Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 17 April 2007
STATE OF NORTH CAROLINA
Nos. 02 CRS 14253
ROMAN PERDOMO, 02 CRS 14256
Defendant. 02 CRS 14257
02 CRS 14263
Appeal by Defendant from judgments entered 23 May 2003 by
Judge Evelyn W. Hill in Wake County Superior Court. Heard in the
Court of Appeals 10 January 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Lisa G. Corbett, for the State.
Daniel F. Read for Defendant-Appellant.
On 25 March 2002, Defendant was indicted on one count of
robbery with a dangerous weapon (02 CRS 14253), one count of first-
degree burglary (02 CRS 14263), and two counts of first-degree rape
(02 CRS 14256 and 02 CRS 14257). On 23 May 2003, Defendant pled
guilty to all charges.
At the plea and sentencing hearing, the State offered an
uncontested factual basis to support the plea. The prosecutor
stated that on 21 November 2001, Defendant and two other men, armed
with firearms, entered a residence in Raleigh, North Carolina, and,
by a show of force, overcame the resistence offered by one of the
inhabitants. The intruders then used telephone cords to tie up theinhabitants and demanded cash and illegal drugs that they suspected
were located in the residence. As the intruders searched for the
cash and drugs, they also separated the female and male inhabitants
of the dwelling. During the home invasion, S.J., the prosecutrix
under 02 CRS 14257, and J.H., the prosecutrix under 02 CRS 14256,
were individually taken from the female group and raped. After the
assailants left the residence, the police were contacted and
conducted an investigation. Forensic evidence established that
Defendant's DNA was recovered from J.H., but the evidence taken
from S.J. was from a different assailant.
After accepting Defendant's plea, the trial court, for
sentencing purposes, consolidated the charge of first-degree rape
under 02 CRS 14257 with the charge of robbery with a dangerous
weapon, and the charge of first-degree rape under 02 CRS 14256 with
the charge of first-degree burglary. Based on Defendant's
stipulated prior record level of III and the trial court's findings
of fact in aggravation, Judge Evelyn W. Hill sentenced Defendant to
two consecutive terms of 420 to 513 months of imprisonment. The
factors found in aggravation for each judgment were that the
defendant joined with more than one other person in committing the
offense and was not charged with committing conspiracy (factor
2) and that the defendant involved a person under the age of 16
in the commission of the crime (factor 13).
By a petition filed 15 November 2004, Defendant asked this
Court to issue its writ of certiorari to review his case, having
failed to enter notice of appeal from Judge Hill's 23 May 2003judgments. On 6 December 2004, this Court allowed Defendant's
petition, but limited appellate review to those issues that could
have been raised on direct appeal pursuant to G.S. 15A-1444(a)(1)
and (a)(2). Defendant brings forward five arguments on appeal.
We affirm the trial court in part, reverse in part, and remand one
judgment for resentencing.
By his first argument, Defendant requests that this Court once
again grant its writ of certiorari to review whether there was a
sufficient factual basis to accept his plea of guilty to the charge
of first-degree rape of S.J. We may not grant this request.
As noted above, Defendant's appeal is before this Court
pursuant to an order entered 6 December 2004 granting his 15
November 2004 petition for our writ of certiorari. This order,
however, limited appellate review to those issues that could have
been raised on direct appeal pursuant to G.S. 15A-1444(a1) and
(a2). That statute provides that
(a1) [a] defendant who has been found guilty,
or entered a plea of guilty or no contest to a
felony, is entitled to appeal as a matter of
right the issue of whether his or her sentence
is supported by evidence introduced at the
trial and sentencing hearing only if the
minimum sentence of imprisonment does not fall
within the presumptive range for the
defendant's prior record or conviction level
and class of offense. Otherwise, the defendant
is not entitled to appeal this issue as a
matter of right but may petition the appellate
division for review of this issue by writ of
(a2) A defendant who has entered a plea of
guilty or no contest to a felony or
misdemeanor in superior court is entitled toappeal as a matter of right the issue of
whether the sentence imposed:
(1) Results from an incorrect finding of
the defendant's prior record level
under G.S. 15A-1340.14 or the
defendant's prior conviction level
under G.S. 15A-1340.21;
(2) Contains a type of sentence
disposition that is not authorized
by G.S. 15A-1340.17 or G.S.
15A-1340.23 for the defendant's
class of offense and prior record or
conviction level; or
(3) Contains a term of imprisonment that
is for a duration not authorized by
G.S. 15A-1340.17 or G.S. 15A-1340.23
for the defendant's class of offense
and prior record or conviction
N.C. Gen. Stat. § 15A-1444(a1)-(a2) (2003). Defendant's argument
that there was not a sufficient factual basis to accept his plea
may not be considered under these statutory provisions and, thus,
may not be reviewed pursuant to this Court's previous order
granting our writ of certiorari.
We next consider if we may grant Defendant's request for
certiorari that he raises in his brief. In State v. Winnex, 66
N.C. App. 280, 282, 311 S.E.2d 594, 596 (1984) (citing North
Carolina Nat'l Bank v. Virginia Carolina Builders, 307 N.C. 563,
299 S.E.2d 629 (1983)), this Court determined that when a
defendant's petition for a writ of certiorari was rejected by
another panel of this court . . . [the current panel is] bound by
that decision. Similarly, as this Court has addressed Defendant's
previous petition for a writ of certiorari, granted review, but
limited the scope of that review, we are bound by that order andmay not overrule it. See id. Accordingly, Defendant's petition
for a writ of certiorari to review his first argument is denied.
Defendant next argues that the trial court violated his
constitutional rights, as established by Blakely v. Washington, 542
U.S. 296, 159 L. Ed. 2d 403 (2004), by sentencing him to a term of
imprisonment beyond the maximum presumptive range, based on factors
in aggravation found solely by the trial court.
In Blakely, the United States Supreme Court held that other
than the fact of a defendant's prior conviction, a trial court may
not increase a defendant's sentence beyond the established
statutory maximum unless the facts necessary to support the
aggravated sentence are found by a jury or admitted by the
defendant. Id. Last year, in Washington v. Recuenco, ___ U.S.
___, ___, 165 L. Ed. 2d 466, 477 (2006), the United States Supreme
Court provided further guidance when it held that [f]ailure to
submit a sentencing factor to the jury, like failure to submit an
element to the jury, is not structural error and that, therefore,
Blakely errors should be reviewed using harmless error analysis.
In State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006), our
Supreme Court applied Recuenco to the law of our state.
However, before proceeding to harmless error review, we must
first determine whether Defendant is entitled to any review for
Blakely error. Permitting a defendant's case to be reviewed for
violations of constitutional rules that did not exist at the time
the conviction became final would seriously hinder the way in whichthe criminal justice system operates. State v. Coleman, ___ N.C.
App. ___, ___ S.E.2d ___ (Feb. 6, 2007) (No. COA06-441). That is,
allowing continual review, rehearing, and resentencing for actions
that currently constitute error, but were not error at the time the
judgment became final, would decrease judicial economy by creating
a backlog of cases both in the trial and appellate divisions, and
would not provide the victims of crimes or their families with any
sense of finality. With that concern in mind, this Court recently
held, defendants entitled to Blakely review are only those whose
cases were pending on direct review or were not yet final as of the
date the Blakely opinion was issued. Id. at ___, ___ S.E.2d at
___ (citing State v. Hasty, ___ N.C. App. ___, ___ S.E.2d ___ (Jan.
2, 2007) (No. COA06-532)). As the Blakely opinion was issued 24
June 2004, and Defendant's case was not then pending on direct
appeal and was final, Defendant is not entitled to review for
Blakely error. Accordingly, this assignment of error is overruled.
Defendant also contends that the trial court erred by failing
to find in mitigation that he had accepted responsibility for his
conduct. Specifically, Defendant argues that because he pled
guilty to the charges, asked for forgiveness, and told the trial
court that he deserved to be punished, the uncontradicted evidence
required a finding in mitigation, and the trial court's failure to
make such a finding constitutes reversible error. We disagree. At a sentencing hearing, a defendant has the burden of
establishing factors in mitigation by the preponderance of the
evidence. State v. Marecek, 152 N.C. App. 479, 568 S.E.2d 237
(2002). In order to demonstrate that the trial court erred, a
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.' State v. Jones, 309 N.C. 214, 220, 306 S.E.2d 451,
455 (1983) (quoting North Carolina Nat'l Bank v. Burnette, 297 N.C.
524, 536-37, 256 S.E.2d 388, 395-96 (1979)). A trial court must
find a mitigating factor when the evidence that it exists is
uncontradicted, substantial, and there is no reason to doubt its
credibility[.] Jones, 309 N.C. at 218-19, 306 S.E.2d at 454.
Additionally, [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 (2005) (citing
State v. Norman, 151 N.C. App. 100, 564 S.E.2d 630 (2002)), disc.
review allowed, 361 N.C. 176, 640 S.E.2d 391 (2006).
In this case, during the sentencing phase of the hearing,
Defendant addressed the court and began by telling Judge Hill,
When this happened, . . . I was unconsciously doing it. After
making this statement, Defendant asked for forgiveness and stated
that he knew he deserve[d] to be punished[,] but said that he
wanted a second chance and a sentence that would enable him to
put my life back [together] whenever I get out. These statementsdo not establish that Defendant genuinely accepted responsibility
for his actions. Rather, the manner in which he addressed the
court demonstrates that Defendant was attempting to deflect
responsibility by blaming his actions on intoxication. Moreover,
rather than focusing on his actions and the impact they had on S.J.
and J.H., or attempting to take any responsibility for his
behavior, Defendant was more concerned with how he would fare in
his life after prison. Based on these statements, it was not error
for the trial court to discount Defendant's alleged acceptance of
responsibility and thus fail to make findings of fact in
mitigation. Accordingly, we reject Defendant's argument.
Next, Defendant argues that Judge Hill denied him the
possibility of meaningful appellate review by failing to explain on
the record why his sentences were to run consecutively. In
particular, Defendant contends that allowing a trial judge to
double the sentence [without an on-the-record explanation], . . .
simply because an accused had been present for a second crime like
the one he committed himself . . . effectively negate[s] the
careful balancing and procedural regularity supposedly built into
the [Structured Sentencing] Act.
Defendant's argument that he was sentenced for the rape of
S.J. simply because . . . [he was] present while the crime was
committed is offensive to this Court. Defendant was not sentenced
for this rape simply because he was present at the scene. Rather,
he was sentenced because of his guilty plea to criminalresponsibility for actions that helped effectuate the commission of
the crime. Defendant is criminally culpable for the rape of S.J.
because, by entering the residence with a firearm, helping to
overcome the resistance of the victims, tying up the inhabitants,
and segregating the women from the men, he acted in a manner that
enabled another of the intruders to rape S.J. Defendant's
contention that he was merely present during the rape belittles his
involvement in the crime and the impact of his actions.
Nevertheless, Defendant's argument that the trial court should
be required to explain why the sentences should run consecutively
has recently and repeatedly been rejected by this Court. See,
e.g., State v. Brown, ___ N.C. App. ___, ___, 628 S.E.2d 787, 796
(2006) (holding that a similar argument 'is, at best, a question
for the legislature to resolve, but for our purposes it is an
argument without merit on appeal' (quoting State v. Love, 131
N.C. App. 350, 359, 507 S.E.2d 577, 584 (1998), aff'd per curiam,
350 N.C. 586, 516 S.E.2d 382, cert. denied, 528 U.S. 944, 145 L.
Ed. 2d 280 (1999))). Defendant's argument is without merit and is
Finally, Defendant contends that, with regard to the rape of
S.J., the trial court erred in finding factor 2 in aggravation
because the evidence used to support the aggravating factor was the
same evidence used to support an element of the substantive
offense. Specifically, Defendant argues that it was reversible
error to aggravate his sentence for the rape of S.J. by findingthat he acted with another, as that was the same evidence that
allowed the court to accept the plea of guilty in the first place.
We agree, and therefore reverse and remand for resentencing the
judgment that consolidated the convictions of first-degree rape
under 02 CRS 14257 and robbery with a dangerous weapon under 02 CRS
Section 14-27.2 of the North Carolina General Statutes
provides in pertinent part as follows:
(a) A person is guilty of rape in the first
degree if the person engages in vaginal
. . . .
(2) With another person by force and against
the will of the other person, and:
a. Employs or displays a dangerous or
deadly weapon or an article which
the other person reasonably believes
to be a dangerous or deadly weapon;
. . . .
c. The person commits the offense aided
and abetted by one or more other
N.C. Gen. Stat. § 14-27.2(a) (2001). One who is present, aiding
and abetting in a rape actually perpetrated by another is equally
guilty with the actual perpetrator of the crime. State v. Martin
17 N.C. App. 317, 318, 194 S.E.2d 60, 61 (citation omitted), cert.
, 283 N.C. 259, 195 S.E.2d 691 (1973). Similarly, under the
theory of acting in concert, Defendant is criminally responsible
for the rape of S.J., as if he physically committed the crime. See
State v. Joyner
, 297 N.C. 349, 255 S.E.2d 390 (1979). However,under North Carolina law, sentencing Defendant to an aggravated
term requires a careful analysis in that [e]vidence necessary to
prove an element of the offense shall not be used to prove any
factor in aggravation[.] N.C. Gen. Stat. § 15A-1340.16(d) (2003).
In this case, while the record does not establish the specific
ground upon which Judge Hill relied to accept the factual basis for
the plea of first-degree rape of S.J., it is clear that Defendant
can only be guilty of raping S.J. by aiding and abetting or acting
in concert with the actual perpetrator. Therefore, essential to
Defendant's guilt and conviction is the participation of the actual
Judge Hill sentenced Defendant in the aggravated range for
this crime based in part on her finding that Defendant joined with
more than one other person [the actual perpetrator and the third
intruder] in committing the offense and was not charged with
committing a conspiracy. See
N.C. Gen. Stat. § 15A-1340.16(d)(2)
(2003). It is thus clear that Defendant's plea was accepted and
his sentence aggravated based on the same evidence necessary to
establish an element of the offense, namely, that he acted with the
perpetrator who actually raped S.J.
Although we acknowledge Judge Hill's desire to limit
Defendant's ability to commit such a heinous crime again, we note
[i]t is evident that the Legislature . . .
chose to include in the more serious
first-degree categories those sexual offenses
which involved aiders and abettors and to
subject to a harsher penalty those who
participated in gang assaults, regardless ofthe actual role of the participant. In so
doing, the Legislature acknowledged the
increased severity of rapes and other sexual
offenses committed by persons acting in
State v. Polk
, 309 N.C. 559, 567, 308 S.E.2d 296, 300 (1983)
(internal citation omitted). More specifically, because a
defendant is sentenced to a longer term of imprisonment for a
conviction of first-degree rape based on the participation of
additional actors, it follows that a defendant's sentence for
first-degree rape cannot be enhanced further by the participation
of the same actor. Therefore, because the trial court accepted
Defendant's guilty plea to first-degree rape based on the
participation of the actual perpetrator, the trial court's finding
in aggravation that re-counted the participation of the actual
perpetrator constitutes error.
Eliminating this aggravating factor from consideration leaves
only factor 13, that the defendant involved a person under the age
of 16 in the commission of the crime[,] to support Defendant's
aggravated sentence. Generally, [t]he weighing of aggravating and
mitigating factors is within the sound discretion of the trial
, 151 N.C. App. at 104, 564 S.E.2d at 633 (citing
State v. Davis
, 58 N.C. App. 330, 293 S.E.2d 658, disc. review
, 306 N.C. 745, 295 S.E.2d 482 (1982)). This discretion
includes the power to find that one aggravating factor outweighs
several mitigating factors, . . . [or] that each of several
aggravating factors is in and of itself sufficient to outweigh all
mitigating factors. Norman
, 151 N.C. App. at 104, 564 S.E.2d at633. However, when this Court cannot determine the respective
weights assigned by a trial court to each factor[,] remand for
resentencing is necessary. Id.
In this case, although the trial court found that the factors
in aggravation outweigh the factors in mitigation, we cannot
discern from the record or the transcript how much weight Judge
Hill assigned to each factor in aggravation, or if she believed
that either factor in aggravation, standing alone, would have
outweighed the factors in mitigation. Therefore, the judgment
regarding the rape of S.J. must be reversed and remanded for
resentencing. See State v. Yarborough
, 64 N.C. App. 500, 307
S.E.2d 794 (1983) (remanding a case for resentencing when the
defendant was sentenced in the aggravated range based on two
factors in aggravation and no factors in mitigation, and this Court
held that the trial judge improperly found one aggravating factor).
For the reasons stated, Defendant's petition for a writ of
certiorari regarding argument one is denied. The judgment of the
trial court is affirmed in part and reversed and remanded in part.
CERTIORARI DENIED, AFFIRMED IN PART, REVERSED AND REMANDED IN
Judges TYSON and STROUD concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***