Opinion
No. COA10-868
Filed 7 June 2011 This case not for publication
Appeal by defendant from judgment entered 30 September 2009 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 13 January 2011.
Attorney General Roy Cooper, by Assistant Attorney General David Efird, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
Buncombe County Nos. 07 CRS 51491, 07 CRS 51492, 07 CRS 51493, 07 CRS 51494.
Defendant James Melburn Murray appeals from a judgment resentencing him, following an appeal, to a mitigated-range term of 70 to 93 months imprisonment for four methamphetamine-related convictions. He contends that the trial court erred by denying his motion to suppress evidence of a prior misdemeanor conviction used in calculating his prior record level. We hold that the trial court properly concluded that defendant did not meet his burden of proof under N.C. Gen. Stat. § 15A-980 (2009), as defendant failed to present evidence that he did not waive his right to counsel during the prosecution of the misdemeanor charge. Defendant further contends that the trial court erred by not finding four mitigating factors. As none of those factors was established by uncontradicted and manifestly credible evidence, the trial court did not err in refusing to find those factors. Therefore, we affirm.
Facts
Defendant is a retired truck driver who became addicted to methamphetamine. Andrew Sprinkle, a relative, and Sprinkle's girlfriend, Rene Day, began living with defendant and moved a meth lab into defendant's home. In February 2007, two police officers asked defendant if they could search his home, and defendant refused. The officers then told defendant he had to stay outside with them until they obtained a search warrant. Instead, defendant went inside, claiming he needed "to feed his animals." The officers followed defendant and, once inside, they saw defendant attempting to hide a large bottle of iodine, a product used in the production of methamphetamine. The police officers then searched defendant's house and found throughout the house, precursor chemicals and various other items used to produce methamphetamine. In addition, they found a large amount of bi-layered liquid in the final stages of methamphetamine production and a small amount of actual methamphetamine.
The trial transcript was not included in the record for this appeal. The full statement of the facts is set out in defendant's earlier appeal in this matter, State v. Murray, 198 N.C. App. 704, 681 S.E.2d 864, 2009 WL 2366953, 2009 N.C. App. LEXIS 1222 (Aug. 4, 2009) (unpublished).
On 7 May 2007, defendant was indicted for (1) manufacture of methamphetamine, (2) possession of methamphetamine, (3) possession of the precursor chemical iodine with the intent to manufacture methamphetamine, (4) possession of the precursor chemical red phosphorus with the intent to manufacture methamphetamine, (5) trafficking in excess of 400 grams of methamphetamine by manufacture, and (6) trafficking in excess of 400 grams of methamphetamine by possession. Defendant pled not guilty.
At trial, defendant admitted to using methamphetamine and admitted that some of the methamphetamine found in the house belonged to him. Defendant further testified that he knew Sprinkle and Day were manufacturing methamphetamine at his house, and he acknowledged that he had purchased pseudoephedrine, a precursor ingredient of methamphetamine, for Sprinkle and Day to use to make methamphetamine. He also testified that Sprinkle and Day were teaching him how to make methamphetamine.
On 26 July 2007, defendant was convicted of all six counts. The trial court arrested judgment on the simple possession and manufacturing charges. After determining that defendant was a prior record level II, based on one prior 1964 conviction for misdemeanor larceny, the trial court entered two consecutive judgments with each imposing a sentence of 225 to 279 months imprisonment.
Defendant appealed to this Court. In an unpublished decision, State v. Murray, 198 N.C. App. 704, 681 S.E.2d 864, 2009 WL 2366953, 2009 N.C. App. LEXIS 1222 (Aug. 4, 2009), this Court vacated the two trafficking convictions, found no error as to the remaining convictions, and remanded for a new sentencing hearing.
Prior to the hearing on resentencing, defendant filed a motion under N.C. Gen. Stat. § 15A-980 to suppress evidence of the 1964 larceny conviction. After considering all the evidence presented by defendant, the trial court denied the motion.
Defendant also filed a "Motion to find Certain Statutory Mitigating Factors are Present and Sufficient to Outweigh any Aggravating Factors." In defendant's motion, he argued that the following mitigating factors existed: (1) defendant was a passive participant or played a minor role in the commission of the offense; (2) defendant has been a person of good character or has a good reputation in the community in which he lives; (3) defendant was honorably discharged from the United States Armed Services; (4) defendant has accepted responsibility for his criminal conduct; (5) defendant has a support system in the community; (6) defendant has a positive employment history; (7) defendant has a good treatment prognosis and a workable treatment plan is available; and (8) other mitigating factors reasonably related to the purpose of the sentence.
At the hearing, in addition to these factors, defendant also argued that the trial court should find the following mitigating factors: (1) defendant's home burned down from suspected arson; (2) defendant is not in good health; and (3) defendant has had no disciplinary infractions while in prison. During the sentencing hearing, defendant presented the testimony of two witnesses along with various exhibits.
After considering all of defendant's evidence, the trial court determined that no aggravating factors existed and found the following mitigating factors: (1) that defendant had been honorably discharged from the United States Armed Services; (2) that defendant had a support system in the community; (3) that defendant had a positive employment history; and (4) that while incarcerated, defendant had had no disciplinary infractions. The trial court declined to find the remaining requested mitigating factors. The court then determined that the mitigating factors "outweigh[ed] the absence of the aggravating factors, and he'll be sentenced in the mitigated range."
The trial court unarrested judgment on the simple manufacturing and possession convictions. It then consolidated those two convictions with the two convictions for possession of precursor chemicals and entered a single judgment on 30 September 2009. In that judgment, the trial court entered a mitigated-range sentence of 70 to 93 months imprisonment. Defendant did not appeal. On 25 February 2010, however, defendant filed a petition for writ of certiorari with this Court. On 8 March 2010, this Court issued an order granting defendant's petition and allowing an appeal.
I
Defendant first contends that the trial court erred in denying his motion to suppress evidence of his 1964 misdemeanor conviction. "`This Court's review of a trial court's denial of a motion to suppress in a criminal proceeding is strictly limited to a determination of whether the court's findings are supported by competent evidence, even if the evidence is conflicting, and in turn, whether those findings support the court's conclusions of law.'" State v. Brown, ___ N.C. App. ___, ___, 694 S.E.2d 467, 468 (2010) (quoting In re Pittman, 149 N.C. App. 756, 762, 561 S.E.2d 560, 565, appeal dismissed and disc. review denied, 356 N.C. 163, 568 S.E.2d 608, 609 (2002), cert. denied sub nom. Harris-Pittman v. Nash County Dep't of Soc. Servs., 538 U.S. 982, 155 L. Ed. 2d 673, 123 S. Ct. 1799 (2003)).
Defendant's motion asserted that the 1964 conviction was obtained in violation of his right to counsel in that, at the time of the 1964 conviction, defendant was indigent, had no counsel, and had not waived his right to counsel. At the sentencing hearing, defendant "ha[d] the burden of proving by the preponderance of the evidence that the conviction was obtained in violation of his right to counsel." N.C. Gen. Stat. § 15A-980(c). In order to prevail on his motion, he was required to "prove that at the time of the conviction he [1] was indigent, [2] had no counsel, and [3] had not waived his right to counsel." Id.
There was no dispute below that defendant met his burden of proving he was indigent and had no counsel at the time of the 1964 conviction. The question was whether defendant adequately demonstrated that he did not waive his right to counsel. In support of his motion, defendant presented his own testimony and the testimony of his sister.
On the issue of waiver of counsel, when defendant was asked whether he remembered if he waived his right to counsel he stated, "No, I don't. They told me `take a plea bargain,' and I did." On cross-examination, he was asked if he remembered if he was "given the opportunity for a lawyer." Defendant responded, "I don't remember, no. I know I just didn't have one." With respect to defendant's sister, the trial court asked her, "Do you know whether or not he waived his lawyer, a lawyer[,]" and she responded, "No, sir, I don't."
The evidence presented does not establish by a preponderance of the evidence that defendant did not waive his right to counsel at the time of his 1964 conviction. Defendant's evidence showed only that he was indigent and did not have counsel. He could not remember, and his sister did not know, whether or not he waived the right to counsel. The trial court, therefore, did not err in determining that defendant failed to meet his burden of proof under N.C. Gen. Stat. § 15A-980(c).
Defendant, however, argues that the trial court was acting under a misapprehension of law, pointing to the trial court's observation that "the case law says it's your burden and also sets out, at least in one case cited by [the Prosecutor], that testimony alone by the defendant does not satisfy." Defendant argues that this remark shows that the trial court erroneously believed that testimony by a defendant can never meet the burden of proof under N.C. Gen. Stat. § 15A-980(c). See, e.g., State v. Williams, 279 N.C. 663, 669, 185 S.E.2d 174, 178 (1971) (holding that "[i]f [a criminal defendant] testifies, he occupies the position of any other witness").
We do not believe that the trial court intended to suggest that a defendant's testimony cannot be sufficient to meet the requisite burden of proof. The case to which the trial court referred was State v. Jordan, 174 N.C. App. 479, 482, 621 S.E.2d 229, 231 (2005), disc. review denied, 360 N.C. 293, 628 S.E.2d 7, cert. denied, 547 U.S. 1212, 165 L. Ed. 2d 926, 126 S. Ct. 2900 (2006), in which "[t]he only evidence offered by defendant to meet his burden [under N.C. Gen. Stat. § 15A-980(c)] was his own testimony that he did not have an attorney for each conviction and that he was not able to afford one at that time." This Court held that this evidence was not sufficient to meet the requirements of N.C. Gen. Stat. § 15A-980 because it did not establish the lack of waiver of counsel. Id.
The testimony in this case was materially indistinguishable from that in Jordan. We believe that the trial court, in this case, was simply stating that, as in Jordan, the particular testimony given by defendant was insufficient under N.C. Gen. Stat. § 15A-980 because it did not address the third element: that defendant did not waive his right to counsel. Just as in Jordan, we conclude that the trial court properly determined that defendant failed to meet his burden of proof and that the trial court, therefore, did not err in denying defendant's motion to suppress.
II
Defendant next contends that he is entitled to a new sentencing hearing because the trial court did not find the following mitigating factors: (1) defendant has a good treatment prognosis and a workable treatment plan; (2) defendant has a good character or a good community reputation; (3) defendant supports his family; and (4) defendant was a passive participant or played a minor role in the offenses. As this Court has previously explained, "`[a] trial judge is given wide latitude in determining the existence of . . . mitigating factors, and the trial court's failure to find a mitigating factor is error only when no other reasonable inferences can be drawn from the evidence.'" State v. Johnson, 196 N.C. App. 330, 336, 674 S.E.2d 727, 731 (quoting State v. Norman, 151 N.C. App. 100, 105-06, 564 S.E.2d 630, 634 (2002)), appeal dismissed, 363 N.C. 378, 679 S.E.2d 395 (2009).
Under N.C. Gen. Stat. § 15A-1340.16(a) (2009), "the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists." "`A mitigating factor is proven when the evidence is substantial, uncontradicted, and there is no reason to doubt its credibility.'" Johnson, 196 N.C. App. at 336, 674 S.E.2d at 731 (quoting State v. Kemp, 153 N.C. App. 231, 241, 569 S.E.2d 717, 723, disc. review denied, 356 N.C. 441, 573 S.E.2d 158 (2002)). An appellate court may reverse a trial court for failing to find a mitigating factor only when the evidence offered in support of that factor "is both uncontradicted and manifestly credible." State v. Jones, 309 N.C. 214, 220, 306 S.E.2d 451, 456 (1983).
Defendant first argues that the trial court erred in failing to find that he had a good treatment prognosis and a workable treatment plan. In support of this mitigating factor, defendant submitted a report prepared by Matthew Bacoate III, the executive director of New Life Options treatment center, a profile sheet entitled "Substance Abuse History Evaluation Form," and a release consent form from New Life Options. The report was based on two interviews with defendant and one interview with defendant's sister. Mr. Bacoate concluded that:
Mr. Murray is appropriate for the residential program and based on his age and current sobriety time has a better than average chance at maintaining his sobriety. If his sentence is reduced and he is allowed by the courts to participate in the program, there is immediate space available, as well as, Clinical Support through the Relationship Center.
(Emphasis added.) Mr. Bacoate did not appear at the hearing and no testimony was given describing his qualifications or any details regarding the proposed treatment plan.
We do not believe that the trial court was required to find that defendant had a "good prognosis" simply based on the assertion, without more, that because of defendant's age and current sobriety, he has a "better than average" prognosis. Defendant's evidence did not establish what the "average" prognosis was or what "better than average" meant. See Johnson, 196 N.C. App. at 336, 674 S.E.2d at 732 (holding that trial court was not required to find as mitigating factor that defendant had good treatment prognosis when clinical psychologist testified that "there was hope for defendant, that he was redeemable given a structured setting and resources such as are available in the Department of Correction").
Defendant, however, points to State v. Hilbert, 145 N.C. App. 440, 444, 549 S.E.2d 882, 885 (2001) (quoting N.C. Gen. Stat. § 15A-1340.16(e)(16) (2000)), in which this Court held that the trial court erred by not finding as a mitigating factor that "`[t]he 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.'" In Hilbert, the defendant had voluntarily entered and successfully completed a 21-day drug treatment program while awaiting trial. Id.
Thus, Hilbert involved a factual finding regarding an event that already occurred. In contrast, here, the mitigating factor, as in Johnson, is predictive. A defendant's having already successfully completed a drug treatment program is far different from a forecasting of a defendant's chances of success following completion of a treatment plan that he has not even begun and cannot begin until he leaves prison.
Next, defendant argues that the trial court should have found that "defendant has been a person of good character or has had a good reputation in the community in which [he] lives." N.C. Gen. Stat. § 15A-1340.16(e)(12). This Court has held that "[w]here testimony is not overwhelmingly persuasive on the question of defendant's good character or good reputation in the community, it is not manifestly credible and there is no requirement to find a mitigating factor." State v. Wells, 104 N.C. App. 274, 278, 410 S.E.2d 393, 396 (1991).
At the sentencing hearing, defendant presented 11 letters from close acquaintances and family members and live testimony from two witnesses (one of whom also wrote a three-page letter) regarding his character and reputation. Many of the witnesses stated that defendant helped them or others who were having financial trouble, that he was very family-oriented, and that he was a hard and reliable worker.
This evidence is similar to the evidence presented in State v. Murphy, 152 N.C. App. 335, 344-45, 567 S.E.2d 442, 448, disc. review denied, 356 N.C. 442, 573 S.E.2d 161 (2002), where defendant submitted to the trial court 24 letters regarding his character:
The individuals who wrote the letters included family members, close friends, fellow church members, members of the community with whom defendant had worked, and prisoners with whom defendant had been incarcerated. These letters paint a picture of a devoted family man with three children who was active in his church and his community. Specifically, they show that defendant was active in the PTA, volunteered his time to coach youth athletic teams, once served as president of the high school athletic club, served on the board of the homeowners' association, ran for a seat on the town council, sponsored refugees from Africa, and was an active member of Bible study while serving time in prison.
The Court pointed out that although the letters provide "uncontradicted evidence of defendant's good character, this evidence does not rise to the level of being manifestly credible." Id. at 345, 567 S.E.2d at 449.
The Court observed that the relationship of the letter writers to the defendant was a factor the trial court could consider in deciding whether the letters were credible, and, consequently, "it was within the prerogative of the trial court to accept or reject the opinions set forth in the letters." Id. at 346, 567 S.E.2d at 449. This Court concluded, therefore, that the trial court did not abuse its discretion in refusing to find as a mitigating factor that defendant was a person of good character. Id. Murphy is controlling. While the letters submitted by defendant were relevant to defendant's good character, the nature of the letters was such that the trial court was entitled to decide not to give them much weight. Some of the letters, like those in Murphy, were from individuals who have a close relationship with defendant. Other letters, addressing defendant's job performance in a job he held in the 1970s, related to defendant's character 40 years ago and are of doubtful relevance. We cannot, therefore, conclude that the trial court was required to find that defendant has been a person of good character and has a good reputation in his community.
Defendant next argues that the evidence established that defendant "was a passive participant or played a minor role in the commission of the offense" within the meaning of N.C. Gen. Stat. § 15A-1340.16(e)(2). A passive participant is "one who has an inactive part in the commission of an offense." State v. Crandall, 83 N.C. App. 37, 40, 348 S.E.2d 826, 829 (1986), disc. review denied, 319 N.C. 106, 353 S.E.2d 115 (1987) . A minor role is "one in which the individual performs a comparatively unimportant function in the commission of an offense." Id.
Here, defendant willingly provided a house and equipment for operation of a meth lab and possessed precursor chemicals and supplies used in methamphetamine manufacturing. Defendant admitted buying psueudoephedrine for use in the methamphetamine manufacturing, admitted that he was learning how to make methamphetamine, and admitted that some of the methamphetamine found at the house belonged to him. In addition, when the police were waiting for a search warrant, defendant tried to hide methamphetamine components because they were evidence of a meth lab.
In State v. Monserrate, 125 N.C. App. 22, 33, 479 S.E.2d 494, 502, disc. review denied, 345 N.C. 645, 483 S.E.2d 716 (1997), this Court found no error when the trial court failed to find that the defendant was a passive or minor participant in a kidnapping and robbery. The evidence showed that defendant "was aware of the planned burglary a week or two before it occurred, and agreed[,]" she successfully solicited participation by two individuals, drove other participants to their destination, and stayed "behind with the victims" who were "bound and gagged." Id. at 34, 479 S.E.2d at 502.
The level of participation in this matter is similar. At a minimum, defendant authorized the methamphetamine production taking place in his home, purchased items needed to manufacture the methamphetamine, and attempted to conceal the evidence from the police. Based on Monserrate, there is sufficient evidence that defendant was not a passive participant and did not play a minor role.
Defendant, however, points to the jury's questions at trial regarding whether a person could be found guilty of manufacturing methamphetamine if he was not directly involved but knew that it was happening on his property. The trial court clarified that in order for defendant to be guilty of manufacturing methamphetamine, "the State must prove beyond a reasonable doubt that the Defendant manufactured methamphetamine. That is, being involved in the process of preparing methamphetamine in its final form to where it would be utilized by those who desire to use it." The court later reiterated that defendant must have "manufactured methamphetamine" and not just been aware of it. After these instructions, the jury found defendant guilty of manufacturing methamphetamine. The jury's questions — in contrast to its verdict — do not establish the existence of the mitigating factor set out in N.C. Gen. Stat. § 15A-1340.16(e)(2).
Finally, defendant argues that the trial court erred in not finding the mitigating factor that defendant supports his family, N.C. Gen. Stat. § 15A-1340.16(e)(17). Defendant did not, however, request at sentencing that the court find this mitigating factor, and his evidence did not directly address that factor. Even assuming that the trial court could be required to find a mitigating factor not argued by defendant, see State v. Meynardie, 172 N.C. App. 127, 132, 616 S.E.2d 21, 25 (2005) (applying standard set forth in Jones, 309 N.C. at 219-20, 306 S.E.2d at 455, when defendant failed to request that trial court find specific factor in mitigation), aff'd and remanded per curiam, 361 N.C. 416, 646 S.E.2d 530 (2007), the record contains substantial evidence that defendant did not support his family. While defendant's evidence indicated that, in the past, defendant had supported his family, including his mother, there is no evidence that he supported them in the period of time preceding his arrest. In fact, the report regarding defendant's treatment prognosis revealed that defendant's wife and son left him due to his drug use. Based upon our review of the record, we cannot conclude that the evidence mandated a finding that defendant supported his family.
In sum, defendant has failed to demonstrate that the trial court erred in failing to find the above mitigating factors. Since we have also determined that defendant's prior conviction level was properly calculated, we affirm defendant's sentence.
Affirmed.
Judges McGEE and STEPHENS concur.
Report per Rule 30(e).