State v. Long

340 S.E.2d 392 (1986)

STATE of North Carolina v. Reginald Dewayne LONG.

No. 185A85.

Supreme Court of North Carolina.

February 18, 1986.

*394 Lacy H. Thornburg, Atty. Gen. by T. Buie Costen, Sp. Deputy Atty. Gen., Raleigh, for the State.

Berrell F. Shrader, Winston-Salem, for defendant-appellant.

BRANCH, Chief Justice.

Defendant received sentences for first degree burglary and felonious assault that were greater than the presumptive terms. By his first assignment of error defendant argues that he was entitled to a finding by the trial judge of the mitigating factor that he voluntarily acknowledged his wrongdoing to a law enforcement officer at an early stage of the prosecution. We disagree.

Under the Fair Sentencing Act, the trial court must consider every statutory mitigating factor where, as is the case here, sentences in excess of the presumptive term are imposed. G.S. § 15A-1340.4(a). G.S. § 15A-1340.4(a)(2)(1) lists as a mitigating factor that `[p]rior to arrest or at an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer.' In State v. Graham, 309 N.C. 587, 308 S.E.2d 311 (1983), we said that, with regard to this mitigating factor, `criminal process' begins upon either the *395 issuance of a warrant or information, upon the return of a true bill of indictment or presentment, or upon arrest. We went on to hold that a defendant was entitled to a finding of this statutory mitigating factor if his confession was made 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.

State v. Thompson, 314 N.C. 618, 625, 336 S.E.2d 78, 82 (1985).

If defendant fails to confess before the first of these events occurs he is no longer entitled as a matter of right to a finding of this statutory mitigating factor. State v. Brown, 314 N.C. 588, 594, 336 S.E.2d 388, 392 (1985). In that case it is for the trial judge to determine in the exercise of his discretion whether the confession was made sufficiently early in the criminal process to qualify as a mitigating factor. Id. at 594, 336 S.E.2d at 392.

Warrants for defendant's arrest were issued on 16 November 1984. Defendant was arrested eleven days later on 27 November 1984. He did not admit his guilt until the day after his arrest. Under these facts it is clear that defendant is not entitled to a finding that he acknowledged his guilt at an early stage of the criminal process. In exercising his discretion the trial judge determined that defendant's statement was not made sufficiently early in the criminal process to qualify as a mitigating factor.

Matters within the discretion of the trial court are not subject to reversal by an appellate court absent a clear abuse of that discretion. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985). "A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Thompson, 314 N.C. 618, 626, 336 S.E.2d 78, 82.

In the instant case defendant did not confess until twelve days after warrants were issued for his arrest and one day after he was actually arrested. In light of this evidence we cannot say that the trial judge's ruling was so arbitrary that it could not have been the result of a reasoned decision. Therefore, we hold that the trial judge did not abuse his discretion.

Before considering defendant's remaining assignments of error, which concern the trial judge's finding of aggravating factors, we note that defendant's sentence of ten years imprisonment for the four consolidated convictions of first degree kidnapping is less than the presumptive sentence for that crime. Since the trial judge found no mitigating factors to exist, any error in the aggravating factors found is harmless so far as defendant's sentence for kidnapping is concerned.

Defendant challenges the life sentence he received for first degree burglary on the basis that the trial judge improperly found certain aggravating factors. We need not consider this argument because the sentence for first degree burglary entered against defendant is fatally flawed. See State v. Hunter, 315 N.C. 371, 338 S.E.2d 99 (1986) (judgment is a part of the record and appeal presents the face of the record for review); State v. Cooper, 288 N.C. 496, 219 S.E.2d 45 (1975) (appeal is an exception to the judgment and raises the issue of whether there is error appearing on the face of the record).

Defendant pleaded guilty to first degree burglary and felonious larceny. The Judgment and Commitment correctly states that defendant had been charged with both offenses, but lists only first degree burglary as an offense for which defendant was being sentenced. Further, the Judgment and Commitment, after correctly identifying first degree burglary as a Class C felony, incorrectly states that the sentence for that crime is mandatory life imprisonment.

"[I]t is uniformly held by decisions of this Court that where it appears that the judge below has ruled upon matter before him upon a misapprehension of the law, the cause will be remanded to the Superior Court for further hearing in the true legal light." Stanback v. Stanback, 270 N.C. *396 497, 507, 155 S.E.2d 221, 229 (1967) (quoting State v. Grundler, 249 N.C. 399, 402, 106 S.E.2d 488, 490 (1959)). In the instant case the trial judge was clearly acting under a misapprehension of the law when he determined that the penalty for first degree burglary, a Class C felony, was a mandatory life sentence. Under these circumstances the trial judge could not have exercised his discretion in passing sentence, and it will be necessary to remand defendant's burglary conviction for a new sentencing hearing.

The crimes of first degree burglary and felonious larceny to which defendant pleaded guilty were charged as separate counts in the same indictment. "In cases in which there is a verdict or plea of guilty to more than one count in a warrant or bill of indictment, and the Court imposes a single judgment ... a consolidation for the purpose of judgment will be presumed." State v. McCrowe, 272 N.C. 523, 524, 158 S.E.2d 337, 339 (1968). On resentencing the larceny and burglary convictions will be consolidated.

Defendant's remaining assignment of error concerns the trial judge's finding of the aggravating factor that the child victims, Megan Steintrager, eleven, and Rebecca Steintrager, fourteen, were very young. He argues that the evidence does not support this finding and that it was error for the trial judge to aggravate his sentence for felonious assault with this factor. We agree.

One of the aggravating factors established by N.C.G.S. § 15A-1340.4(a)(1)(j) is that the victim was very young, or very old or mentally or physically infirm. The vulnerability of the victim due to age and mental or physical infirmity is the concern addressed by this factor. State v. Ahearn, 307 N.C. 584, 603, 300 S.E.2d 689, 701 (1983) (factor properly found where child victim was twenty-four months old). In Ahearn the child's vulnerability was established by his tender age of twenty-four months. State v. Hines, 314 N.C. 522, 526, 335 S.E.2d 6, 8 (1985). "In cases like Ahearn involving victims near the beginning or end of the age spectrum, the prosecution may establish vulnerability merely by relating the victim's age and the crime committed." Id. The age of the victim does not aggravate the crime unless the victim is more vulnerable than he would otherwise be due to his age. Id. at 525, 335 S.E.2d at 8.

In this case Megan and Rebecca were not at the beginning of the age spectrum and the State has failed to show that they were rendered more vulnerable to defendant's assault than the average person would be by reason of their age. Had the State shown that due to their ages Megan and Rebecca were less able to flee or resist or were more likely to be seriously injured by defendant's assaults than the average person the trial judge could properly have found this aggravating factor. State v. Hines, 314 N.C. 522, 525, 335 S.E.2d 6, 8.

Since this factor was not properly found, we must vacate the felonious assault sentence and remand for a new sentencing hearing. We need not consider if the remaining aggravating factors were properly found or could properly be applied to defendant's convictions.

We note that in this case the same set of aggravating factors was applied to each offense. Though this is not the basis of our decision in this case, we strongly disapprove of the indiscriminate use of factors present in one offense to aggravate other offenses. Care must be taken to see that all aggravating factors are relevant to the offenses to which they are applied.

Nos. 84CRS52237, 85CRS2213, 85CRS2294, 85CRS2295First degree kidnapping NO ERROR.

No. 84CRS52227First degree burglary and felonious larcenyNEW SENTENCING HEARING.

No. 85CRS2214Assault with a deadly weapon with intent to kill inflicting serious injuryNEW SENTENCING HEARING.