Opinion
No. COA08-1153.
Filed May 5, 2009.
Forsyth County Nos. 06 CRS 27384; 06 CRS 57831
Appeal by defendant from judgments entered 7 May 2008 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 20 April 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Kimberly D. Potter, for the State. Carol Ann Bauer, for defendant.
Rodney Austin Valentine ("defendant") appeals from a 7 May 2008 judgment entered consistent with a jury verdict finding him guilty of possession with intent to sell and deliver cocaine and knowingly maintaining a dwelling house for the purpose of keeping and selling cocaine, and his subsequent guilty plea to having attained the status of an habitual felon. The trial court found that defendant had a prior record level of IV and sentenced defendant as an habitual felon within the presumptive range for a Class C felony to an active term of 120 to 153 months imprisonment. Defendant gave notice of appeal in open court. For the reasons set forth below, we hold no error. At trial, the State's evidence tended to show that while executing a search warrant at defendant's home, officers of the Winston-Salem Police Department discovered a plastic bag containing a "large off-white colored rock-like substance." Later analysis of the substance determined it was 0.7 grams of cocaine hydrochloride, a Schedule II controlled substance. Defendant presented no evidence at trial, but defendant's counsel argued at sentencing that defendant had family and community support.
Defendant's sole argument on appeal is that the trial court erred in not finding the mitigating sentencing factor that "defendant has a support system in the community." N.C. Gen. Stat. § 15A-1340.16(e)(18) (2007). We disagree.
"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) (citing State v. Butler, 341 N.C. 686, 694-95, 462 S.E.2d 485, 489-90 (1995)); see also N.C. Gen. Stat. § 15A-1340.16(a) (2007) ("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."). However, it is well-established that a "trial court is required to take `into account factors in aggravation and mitigation only when deviating from the presumptive range in sentencing.'" State v. Chavis, 141 N.C. App. 553, 568, 540 S.E.2d 404, 415 (2000) (quoting State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997)); see also Hagans, 177 N.C. App. at 31, 628 S.E.2d at 786 ("Defendant's notion that the court is obligated to formally find or act on proposed mitigating factors when a presumptive sentence is entered has been repeatedly rejected."); State v. Allah, 168 N.C. App. 190, 197, 607 S.E.2d 311, 316 ("`Since the court may, in its discretion, sentence defendant within the presumptive range without making findings regarding proposed mitigating factors,' this Court has found no error in the failure to make such findings.") (quoting State v. Ramirez, 156 N.C. App. 249, 258-59, 576 S.E.2d 714, 721 (2003)), disc. rev. denied, 359 N.C. 636, 618 S.E.2d 232 (2005).
In the case sub judice, the trial court sentenced defendant to a term of imprisonment within the presumptive range. See N.C. Gen. Stat. § 15A-1340.17(c) (2007). Therefore, the trial court did not abuse its discretion by failing to make the contested finding. Defendant's remaining assignment of error set forth in the record on appeal was not argued in his brief to this Court. Accordingly, it is deemed abandoned pursuant to North Carolina Rules of Appellate Procedure, Rule 28(b)(6), and we hold no error.
No error.
Judges McGEE and Robert C. HUNTER concur.
Report per Rule 30(e).