Opinion
No. COA10-936
Filed 19 July 2011 This case not for publication
Appeal by defendant from judgments entered on or about 14 September 2009 by Judge Allen Baddour in Superior Court, Durham County. Heard in the Court of Appeals 10 March 2011.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Durwin P. Jones, for the State. Lucas Ellis, PLLC, by Anna S. Lucas, for defendant-appellant.
Durham County No. 09CRS044052.
Defendant appeals his convictions for assault with a deadly weapon inflicting serious injury and maiming without malice aforethought arguing that the trial court failed to find mitigating factors in sentencing him. For the following reasons, we vacate and remand for defendant to be resentenced.
I. Background
Defendant pled guilty to assault with a deadly weapon inflicting serious injury and maiming without malice aforethought. As a part of his plea, defendant admitted to "the existence of aggravating factors" and his prior felony record level of II. The trial court found five aggravating factors but made no findings as to any mitigating factors. Defendant was sentenced in the aggravated range of 36 months to 53 months imprisonment for each offense. Defendant appeals.
II. Mitigating Factors
Defendant's sole argument on appeal is that "the trial court committed prejudicial error in failing to find statutory mitigating factors under N.C.G.S. § 15A-1340.16(e) where the mitigating factors were supported by manifestly credible, substantial and uncontroverted evidence." (Original in all caps.) Defendant contends that the trial court should have found the following mitigating factors: (1) defendant "completed a substance abuse treatment program[;]" (2) defendant had been gainfully employed; (3) defendant "has a good treatment prognosis and a workable treatment plan[;]" and (4) defendant "has accepted responsibility for" his crimes. We agree as to defendant's completion of substance abuse treatment.
"The standard of review for application of mitigating factors is an abuse of discretion." State v. Hagans 177 N.C. App. 17, 31, 628 S.E.2d 776, 785 (2006).
N.C. Gen. Stat. § 15A-1340.16 provides:
The court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.
. . . .
(e) Mitigating Factors. — The following are mitigating factors:
. . . .
(15) The defendant has accepted responsibility for the defendant's criminal conduct.
(16) The 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.
. . . .
(19) The defendant has a positive employment history or is gainfully employed.
(20) The defendant has a good treatment prognosis, and a workable treatment plan is available.
N.C. Gen. Stat. § 15A-1340.16(a), (e) (2009).
State v. Hilbert provides that
[p]rior to imposing a sentence other than the presumptive term for a particular offense, the trial court is required to consider the statutory list of aggravating and mitigating sentencing factors listed in N.C.G.S. § 15A-1340.16. . . .
to make written findings of fact concerning the factors, and to determine whether one set outweighs the other or whether they are counterbalanced.
145 N.C. App. 440, 442, 549 S.E.2d 882, 884 (2001) (citation 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. Cantry, 321 N.C. 520, 524, 364 S.E.2d 410, 413 (1988). However, "[t]he failure of a trial court to find a mitigating factor upon presentation of evidence in support of that factor which is uncontradicted, substantial and there is no reason to doubt its credibility, constitutes reversible error." Hilbert at 444, 549 S.E.2d at 885 (citation, quotation marks, and brackets omitted).
A. Substance Abuse Treatment
Defendant argues that he "completed a substance abuse treatment program[.]" In Hilbert,
the trial court was informed defendant had voluntarily entered himself into that 21-day program out at Walter B. Jones while awaiting trial. . . . [A] certificate verifying defendant's successful completion of the local drug treatment program prior to trial was simultaneously handed to the trial court. No objection was interjected by the State and no evidence to the contrary was presented. Accordingly, as the State concedes, there may have been before the trial court uncontroverted, uncontradicted, and substantial evidence, of the mitigating factor at issue and there was no reason to doubt its credibility. Under such circumstances, failure of the trial court to acknowledge the statutory mitigating factor in its sentencing findings would constitute prejudicial error requiring resentencing.
Hilbert, 145 N.C. App. at 444-45, 549 S.E.2d at 885 (citation, quotation marks, and brackets omitted).
William R. "Randy" Tucker, STARR ("Substance Treatment And Recidivism Reduction") Program Supervisor, wrote a letter on behalf of defendant which was admitted at defendant's hearing and provided
John Patterson entered the June STARR program on June 1, 2009 and graduated from the STARR program on June 26, 2009. He entered the July STARR GRAD program on July 6, 2009 and graduated from the STARR GRAD program on July 31, 2009. Mr. Patterson received approximately 65 hours of addiction education, group therapy, and community resources education during each of the treatment programs. Mr. Patterson participated well in treatment.
In its brief the State contends that
[t]here is no dispute that the defendant entered the letter from the Substance Treatment And Recidivism Reduction ("STARR") Program into evidence and the State did not object to its admission. . . . . The defendant testified that he completed STARR and STARR Graduate alcohol treatment programs [The] Sentencing Plan also referenced that the defendant had completed the STARR Program and was, at that time, engaged in the STARR Graduate Program. . . . . However, the State contends that the trial court could have reasonably found that the defendant in this case had not successfully completed both STARR Programs.
The State argues that because Mr. Tucker's letter and the proposed sentencing plan recommended further treatment defendant did not meet the requirements for mitigating factor N.C. Gen. Stat. § 15A-1340.16(e)(16) 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." N.C. Gen. Stat. § 15A-1340.16(e)(16). We disagree.
We find the State's argument to be meritless. While defendant may have needed further substance abuse treatment, this does not change the fact that the uncontroverted evidence established that he graduated from two substance abuse treatment programs; graduation undoubtedly qualifies as successful completion of a program. While the STARR programs themselves may not have been "completely successful" in removing substance abuse from defendant's life, the evidence establishes that defendant did "successfully complete" the programs. Certainly, the trial court should have considered the evidence noted by the State, that defendant was in need of further substance abuse treatment; in so considering the evidence of the need for further substance abuse treatment the trial court could have reasonably determined that the aggravating factors outweighed the mitigating factors and sentenced defendant within the aggravated range. See N.C. Gen. Stat. § 15A-1340.16(b) (2009). Here, however, the error is that the trial court failed to make any finding regarding the mitigating factor that defendant had successfully completed two substance abuse programs by graduating from them. See Hilbert, 145 N.C. App. at 444-45, 549 S.E.2d at 885. Accordingly, we must vacate the judgments and remand for defendant to be resentenced. Id. at 447, 549 S.E.2d at 886.
B. Gainful Employment
Defendant next argues that the trial court erred in failing to find that he is gainfully employed. Mr. Riley Butler, "executive director of the Durham Sentencing Services Program[,]' testified that defendant's employer told him that defendant could come back to work in the event that he was released from jail. However, defendant's former employer never testified and the credibility of Mr. Butler's testimony regarding what defendant's employer had said and defendant's testimony in general would have been within the sound discretion of the trial court. See State v. Greenspan, 92 N.C. App. 563, 570, 374 S.E.2d 884, 889 (1989) ("The trial court was free to accept or reject the testimony based on its assessment of the witness's credibility."). We conclude that the trial court did not abuse its discretion when it failed to find mitigating factor N.C. Gen. Stat. § 15A-1340.16(e)(19) regarding employment.
C. Good Prognosis and Workable Treatment Plan
Defendant next argues that he "has a good treatment prognosis and a workable treatment plan is available." Defendant relies on Mr. Butler's sentencing plan in support of this argument. However, Mr. Butler's sentencing plan provided that without treatment "defendant falls in the high range for risk of re-offending." Accordingly, the trial court did not abuse its discretion in failing to find mitigating factor N.C. Gen. Stat. § 15A-1340.16(e)(20). See Cantry, 321 N.C. at 524, 364 S.E.2d at 413.
D. Responsibility for Criminal Conduct
Lastly, defendant argues the trial court should have found "that he has accepted responsibility for" his crimes.
In order to be absolutely entitled to a finding of this mitigating factor, defendant must make his confession prior to the issuance of a warrant or information, prior to the return of a true bill of indictment or presentment, or prior to arrest, whichever comes first. If defendant does not establish he is absolutely entitled to a finding of this factor, it is for the trial judge to determine, in his discretion, whether the statement was made at a sufficiently early stage of the criminal process as to qualify as a mitigating factor.
State v. Piche, 102 N.C. App. 630, 640, 403 S.E.2d 559, 565 (1991).
Here, defendant testified at his sentencing hearing that he felt "real bad" about shooting the victim; this testimony and defendant's plea were made well after warrants were issued for defendant's arrest and defendant was indicted. As such, defendant was not entitled to mitigating factor N.C. Gen. Stat. § 15A-1340.16(e)(15), and the trial court did not abuse its discretion when it failed to find this mitigating factor. See id.
III. Conclusion
In conclusion, the trial court abused its discretion only in its failure to find mitigating factor N.C. Gen. Stat. § 15A-1340.16(e)(16), that defendant had completed a substance abuse treatment program. Accordingly, we vacate and remand for defendant to be resentenced.
VACATED AND REMANDED.
Judges HUNTER, JR., Robert N. and THIGPEN concur.
Report per Rule 30(e).