State v. Hanes

334 S.E.2d 444 (1985)

STATE of North Carolina v. Elmer J. HANES.

No. 8521SC154.

Court of Appeals of North Carolina.

October 1, 1985.

*445 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Charles H. Hobgood, Raleigh, for the State.

Purser, Cheshire, Manning & Parker by Joseph B. Cheshire V and Sheila Hochhauser, Raleigh, for defendant-appellant.

WELLS, Judge.

Defendant first contends that the trial court erred in failing to find as a mitigating factor that defendant was honorably discharged from the armed services of the United States, a statutory mitigating factor under N.C.Gen.Stat. § 15A-1340.4(a)(2) (1983). At defendant's hearing, his wife testified that defendant had served in the Air Force for seven years and was honorably discharged. Edward L. Frederick, defendant's friend and business associate and work release supervisor, testified that he and defendant had discussed their military service and that defendant had told him defendant was honorably discharged *446 from the Air Force. Defendant did not testify. The transcript of the hearing makes it clear that Judge Wood refused to consider this factor unless a copy of defendant's discharge was furnished. While credibility is determined by the trial court, it is the duty of the court to weigh and consider the evidence presented and to make its determination based on that evidence. His refusal to even consider the evidence without documentary proof was error. See State v. Wood, 61 N.C.App. 446, 300 S.E.2d 903, disc. rev. denied, 308 N.C. 547, 302 S.E.2d 884 (1983).

Defendant next contends that the trial court erred in failing to find as a mitigating factor that defendant had been a person of good character and had a good reputation in the community in which he lived, a statutory factor. While defendant's evidence as to good character was persuasive, it did not compel a finding of this factor. See State v. Winnex, 66 N.C. App. 280, 311 S.E.2d 594 (1984) and cases cited and discussed therein. This assignment is overruled.

In another assignment, defendant contends that the trial court erred in finding as non-statutory aggravating factors (1) that defendant had engaged in a pattern of criminal conduct over an extended period of time, and (2) that defendant's guilty pleas indicate that defendant was a "big time drug dealer." Our examination of the transcript discloses no evidence of criminal activity on defendant's part other than that related to his guilty pleas, nor that defendant was dealing in drugs in any context other than those activities relating to his guilty pleas. Thus, it is clear that the finding of these factors was based on the same evidence necessary to prove defendant's guilt of the offenses to which he pled guilty. We hold this to be a violation of the provisions of N.C.Gen.Stat. § 15A-1340.4(a)(1) (1983). We also hold that this finding violates the rule established by our Supreme Court in State v. Westmoreland, 312 N.C. 618, 324 S.E.2d 223 (1985) that contemporaneous convictions of joined offenses may not be used as a factor in aggravation.

In another assignment, defendant contends that the trial court erred in making recommendation as to defendant's release. In the first judgment entered in this case, defendant was ordered to pay a fine of $50,000.00 and restitution in the amount of $12,200.00. When defendant was resentenced, Judge Wood added the condition, as a recommendation, that defendant's fine and restitution "be paid before any early release," which defendant contends was a violation of N.C.Gen.Stat. § 15A-1335 (1983), which provides that when a sentence imposed in Superior Court has been set aside, the Court may not impose a new sentence for the same offense which is more severe than the prior sentence. Such a recommendation has no legal effect, is not binding on the Department of Corrections, and therefore is not prejudicial.

For the reasons stated, there must be a new sentencing hearing consistent with this opinion.

Remanded for resentencing.

ARNOLD and MARTIN, JJ., concur.