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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 3 April 2007
STATE OF NORTH CAROLINA
No. 03 CRS 51981
BILLY LEE APPLE
Appeal by Defendant from judgment entered 13 December 2005 by
Judge Henry V. Barnette, Jr., in Superior Court, Orange County.
Heard in the Court of Appeals 23 January 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Heather H. Freeman, for the State.
Amos Granger Tyndall, for the defendant-appellant.
When charges with terms in the presumptive range have been
consolidated for the purpose of sentencing, the aggregate total
will be considered to be equally attributable across each
(See footnote 1)
Here, the defendant argues that the trial court
violated the statutory prohibition against more severe sentences in
by increasing the fine on one of his charges. Because
we conclude that the fine imposed on resentencing was an aggregate
total that was equally attributable across all charges, in the same
amount as at the original sentencing, we affirm the trial court.
Defendant Billy Lee Apple pled guilty in May 2004 to sevencounts of indecent liberties with a minor, seven counts of
contributing to the delinquency of a minor, one count of indecent
liberties with a student, and multiple counts of secret peeping.
The underlying facts tended to show that Defendant placed video
cameras inside the air purifiers of rooms with tanning booths, at
a tanning salon business owned and operated by Defendant and his
wife. Authorities confiscated videotapes and identified forty-
eight women undressing in the tanning salon , although there were
more women on the videotapes who could not be identified; the
majority ranged in age from thirteen to fifty. On 26 May 2004, the
trial court imposed an aggravated sentence of eight consecutive
judgments of twenty to twenty-four months in prison. The sentence
was suspended, and Defendant was placed on probation with special
conditions that included intensive probation, sex offender
treatment, and fines totaling $64,000.
In light of the United States Supreme Court decision in
Blakely v. Washington, 542 U.S. 296, 159 L.Ed.2d 403 (2003),
Court granted Defendant's motion for a resentencing hearing, on 1
November 2005. Defendant appeared for resentencing on 13 December
2005, where a different trial judge imposed sentences in the
presumptive range, namely, seven consecutive sentences of sixteen
to twenty months in prison and one sentence of six to eight months,
to run at the expiration of the other sentences. The sentences
were again suspended, and Defendant was placed on probation with
special conditions including intensive probation and sex offender
treatment. Rather than imposing separate fines on each charge, ashad been done by the first trial judge in the original sentencing,
the 2005 trial court consolidated all the fines across all charges
and imposed the same total fine of $64,000, on the individual
Defendant now appeals the portion of his sentence assessing a
fine of $64,000, arguing that the trial court erred by (I)
increasing the fine imposed in 03-CRS-51981 from the original
$2,000 to $64,000, and (II) by sentencing him to pay a fine in
violation of statutory and constitutional prohibitions against
Defendant first argues that the trial court committed
reversible error by imposing a fine of $64,000 for charge 03-CRS-
51981 during resentencing, when the original fine for that charge
was only $2,000. He contends that this larger fine was a violation
of a statutory prohibition against imposing a more severe sentence
for the same offense after an original sentence is set aside on
direct review. N.C. Gen. Stat. § 15A-1335 (2005). We disagree.
From the outset, we note that Defendant waived appellate
review of this issue, as he has failed to establish an appeal as a
matter of right or as a matter of law. Because Defendant pled
guilty to the charges in question, he is only entitled to appeal
as a matter of right the issue of whether his . . . 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 . . .. N.C. Gen. Stat. § 15A-1444(a1) (2005). Here, Defendant pled guilty, and the imprisonment
terms imposed at resentencing fall within the presumptive range for
Defendant's prior record or conviction level and class of offense.
The proper method of obtaining review of the fines or sentence
imposed would therefore be to petition this Court for review of the
issue by writ of certoriari. N.C. Gen. Stat. § 15A-1444(a1).
Nonetheless, even assuming arguendo
that Defendant is entitled
to appeal the sentence as a matter of right because the fine
allegedly violated another statutory provision, namely N.C. Gen.
Stat. § 15A-1335, and was therefore an abuse of discretion,
(See footnote 2)
conclude that the trial court committed no error.
Our State Supreme Court has held that,
[W]hen indictments or convictions with equal
presumptive terms are consolidated for
sentencing without the finding of aggravating
or mitigating circumstances, and the terms are
totaled to arrive at the sentence, nothing
else appearing in the record, the sentence,
for purposes of appellate review . . . will be
deemed to be equally attributable to each
indictment or conviction.
State v. Hemby
, 333 N.C. 331, 336, 426 S.E.2d 77, 79-80 (1993); see
also State v. Nixon
, 119 N.C. App. 571, 573-74, 459 S.E.2d 49, 50-51 (1995) (applying the rule set forth in Hemby
). Here, as
distinguished from Hemby
, Defendant was sentenced on the
same number of charges and indictments as in the original
sentencing; thus, unlike in Hemby
, the proportion between
total amount of fines imposed and the number of
offenses remained the same. When equally attribut[ing] the
$64,000 total across all of the charges to which Defendant pled
guilty, the individual amount per charge remains the same for both
sentences. Accordingly, we find no merit to this assignment of
Defendant next argues that the trial court committed clear,
plain, and reversible error by sentencing him to pay a fine in the
amount of $64,000 for charge 03-CRS-51981, as such fine violates
statutory and constitutional prohibitions against excessive fines.
Again, we note that Defendant failed to preserve his
constitutional objections to his resentencing, as
issues not raised and passed upon at trial will not be considered
for the first time on appeal. State v. Lloyd
, 354 N.C. 76, 86-87,
552 S.E.2d 596, 607 (2001)
. Likewise, Defendant has failed to
present an argument as to plain error in his brief to this Court.
N.C. R. App. P. 10(c)(4) (allowing a defendant to preserve an
issue for appellate review if the judicial action questioned is
specifically and distinctly contended to amount to plain error.);
State v. Cummings
, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000)(holding that the bare assertion of plain error in an assignment
of error, without accompanying explanation, analysis, or specific
contentions in a defendant's brief, is insufficient to show plain
, cert. denied
, 532 U.S. 997, 149 L. Ed. 2d 641 (2001).
Nonetheless, even if this matter was properly before us, we
would find no error was committed by the trial court on this issue.
North Carolina General Statute § 15-1340.23 states that the amount
of any fines imposed with a judgment that includes a sentence of
imprisonment lies in the discretion of the trial judge. Here,
Defendant pled guilty to charges that amounted to a serious breach
of the trust of his tanning booth customers, as well as his
position in the community as a high school coach and former police
officer. Morever, the trial court heard extensive statements from
victims as to how the secret videotaping had negatively impacted
their lives. Under such circumstances, as well as the fact that
Defendant also profited from the victims while videotaping them
would decline to find that the amount of the fine imposed was an
abuse of discretion. See State v. Riddick
, 315 N.C. 749, 756, 340
S.E.2d 55, 59 (1986) (holding that a trial court will be held to
have abused its discretion only upon a showing that its ruling was
manifestly unsupported by reason and could not have been the result
of a reasoned decision.).
Judges HUNTER and STEELMAN concur.
Report per rule 30(e).
State v. Hemby
, 333 N.C. 331, 336, 426 S.E.2d 77, 79-80
A defendant who has pled guilty to a felony or misdemeanor
is entitled to appeal as a matter of right the issue of whether
the sentence imposed 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. N.C. Gen. Stat. § 15A-1444(a2)(2) (2005). North
Carolina General Statute § 15A-1340.23 allows for the imposition
of a fine with any judgment that includes a sentence of
imprisonment and also states that [t]he amount of the fine for a
Class 1 misdemeanor . . . is in the discretion of the court.
All of Defendant's convictions were for either felonies
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