On writ of certiorari from judgments dated 30 September 1996
by Judge William Z. Wood, Jr. in Forsyth County Superior Court.
Heard in the Court of Appeals 13 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
James N. Freeman, Jr. for defendant.
BRYANT, Judge.
On 13 May 1996, Tyrone Lamont Caldwell (defendant) was
indicted for first-degree murder in the killing of Lance Harward
Harris. Pursuant to an agreement with the State, defendant entered
a plea of guilty to second-degree murder on 12 August 1996.
Defendant's sentencing hearing was held on 30 September 1996, and
the trial court subsequently entered a judgment sentencing
defendant to a minimum of 204 months and a maximum of 254 months
imprisonment. Defendant's sentence was based upon the trial
court's determination that the factors in aggravation outweighed
the factors in mitigation after the trial court found three
aggravating factors and no mitigating factors. Defendant did not
appeal from the trial court's judgment. On 22 October 2004,defendant filed his Petition for Writ of Certiorari to this Court.
Defendant's Petition was allowed by Order of this Court entered 15
November 2004.
_________________________
Defendant argues the trial court erred in: (I) sentencing
defendant in the aggravated range where none of the aggravating
factors were submitted to a jury; and (II) failing to find
mitigating factors and applying them to defendant's sentence.
I
Defendant first argues the court erred in sentencing him to a
term of 204 to 254 months imprisonment following findings of
aggravating factors where none of the aggravating factors were
submitted to a jury. At defendant's sentencing hearing, the trial
court found three aggravating factors: (1) that defendant joined
with more than one other person in committing the offense and was
not charged with conspiracy; (2) that the offense was premeditated
and deliberated; and (3) that the victim was helpless at the time
the gunshot was fired. These aggravating factors were found by the
trial court, and were not submitted to a jury nor stipulated to by
defendant.
The United States Supreme Court has held that the statutory
maximum sentence a trial court may impose rests “solely on the
basis of the facts reflected in the jury verdict or admitted by the
defendant.”
Blakely v. Washington, 542 U.S. 296, 303, 159 L. Ed.
2d 403, 413 (2004). The North Carolina Supreme Court has applied
Blakely to the North Carolina Structured Sentencing Act, holdingthat “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed presumptive
range must be submitted to a jury and proved beyond a reasonable
doubt.”
State v. Allen, 359 N.C. 425, 437, 615 S.E.2d 256, 265
(2005),
withdrawn, 360 N.C. 569, 635 S.E.2d 899 (2006);
see also
State v. Blackwell, __ N.C. App. __, __ S.E.2d __ (Dec. 15, 2006)
(No. 490PA04-2) (applying
Blakely under a harmless error standard).
However, the holdings in
Allen applied only to those cases “in
which the defendants have not been indicted as of the certification
date of this opinion and to cases that are now pending on direct
review or are not yet final.”
Allen, 359 N.C. at 427, 615 S.E.2d
at 258 (internal citation and quotation omitted). “A 'final' case
is one in which 'a judgment of conviction has been rendered, the
availability of appeal exhausted, and the time for a petition for
certiorari elapsed or a petition for certiorari finally denied.'”
State v. Zuniga, 336 N.C. 508, 511 n.1, 444 S.E.2d 443, 445 n.1
(1994) (quoting
Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 93 L.
Ed. 2d 649, 657 n.6 (1987)).
Where certiorari is granted after the filing of an opinion of
an appellate court, our Courts have treated the status of the case
as final for the application of the new opinion; however, where
certiorari was granted prior to the filing of an opinion of an
appellate court, the case is not considered final and the new
opinion is applicable.
Compare State v. Upshur, __ N.C. App. __,
625 S.E.2d 911 (2006) (remanding for resentencing in light of
Blakely and
Allen where certiorari was granted prior to the filingof
Blakely and
Allen),
appeal dismissed and disc. review denied, __
N.C. __, __ S.E.2d __ (Nov. 16, 2006) (No. 124P04-2),
with State v.
Jones, 158 N.C. App. 498, 581 S.E.2d 103 (holding a grant of
certiorari issued after the filing of an opinion of the United
States Supreme Court did not change the final judgment status of
the defendant's case),
cert. denied, 357 N.C. 465, 586 S.E.2d 462
(2003).
The State argues that this Court's opinion in
State v.
Simpson, __ N.C. App. __, 627 S.E.2d 271
disc. review denied, __
N.C. __, 637 S.E.2d 191 (2006), is controlling and defendant's case
should be considered final. In
Simpson, this Court granted the
defendant's writ of certiorari to review the trial court's denial
of his motion for appropriate relief.
Id. at __, 627 S.E.2d at
274. Therefore, although this Court granted certiorari in
Simpson
to review the retroactive application of
Blakely, the defendant's
case was pending before this Court on collateral and not direct
review.
Id.
Here, as in
Simpson, defendant's case is before this Court on
collateral review. Defendant was indicted for murder on 13 May
1996. Defendant entered a plea of guilty to second degree murder
on 12 August 1996, and was sentenced to an active term of
imprisonment in a judgment dated 30 September 1996. Defendant did
not give any notice of appeal from the entry of the trial court's
judgment and thus lost his right to appeal to this Court.
See N.C.
R. App. P. 4(a) (stating requirements for criminal defendants to
preserve their right to appeal). Eight years later, having losthis right to a direct appeal, defendant filed a Petition for Writ
of Certiorari to this Court on 22 October 2004. The petition was
allowed by the this Court by Order dated 15 November 2004, limiting
defendant's arguments to this Court to “those issues that
could
have been raised on direct appeal pursuant to G.S. 15A-1444(a1) and
(a2).” (Emphasis added.) Defendant's petition was filed
subsequent to the opinion in
Blakely, but prior to the opinion in
Allen. Thus, the judgment in defendant's case was final at the
time the opinion in
Blakely was filed and was on collateral review
before this Court when
Allen was certified. Defendant's argument
is without merit and this assignment of error is overruled.
II
Defendant also argues that in sentencing defendant, the trial
court should have found four statutory mitigating circumstances:
(1) that the defendant has a support system in the community; (2)
that the defendant has a positive employment history or is
gainfully employed; (3) that the defendant has taken responsibility
for his criminal conduct; and (4) that the defendant has entered
and is currently involved in or has successfully completed a drug
treatment program or an alcohol treatment program subsequent to
arrest and prior to trial. We disagree.
This Court has held that
[a] trial court must consider evidence of
mitigating factors and may depart from the
presumptive range of sentencing in its
discretion. The defendant bears the burden of
proving mitigating circumstances by a
preponderance of the evidence. A sentencing
judge must find a statutory mitigating
sentence factor if it is supported by apreponderance of the evidence. A mitigating
factor is proven when the evidence is
substantial, uncontradicted, and there is no
reason to doubt its credibility. The trial
court has wide latitude in determining the
existence of mitigating factors.
State v. Kemp, 153 N.C. App. 231, 241, 569 S.E.2d 717, 723
(internal citations and quotations omitted),
disc. review denied,
356 N.C. 441, 573 S.E.2d 158 (2002);
see also State v. Jones, 309
N.C. 214, 220, 306 S.E.2d 451, 455 (1983) (To establish a
mitigating factor, defendant must show that “the evidence so
clearly establishes the fact in issue that no reasonable inferences
to the contrary can be drawn, and that the credibility of the
evidence is manifest as a matter of law.”).
Defendant presented no substantial evidence supporting the
conclusion that he had a support system in the community. While
his grandmother did testify that she raised him and that he had
been obedient around her, her testimony cannot establish a finding
that defendant had a support system in the community. “One
witness' conclusory testimony as to the existence of a support
structure is unsubstantial and insufficient to clearly establish
the factor and does not compel a finding of the mitigating factor.”
State v. Wiggins, 159 N.C. App. 252, 271, 584 S.E.2d 303, 317
(2003) (citation and quotations omitted),
cert. denied, 541 U.S.
910, 158 L. Ed. 2d 256,
reh'g denied, 541 U.S. 1038, 158 L. Ed. 2d
726 (2004).
Similarly, defendant's sole evidence regarding his positive
employment history or gainful employment also came from the
testimony of his grandmother: Q. Up to the point where he was incarcerated
for this offense, did he have a work
record?
A. Yes. He worked at several jobs.
Q. What jobs were those, ma'am?
A. He worked at Wake Forest.
Q. What did he do there?
A. I think he worked in the kitchen. And he
worked for Budd Service as a security
officer.
This evidence is not so manifestly credible and not so clearly
supportive of defendant's positive employment history or gainful
employment. There is no indication of how long defendant was
employed at the jobs mentioned, and no indication that defendant
was actually employed at the time of his incarceration. Defendant
has not met his burden of proof required to establish the
mitigating factor that he had a positive employment history or was
gainfully employed.
Likewise, defendant's only evidence that he has entered and
was currently involved in or had successfully completed a drug
treatment program or an alcohol treatment program subsequent to
arrest and prior to trial was presented through the testimony of
Timothy Webb, a mental health counselor at the Forsyth County
Detention Center. At defendant's sentencing hearing, Mr. Webb
stated, “I know he participated in the Step One classes, which is
a drug education class.” Mr. Webb's testimony that defendant
“participated” in drug education classes is not sufficient to meet
defendant's burden of proof required to establish the mitigatingfactor that defendant was currently involved in or had successfully
completed a drug treatment program.
Finally, at his sentencing hearing defendant stated “I take
full responsibility for my change[,]” and apologized to the
victim's family for taking their son away from them. Further
evidence of defendant's remorse was presented through the testimony
of defendant's grandmother, his girlfriend and Mr. Webb. However,
it was only at his sentencing hearing that defendant took
responsibility for his criminal conduct. Up until that point,
defendant maintained the position that he was under the influence
of drugs and alcohol and could not remember his actions. “A
defendant's apology at a sentencing hearing does not lead to the
sole inference that the defendant has accepted responsibility for
the defendant's criminal conduct.”
State v. Meynardie, 172 N.C.
App. 127, 133, 616 S.E.2d 21, 25,
temp. stay allowed, 360 N.C. 74,
620 S.E.2d 199 (2005). Defendant's statements at his sentencing
hearing and privately to his grandmother and girlfriend do not
“definitively establish that [he] took responsibility for his
criminal conduct such that 'no reasonable inferences to the
contrary can be drawn.'”
Meynardie at 133, 616 S.E.2d at 26
(quoting
Jones, 309 N.C. at 220, 306 S.E.2d at 455). These
assignments of error are overruled
Affirmed.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
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