Opinion
No. COA10-427
Filed 3 May 2011 This case not for publication
Appeal by defendant from judgments entered 8 April 2008 by Judge A. Moses Massey in Forsyth County Superior Court. Heard in the Court of Appeals 13 October 2010.
Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State. Guy J. Loranger for defendant-appellant.
Forsyth County Nos. 05 CRS 65269, 07 CRS 30329.
Defendant Luz Estela Orellana, who pled guilty, appeals from her convictions of second degree murder and conspiracy to commit first degree murder. On appeal, defendant primarily argues that the trial court erred in finding, for sentencing purposes, the aggravating factor that she took advantage of the victim's trust or confidence in order to commit the crimes. Although defendant contends that the victim, her ex-husband, did not in fact trust her, we hold that the evidence was sufficient to support that finding given that defendant's plan for the victim's murder exploited the opportunity presented when the victim picked up their daughter for visitation. With respect to defendant's argument that the trial court erred in not finding as a mitigating factor that she had a positive employment history or was gainfully employed, we hold that the evidence of her employment record was not so substantial that the trial court was required to make such a finding. We, therefore, affirm.
Facts
Defendant was indicted on 4 June 2007 for first degree murder and on 29 October 2007 for conspiracy to commit murder. On 8 April 2008, defendant and the State presented the following negotiated plea arrangement to the trial court:
Defendant pleads Guilty to second degree murder (B2 felony) and conspiracy to commit first degree murder (B2 felony)[.] These sentences shall run consecutively. Defendant stipulates to aggravating factors 15A-1340.16(d)(1), (13), (15) and agrees to be sentenced in the aggravated range[.]
During the plea hearing, defendant specifically acknowledged to the trial court that she understood she was admitting the existence of the three aggravating factors: inducing others to participate in the commission of the offense, N.C. Gen. Stat. § 15A-1340.16(d)(1) (2009); involving a person under the age of 16 in a crime, N.C. Gen. Stat. § 15A-1340.16(d)(13); and taking advantage of a position of trust or confidence, including a domestic relationship, to commit the offense, N.C. Gen. Stat. § 15A-1340.16(d)(15). She also agreed that "there is evidence to support these aggravating factors beyond a reasonable doubt."
In addition, defendant acknowledged that she understood that while she had the right to present evidence of mitigating factors, the plea arrangement called for sentencing in the aggravated range. The trial court subsequently asked, "Do you agree that there are facts to support your plea and admission to the aggravating factors, and do you consent to a summarization of the evidence that relates to the factual basis for your pleas and your admission?" Defendant responded, "Yes."
After the trial court conducted the plea colloquy, the State presented the testimony of the lead investigator in defendant's case, Detective Stan Nieves of the Winston-Salem Police Department. According to Detective Nieves, defendant had a daughter with her ex-husband Fabricio Orellana during their marriage, and the child lived with defendant and her second husband, Mateo Castaneda. Mr. Orellana had visitation with the child, who was seven years old, but because of his "rocky" relationship with defendant, the arrangement became an "ongoing problem." The two would often argue about visitation, and Mr. Orellana was upset that defendant would not let him see the child.
Detective Nieves testified that on the evening of 12 August 2005, Mr. Orellana arrived at defendant's residence to pick up their daughter as part of the visitation arrangement. Afterwards, as he drove back to his apartment, Mr. Orellana called his girlfriend on his cell phone, telling her he had an "unusual" and "very pleasant" conversation with defendant. Upon arriving at his apartment complex, Mr. Orellana went to the mailbox area. A man, later identified as Christian Omar Pacheo Torres, approached and fatally shot Mr. Orellana through the heart. Mr. Torres fled from the scene to a nearby park where a car driven by Mr. Castaneda was waiting for him. The child, who had been sitting in the back seat of Mr. Orellana's car, gave a description of Mr. Torres to police as did two other eyewitnesses.
As part of their investigation, the police interviewed defendant and Mr. Castaneda. The police provided them with a description of the shooter, but defendant and Mr. Castaneda said they did not know anyone who matched the description. Officers obtained cell phone records and determined that, on the date of the shooting, several calls were made between defendant and Mr. Castaneda, as well as between Mr. Castaneda and an associate of Mr. Torres. The police determined that Mr. Torres matched the description of the man who shot Mr. Orellana. Federal agents eventually apprehended Mr. Torres as he was attempting to flee to Mexico, and he was returned to Winston-Salem, North Carolina.
Months later, Mr. Torres spoke to officers about the shooting. According to Detective Nieves, Mr. Torres reported that defendant had approached Mr. Torres at work and asked him multiple times to beat up Mr. Orellana. Eventually, defendant began asking Mr. Torres to kill Mr. Orellana. At some point, Mr. Castaneda became involved, and the three met several times after which they came to an understanding that Mr. Torres would be provided a gun and would be paid $2,000.00 for killing Mr. Orellana.
On 12 August 2005, Mr. Torres and Mr. Castaneda got ammunition for a gun, drove to Mr. Orellana's apartment complex, and parked in a lower lot. Shortly before the shooting, defendant called Mr. Castaneda and said Mr. Orellana and their child had just left her residence and were on their way. Mr. Castaneda stayed in the car while Mr. Torres hid in trees nearby. When Mr. Orellana arrived, Mr. Torres approached and shot him. After the shooting, Mr. Castaneda drove Mr. Torres back to his apartment.
After hearing Detective Nieves' testimony, the trial court found a factual basis for entry of defendant's plea, accepted the plea, and moved on to the sentencing phase. The State contended that the three aggravating factors defendant had admitted were "certainly present."
Defense counsel portrayed the marriage between defendant and Mr. Orellana as having begun "without love" and having been prompted by defendant's pregnancy. According to defense counsel, defendant eventually fell in love with Mr. Orellana, and the couple moved from New York to North Carolina. Mr. Orellana, however, returned to New York, taking their child with him. In a New York custody action, the court gave defendant custody of the child. She went back to North Carolina, and Mr. Orellana followed her.
As evidence of a mitigating factor, defense counsel pointed to an exhibit setting out defendant's employment record with Debbie's Staffing. The exhibit indicated that defendant began working at Sonoco Corrflex in September 2001 and worked there until at least July 2005. The employment record was last updated on 11 July 2005, approximately one month before the murder. Defense counsel ultimately asked the court "for mercy and to sentence her at the low end of the aggravated range."
The trial court refused to find the aggravating factor that defendant had involved a person under the age of 16 in the commission of the crime, N.C. Gen. Stat. § 15A-1340.16(d)(13), "even though Ms. Orellana ha[d] admitted to it." With respect to the second degree murder charge, the trial court found the existence of the aggravating factors listed under N.C. Gen. Stat. § 15A-1340.16(d)(1) (inducing others to participate in the commission of the offense) and N.C. Gen. Stat. § 15A-1340.16(d)(15) (taking advantage of a position of trust or confidence, including a domestic relationship, to commit the offense). The trial court also found the existence of the N.C. Gen. Stat. § 15A-1340.16(d)(15) aggravating factor in connection with the conspiracy charge. The court found no mitigating factors. The trial court then sentenced defendant to two consecutive aggravated-range terms of 180 to 225 months imprisonment.
Defendant timely appealed to this Court. The State has moved to dismiss the appeal on the grounds that defendant has no right to appeal because she stipulated to the existence of the aggravating factors.
Discussion
We first address the State's motion to dismiss this appeal. The State argues that "[a]lthough a defendant who pleads guilty normally would have the right to appeal the issue of whether the evidence supports the aggravating factors if the defendant is sentenced in the aggravated range, see N.C.G.S. § 15A-1444(a1) [(2009)], defendant does not have a right to appeal that issue in this case. This is so because defendant explicitly admitted each of the aggravating factors, agreed there was evidence to support them beyond a reasonable doubt, and agreed there were facts to support her admission to them."
The State has conflated the question of a defendant's right to appeal with the question whether an issue is properly preserved for appellate review. The plain language of N.C. Gen. Stat. § 15A-1444(a1) provides that a defendant who pleads guilty 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." Since defendant was sentenced in the aggravated range, under N.C. Gen. Stat. § 15A-1444(a1), she has a statutory right to appeal.
The State has relied upon State v. Canady, 153 N.C. App. 455, 458, 570 S.E.2d 262, 264-65 (2002), and State v. Kimble, 141 N.C. App. 144, 147, 539 S.E.2d 342, 344-45 (2000), disc. review denied, 353 N.C. 391, 548 S.E.2d 150 (2001). This Court did not, however, in either of those cases, conclude that the defendant had no right to appeal the issue of the sufficiency of the evidence to support the plea, but rather held only that the issues were not "properly before this Court" because the defendant had not preserved the issue for appellate review. Canady, 153 N.C. App. at 458, 570 S.E.2d at 265; Kimble, 141 N.C. App. at 147, 539 S.E.2d at 345. Consequently, we deny the State's motion to dismiss.
Turning to the question whether defendant's argument as to the sufficiency of the evidence is properly before the Court, we note that Canady and Kimble predate the Supreme Court's decision in State v. Agnew, 361 N.C. 333, 643 S.E.2d 581 (2007). In Agnew, the Supreme Court rejected the contention that defense counsel's stipulation to the existence of a factual basis for a guilty plea was sufficient to establish that a factual basis existed: "[D]efense counsel's stipulation to the existence of a factual basis was insufficient because the stipulation gave the trial court no additional substantive information about the case as required by statute." Id. at 337, 643 S.E.2d at 584. Instead, N.C. Gen. Stat. § 15A-1022(c) (2009) "requires an independent judicial determination that a sufficient factual basis exists before a trial court accepts a guilty plea." Agnew, 361 N.C. at 333-34, 643 S.E.2d at 582. As a result, the mere fact that defendant stipulated in this case to the existence of a factual basis for the aggravating factors did not establish the sufficiency of the evidence to support the trial court's findings of those factors.
Defendant challenges only the finding of the aggravating factor in N.C. Gen. Stat. § 15A-1340.16(d)(15): "defendant took advantage of a position of trust or confidence, including a domestic relationship, to commit the offense." Defendant insists that Detective Nieves' testimony, by showing that defendant and Mr. Orellana did not in fact trust each other, demonstrated that N.C. Gen. Stat. § 15A-1340.16(d)(15) did not apply. She points to the contentious history between the ex-spouses and Mr. Orellana's surprise at her pleasant attitude toward him on the day of the murder.
The Supreme Court, in State v. Daniel, 319 N.C. 308, 311, 354 S.E.2d 216, 218 (1987), held that a finding of the "trust or confidence" factor does not require that the victim consciously regard the defendant as one in whom he places his trust or confidence. Instead, the Court explained, "[s]uch a finding depends . . . upon the existence of a relationship between the defendant and victim generally conducive to reliance of one upon the other." Id.
In State v. Wiggins, 159 N.C. App. 252, 584 S.E.2d 303, disc. review denied, 357 N.C. 511, 588 S.E.2d 472 (2003), cert. denied, 541 U.S. 910, 158 L. Ed. 2d 256, 124 S. Ct. 1617 (2004), this Court considered the "trust or confidence" factor in the context of the relationship between the defendant and his pregnant girlfriend, whom he conspired to murder. The defendant argued that there was no evidence that the shooting was accomplished through an abuse of trust, or that there was any trust or confidence in the relationship between him and the victim. Id. at 268, 584 S.E.2d at 315. This Court disagreed, observing that " [b]ut for the relationship between defendant and the victim," the victim would not have been boxed in on the road where she was shot by defendant's acquaintance: "The crimes against the victim could not have been carried out without the active participation of defendant and the trusting relationship between defendant and the victim, who was following him to her home." Id. at 268, 269, 584 S.E.2d at 315 (emphasis added).
The Court further noted that the defendant "had tried to be `nice' to the victim by going to doctor appointments with her. The victim was surprised, but seemed happy, that defendant wanted her to follow him to her apartment after retrieving her car." Id. at 269, 584 S.E.2d at 316. Considering this evidence "in conjunction with the manner in which the crime was carried out and the pretext of going to the victim's home," the Court held that the aggravating factor of abuse of a position of trust or confidence had been established by a preponderance of the evidence. Id. Wiggins is materially indistinguishable from this case. Here, "but for" the domestic relationship between defendant and Mr. Orellana, Mr. Orellana would not have driven to defendant's residence to pick up his child in accordance with their visitation arrangement. Nor would defendant have known when to call Mr. Castaneda, who was waiting with Mr. Torres for Mr. Orellana to return to his apartment after the prearranged pick-up of the child. Moreover, despite defendant's argument to the contrary, the fact that Mr. Orellana was surprised by defendant's unusually pleasant behavior shortly before the murder further demonstrates that defendant was taking advantage of his trust.
We are not persuaded by defendant's reliance on State v. Marecek, 152 N.C. App. 479, 568 S.E.2d 237 (2002). In that case, the evidence suggested that the victim distrusted and feared her husband, the defendant, and the Court determined there was "no evidence showing that defendant exploited his wife's trust in order to kill her." Id. at 514, 568 S.E.2d at 259. Here, by contrast, defendant did exploit Mr. Orellana's trust in connection with the transfer of custody of their daughter. The fact that the relationship was "rocky" or unpleasant does not require the conclusion that Mr. Orellana did not trust defendant when he went to her home to pick up their daughter. Given Daniel and Wiggins, we hold that Detective Nieves' testimony provided a sufficient basis to support the existence of the aggravating factor in this case.
Defendant next argues that the trial court erred in failing to find as a mitigating factor that she had a positive employment history or was gainfully employed, N.C. Gen. Stat. § 15A-1340.16(e)(19). A trial court's failure to find a statutory mitigating factor is error only when the defendant has proven that factor by evidence that is substantial, uncontradicted, and manifestly credible. State v. Jones, 309 N.C. 214, 220, 306 S.E.2d 451, 455 (1983).
In this case, the only evidence pertinent to the N.C. Gen. Stat. § 15A-1340.16(e)(19) mitigating factor was defendant's Sonoco Corrflex employment record. The question before this Court is whether the employment record constituted substantial evidence such that defendant met her burden of "show[ing] conclusively that this mitigating factor [N.C. Gen. Stat. § 15A-1340.16(e)(19] exists, i.e., no other reasonable inferences can be drawn from the evidence." State v. Canty, 321 N.C. 520, 524, 364 S.E.2d 410, 413 (1988).
The evidence before the trial court shows only that defendant worked through mid-July 2005. There is no indication that she was working at the time of her arrest which, given the 6 January 2006 date of her arrest warrant, was nearly six months after the last update to the employment record. The trial court, therefore, was not required to find that she was gainfully employed.
The evidence also simply supplies dates and does not indicate whether defendant's employment history was positive. Although defendant worked at Sonoco Corrflex for nearly four years, a significant enough period of time to suggest that her employment history was positive, the trial court was not required to draw this inference. The mere fact that a person is employed does not necessarily mean that the employer believes the person is doing a good job or that the employee has had a positive history with the company.
Defendant could have had an exemplary employment history, could have had an acceptable (although not stellar) record with the employer, or could have had a host of disciplinary actions leaving her on the verge of being fired. We cannot know — the record simply does not address whether defendant's employment history was "positive" or not. Consequently, the trial court did not err in failing to make the N.C. Gen. Stat. § 15A-1340.16(e)(19) finding. See State v. Hughes, 136 N.C. App. 92, 102, 524 S.E.2d 63, 69 (1999) (holding that trial court was not required to find mitigating factor in N.C. Gen. Stat. § 15A-1340.16(e)(19) when defendant presented evidence he held various jobs up until date of his arrest, but no other evidence of positive employment history), disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000), superseded on other grounds by statute as stated in State v. Ford, 195 N.C. App. 321, 672 S.E.2d 689, disc. review denied, 363 N.C. 659, 686 S.E.2d 680 (2009).
Affirmed.
Judges ROBERT C. HUNTER and CALABRIA concur.
Report per Rule 30(e).