Opinion
No. COA11–772.
2012-05-1
STATE of North Carolina, Plaintiff v. David PENNY, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Karen A. Blum for the State. Randolph & Fischer, by J. Clark Fischer for defendant-appellant.
Appeal by defendant from judgment entered 22 September 2010 by Judge Abraham Penn Jones in Durham County Superior Court. Heard in the Court of Appeals 15 November 2011. Attorney General Roy Cooper, by Assistant Attorney General Karen A. Blum for the State. Randolph & Fischer, by J. Clark Fischer for defendant-appellant.
STEELMAN, Judge.
The trial court's supplemental instructions to the jury did not rise to the level of plain error. The trial court did not punish defendant for seeking a jury trial in his cases.
I. Factual and Procedural Background
At approximately 1:30 a.m. on 16 November 2008, David Penny, Jr. (defendant), Keith Collins (Collins), and Julian Ruppret (Ruppret) approached James Edward Hengsterman–Cash (Cash) and Jeff Hoffman (Hoffman) in the parking lot of the Holly Hills Apartments in Durham. The three men were wearing hoods and had bandanas across their faces. They demanded money and cellphones from Cash and Hoffman. Hoffman's cellphone was taken. Ruppret threatened Cash with a knife. Cash fled, but was chased down and cornered by the three men. After being struck several times, and being choked by Ruppret, Cash gave up his cellphone, an iPod, and some money. The three assailants fled. Durham police apprehended Collins and Ruppret, who Cash and Hoffman identified as participants in the robbery. Defendant was given up by Collins and Ruppret.
Defendant was indicted for two counts of robbery with a dangerous weapon; one count as to Cash, and the second as to Hoffman. On 22 September 2010, defendant was found guilty of both charges. The trial court found defendant to be a prior felony record level II, and imposed two consecutive active sentences of 61 to 83 months imprisonment.
Defendant appeals.
II. Supplemental Jury Instructions
In his first argument, defendant contends that it was plain error for the trial court to respond to the jury's questions in a fashion that impermissibly and unconstitutionally lowered the State's burden of proof. We disagree.
A. Standard of Review
Defendant failed to object at trial to the instructions that he now complains of on appeal; therefore, he must establish plain error to obtain a new trial. See State v. Porter, 326 N.C. 489, 505, 391 S.E.2d 144, 155 (1990).
[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “ fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “resulted in a miscarriage of justice or in the denial to appellant of a fair trial' “ or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings' “ or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (alterations in original).
B. Analysis
During the course of its deliberations, the jury submitted the following questions to the trial court: “If the knife was used on one victim and not the other, can it be assumed that both victims were robbed with a dangerous weapon? Is this robbery considered to be one event?” The court responded, “I will answer your first question ‘yes,’ depending on how y'all use your—get there—that's your decision, I can't comment on that—but the way you phrased the question, the answer is ‘yes,’ you can consider it as to both.” As to the second question, the trial court stated, “[I]t's brushing up against a question of fact so I?m going to say ‘not necessarily.’ Okay. It's up to you all.” The trial court then proceeded to re-instruct the jury on acting in concert and that the jury had to consider each charge separately.
Defendant argues that the supplemental charge amounted to a peremptory instruction that the jury should find defendant guilty of both charges of armed robbery. We do not agree with this characterization of the trial court's supplemental instruction.
When reviewing a jury instruction for plain error, the instruction must be reviewed in its entirety. State v. Clagen, ––– N.C.App. ––––, ––––, 700 S.E.2d 89, 93 (2010) (citing State v.. Odom, 307 N.C. 655, 600, 300 S.E.2d 375, 378 (1983)). While the trial judge's supplemental instructions were not a model of clarity, when the jury instructions are considered as a whole, particularly the re-instruction that each charge had to be considered separately, they do not rise to the level of plain error under the high burden recently articulated by our Supreme Court in State v. Lawrence, No. 100PA11, slip op. 18–19 (N.C. April 13, 2012). This argument is without merit.
III. Sentencing
In his second argument, defendant contends that the trial court improperly considered defendant's exercise of his right to have a jury trial in imposing his sentence. We disagree.
A. Citation of Unpublished Decision
We first note that the State objects to defendant's citation of State v. Parker, 197 N.C.App. 630, 680 S.E.2d 270 (2009), in support of this argument. This case is an unpublished opinion, and may only be cited in accordance with the provisions of Rule 30(e)(3) of the Rules of Appellate Procedure. Defendant has not complied with that rule. We therefore disregard all portions of defendant's brief based upon the unpublished opinion.
B. Analysis
During the sentencing hearing, defendant's counsel made an impassioned plea that the trial court find extraordinary mitigating circumstances in this case, which would have allowed defendant to be placed on probation. This was based on the fact that Ruppret was the one who brandished the knife, but he pled guilty to a reduced charge and received probation. Defendant was offered the same plea arrangement as the other two men, which would have given him probation, but he elected to proceed with the jury trial. Defendant then addressed the court, maintaining his innocence, and asserting that his cousin could confirm his alibi that he was not present at the time of the robbery. Defendant presented no evidence at trial.
Defendant's attorney then pleaded for a mitigated range sentence for her client. After carefully considering all of defendant's arguments, the trial court sentenced defendant to two consecutive terms of imprisonment of 61 to 63 months. Each of these sentences was the bottom of the presumptive range for a level II offender on a Class D felony.
On appeal, defendant directs us to several comments made by the trial court judge in the course of a lengthy colloquy as demonstrating that the trial court imposed a sentence that was, at best in part, based upon the defendant's decision to have a jury trial. When the colloquy is viewed in its entirety, we hold that it does not reflect such an intent on the part of the trial court.
Defendant's first argument was that his co-defendants got probation, that he was less culpable than they, and that he should not receive an active sentence. Given that defendant was convicted of two Class D felonies of robbery with a dangerous weapon, the only way that a probationary sentence could be imposed would have been for the court to find a factor or factors of extraordinary mitigation pursuant to N.C. Gen.Stat. § 15A–1340.13(g). The trial court declined to do so, and we agree. The fact that the two co-defendants entered pleas to lesser charges and received probation would not support a finding of extraordinary mitigation. See generally State v. Riley, 202 N.C.App. 299, 307–08, 688 S.E.2d 477, 483 (2010); State v. Melvin, 188 N.C.App. 827, 831–32, 656 S.E.2d 701, 703–04 (2008).
Defendant then asserted his innocence and stated that his cousin could provide an alibi. The trial court noted that none of this was presented to the jury, and that he was required to sentence defendant for two Class D felonies. He expressed astonishment that had this evidence existed, why was it not presented to the jury? It is apparent from the record that the trial court considered this assertion by defendant for purposes of sentencing, but afforded it little or no weight. The fact that the trial court expressed skepticism concerning an assertion of an alibi that was not presented to the jury, where it could have been tested by cross-examination, and the credibility of the witness assessed, does not mean that the trial court punished defendant for insisting upon a jury trial.
This argument is without merit.
NO ERROR Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).