Appeal by defendant from judgment entered 30 November 2005 by
Judge L. Todd Burke in Forsyth County Superior Court. Heard in the
Court of Appeals 6 December 2006.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General David J. Adinolfi II, for the State.
Bruce T. Cunningham, Jr. for defendant-appellant.
HUNTER, Judge.
Abraham Bernard McFadden (“defendant”) appeals from a judgment
entered 30 November 2005 consistent with a jury verdict finding himguilty of robbery with a dangerous weapon and habitual felon
status. After careful review, we find no error in defendant's
judgment and conviction.
The State's evidence tended to show that defendant entered the
4 Brothers BP convenience store on 22 March 2005. Defendant
removed two twenty-four packs of beer from the cooler and attempted
to walk out of the store without paying for the merchandise. One
of the clerks on duty, Becky Starling (“Starling”), attempted to
grab the back of defendant's coat. Defendant turned around and
swung a knife at Starling.
Defendant was found guilty of robbery with a dangerous weapon
and habitual felon status and was sentenced to 145 to 183 months.
Defendant appeals from this judgment and conviction.
I.
[1] In his first assignment of error, defendant contends that
the trial court did not impartially sentence defendant. We
disagree.
A sentence within the statutory limit
will be presumed regular and valid. However,
such a presumption is not conclusive. If the
record discloses that the court considered
irrelevant and improper matter in determining
the severity of the sentence, the presumption
of regularity is overcome, and the sentence is
in violation of defendant's rights.
State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). “A
defendant has the right to plead not guilty, and 'he should not and
cannot be punished for exercising that right.'”
State v. Gantt,
161 N.C. App. 265, 271, 588 S.E.2d 893, 897 (2003) (citation
omitted). “Where it can reasonably be inferred from the
language of the trial judge that the sentence
was imposed at least in part because defendant
did not agree to a plea offer by the state and
insisted on a trial by jury, defendant's
constitutional right to trial by jury has been
abridged, and a new sentencing hearing must
result.”
State v. Poag, 159 N.C. App. 312, 324, 583 S.E.2d 661, 670 (2003)
(citation omitted).
Poag held that statement of the terms of the
plea bargain, standing alone, failed to show that the trial court's
imposition of a harsher sentence following a jury trial was
punishment for rejection of the plea offer.
Id.
Poag particularly
noted that the trial court did not indicate at sentencing that it
was imposing such a sentence as a result of the defendant's
rejection of the plea.
Id.
Defendant contends his sentence was due in part to defendant's
decision to ask for a jury trial. Prior to the habitual felon
phase of the trial, a short discussion occurred confirming
defendant's rejection of a guilty plea as to habitual felon status.
[PROSECUTION]: It is my understanding
that [defense counsel] has spoken to
[defendant] and would relate to the Court what
the State had extended in terms of not
proceeding with the habitual felon and the
Court was going to sentence at the bottom of
the presumptive.
THE COURT: To 117 months.
[PROSECUTION]: Yes, and he has rejected
that so we will proceed with further
instructions to the jury.
No further comments were made by the trial court regarding
defendant's sentencing, and after the jury completed its
deliberation as to the robbery with a dangerous weapon charge, thetrial proceeded to the habitual felon phase. Defendant was
ultimately sentenced within the presumptive range to 145 to 183
months.
Defendant contends that the trial court's confirmation that it
planned to sentence at the bottom of the presumptive range, in the
context of the discussion of the plea agreement offered to
defendant, shows prejudice on the part of the trial court in
sentencing defendant more harshly because he elected to proceed
with a jury trial. However, as in
Poag, the trial court's brief
comment regarding the sentencing range in terms of the plea bargain
fails to show that the later imposition of a greater sentence in
the presumptive range was a result of defendant's refusal to take
the plea bargain. Similar to
Poag, here the trial judge made no
additional comments at sentencing suggesting that it was imposing
such a sentence as a result of defendant's rejection of the plea.
[2] Defendant further contends that the trial court violated
the Due Process Clause by announcing defendant's prospective
sentence before hearing from defense counsel during the sentencing
hearing. Following the prosecution's statements regarding
aggravating factors, the trial court asked defendant's counsel if
she would like to be heard. After defense counsel indicated that
she would, the trial court responded as follows:
THE COURT: First of all, let me tell you
how I am inclined to sentence him. I am
inclined to sentence him to 145 months and
that may just limit what you'd like to say.
[DEFENSE COUNSEL]: Your Honor, with
that, since you're not going to sentence him
at the high end of the presumptive, YourHonor, I would just ask that you sentence him
to something reasonable. I'm satisfied with
145 months.
The trial court then asked defendant if he would like to say
anything, and allowed defendant ample time to make a lengthy
statement to the court.
Defendant cites no authority for the assertion that the trial
court's comment violated due process, merely contending that “any
lawyer would know” that speaking further in such a situation would
irritate the judge. “Assignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.” N.C.R. App.
P. 28(b)(6). This argument is therefore taken as abandoned and
dismissed.
See State v. McNeill, 360 N.C. 231, 241, 624 S.E.2d
329, 336,
cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___ (2006).
As defendant fails to show that the trial court did not
impartially sentence defendant in the presumptive range, this
assignment of error is overruled.
II.
[3] Defendant next contends the trial court committed plain
error in sentencing defendant as a Class D felony as an habitual
felon, rather than as a Class G felony as an habitual felon. We
disagree.
We first clarify that defendant's actual contention is that he
should have been convicted of aggravated common law robbery, a
Class G felony, rather than armed robbery, a Class D felony, on the
grounds that the two offenses have identical elements. Defendantfurther contends that, as the two offenses are fungible, under the
United States Supreme Court's holding in
Blakely v. Washington, 542
U.S. 296, 159 L. Ed. 2d 403 (2004), regarding the use of
aggravating factors, defendant must be sentenced to the offense
with the least possible sentence. We find no merit to this
argument.
The elements of the offense of robbery with a dangerous weapon
are: “'(1) the unlawful taking or an attempt to take personal
property from the person or in the presence of another (2) by use
or threatened use of a firearm or other dangerous weapon (3)
whereby the life of a person is endangered or threatened.'”
State
v. Small, 328 N.C. 175, 181, 400 S.E.2d 413, 416 (1991) (citation
omitted);
see also N.C. Gen. Stat. § 14-87(a) (2005).
Common law robbery is “established where the State shows a
'felonious, non-consensual taking of money or personal property
from the person or presence of another by means of violence or
fear.'”
State v. Wilson, 158 N.C. App. 235, 238, 580 S.E.2d 386,
389 (2003) (citation omitted);
see also N.C. Gen. Stat. § 14-87.1
(2005). The aggravating factor which defendant contends, if
applied, would have made the crimes identical is found in N.C. Gen.
Stat. § 15A-1340.16(d)(10) (2005), that “[t]he defendant was armed
with or used a deadly weapon at the time of the crime.”
A review of the elements clearly shows that the two offenses,
even with the inclusion of the aggravating factor, are not
fungible, as the crime of robbery with a dangerous weapon containsan additional element: That the life of a person is endangered or
threatened by the use of the dangerous weapon.
State v. Stewart,
255 N.C. 571, 572, 122 S.E.2d 355, 356 (1961) (emphasis added)
(citation omitted) (holding that the crime of robbery with a
dangerous weapon “'superadds to the minimum essentials of
common-law robbery the additional requirement that the robbery must
be committed “with the use or threatened use of . . . firearms or
other dangerous weapon, implement or means,
whereby the life of a
person is endangered or threatened”'”). As the two crimes are not
identical, as defendant alleges, we find this assignment of error
to be without merit. We further note that a review of the record
shows that as defendant was convicted of habitual felon status, the
trial court properly sentenced defendant as a Class C habitual
felon, rather than as a Class D felon.
As defendant fails to show the trial court erred in sentencing
defendant in the presumptive range as an habitual felon, we affirm
the judgment and conviction.
Affirmed.
Judges McCULLOUGH and ELMORE concur.
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