On writ of certiorari to review judgment entered 7 June 2004
by Judge Richard L. Doughton in Superior Court, Yadkin County.
Heard in the Court of Appeals 12 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Robert M. Curran, for the State.
Crumpler, Freedman, Parker & Witt, by Vincent F. Rabil, for
Estil Talley (Defendant) pleaded guilty to twenty-one counts
of obtaining property by false pretenses. Two of the counts
alleged the taking of property worth over $100,000.00 dollars and
thus were Class C felonies. At the plea hearing, the State asked
the following of defense counsel: "Does . . . Defendant first
stipulate to the factual basis?" Defense counsel stated:
"[Defendant] does." The State then proceeded to recite the
evidence, and Defendant did not object.
Given the posture of this case, an exhaustive recitation of
the facts is unnecessary. However, the State's summary tended to
show the following: Detective Oliver received information that some
time between 1994 and 1996, Defendant started a "corporation"called Wilkes Funeral Directors with his friend, Christopher
Leupold. "[T]he function of the corporation was to buy small
businesses[,] in particular funeral homes[,] and to resell them for
large profits." Defendant's son, Danny Talley, who was a
confidential informant, stated that Defendant got Danny Talley
involved in soliciting funds for the "corporation" in 1995.
Moreover, Defendant admitted to Detective Oliver that "he [had]
approached Danny Talley . . . to join the corporation."
Detective Oliver interviewed several people who had been
approached by Danny Talley to invest in the "corporation." These
people stated that they had known Danny Talley and Defendant for
many years, and that they loaned money to Danny Talley to use in
the "corporation." Danny Talley had promised them generous profits
in return for their investments. Defendant also admitted that he
had personally borrowed money for the "corporation" from seven or
eight different people. Defendant said that all of the money he
and Danny Talley borrowed was given to Christopher Leupold.
Although many of the people from whom Defendant and Danny Talley
borrowed money asked for their money to be returned, Danny Talley
made several excuses for failing to do so, including "the September
11th attack, the anthrax scare and lawyer delays." Although some
of these people were repaid in part, most of them were not repaid.
Detective Oliver checked the Secretary of State's records on
9 June 2003 "for any companies using the name Wilkes Funeral
Directors as well as registered agents of [Christopher] Leupold,
Estil Talley, and Danny Talley. The records check failed to showthe existence of any corporation using the name Wilkes Funeral
Directors or any of those three individuals listed as registered
At the conclusion of the hearing, the trial court consolidated
all of the charges into one of the two Class C felonies, and stated
as follows: "I will find aggravating factor Number 1, Number 2, and
Number 14." However, the trial court only checked aggravating
factor Number 14 on the form entitled, "Felony Judgment Findings of
Aggravating and Mitigating Factors." The trial court also found
three mitigating factors and determined that the aggravating
factors outweighed the mitigating factors.
The trial court sentenced Defendant to an aggravated term of
92 months to 120 months in prison on 7 June 2004 and ordered that
Defendant pay restitution in the amount of $578,519.65. Defendant
did not appeal. However, Defendant filed a petition for writ of
certiorari on 3 July 2006, which our Court allowed on 21 July 2006
"for the purpose of reviewing the judgment entered 7 June 2004 by
Judge Richard L. Doughton." Our Court stated: "The appeal shall be
limited to issues that are appealable of right pursuant to N.C.
Gen. Stat. § 15A-1444(a1) and (a2)."
Defendant first argues the trial court erred by finding that
the offense involved the actual taking of property of great
monetary value where this aggravating factor was an element of the
offense for which sentence was imposed, in violation of N.C. Gen.
Stat. § 15A-1340.16(d). N.C. Gen. Stat. § 15A-1340.16(d) (2003)provides, in relevant part, that "[e]vidence necessary to prove an
element of the offense shall not be used to prove any factor in
aggravation, and the same item of evidence shall not be used to
prove more than one factor in aggravation."
Our Court rejected a similar argument in State v. Hughes
N.C. App. 92, 524 S.E.2d 63 (1999), disc. review denied
, 351 N.C.
644, 543 S.E.2d 878 (2000), superseded by statute on other grounds
N.C. Gen. Stat. § 15A-1340.34 (2005), where the defendant entered
a plea of no contest to the charge of felony accessing computers,
and the trial court found as an aggravating factor that the offense
involved damage causing great monetary loss. Id.
at 95-96, 524
S.E.2d at 65. The defendant argued the trial court erred because
the aggravating factor was based on evidence that was necessary to
prove an element of the offense charged. Id.
at 99, 524 S.E.2d at
67. Our Court quoted the felony accessing computers statute as
"A violation of this subsection is a Class G
felony if the fraudulent scheme or artifice
results in damage of more than one thousand
dollars ($1,000), or if the property or
services obtained are worth more than one
thousand dollars ($1,000). Any other
violation of this subsection is a Class 1
at 99, 524 S.E.2d at 67-68 (quoting N.C. Gen. Stat. § 14-454
(Cum. Supp. 1998)). Our Court held that "[t]he amount of money
involved in the offense is not an element of [N.C.G.S. §] 14-454.
Instead, the money amount comes into play only at the time of
at 99, 524 S.E.2d at 67.
Likewise, in the present case, the amount of money involved inthe offense of obtaining property by false pretenses is not an
element of that offense. After defining the offense of obtaining
property by false pretenses, N.C. Gen. Stat. § 14-100 (2003)
If the value of the money, goods, property,
services, chose in action, or other thing of
value is one hundred thousand dollars
($100,000) or more, a violation of this
section is a Class C felony. If the value of
the money, goods, property, services, chose in
action, or other thing of value is less than
one hundred thousand dollars ($100,000), a
violation of this section is a Class H felony.
Accordingly, like the statute at issue in Hughes
, the amount of
money involved in the offense of obtaining property by false
pretenses "comes into play only at the time of sentencing." See
, 136 N.C. App. at 99, 524 S.E.2d at 67
Our decision is further supported by State v. Thompson
N.C. App. 485, 307 S.E.2d 838 (1983), cert. denied
, 313 N.C. 513,
329 S.E.2d 399 (1985), where the issue was whether, under the Fair
Sentencing Act, "the fact that [the] defendant took $4,700.00 was
or essential to prove an element of the offense
of robbery with firearms." Id.
at 490-91, 307 S.E.2d at 842. Our
Court recognized that the offense of robbery with a firearm "'is
complete if there is an attempt to take property by [the] use of
firearms or other dangerous weapons.'" Id.
at 491, 307 S.E.2d at
842 (quoting State v. Black
, 286 N.C. 191, 194, 209 S.E.2d 458, 460
(1974)). Our Court held as follows:
Thus, all that is necessary
to prove the
offense is that an attempt was made to rob by
the use of a firearm or other dangerous
weapon. Since the offense does not requireproof that money was actually taken, the
taking of the large sum of money was properly
considered as an aggravating factor[.]
Our Supreme Court followed Thompson
in State v. Barts
N.C. 666, 343 S.E.2d 828 (1986), where our Supreme Court
The appellate courts of this [S]tate have
previously held that since the crime of armed
robbery does not require proof that property
was actually taken-the mere attempt
property by use of a firearm or other deadly
weapon is sufficient-this aggravating factor
may be properly found in armed robbery cases.
at 694, 343 S.E.2d at 846 (citing Thompson
, 64 N.C. App. 485,
307 S.E.2d 838).
were decided under the Fair
Sentencing Act, that Act contained a provision almost identical to
the provision of the Structured Sentencing Act at issue in the
present case. Compare
N.C. Gen. Stat. § 15A-1340.4(a)(1) (Cum.
Supp. 1981) (providing that "[e]vidence necessary to prove an
element of the offense may not be used to prove any factor in
aggravation, and the same item of evidence may not be used to prove
more than one factor in aggravation"), with
N.C.G.S. § 15A-
1340.16(d) (providing that "[e]vidence necessary to prove an
element of the offense shall not be used to prove any factor in
aggravation, and the same item of evidence shall not be used to
prove more than one factor in aggravation."). Accordingly, we find
In the present case, the offense of obtaining property by
false pretenses, like the offense of robbery with a firearm at 7issue in Thompson
, does not require proof that property
was actually taken. Rather, N.C.G.S. § 14-100 provides:
If any person shall knowingly and designedly
by means of any kind of false pretense
whatsoever . . . obtain or attempt to obtain
from any person within this State any money,
goods, property, services, chose in action, or
other thing of value with intent to cheat or
defraud any person of such money, goods,
property, services, chose in action or other
thing of value, such person shall be guilty of
N.C.G.S. § 14-100 (emphasis added); see also State v. Cronin
N.C. 229, 235, 262 S.E.2d 277, 282 (1980) (recognizing that
"[N.C.G.S. § 14-100] now includes in the definition of the crime an
to obtain something of value with an intent to defraud.
Formerly, to commit the crime [a] defendant must have actually
obtained something of value as a result of his false pretense.").
Therefore, in the present case, because the offense of obtaining
property by false pretenses does not require proof of an actual
taking, "the taking of the large sum of money was properly
considered as an aggravating factor[.]" See Thompson
, 64 N.C. App.
at 491, 307 S.E.2d at 842. Thus, Defendant's argument lacks merit,
and we overrule the assignments of error grouped under this
Defendant also argues, for preservation purposes, that the
trial court erred by finding three aggravating factors without
submitting the aggravating factors to a jury to be found beyond a
reasonable doubt, in violation of Blakely v. Washington
, 542 U.S.
296, 159 L. Ed. 2d 403, reh'g denied
, 542 U.S. 961, 159 L. Ed. 2d851 (2004). However, we hold that Defendant is not entitled to
review. In State v. Coleman
, ___ N.C. App. ___, 640 S.E.2d
784, disc. review denied
, 361 N.C. 571, ___ S.E.2d ___ (2007), our
Court recently held that "defendants entitled to Blakely
only those whose cases were pending on direct review or were not
yet final as of the date the Blakely
opinion was issued." Id.
___, 640 S.E.2d at 786 (citing State v. Hasty
, ___ N.C. App. ___,
___, 639 S.E.2d 94, 96 (2007)). "[A] case is 'final' when '"a
judgment of conviction has been rendered, the availability of
appeal exhausted, and the time for petition for certiorari
or a petition for certiorari
finally denied."'" Id.
at ___, 640
S.E.2d at 786 (citations omitted). Moreover, "the granting of a
petition for writ of certiorari does not alter the determination of
when a case becomes final." Id.
at ___, 640 S.E.2d at 786 (citing
, ___ N.C. App. at ___, 639 S.E.2d at 96).
In the present case, the trial court entered its judgment on
7 June 2004, and Defendant did not perfect an appeal from this
judgment. Accordingly, Defendant's time to file an appeal expired
on 21 June 2004, or fourteen days after entry of judgment. See
N.C.R. App. P. 4(a) (providing that in order to preserve the right
to appeal, a defendant must either give oral notice of appeal at
trial or file a written notice of appeal within fourteen days of
entry of judgment). Accordingly, Defendant's case was final,
although only by a few days, prior to the 24 June 2004 decision in
. Moreover, even though we granted Defendant's 3 July 2006
petition for writ of certiorari, Defendant's case was still finalprior to the Blakely
decision. See Coleman
, ___ N.C. App. at ___,
640 S.E.2d at 786 (citing Hasty
, ___ N.C. App. at ___, 639 S.E.2d
at 96) (recognizing that "the granting of a petition for writ of
certiorari does not alter the determination of when a case becomes
final."). Therefore, Defendant is not entitled to Blakely
and we overrule the assignments of error grouped under this
Defendant also argues there was insufficient evidence to
support two of the aggravating factors found by the trial court.
N.C. Gen. Stat. § 15A-1340.16(d) (2003) sets forth, in part, the
following aggravating factors:
(1) The defendant induced others to
participate in the commission of the offense
or occupied a position of leadership or
dominance of other participants.
(2) The defendant joined with more than one
other person in committing the offense and was
not charged with committing a conspiracy.
Although the trial court failed to check the appropriate boxes on
the form entitled "Felony Judgment Findings of Aggravating and
Mitigating Factors," it is clear from the transcript that the trial
court found these aggravating factors. This omission was merely a
clerical error which the trial court shall correct on remand. See
State v. Sellers
, 155 N.C. App. 51, 59, 574 S.E.2d 101, 106-07
(2002); State v. Gell
, 351 N.C. 192, 218, 524 S.E.2d 332, 349,
, Gell v. North Carolina
, 531 U.S. 867, 148 L. Ed.2d
Prior to Blakely
, "[t]he State [bore] the burden of proving bya preponderance of the evidence that the aggravating factor
exist[ed]." State v. Distance
, 163 N.C. App. 711, 718, 594 S.E.2d
221, 226 (2004) (citing N.C. Gen. Stat. § 15A-1340.16(a) (2003)).
Accordingly, because Blakely
did not apply at the time Defendant
was sentenced, we must determine whether the trial court's findings
of the aggravating factors were "supported by 'sufficient evidence
to allow a reasonable judge to find [their] existence by a
preponderance of the evidence.'" Id.
(quoting State v. Hayes
N.C. App. 777, 781, 404 S.E.2d 12, 15 (1991)).
Defendant argues "[t]he evidence summarized by the [State]
. . . or narrated by various victims in unsworn statements to the
[trial] court . . . was insufficient to support" the challenged
findings. Defendant relies upon State v. Canady
, 330 N.C. 398, 410
S.E.2d 875 (1991), where our Supreme Court recognized that "a
statement of the prosecutor is not sufficient evidence to support
the finding of an aggravating factor although there is no objection
to the statement." Id.
at 400, 410 S.E.2d at 877.
However, in the present case, unlike in Canady
stipulated to the factual basis for the plea. "If opposing counsel
stipulates to a statement it may be used to support the finding of
an aggravating factor." State v. Mullican
, 329 N.C. 683, 685, 406
S.E.2d 854, 855 (1991) (citing State v. Swimm
, 316 N.C. 24, 340
S.E.2d 65 (1986)). In Mullican
, our Supreme Court recognized that
"[w]hen the prosecuting attorney said he would summarize the
State's evidence with the permission of the defendant, this was an
invitation to the defendant to object if he had not consented. [The defendant] did not do so." Id.
at 686, 406 S.E.2d at 855.
Following the State's summary, the defendant's attorney in Mullican
gave a statement that was consistent with the State's summary, and
concluded by saying that "'[o]f course that is not any excuse for
[the defendant] doing this.'" Id.
Our Supreme Court held that
"the statement of the prosecuting attorney considered with the
statement of the defendant's attorney shows that there was a
stipulation that the prosecuting attorney could state what the
evidence would show." Id.
at 686, 406 S.E.2d at 856.
In the present case, prior to its recitation of the evidence,
the State asked the following of defense counsel: "Does
. . . Defendant first stipulate to the factual basis?" Defense
counsel stated: "[Defendant] does." The State then recited the
evidence, and Defendant did not object. Thus, Defendant in the
present case explicitly stipulated that the State could summarize
what the evidence would show. Following the State's recitation,
defense counsel asked the State several questions and then stated
that the defense had no evidence. Defense counsel then stated as
Your Honor, this is a regrettable course of
conduct. You have had an opportunity to see
[Defendant] and to observe his demeanor and
see how he responds to the Court's questions.
He is 71 years old. He is married. His wife
is with him here. She is distraught as you
might imagine that this has come to pass.
[Defendant] has one son, Danny Talley, who has
two children, two grandsons.
[Defendant] and his family were raised in this
area and as you've heard from the summary of
the evidence, he is a person who was known in
the community. [Defendant] and his brotherboth have been involved in the funeral home
business off and on. His brother --
COURT: [Defendant] is the one who probably
knew these folks well enough to get them to
give money; is that correct?
[DEFENSE COUNSEL]: [Defendant] and Danny
Talley would have known them that well. I
assume Mr. Leupold did not know those folks.
And, in fact, it appears that Mr. Leupold did
not make the contact with the persons from
whom the money was solicited. . . .
[Defendant] would have testified in a trial in
the matter that Mr. Leupold solicited him to
participate. And that Mr. Leupold was the
driving force behind this.
Nevertheless, [Defendant] understands as
indicated in his plea that his role in this
matter is full and complete and he has to take
responsibility for his actions. [Defendant]
made a statement immediately when he was
confronted. [Defendant] has, with his own
resources, paid back $27,000, not a
significant percentage of the loss, but in the
scheme of things from a man of modest means to
begin with, a significant attempt at making
In addition, [Defendant] would testify if the
case were tried that he had invested over
$50,000 of his own money, not including the
$27,000 which he has made in restitution.
[Defendant] understands that the net result of
all of this, no matter what I say, is that he
is going to serve an active prison sentence
for his involvement in this matter.
Defense counsel's statement did not materially conflict with the
State's summary of the facts. Defense counsel stated that
Defendant's conduct was "regrettable" and further stated that
Defendant "understands as indicated in his plea that his role in
this matter is full and complete and he has to take responsibility
for his actions." Based upon defense counsel's explicit
stipulation, and defense counsel's further statements, we hold thatDefendant stipulated to the State's recitation of the evidence.
, 329 N.C. at 686, 406 S.E.2d at 856. Therefore, such
evidence could be used to support the trial court's findings of
aggravating factors. See id.
at 685, 406 S.E.2d at 855.
It is also clear that the trial court's findings were
supported by the evidence as summarized by the State. As to the
aggravating factor under N.C.G.S. § 15A-1340.16(d)(1), our Court
has made clear, when reviewing the same provision under the Fair
Sentencing Act, that since the provision "is stated in the
disjunctive, proof of either type of conduct, by the preponderance
of the evidence, is sufficient to support the finding of an
aggravating factor." State v. SanMiguel
, 74 N.C. App. 276, 278,
328 S.E.2d 326, 328 (1985). In the present case, even assuming
that there was insufficient evidence that Defendant
occupied a position of leadership or dominance, there was
sufficient evidence that Defendant induced others to participate.
According to the State's summary, Detective Oliver received
information from a confidential informant, Danny Talley, that
Defendant got Danny Talley involved in soliciting funds for the
"corporation." According to Danny Talley's statement, "[Defendant]
solicited [Danny Talley] into this fraudulent business and asked
[Danny Talley] to go out and make the loans." Moreover, Defendant
admitted to Detective Oliver that "he [had] approached Danny Talley
. . . to join the corporation."
As to the aggravating factor under N.C.G.S. §
15A-1340.16(d)(2), it is clear from the State's summary of theevidence that Defendant joined with Christopher Leupold and Danny
Talley in committing the offenses. Defendant was not charged with
conspiracy. Therefore, the trial court's findings of aggravating
factors were "supported by 'sufficient evidence to allow a
reasonable judge to find [their] existence by a preponderance of
the evidence.'" Distance
, 163 N.C. App. at 718, 594 S.E.2d at 226
, 102 N.C. App. at 781, 404 S.E.2d at 15). We
overrule these assignments of error.
Defendant has also filed a motion for appropriate relief and
motion for stay of appellate proceedings. Defendant argues, inter
, that he was incapable of proceeding at the time he entered
his guilty plea and that he received ineffective assistance of
counsel. Pursuant to N.C. Gen. Stat. § 15A-1418(b) (2005),
[w]hen a motion for appropriate relief is made
in the appellate division, the appellate court
must decide whether the motion may be
determined on the basis of the materials
before it, or whether it is necessary to
remand the case to the trial division for
taking evidence or conducting other
In State v. Verrier
, 173 N.C. App. 123, 617 S.E.2d 675 (2005), our
Court stated: "Mindful that it is more within the province of a
trial court rather than an appellate court to make factual
determinations, we conclude that the materials in the instant case
are insufficient to enable us to render a decision regarding [the]
defendant's motion." Id.
at 132, 617 S.E.2d at 681. Accordingly,
our Court dismissed the motion without prejudice to the defendant
to file a new motion for appropriate relief in the trial court. Id.
; see also State v. Hurst
, 304 N.C. 709, 712, 285 S.E.2d 808,
810 (1982) (per curiam) (holding that "[w]hile [N.C.G.S. § 15A-
1418(b)] suggests that the motion be remanded to the trial court
for hearing and determination, we think that the better procedure
in this case is to dismiss the motion and permit [the] defendant,
if he so desires, to file a new motion for appropriate relief in
the superior court.").
Likewise, in the present case, the materials before us are
insufficient to enable us to render a decision on Defendant's
motion for appropriate relief. Accordingly, we dismiss the motion
without prejudice to Defendant to file a motion for appropriate
relief in the trial court. We deny Defendant's motion for stay of
Affirmed and remanded for correction of clerical error.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
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