Appeal by defendant from judgments entered 16 February 1998 by
Judge James L. Baker, Jr. in Clay County Superior Court. Heard in
the Court of Appeals 15 January 2009.
Attorney General Roy Cooper, by Assistant Attorney General
Charles E. Reece, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Constance E. Widenhouse, for defendant-appellant.
Defendant Victor Joseph LaFountain was sentenced to a term of
252 to 312 months imprisonment for second degree murder and a
consecutive term of 108 to 139 months imprisonment for armed
robbery. In determining defendant's prior record level, the trial
court considered four convictions in Georgia. On appeal, defendant
contends that the State presented insufficient evidence that
defendant's four prior Georgia convictions were substantially
similar to specific North Carolina crimes. We agree that the State
failed to show that defendant's prior Georgia convictions were
substantially similar to North Carolina offenses. We, therefore,
remand for resentencing.
Defendant was indicted on 15 September 1997 for first degree
murder and was charged in a bill of information on 16 February 1998
with robbery with a dangerous weapon. On 16 February 1998,
defendant waived indictment on the robbery charge and pled guilty
to second degree murder and robbery with a dangerous weapon in Clay
County Superior Court. At his sentencing hearing, defendant
stipulated that there was a factual basis for both guilty pleas and
consented to a summary of the facts by the prosecutor. The
prosecutor's summary included the following facts.
On 20 August 1997, defendant and his wife were driving through
Clay County in a stolen car when they began to have car trouble.
They pulled into a car wash where the victim, 70-year-old Guy
Pinner, was alone washing his van. Defendant approached Mr. Pinner
and struck him twice in the head with "a large drinking glass with
a hard bottom on it." He dragged Mr. Pinner behind some underbrush
and left him there, taking his van. Defendant and his wife then
drove the van to Kentucky, where they were stopped for a traffic
violation, and the van was discovered to be stolen. Mr. Pinner
died as a result of his injuries.
After summarizing these facts, the State provided the trial
court with a Prior Record Level Worksheet listing four prior
criminal convictions that defendant received in Georgia: (1) a
"Dangerous Drugs Offense" conviction in 1981 classified as a class
I felony; (2) a "Theft by Taking" offense in 1982 classified as a
class 1 misdemeanor; (3) "Armed Robbery" in 1982 classified as aClass D felony; and (4) "Burglary" in 1985 classified as a class H
felony. The State contended that defendant had 11 prior record
level points for purposes of the murder charge and 12 points for
the armed robbery charge (adding a point because all the elements
of the armed robbery offense were included in a prior offense),
resulting in a prior record level IV. Defense counsel contended
that defendant had only eight points and should be sentenced at a
prior record level III. The trial court agreed with defendant and
found him to be a prior record level III.
The State then asked the court to find various aggravating
factors, including the factor that the victim was very old, while
defendant asked the court to find as mitigating factors that
defendant accepted responsibility for his conduct and that he had
a "very troubled childhood." The trial court found the aggravating
factor that the victim was very old and both mitigating factors; it
further found that the aggravating factor outweighed the mitigating
factors; and it sentenced defendant to an aggravated-range sentence
of 252 to 312 months imprisonment for second degree murder and a
consecutive aggravated-range sentence of 108 to 139 months
imprisonment for robbery with a dangerous weapon.
On 13 June 2003, this Court granted defendant's petition for
writ of certiorari to allow defendant to appeal his sentence. On
14 March 2008, the Appellate Entries were signed, and the Office of
the Appellate Defender was assigned to perfect the appeal.
(See footnote 1)
Defendant first contends that the State failed to meet its
burden with regard to the proper classification of his prior
Georgia convictions for purposes of calculating his prior record
level. N.C. Gen. Stat. § 15A-1340.14(e) (2007) provides with
respect to convictions from other states:
Classification of Prior Convictions From Other
Jurisdictions. _ Except as otherwise provided
in this subsection, a conviction occurring in
a jurisdiction other than North Carolina is
classified as a Class I felony if the
jurisdiction in which the offense occurred
classifies the offense as a felony, or is
classified as a Class 3 misdemeanor if the
jurisdiction in which the offense occurred
classifies the offense as a misdemeanor.
the offender proves by the preponderance of
the evidence that an offense classified as a
felony in the other jurisdiction is
substantially similar to an offense that is a
misdemeanor in North Carolina, the conviction
is treated as that class of misdemeanor for
assigning prior record level points. If the
State proves by the preponderance of the
evidence that an offense classified as either
a misdemeanor or a felony in the other
jurisdiction is substantially similar to an
offense in North Carolina that is classified
as a Class I felony or higher, the conviction
is treated as that class of felony for
assigning prior record level points. If the
State proves by the preponderance of the
evidence that an offense classified as a
misdemeanor in the other jurisdiction is
substantially similar to an offense classified
as a Class A1 or Class 1 misdemeanor in North
Carolina, the conviction is treated as a Class
A1 or Class 1 misdemeanor for assigning prior
record level points.
Defendant does not dispute the existence of the four prior
Georgia convictions listed on the State's Prior Record LevelWorksheet. Rather, defendant contends the State failed to meet its
burden of proving the proper classification of the offenses or that
any felony convictions were substantially similar to felonies
higher than Class I felonies or that the misdemeanor convictions
were substantially similar to Class A1 or 1 misdemeanors.
The State contends that defendant is precluded from raising
this argument because he stipulated that his Georgia convictions
should result in defendant's being sentenced as a prior record
level III, and he was sentenced at that level. In support of this
argument, the State relies exclusively on State v. Lee
, ___ N.C.
App. ___, 666 S.E.2d 867 (2008), in which this Court initially held
that a defendant can stipulate to whether his prior convictions are
substantially similar to North Carolina offenses. Subsequent to
the filing of the State's brief, however, that opinion was
In the Court's new decision, State v. Lee
, ___ N.C. App. ___,
___, 668 S.E.2d 393, 395 (2008), this Court held, in accordance
with prior decisions, that a stipulation to a prior record level
does not satisfy the State's burden to show substantial similarity,
because the question whether an out-of-state crime is substantially
similar to a North Carolina crime is a question of law that must be
resolved by the trial court. See also State v. Palmateer
, 179 N.C.
App. 579, 582, 634 S.E.2d 592, 594 (2006) ("We are bound by prior
decisions of a panel of this Court. Thus, we conclude that the
stipulation in the worksheet regarding Defendant's out-of-state
convictions was ineffective [to establish substantial similarity]."(internal citation omitted)); State v. Hanton
, 175 N.C. App. 250,
255, 623 S.E.2d 600, 604 (2006) (holding that "the question of
whether a conviction under an out-of-state statute is substantially
similar to an offense under North Carolina statutes is a question
of law to be resolved by the trial court").
Even if defendant's prior record level was improperly
calculated, resentencing would not be necessary if the error was
harmless. See State v. Lindsay
, 185 N.C. App. 314, 315, 647 S.E.2d
473, 474 (2007) (explaining that "[t]his Court applies a harmless
error analysis to improper calculations of prior record level
points"). We cannot, however, determine from the record the basis
on which the trial court reached its determination that defendant
had eight points and was a prior record level III. Since the trial
court's reasoning is not apparent to us, and the State does not
dispute defendant's argument that the error was prejudicial, we
remand for a new sentencing hearing in accordance with Hanton
, and Lee
. See also State v. Cao
, 175 N.C. App. 434, 435,
626 S.E.2d 301, 302 (reversing and remanding because trial court's
review of State's Prior Record Level Worksheet and defendant's
criminal record was not enough to enable this Court to determine
substantial similarity), appeal dismissed and disc. review denied
360 N.C. 538, 634 S.E.2d 537 (2006). The concurring opinion's
suggestion that we conduct this analysis in the first instance is
simply not consistent with this Court's controlling precedent _
especially since, as discussed below, this case must be remanded
for resentencing in any event. On remand, the trial court must recalculate defendant's prior
record level, making the determinations required by N.C. Gen. Stat.
§ 15A-1340.14(e). The trial court must first determine whether the
crimes of which defendant was convicted were, under Georgia law,
felonies or misdemeanors. The court then may address the issue of
substantial similarity. The trial court may, if necessary, hear
additional evidence on the issue. See State v. Hanton
, 140 N.C.
App. 679, 690, 540 S.E.2d 376, 383 (2000) (remanding for
resentencing and directing that "[i]n the interests of justice,
both the State and defendant may offer additional evidence at the
resentencing hearing"); see also State v. Morgan
, 164 N.C. App.
298, 309, 595 S.E.2d 804, 812 (2004) (citing Hanton
trial court to hear additional evidence in resentencing).
In addition, however, defendant contends that the record
contains insufficient evidence to support the trial court's
reliance on the victim's advanced age as an aggravating factor.
(See footnote 2)
"[T]he trial court's finding of an aggravating factor must be
supported by sufficient evidence to allow a reasonable judge to
find its existence by a preponderance of the evidence." State v.
, 163 N.C. App. 711, 718, 594 S.E.2d 221, 226 (2004)
(internal quotation marks omitted). Therefore, "[w]hen a defendant
assigns error to the sentence imposed by the trial court, ourstandard of review is 'whether [the] sentence is supported by
evidence introduced at the trial and sentencing hearing.'" State
, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997)
(quoting N.C. Gen. Stat. § 15A-1444(a1) (Cum. Supp. 1996)).
N.C. Gen. Stat. § 15A-1340.16(d)(11) (2007) sets out as an
aggravating factor the fact that "[t]he victim was very young, or
very old, or mentally or physically infirm, or handicapped." In
State v. Hines
, 314 N.C. 522, 525, 335 S.E.2d 6, 8 (1985), our
Supreme Court held that the victim's "[a]ge should not be
considered as an aggravating factor in sentencing unless it makes
the defendant more blameworthy than he or she already is as a
result of committing a violent crime against another person." The
A victim's age does not make a defendant more
blameworthy unless the victim's age causes the
victim to be more vulnerable than he or she
otherwise would be to the crime committed
against him or her, as where age impedes a
victim from fleeing, fending off attack,
recovering from its effects, or otherwise
avoiding being victimized. Unless age has
such an effect, it is not an aggravating
factor under the Fair Sentencing Act.
, 127 N.C. App. at 540, 491 S.E.2d at 685, this Court,
applying the Structured Sentencing Act, further explained that a
defendant may take advantage of an elderly or young victim in at
least two ways. "'First, he may "target" the victim because of the
victim's age, knowing that his chances of success are greater where
the victim is very young or very old.'" Id.
(quoting State v.
, 322 N.C. 596, 599, 369 S.E.2d 576, 578 (1988)). Second, he"'may take advantage of the victim's age during the actual
commission of a crime against the person of the victim, or in the
victim's presence, knowing that the victim, by reason of age, is
unlikely to effectively intervene or defend himself.'" Id.
, 322 N.C. at 599, 369 S.E.2d at 578). In Deese
Court held that because "the record [was] devoid of any evidence
suggesting that defendant took advantage of [the victim's] advanced
years . . . the trial court erred in finding this aggravating
at 541, 491 S.E.2d at 686.
We reach the same conclusion here. We note that no evidence
was presented at the sentencing hearing although defendant
stipulated that there was a factual basis for his guilty pleas and
consented to the prosecutor's summarizing the factual basis.
Defense counsel then proceeded to argue to the trial court
defendant's version of what occurred.
In any event, the State, in support of its request for this
aggravating factor, did not point to any fact tending to show that
defendant targeted the victim because of his age or that the
victim's age rendered him more vulnerable to attack than he
otherwise would have been. As to this aggravating factor, the
State simply argued to the trial court: "On the murder and the
robbery we would contend aggravating factor #11 that the victim was
very old. He was seventy-years old at the time of the crime and
alone." Based on this record, we cannot distinguish this case from
. We, therefore, hold that the trial court erred in finding
the victim's age to be an aggravating factor. See also State v.Styles
, 93 N.C. App. 596, 607, 379 S.E.2d 255, 262 (1989) (holding
that aggravating factor of victim's old age was inappropriate
because there was "no evidence tending to show [the victim's] home
was targeted for burglary because of her old age").
Remanded for resentencing.
Judge STEPHENS concurs.
Judge STEELMAN concurs in part and dissents in part in a
Report per Rule 30(e).
NORTH CAROLINA COURT OF APPEALS
Filed: 16 June 2009
STATE OF NORTH CAROLINA
v. Clay County
No. 97 CRS 449
98 CRS 61
VICTOR JOSEPH LAFOUNTAIN,
STEELMAN, Judge, concurring in part and dissenting in part.
I concur in the majority's analysis that the trial court erred
in finding an aggravating factor and its conclusion that this case
must be remanded for resentencing. However, I must respectfully
disagree with the majority's analysis finding error in the
computation of defendant's sentencing level.
Defendant's prior convictions in Georgia are not in dispute.
The existence of these convictions can be established by
stipulation. N.C. Gen. Stat. § 15A-1340.14(f) (2007); see also
State v. Palmateer, 179 N.C. App. 579, 581, 634 S.E.2d 592, 593
(2006). The question is whether the Georgia convictions are
substantially similar to an offense in North Carolina. N.C. Gen.
Stat. § 15A-1340.14(e) (2007). This analysis is a question of law
to be performed by comparing the elements of the out-of-state
offense with offenses in North Carolina. State v. Hanton, 175 N.C.
App. 250, 254-55, 623 S.E.2d 600, 604 (2006) (citations omitted),
disc. review denied, 362 N.C. 477, 666 S.E.2d 766 (2008). Before
the appellate courts, questions of law are subject to a de novo
standard of review. In re Appeal of Parsons, 123 N.C. App. 32, 38-39, 472 S.E.2d 182, 187 (1996) (quoting In re Appeal of
Perry-Griffin Foundation, 108 N.C. App. 383, 393, 424 S.E.2d 212,
218, disc. review denied, 333 N.C. 538, 429 S.E.2d 561 (1993)).
A level III felony sentence requires 5-8 felony sentencing
points. In this case, there is no dispute that defendant was
convicted in Lowndes County, Georgia of armed robbery on 4 February
1982. Section 16-8-41(a) of the Georgia Code defines armed robbery
A person commits the offense of armed robbery
when, with intent to commit theft, he or she
takes property of another from the person or
the immediate presence of another by use of an
offensive weapon, or any replica, article, or
device having the appearance of such weapon.
The offense of robbery by intimidation shall
be a lesser included offense in the offense of
G.A. Code Ann. § 16-8-41(a) (2007). Section 17-10-6.1 of the
Georgia Code states that armed robbery is a serious violent
felony. G.A. Code Ann. § 17-10-6.1(a) (2008).
N.C. Gen. Stat. § 14-87(a) defines robbery with a firearm or
other dangerous weapon as follows:
Any person or persons who, having in
possession or with the use or threatened use
of any firearms or other dangerous weapon,
implement or means, whereby the life of a
person is endangered or threatened, unlawfully
takes or attempts to take personal property
from another or from any place of business,
residence or banking institution or any other
place where there is a person or persons in
attendance, at any time, either day or night,
or who aids or abets any such person or
persons in the commission of such crime, shall
be guilty of a Class D felony.
N.C. Gen. Stat. § 14-87(a) (2007). Each of these statutes has as essential elements: (1) the
taking of property, (2) from a person or their presence, and (3) by
the use of a dangerous or offensive weapon. Under Georgia case
law, an offensive weapon is defined as likely to produce death
or great bodily injury depending on the manner and means of their
use. Clark v. State, 221 Ga. App. 273, 274, 470 S.E.2d 816, 817
(1996) (citing Eady v. State, 182 Ga. App. 293, 295, 355 S.E.2d
778, 781 (1987)). Under North Carolina case law, a dangerous
weapon is synonymous with a deadly weapon. State v. Wiggins, 78
N.C. App. 405, 406, 337 S.E.2d 198, 199 (1985). A deadly weapon
is generally defined as any article, instrument or substance which
is likely to produce death or great bodily harm. State v.
Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981). Thus,
an offensive weapon under the Georgia Statutes is identical to a
dangerous weapon under the North Carolina Statutes.
Defendant argues that because the Georgia statute provides
that the offense can be committed by means of a replica, article,
or device having the appearance of such weapon that it is not
substantially similar to the North Carolina statute. In this
assertion, defendant is mistaken.
When a person commits a robbery by the use or
threatened use of an implement which appears
to be a firearm or other dangerous weapon, the
law presumes, in the absence of any evidence
to the contrary, that the instrument is what
his conduct represents it to be-an implement
endangering or threatening the life of the
person being robbed.
State v. Joyner, 312 N.C. 779, 782, 324 S.E.2d 841, 844 (1985)
(citing State v. Thompson, 297 N.C. 285, 289, 254 S.E.2d 526, 528
(1979)) (emphasis in original).
I would hold that there was sufficient evidence presented
under 15A-1340.14(e) to establish that a conviction in Georgia for
armed robbery is substantially similar to the offense of robbery
with a dangerous weapon in North Carolina, a Class D felony. N.C.
Gen. Stat. § 15A-1340.14 provides that a Class D felony is 6 felony
record points. N.C. Gen. Stat. § 15A-1340.14(b)(2) (2007). This
one conviction, standing alone, is sufficient to support the trial
court's determination that defendant was a prior record level III
for felony sentencing purposes.