Opinion
NO. COA11-368-2
07-02-2013
STATE OF NORTH CAROLINA v. AADIL SHAHID KHAN
Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman, for the State. Tharrington Smith, LLP, by Douglas E. Kingsbery, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Wake County
Nos. 08 CRS 85094
10 CRS 652
On remand from the Supreme Court of North Carolina, ___ N.C. ___, 738 S.E.2d 167 (2013), affirming in part and reversing and remanding in part the decision of the Court of Appeals, __ N.C. App. __, 721 S.E.2d 409 (No. COA11-368) (2012) (unpublished). Appeal by defendant from judgments entered 15 November 2010 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 5 June 2013.
Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman, for the State.
Tharrington Smith, LLP, by Douglas E. Kingsbery, for defendant-appellant.
HUNTER, Robert C., Judge.
This case is before us on remand from the Supreme Court of North Carolina, State v. Khan, ___ N.C. ___, 738 S.E.2d 167 (2013) (hereinafter "Khan II"), affirming in part and reversing and remanding in part our decision in State v. Khan, __ N.C. App. __, 721 S.E.2d 409, 2012 WL 121230, 2012 N.C. App. LEXIS 7 (No. COA11-368) (2012) (unpublished) (hereinafter "Khan I"). After careful review, we find no error.
Discussion
Aadil Shahid Khan ("defendant") appeals from the judgments entered upon pleading guilty to second-degree murder, conspiracy to commit murder, attempted first-degree murder, and conspiracy to commit first-degree murder, which were charged in two separate indictments. On appeal to this Court, defendant argued, inter alia, that the trial court erred in imposing aggravated sentences for the crimes charged under both indictments. Khan I, 2012 WL 121230, at *2, 2012 N.C. App. LEXIS 7, at *4. Defendant insisted that while he stipulated to the existence of the aggravating factor for the crimes charged in 08 CRS 85094, he did not stipulate to the existence of the aggravating factor for the crimes charged in 10 CRS 652. Id.
A divided panel of this Court held that defendant's Transcript of Plea was ambiguous, vacated the sentence imposed under 10 CRS 652, and remanded the case for a new sentencing hearing. Id., 2012 WL 121230, at *3, 2012 N.C. App. LEXIS 7, at *7-8. Our Supreme Court disagreed and concluded: defendant's stipulation to the existence of the aggravating factor applied to the charges in both indictments; the trial court complied with the requirements of N.C. Gen. Stat. § 15A-1022.1 in accepting defendant's plea; and the evidence proffered to the trial court "was sufficient to establish that, as to the evidence supporting both indictments, defendant took advantage of his position of trust or confidence to place the victim in a vulnerable position." Khan II, __ N.C. at __, 738 S.E.2d at 172. Accordingly, the Supreme Court reversed that part of our decision that vacated defendant's sentence in 10 CRS 652 and remanded the case back to this Court so that we may address the remaining issues on appeal. Id. at __, 738 S.E.2d at 172-73. As the facts of this case are provided in Khan II, we recite only those facts necessary to address defendant's remaining arguments.
I. Consideration of Evidence from Co-Defendant's Trial
Defendant argues that the trial court improperly relied upon evidence presented during the trial of his co-defendant, Ryan Hare, when imposing defendant's sentence. We conclude that defendant has waived his right to our review of this alleged error.
Defendant contends that because the State elected not to present any evidence of defendant's role in the underlying offenses during the sentencing hearing, and because the State made some references to evidence from the trial of Ryan Hare during the sentencing hearing, the trial court must have impermissibly relied on the evidence presented in Hare's trial when imposing a sentence in the aggravated range for both of defendant's indictments. See State v. Benbow, 309 N.C. 538, 549, 308 S.E.2d 647, 653-54 (1983) ("[A]t any sentencing hearing held pursuant to a plea of guilty, reliance on evidence from the trials of others connected with the same offense is improper absent a stipulation.").
In making his argument, defendant fails to acknowledge that he repeatedly relied on evidence from Ryan Hare's trial in support of his arguments that the trial court should find the existence of mitigating factors:
[Defendant's Counsel:] Before this happened this was basically a very good young man seated next to me. We know, for example, from the Ryan Hare trial that on September 30th, 2008, just two months before all this happened . . . .
. . .
During the Hare trial Investigator Blomgren testified . . . .
. . .
During the Ryan Hare trial Drew Shaw testified . . . .
. . .
And then during the actual trial you'll remember this. Allegra was on the stand . . . . (Emphasis added.)
We conclude that defendant's proffer of evidence from the trial of Ryan Hare precludes him from arguing that the trial court's consideration of such evidence was error.
North Carolina General Statutes section 15A-1443(c) states that "[a] defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct." N.C. Gen. Stat. § 15A-1443 (c) (1999). Thus, a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001) (concluding that if admission of evidence was error it was invited error resulting in waiver of right to appellate review where the defendant requested the contested evidence be published to the jury), disc. review denied, 355 N.C. 216, 560 S.E.2d 141 (2002). Therefore, if it was error for the trial court to consider evidence from Ryan Hare's trial in determining defendant's sentence, it was an invited error, and defendant has waived his right to appellate review of the issue.
II. Mitigating Factor
Defendant argues that because he proffered uncontradicted evidence of a strong family support system, it was error for the trial court not to find the mitigating factor, for both indictments, that defendant has a support system in the community. We disagree.
A trial court must consider evidence of mitigating factors and may depart from the presumptive range of sentencing in its discretion. The defendant bears the burden of proving mitigating circumstances by a preponderance of the evidence. "A sentencing judge must find a statutory mitigating sentence factor if it is supported by a preponderance of the evidence."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) (citations omitted). "'To show that the trial court erred in failing to find a mitigating factor, the evidence must show conclusively that this mitigating factor exists, i.e., no other reasonable inferences can be drawn from the evidence.'" State v. Heatwole, 333 N.C. 156, 163-64, 423 S.E.2d 735, 739 (1992) (citation omitted).
During his sentencing hearing, defendant requested that the trial court find the statutory mitigating factor N.C. Gen. Stat. § 15A-1340.16(e)(18) (2011), that "defendant has a support system in the community." In support of this request, defendant delivered his own statement to the trial court, as well as the testimony of licensed psychologist Dr. James Hilkey and the Wake County Sheriff's Office Inmate Education Director, Marti Wilson. Ms. Wilson testified that with the help of his parents, defendant was able to earn his high school diploma and to begin some college-level course work through Ohio University while incarcerated. Dr. Hilkey testified that defendant grew up with a "very firm foundation of good values," in a family that is "extremely devoted" to defendant and that has a strong religious faith. Defendant also explained to the trial court that he had a loving and supporting family.
While this evidence supports the conclusion that defendant has a supportive family and that he utilizes their support to further his education, it does not speak to the existence of "a support system in the community." Id. Thus, we conclude defendant failed to meet his burden of establishing the existence of the mitigating factor by a preponderance of the evidence. See Kemp, 153 N.C. App. at 241-42, 569 S.E.2d at 723 ("Testimony demonstrating the existence of a large family in the community and support of that family alone is insufficient to demonstrate the separate mitigating factor of a community support system."). Defendant's argument is overruled.
III. Sentence Imposed in 10 CRS 652
Lastly, defendant contends that the trial court erred by imposing a sentence for his plea to attempted murder and conspiracy to commit murder in 10 CRS 652 that was not tailored to those individual offenses. Defendant insists that, because he offered uncontroverted evidence that he intervened in the attempt to murder the victim on 25 November 2008 and later revealed the existence of the crimes to the police, the sentence imposed in 10 CRS 652 was not justified. We cannot agree.
[I]n every case in which the sentencing judge is required to make findings in aggravation and mitigation to support a sentence which varies from the presumptive term, each offense, whether consolidated for hearing or not, must be treated separately, and separately supported by findings tailored to the individual offense and applicable only to that offense.State v. Ahearn, 307 N.C. 584, 598, 300 S.E.2d 689, 698 (1983). "The extent to which a trial court imposed a sentence based upon an improper consideration is a question of law subject to de novo review." State v. Pinkerton, 205 N.C. App. 490, 498, 697 S.E.2d 1, 6 (2010), rev'd on other grounds, 365 N.C. 6, 708 S.E.2d 72 (2011).
While the trial court imposed the same aggravated sentence for both 08 CRS 85094 and 10 CRS 652, our Supreme Court has concluded that defendant stipulated to the existence of an aggravating factor for the charges under both indictments and that the evidence was sufficient to support both aggravated sentences. Khan II, ___ N.C. at ___, 738 S.E.2d at 172. We are "'not at liberty to revisit' issues previously decided by our Supreme Court." Couch v. Private Diagnostic Clinic, 146 N.C. App. 658, 667, 554 S.E.2d 356, 363 (2001) (quoting State v. Stephenson, 144 N.C. App. 465, 478, 551 S.E.2d 858, 867 (2001)), appeal dismissed and disc. review denied, 355 N.C. 348, 563 S.E.2d 562 (2002). Therefore, defendant's argument is overruled.
Conclusion
For the reasons stated above, we find no error.
NO ERROR.
Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).