State v. Ahearn

300 S.E.2d 689 (1983)

STATE of North Carolina v. Neal Francis AHEARN.

No. 596A82.

Supreme Court of North Carolina.

March 8, 1983.

*695 Rufus L. Edmisten, Atty. Gen., by Christopher P. Brewer, Asst. Atty. Gen., Raleigh, for the State.

White, Hall, Mullen, Brumsey & Small by Gerald F. White, Elizabeth City, for defendant-appellant.

Adam Stein, Appellate Defender, and James H. Gold, Asst. Appellate Defender, Raleigh, amicus curiae.

MEYER, Justice.

Because this case presents us with our first opportunity to fully discuss the policies, purposes, and implementation of the new "Fair Sentencing Act," we find it appropriate to discuss the issues presented in the context of the historical background of the Act and to set out pertinent portions of the statute.[1] In response to a perceived need for certainty in sentencing, to a perceived evil of disparate sentencing, and to a perceived problem in affording trial judges and parole authorities unbridled discretion in imposing sentences, Governor James B. Hunt, Jr., urged the adoption of presumptive sentencing legislation in an address to the North Carolina General Assembly in 1977. Originally enacted in 1979 as "An Act to Establish a Fair Sentencing System in North Carolina Criminal Courts," the Fair Sentencing Act underwent technical amendments in 1980 and more substantial amendments in 1981. See Comment, Criminal ProcedureThe North Carolina Fair Sentencing Act, 60 N.C.L.Rev. 631 (1982). The sentencing procedures in the Act apply only to felonies committed on or after 1 July 1981. N.C.Gen.Stat. § 15A-1340.1(a) (Cum.Supp.1981).

*696 As set out in the Fair Sentencing Act,

The primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender's culpability; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.

G.S. § 15A-1340.3.

The Act provides in pertinent part:

(a) ... If the judge imposes a prison term, whether or not the term is suspended, and whether or not he sentences the convicted felon as a committed youthful offender, he must impose the presumptive term provided in this section unless, after consideration of aggravating or mitigating factors, or both, he decides to impose a longer or shorter term, or unless he imposes a prison term pursuant to any plea arrangement as to sentence under Article 58 of this Chapter. In imposing a prison term, the judge, under the procedures provided in G.S. 15A-1334(b), may consider any aggravating and mitigating factors that he finds are proved by the preponderance of the evidence, and that are reasonably related to the purposes of sentencing, whether or not such aggravating or mitigating factors are set forth herein, but unless he imposes the term pursuant to a plea arrangement as to sentence under Article 58 of this Chapter, he must consider each of the following aggravating and mitigating factors: (1) Aggravating factors: (Here follows a list of the statutory aggravating factors.) Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation, and the same item of evidence may not be used to prove more than one factor in aggravation. The judge may not consider as an aggravating factor the fact that the defendant exercised his right to a jury trial. (2) Mitigating factors: (Here follows a list of the statutory mitigating factors.) (b) If the judge imposes a prison term for a felony that differs from the presumptive term provided in subsection (f), whether or not the term is suspended, and whether or not he sentences the convicted felon as a committed youthful offender, the judge must specifically list in the record each matter in aggravation or mitigation that he finds proved by a preponderance of the evidence. If he imposes a prison term that exceeds the presumptive term, he must find that the factors in aggravation outweigh the factors in mitigation, and if he imposes a prison term that is less than the presumptive term, he must find that the factors in mitigation outweigh the factors in aggravation. However, a judge need not make any findings regarding aggravating and mitigating factors if he imposes a prison term pursuant to any plea arrangement as to sentence under Article 58 of this Chapter, regardless of the length of the term, or if he imposes the presumptive term.

The Fair Sentencing Act is an attempt to strike a balance between the inflexibility of a presumptive sentence which insures that punishment is commensurate with the crime, without regard to the nature of the offender; and the flexibility of permitting punishment to be adapted, when appropriate, to the particular offender. Presumptive sentences established for every felony provide certainty. Furthermore, no convicted felon may be sentenced outside the minimum/maximum statutory limits set out for the particular felony. The sentencing judge's discretion to impose a sentence within the statutory limits, but greater or lesser than the presumptive term, is carefully guarded by the requirement that he make written findings in aggravation and mitigation, which findings must be proved by a preponderance of the evidence; that is, *697 by the greater weight of the evidence. We are guided in our definition of the term preponderance of the evidence by the following statement which, although generally applied in civil cases, is no less appropriate for a sentencing hearing where the judge sits in a dual capacity as judge and jury:

"This preponderance does not mean number of witnesses or volume of testimony, but refers to the reasonable impression made upon the minds of the jury by the entire evidence, taking into consideration the character and demeanor of the witnesses, their interest or bias and means of knowledge, and other attending circumstances."... There would seem to be great merit in the suggestion that what is meant by the formula is that the jury should be satisfied of the greater probability of the proposition advanced by the party having the burden of persuasion i.e., that it is more probably true than not.

2 Stansbury's North Carolina Evidence § 212 (Brandis Rev.1973).

The Fair Sentencing Act was not intended, however, to remove all discretion from our able trial judges. The trial judge should be permitted wide latitude in arriving at the truth as to the existence of aggravating and mitigating circumstances, for it is only he who observes the demeanor of the witnesses and hears the testimony. While he is required to justify a sentence which deviates from a presumptive term to the extent that he must make findings in aggravation and mitigation properly supported by the evidence and in accordance with the Act, a trial judge need not justify the weight he attaches to any factor. He may properly determine that one factor in aggravation outweighs more than one factor in mitigation and vice versa. In this respect we quote with approval from an opinion written by Judge (now Justice) Martin:

The fair sentencing act did not remove, nor did it intend to remove, all discretion from the sentencing judge. Judges still have discretion to increase or reduce sentences from the presumptive term upon findings of aggravating or mitigating factors, the weighing of which is a matter within their sound discretion. Thus, upon a finding by the preponderance of the evidence that aggravating factors outweigh mitigating factors, the question of whether to increase the sentence above the presumptive term, and if so, to what extent, remains within the trial judge's discretion. The discretionary task of weighing mitigating and aggravating factors is not a simple matter of mathematics. For example, three factors of one kind do not automatically and of necessity outweigh one factor of another kind. The number of factors found is only one consideration in determining which factors outweigh others. Although the court is required to consider all statutory factors to some degree, it may very properly emphasize one factor more than another in a particular case. N.C.Gen.Stat. 15A-1340.4(a). The balance struck by the trial judge will not be disturbed if there is support in the record for his determination.

State v. Davis, 58 N.C.App. 330, 333-34, 293 S.E.2d 658, 661 (1982). See State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983).

Should the Appellate Court find no error in the trial court's findings in aggravation and mitigation, our standard of review respecting its decision to deviate from a presumptive term remains as it did prior to the effective date of the Act.

There is a presumption that the judgment of a court is valid and just. The burden is upon appellant to show error amounting to a denial of some substantial right.... A judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. *698 State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 130 (1962). See State v. Jackson, 302 N.C. 101, 273 S.E.2d 666 (1981); State v. Bright, 301 N.C. 243, 271 S.E.2d 368 (1980); State v. Wilkins, 297 N.C. 237, 254 S.E.2d 598 (1979).

Furthermore, our appellate courts will apply the above-quoted standard in determining the propriety of the sentencing judge's decision to quantitatively vary the presumptive term to any substantial degree. Where the sentence ultimately imposed is within the statutory limits prescribed for the offense, we defer to the wisdom of our Legislature the appropriateness of the minimum or maximum punishment. We defer to the wisdom of the trial judge the appropriateness of the severity of punishment imposed on the particular offender.

Turning now to the issues presented, we must first emphasize the inherent difficulties present in this appeal resulting from the trial court's failure to list separately the aggravating and mitigating factors for each of the two offenses. Separate findings as to the aggravating and mitigating factors for each offense will facilitate appellate review. Further, in the interest of judicial economy, separate treatment of offenses, even those consolidated for hearing, will offer our appellate courts the option of affirming judgment for one offense while remanding for resentencing only the offense in which error is found. This option is not available to us in the present case because error found on any aggravating factor applicable to only one offense will result in remand for resentencing on that offense, irrespective of whether the trial judge intended that the particular factor apply to one, the other, or both offenses. We therefore hold that in every case in which the sentencing judge is required to make findings in aggravation and mitigation to support a sentence which varies from the presumptive term, each offense, whether consolidated for hearing or not, must be treated separately, and separately supported by findings tailored to the individual offense and applicable only to that offense.

Furthermore, where factors are listed in the disjunctive, as for example, "the victim was very young, or very old, or mentally or physically infirmed," trial judges are cautioned to eliminate those portions inapplicable to the particular case.

For purposes of clarity, therefore, we will discuss defendant's assignments of error as they apply to each offense separately.

FELONIOUS CHILD ABUSE.

Defendant contends that the trial court's finding that this offense was especially heinous, atrocious or cruel is not supported by the evidence. We agree. Excluding the injuries inflicted which resulted in Daniel Bright's death, the evidence discloses that the baby had been struck on at least three occasions, tied to his crib, and placed under a mattress. While this evidence is factually sufficient to support defendant's plea of guilty of felonious child abuse, and depicts shocking behavior on the part of the defendant, it falls short of supporting a finding that the offense was especially heinous, atrocious or cruel.

This Court has had occasion to construe the heinous, atrocious or cruel language as it applies in capital cases, where we find the following to be instructive.

In accordance with the dictates of the Eighth Amendment, our Court has adhered to the position that the aggravating circumstance of G.S. 15A-2000(e)(9) "does not arise in cases in which death was immediate and in which there was no unusual infliction of suffering upon the victim." ... Instead, our Court has made it clear that the submission of G.S. 15A-2000(e)(9) is appropriate only when there is evidence of excessive brutality, beyond that normally present in any killing, or when the facts as a whole portray the commission of a crime which was conscienceless, pitiless or unnecessarily tortuous to the victim.

State v. Pinch, 306 N.C. 1, 34, 292 S.E.2d 203, 227-28 (1982). See State v. Hamlette, *699 302 N.C. 490, 276 S.E.2d 338 (1981); State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979).

While we agree with the Court of Appeals that the trial court erred in its finding in aggravation that the offense of felonious child abuse was especially heinous, atrocious or cruel, we do not agree with the Court of Appeals' reasoning or holding that the error was not prejudicial. We note that the Court of Appeals has, in addition to the present case, adopted similar reasoning and holdings in at least two other cases. See State v. Goforth, 59 N.C.App. 504, 297 S.E.2d 128 (1982); State v. Abee, 60 N.C. App. 99, 298 S.E.2d 184 (1982). Although finding no error, the Court of Appeals suggests similar reasoning in dicta in State v. Morris, 59 N.C.App. 157, 296 S.E.2d 309 (1982), and has remanded a fourth case for resentencing under similar facts. See State v. Thobourne, 59 N.C.App. 584, 297 S.E.2d 774 (1982). To illustrate not only the need for a consistent rule, but also the unsound reasoning inherent in the Court of Appeals' decisions, the following chart summarizes the facts and holdings of these cases.

*700
                             MORRIS                                 AHEARN                            GOFORTH                          THOBOURNE                 ABEE    and     JONES
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
FACTS                    Defendant found guilty of          Defendant pled guilty to             Defendant found guilty          Defendants found guilty of      Defendants pled guilty to second
                         armed robbery.                     felonious child abuse and            of attempted first degree       possession with intent to       degree sexual offense.
                                                            voluntary manslaughter.              rape.                           sell and deliver marijuana.
TRIAL COURTS             Aggravation - 3                    Aggravation - 3                      Aggravation - 3                 Aggravation - 4                  Aggravation - 8 and 7
  FINDINGS               Mitigation  - 2                    Mitigation  - 5                      Mitigation  - 3                 Mitigation  - 3                  Mitigation - 9 and 12
SENTENCE                 Presumptive (dicta suggests        3 years and 10 years respectively    Twice the statutory             Maximum term of 5 years.         8 years beyond   6 years beyond
                         judgment affirmed had the          beyond presumptive for child         presumptive term                                                 presumptive      presumptive.
                         sentence exceeded presumptive).    abuse and manslaughter.
COURTS OF APPEALS'       Error in at least one              Error in two aggravating factors     Error in one aggravating        Error in two aggravating         Error in one     No error.
HOLDINGS                 aggravating factor.                in child abuse and                   factor.                         factors.                         aggravating
                                                            Error in one aggravating factor                                                                       factor.
                                                            in manslaughter case.
DISPOSITION              AFFIRMED.                          AFFIRMED.                            AFFRIMED                        REMANDED.                        AFFIRMED.        AFFIRMED.

What the Court of Appeals' decisions failed to consider, and what the dissent in that court's opinion points out, is that any error in a sentencing procedure gives rise to a two-fold analysis. Reliance on a factor in aggravation determined to be erroneous may or may not have affected the balancing process which resulted in the decision to deviate from the presumptive sentence. Certainly there will be many cases where, *701 on remand, the trial judge will properly reach the same result absent the erroneous finding. We repeat that the weight to be given any factor is within the sound discretion of the sentencing judge. The judge is not required to engage in a numerical balancing process. By the same token, our appellate courts should not attempt to second guess the sentencing judge with respect to the weight given to any particular factor. Nor should appellate courts engage in numerical balancing in order to determine whether a sufficient number of aggravating factors remain to "tip the scales."

More important, however, it must be assumed that every factor in aggravation measured against every factor in mitigation, with concomitant weight attached to each, contributes to the severity of the sentencethe quantitative variation from the norm of the presumptive term. It is only the sentencing judge who is in a position to re-evaluate the severity of the sentence imposed in light of the adjustment. For these reasons, we hold that in every case in which it is found that the judge erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing.

Because defendant's additional assignments of error raise issues that are likely to recur at resentencing, we will treat each one in detail.

Defendant contends that the trial court erred in its finding in aggravation for the offense of felonious child abuse that the victim was very young or mentally or physically infirm. In support of his argument he cites the language of G.S. § 15A-1340.4(a) that "[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation ...." He argues that because the age of the victim is an element of the offense of felonious child abuse, the trial judge was precluded from considering the age of the victim as an aggravating factor. We do not agree.

G.S. § 14-318.4 provides that:

(a) Any parent of a child less than sixteen years of age, or any other person providing care to or supervision of the child who intentionally inflicts any serious physical injury which results in: (1) Permanent disfigurement, or (2) Bone fracture, or (3) Substantial impairment of physical health, or (4) Substantial impairment of the function of any organ, limb, or appendage of such child, is guilty of a Class I felony. (b) The felony of child abuse is an offense additional to other civil and criminal provisions and is not intended to repeal or preclude any other sanctions or remedies.

The age of the victim, while an element of the offense, spans sixteen years, from birth to adolescence. The abused child may be vulnerable due to its tender age, and vulnerability is clearly the concern addressed by this factor. The fact that Daniel Bright was very young (24 months) was not an element necessary to prove felonious child abuse, and was therefore properly considered as an aggravating factor. Furthermore, we disagree with the Court of Appeals' determination that the victim was not physically infirm. Daniel Bright was immobilized by a body cast.

Defendant finally argues that the trial court's finding that he was dangerous to himself and to others as a result of his social and emotional problems was error. It is defendant's contention that because the evidence of his social and emotional problems was considered in mitigation, the trial court erred in considering the same evidence in making a finding in aggravation. He further argues that the evidence does not support the finding. On this issue, the State answers as follows: (1) The Fair Sentencing Act proscribes only the use of the same evidence in proving more than one factor in aggravation. (2) The converse of defendant's argument would be to preclude consideration of evidence in support of a mitigating factor once the trial court applied that evidence in support of an aggravating *702 factor. (3) There are many examples of aggravating and mitigating factors which interact in such a way as to be susceptible of being proven by the same or similar evidence.

Proof which establishes that a defendant held a public office or position of confidence at the time an offense related to that office was committed might also be properly considered as showing that defendant to be a person of good character and reputation in the community. The same evidence which establishes that a defendant was on probation or parole at the time an offense was committed, which could be viewed as a factor in aggravation, might also support a finding that defendant's prior performance on parole or probation was good, a factor in mitigation. The fact that a defendant is proven to be a chronic alcoholic or narcotics addict who needs rehabilitative treatment may be considered a factor in aggravation while a showing that the defendant was under the influence of alcohol or drugs at the time the offense was committed may be considered as a mitigating factor providing some explanation for a defendant's unlawful acts in reducing the defendant's culpability for the crime.

(4) The evidence supports the finding of dangerousness which is reasonably related to the purposes of sentencing one of which is "to protect the public by restraining offenders." G.S. § 15A-1340.3.

We find the State's arguments persuasive. The defendant does, in fact, suffer from a physical handicap as well as social and emotional problems. He is apparently unable to handle stress. He acts impulsively and fails to exercise good judgment. He does not forsee the consequences of his actions, nor can he accept responsibility for them. In short, his condition has manifested itself in the form of serious antisocial behavior and criminal acts. The trial court did not err in finding, as an aggravating factor, that defendant was dangerous to others. However, defendant's dangerousness to himself, while a valid consideration in determining whether he should be confined, bears no relation to the statutory purposes of sentencing or the length of his sentence. G.S. § 15A-1340.1(a). As to that portion of the finding, we hold there was error.

With respect to the factors found in mitigation for the offense of felonious child abuse, we find no error.

As an additional assignment of error, defendant contends that there was no factual basis for his plea of guilty of felonious child abuse. The statute in effect at the time of defendant's appeal, and upon which he relied, as printed in the General Statutes, provided that "[a] defendant who has entered a plea of guilty to a criminal charge, and who has been found guilty of a crime is entitled to appeal as a matter of right when final judgment has been entered." (Emphasis added). Since that time the statute has been corrected through amendment, and now states that "[a] defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered." G.S. 15A-1444(a) (Cum.Supp.1981) (emphasis added). The statute goes on to provide that

(e) Except as provided in subsection (a1) of this section and G.S. 15A-979 and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari....

Thus, if we are to consider this assignment of error, we must treat it as a petition for writ of certiorari, which we do.

The elements necessary for a conviction of felonious child abuse appear in G.S. § 14-318.4 which was enacted to "fill the gap between misdemeanor and homicide" and, "[w]hen the child's injuries result in death, the statute will provide a basis for a felony murder charge." 58 N.C.L.Rev. 1369, 1371 (1980). By virtue of his plea, *703 defendant was charged with manslaughter rather than murder.

In State v. Mapp, 45 N.C.App. 574, 264 S.E.2d 348 (1980), the Court considered and rejected a defendant's argument that the misdemeanor child abuse offense merged into and became a part of a charge of second degree murder. The Court wrote:

The General Assembly apparently did not intend child abuse to be a lesser included offense or to merge with any other offense. While the General Assembly cannot, by statute, repeal the double jeopardy provisions of the Constitution, in this situation the double jeopardy clause does not require merger.

Id., at 585, 264 S.E.2d at 356.

The Court considered only whether the same acts which gave rise to the murder also gave rise to the child abuse offense and found that "[t]here is also ample evidence that there were many separate acts of child abuse or child neglect which by themselves were not the proximate cause of the child's death." Id. See State v. Walden, 306 N.C. 466, 293 S.E.2d 780 (1982).

G.S. § 15A-1022(c) provides that "[t]he judge may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea. This determination may be based upon information including but not limited to:

(1) A statement of the facts by the prosecutor. (2) A written statement of the defendant. (3) An examination of the presentence report. (4) Sworn testimony, which may include reliable hearsay. (5) A statement of facts by the defense counsel.

We have held that "[t]hat which [the trial judge] does consider, however, must appear in the record, so that an appellate court can determine whether the plea has been properly accepted." State v. Sinclair, 301 N.C. 193, 198, 270 S.E.2d 418, 421 (1980).

Thus, in determining whether there is a factual basis for defendant's plea of guilty to the charge of felonious child abuse, we are bound by the record, and are foreclosed from considering only evidence of the act which caused Daniel Bright's death. We are left with testimony that the baby was the victim of battered child syndrome, based on the evidence of prior physical injuries. We deem this evidence sufficient to provide a factual basis for defendant's plea of guilty. See G.S. § 14-318.4(a)(2).

VOLUNTARY MANSLAUGHTER.

The evidence supports the trial court's findings that this offense was especially heinous, atrocious or cruel. Daniel Bright was beaten to deathstruck against a bed post with such force that it shattered his cast and crushed his skull. We cannot know the extent of the fear, pain, and suffering he endured. His injuries were multiple, and death was not immediate. See State v. Pinch, 306 N.C. 1, 292 S.E.2d 203.

Likewise we find no error in the trial court's finding in aggravation that the victim was very young, or mentally or physically infirm.

Further, we find, as we did in the felonious child abuse case, that the trial court properly considered defendant's dangerousness to others as an aggravating factor. Voluntary manslaughter is defined as the unlawful killing of a human being without malice, premeditation or deliberation. State v. Holcomb, 295 N.C. 608, 247 S.E.2d 888 (1978); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978). It is mitigating factors, the heat of passion or the use of excessive force, that reduce the offense from murder to manslaughter. Id. It does not follow that the presence of these mitigating factors compels a negative finding as to dangerousness. The offender who, although sane, cannot control his emotions, who strikes out indiscriminately because of his own inadequacies, and who cannot exercise his human faculties of reason and judgment is as dangerous to society as the offender who targets his victim for a calculated motive.

*704 The trial court erred, however, in finding as a factor in aggravation defendant's dangerousness to himself. As we have previously determined, this factor bears no relationship to the statutory purposes of sentencing. The case must be remanded for resentencing for this as well as for error in one finding in mitigation.[2]

The trial court found as a factor in mitigation on both the felonious child abuse offense and the voluntary manslaughter offense that "[p]rior to arrest or at any early stage of the criminal process, the defendant voluntarily acknowledged wrong-doing in connection with the offense to a law enforcement officer." Defendant acknowledged his wrongdoing only with respect to the felonious child abuse offense. The record does not support this finding with respect to the offense of voluntary manslaughter. Defendant expressly denied any wrongdoing connected with the baby's death during his interrogation. The fact that he pled guilty to the charge has no bearing on the policy behind this factor in mitigation, i.e. that defendant showed remorse for his actions. As we have held that a defendant's failure to plead guilty to an offense cannot be used as a factor in aggravation, so his plea of guilty may not be considered as a factor in mitigation. See State v. Boone, 293 N.C. 702, 239 S.E.2d 459 (1977).

The decision of the Court of Appeals is reversed and the case is remanded to the Court of Appeals for further remand to the Superior Court, Pasquotank County, for resentencing on both the offenses of felonious child abuse and voluntary manslaughter, in accordance with our opinion today.

REVERSED AND REMANDED.

NOTES

[1] Although the principal provisions of the Act are codified in Chapter 15A, Article 81A of the North Carolina General Statutes, the Act resulted in revisions to other portions of the General Statutes. See e.g., Chapter 14, Articles 1, 2, 2A, 33; Chapter 15A, Articles 58, 81A, 82, 83, 85, 85A, 89, 91; Chapter 148, Article 2, and Chapter 162, Article 4. Credit is due to the Office of the Appellate Defender for its excellent research in the preparation of an amicus brief from which this information is taken.

[2] G.S. § 15A-1335 provides that "[w]hen a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.