Opinion
No. 07-355.
Filed February 5, 2008.
Nash County, No. 99 CRS 7338, 7339.
Appeal by defendant from judgment entered 11 February 2002 by Judge William C. Griffin in Superior Court, Nash County. Heard in the Court of Appeals 13 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State. Anne Bleyman, for defendant-appellant.
Under section 15A-1340.16(d) (1999) of our General Statutes, "[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation. . . ." Here, Defendant contends evidence of malice was improperly used to aggravate his sentences on the charges of second-degree murder and robbery with a dangerous weapon because the element of malice was implied from Defendant's use of a deadly weapon. Because there was other evidence to support the finding of malice, we find no merit to this argument.
However, we remand for a new sentencing hearing on the conviction for robbery with a dangerous weapon because evidence supporting the aggravating factor that Defendant was armed with a deadly weapon was also used to prove an element of robbery with a dangerous weapon. See N.C. Gen. Stat. § 15A-1340.16(d).
On 8 May 1999, Julian White, a cab driver, was murdered and robbed. The State's evidence tended to show that Ryland Anderson, Anthony Simpson, and Defendant Preston Jermaine Middleton planned to rob a cab driver. When the cab arrived, Mr. Anderson and Defendant got in, while Mr. Simpson followed behind the cab with plans to pick up Antonio Middleton, Defendant's brother, at some later point. As Mr. Anderson and Defendant went to pay Mr. White, Defendant hit Mr. White on the back of the head with a weight, stunning him and fracturing his skull, although he remained conscious. Mr. Anderson then continued to hit Mr. White with a bottle and a large rock, puncturing his ear and causing his death.
On 16 June 1999, Defendant was indicted for first-degree murder and robbery with a dangerous weapon. On 11 February 2002, Defendant pled guilty to second-degree murder and robbery with a dangerous weapon. At the plea hearing, the trial court found two aggravating factors: (1) "defendant joined with more than one other person in committing the offense and was not charged with conspiracy" and (2) "defendant was armed with a deadly weapon at the time," and five mitigating factors. See N.C. Gen. Stat. § 15A-1340.16(d) (listing the aggravating factors). Defendant was sentenced to consecutive terms of 237 to 294 months imprisonment for second-degree murder and 77 to 102 months imprisonment for robbery with a dangerous weapon. Having failed to enter notice of appeal from Judge Griffin's 11 February 2002 judgment, by petition filed 23 May 2006, Defendant asked this Court to issue its writ of certiorari to review his case. On 12 June 2006, this Court allowed Defendant's petition, but limited appellate review to "those issues which defendant had a right to direct appeal under N.C. Gen. Stat. § 15A-1444(a1) and (a2) (2006)."
Regarding Defendant's right to appeal, section 15A-1444 states:
(a1) A defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her 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 for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.
(a2) A defendant who has entered a plea of guilty or no contest to a felony or misdemeanor in superior court is entitled to appeal as a matter of right the issue of whether the sentence imposed:
(1) Results from an incorrect finding of the defendant's prior record level under G.S. 15A-1340.14 or the defendant's prior conviction level under G.S. 15A-1340.21;
(2) 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; or
(3) Contains a term of imprisonment that is for a duration 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 (2006) (emphasis added). As Defendant is not appealing any of the issues addressed in § 15A-1444(a2), the only basis for his appeal is § 15A-1444(a1). However, the State argues that Defendant has no right to appeal the sentence for robbery with a dangerous weapon because he received a presumptive sentence, as his 77-month minimum sentence was at the top of the presumptive range and the bottom of the aggravated range. See N.C. Gen. Stat. § 15A-1340.17 (1999).
The record shows that after finding two aggravating factors and five mitigating factors, the trial court found that the aggravating factors outweighed the mitigating factors, and sentenced Defendant for second-degree murder, then for robbery with a dangerous weapon. See N.C. Gen. Stat. § 15A-1340.16(b) ("If . . . the court, finds that aggravating factors exist or the court finds that mitigating factors exist, the court may depart from the presumptive range of sentences specified in G.S. 15A-1340.17(c)(2). If aggravating factors are present and the court determines they are sufficient to outweigh any mitigating factors that are present, it may impose a sentence that is permitted by the aggravated range described in G.S. 15A-1340.17(c)(4)."). A review of the record also reveals that aggravating factors were attached to the judgment and commitment form for robbery with a dangerous weapon. After a careful review of the record and transcript, we conclude that the trial court imposed an aggravated sentence for robbery with a dangerous weapon, even though the sentence overlaps with the presumptive range. See State v. Ramirez, 156 N.C. App. 249, 259, 576 S.E.2d 714, 721, disc. review denied, 357 N.C. 255, 583 S.E.2d 286 (2003) (holding that defendant was properly sentenced in the presumptive range, even though his sentence overlapped with the aggravated range, because the court did not find aggravating factors). Accordingly, we will consider Defendant's arguments regarding his sentence for robbery with a dangerous weapon.
On appeal, Defendant argues that the trial court erred by enhancing his sentences because: (I) the evidence used to prove the elements of the substantive offenses was the same evidence supporting the aggravating factors; (II) the aggravating factor that Defendant joined with more than one person in committing the offense and was not charged with conspiracy was not sufficiently supported by the evidence; and (III) the aggravating factors were not found by a jury beyond a reasonable doubt.
I.
Defendant first argues that the trial court erred by enhancing his sentence because the evidence used to prove the elements of the substantive offenses was the same evidence supporting the aggravating factors.
Section 15A-1340.16(d) of our General Statutes states that "[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation. . . ." Defendant argues evidence that he was armed with a deadly weapon was an aggravating factor and was also an element of both second-degree murder and robbery with a dangerous weapon.
The elements of second-degree murder are: (1) an unlawful killing; (2) of a human being; (3) with malice, but without premeditation and deliberation. State v. McDonald, 151 N.C. App. 236, 243, 565 S.E.2d 273, 277, disc. review denied, 356 N.C. 310, 570 S.E.2d 892 (2002). Defendant argues that evidence that he was armed with a deadly weapon was used to prove malice. We are not persuaded.
Our Supreme Court has defined malice as "hatred, ill-will, or spite. . . ." State v. Benson, 183 N.C. 795, 799, 111 S.E. 869, 871 (1922), overruled on other grounds, 264 N.C. 508, 142 S.E.2d 337 (1965). Malice can be implied where "an act which imports danger to another is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life." State v. Trott, 190 N.C. 674, 679, 130 S.E. 627, 629 (1925). Malice may also be implied from the use of a deadly weapon. State v. Taylor, 309 N.C. 570, 573, 308 S.E.2d 302, 305 (1983), disc. review denied, 314 N.C. 547, 335 S.E.2d 319 (1985).
Defendant contends that because the State did not argue that there was either express hatred or an inherently dangerous act done recklessly, the element of malice was implied from Defendant's use of a deadly weapon. However, we have previously found sufficient evidence to support a finding of malice where two defendants "acted in concert to commit acts, specifically, repeatedly striking the victim's face, which evidence wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and minds regardless of social duty and deliberately bent on mischief." State v. Spivey, 102 N.C. App. 640, 650, 404 S.E.2d 23, 28-29 (1991) (emphasis added).
Here, the trial court could have found malice existed because the evidence showed that Defendant and Mr. Anderson repeatedly struck Mr. White in his head and struck him while he was on the ground. Because we cannot conclude that evidence that Defendant was armed with a deadly weapon was necessarily used to prove malice, this assignment of error is overruled.
Defendant also contends that evidence that he was armed with a deadly weapon was necessary to prove the elements of robbery with a dangerous weapon. We agree.
The elements of robbery with a dangerous weapon include: "(1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of 'firearms or other dangerous weapon, implement or means'; and (3) danger or threat to the life of the victim." State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978); N.C. Gen. Stat. § 14-87 (1999).
Here, evidence that Defendant was armed with a deadly weapon was necessary to prove an element of robbery with a dangerous weapon. Therefore, the trial court was precluded from using evidence that Defendant was armed with a deadly weapon to find an aggravating factor. See N.C. Gen. Stat. § 15A-1340.16(d). "When the trial judge errs in finding an aggravating factor and imposes a sentence in excess of the presumptive term, the case must be remanded for a new sentencing hearing." State v. Wilson, 338 N.C. 244, 259, 449 S.E.2d 391, 400 (1994). However, "only one factor in aggravation is necessary to support a sentence greater than the presumptive term." State v. Baucom, 66 N.C. App. 298, 302, 311 S.E.2d 73, 75 (1984). The weighing of aggravating and mitigating factors is within the sound discretion of the trial court and a sentencing judge may determine in appropriate cases that one factor in aggravation outweighs more than one factor in mitigation and vice versa. State v. Norman, 151 N.C. App. 100, 104, 564 S.E.2d 630, 633 (2002).
In this case, the trial court concluded that the aggravating factors outweighed the mitigating factors, but did not specify whether either of the aggravating factors alone would outweigh the mitigating factors. "The need for remand is based on an appellate court's inability to determine the respective weights assigned by a trial court to each factor when such weight distributions are normally not specified in the record on appeal." Id. Because the trial court did not assign weight to each aggravating and mitigating factor and erred in finding as an aggravating factor on the robbery with a dangerous weapon charge that Defendant was armed with a deadly weapon, we remand for a new sentencing hearing on robbery with a dangerous weapon.
II.
Defendant next argues that the trial court erred by enhancing his sentences because the aggravating factor that Defendant joined with more than one person in committing the offense and was not charged with conspiracy was not sufficiently supported by the evidence. Specifically, Defendant argues that although there was evidence that he and Mr. Anderson killed Mr. White, the only evidence that he "joined with more than one person" was the State's assertion that Mr. Simpson and Antonio Middleton also participated. At the time Defendant committed this offense, the State was required to prove the existence of an aggravating factor "by a preponderance of the evidence." N.C. Gen. Stat. § 15A-1340.16(a). Our Supreme Court has held that "a statement by the prosecuting attorney is not sufficient standing alone to find an aggravating factor." State v. Mullican, 329 N.C. 683, 685, 406 S.E.2d 854, 854 (1991). However, "[i]f opposing counsel stipulates to a statement it may be used to support the finding of an aggravating factor." Id.
In Mullican, our Supreme Court held that there was sufficient evidence to support the finding of aggravating factors because the defendant stipulated that the prosecuting attorney could state the evidence. Id. The Supreme Court stated:
When 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. He did not do so. The defendant then said he too would like to present his evidence with the consent of the State. We can infer from this that the defendant had consented to the prosecuting attorney's making the statement. The defendant's attorney then made a statement which was consistent with the statement of the prosecuting attorney. . . ."
Id. (emphasis added).
Here, before providing the court with a summary of the facts and evidence, the prosecutor asked, "Will the defense stipulate there's a factual basis for the plea?"
Defense counsel responded, "May it please the court, we will." Additionally, after the State completed its summary of the facts and evidence, the trial court asked defense counsel if they wanted to be heard. Defense counsel stated, "Not as to the facts," and again clarified, "Not as to the facts." Because defense counsel stipulated that there was a "factual basis for the plea," and did not object to the State's summary of the evidence, we find sufficient evidence to support the finding of the aggravating factor. Accordingly, we find no error.
III.
Defendant lastly contends that the trial court erred by enhancing his sentences because the aggravating factors were not found by a jury beyond a reasonable doubt. We do not agree. 1 Defendant cites Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d. 851 (2004), for the preposition that the Sixth Amendment right to a jury trial guarantees that a defendant's sentence cannot be increased beyond the presumptive range unless the increase is based on a jury's factual findings regarding the aggravating sentencing factors. Our Supreme Court has applied Blakely to North Carolina's Structured Sentencing Act, but noted that the holding only applies to cases "that are now pending on direct review or are not yet final." State v. Allen, 359 N.C. 425, 426-27, 615 S.E.2d 256, 258 (2005), overruled on other grounds, State v. Norris, 360 N.C. 507, 509, 630 S.E.2d 915, 916 (2006). Blakely was decided on 24 June 2004. Where a case "was not pending on direct review and was final at the time the rule in Blakely was issued, the rule cannot be retroactively applied to defendant's appeal before this Court by writ of certiorari." State v. Hasty, ___ N.C. App. ___, ___, 639 S.E.2d 94, 96 (2007).
Here, Defendant's case was final on 11 February 2002, when judgment was entered against him. Defendant did not directly appeal from the judgment, but rather filed a petition for writ of certiorari with this Court on 23 May 2006. Because Defendant's case was not pending on direct review and was final at the time Blakely was decided, Blakely cannot be retroactively applied to Defendant's appeal. See id. Accordingly, this assignment of error is overruled.
No error in part, remanded in part for resentencing.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).