would be a manifest
injustice to impose an active sentence in this
case.
That's not present at all. This is an
armed robbery. And you can provide assistance
all you like. And you did. You provided
assistance. And that makes me find a sentence
to be in the mitigated range and that's
appropriate in this case. However, it will
not change what the law mandates as an active
sentence to an intermediate sentence requiring
punishment knocking off 32 months of prison
because of that. The maximum I could impose
under an intermediate sentence would be six
months in jail.
I can tell you, and I can tell the world,
if there's an armed robbery in front of me,
I'm never going to find mitigating
circumstances that would justify only six
months in jail for sticking a gun in
somebody's face and demanding controlled
substances or cash, or anything else. It will
not happen in my court unless a whole lot more
than this has happened.
Do I find it unusual that someone who is
charged with drug offenses or serious offenses
rolls on their friends or on their
acquaintances? Heck, no. Happens every day,
because it's self-interest. It's not for the
community good. It's self interest. If I canget them, can I get off on this? Well, it
happens every day. Turning in the next person
up [sic] and hope that that goes away for you.
It doesn't go away with an armed robbery.
Regardless of whether you were under the
influence of Percocet, or any other pain
killer, that is a deliberate act of intention.
You knew what you were doing. You may have
done it for the wrong reasons to get more pain
killer, but you knew what you were doing.
When you stick a gun in somebody's face and
demand something, you know it. You know what
you're doing, and that's not something for
which the Court can say our statutes which
mandate an active sentence of no less than, no
less than, 38 months, that I should suddenly
give you six months because you provide the
names of and made some buys for some folks
that you were acquainted with who ran into the
drug world with you.
That's assistance, yes. Is it the
extraordinary assistance that this Court would
require to change it to an intermediate
sentence? And the answer to that is no.
Because the third factor, it would be a
manifest injustice to impose an active
punishment in the case, is not here.
The trial court sentenced defendant to a term of thirty-eight to
fifty-five months' imprisonment.
Defendant appeals.
Defendant argues
that the trial court erred when it refused to
exercise its discretion under N.C. Gen. Stat. § 15A-1340.13(g) and
consider his request for extraordinary mitigation
.
Defendant
insists that he is entitled to a new sentencing hearing.
We
disagree.
Pursuant to N.C. Gen. Stat. § 15A-1340.13(g), the trial court
may impose an intermediate punishment for a class of
offense and prior record level that requires the
imposition of an active punishment if it finds in writing
all of the following:
(1) That extraordinary mitigating factors of a kindsignificantly greater than in the normal case are
present.
(2) Those factors substantially outweigh any factors in
aggravation.
(3) It would be a manifest injustice to impose an
active punishment in the case.
The court shall consider evidence of extraordinary
mitigating factors, but the decision to find any such
factors, or to impose an intermediate punishment is in
the discretion of the court. The extraordinary mitigating
factors which the court finds shall be specified in its
judgment.
Id. As defendant properly notes, a trial court must exercise its
discretion where requested to do so pursuant to Section 15A-
1340.13(g). See
State v. Barrow, 350 N.C. 640, 517 S.E.2d 374
(1999)
).
Defendant argues that the trial court failed to exercise its
discretion; however, the record indicates that the court was aware
that it had discretion and exercised that discretion when refusing
defendant's request for extraordinary mitigation. The court
carefully analyzed two of the factors it was required to consider
pursuant to N.C. Gen. Stat. § 15A-1340.13(g)(1) and (2) and found
those factors to be in defendant's favor. However, when
considering the third and final factor, the trial court then
explained that despite the fact that defendant had provided
substantial assistance, it concluded that it would not be a
manifest injustice to impose an active sentence. Although the
trial court stated that it would not consider extraordinary
mitigation in any armed robbery case, it also stated that “[i]t
will not happen in my court unless a whole lot more than this hashappened.” Thus, the record clearly demonstrates that the trial
court was aware of its discretion to find extraordinary mitigation,
but declined to do so on the facts of the case.
Accordingly, we
find no error.
Affirmed.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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