State v. Harris

219 S.E.2d 306 (1975)

27 N.C. App. 385

STATE of North Carolina v. William Andrew HARRIS.

No. 7523SC459.

Court of Appeals of North Carolina.

November 5, 1975.

*307 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.

Max F. Ferree and Thomas A. Groomes by Max F. Ferree, Wilkesboro, for defendant appellant.

MORRIS, Judge.

Defendant's only assignment of error is to the signing and entry of the judgment contending that the trial court abused its discretion by imposing the maximum sentence of ten years upon the defendant, an indigent college student with no prior record.

Our Court has held that "... so long as the punishment rendered is within the maximum provided by law, an appellate court must assume that the trial judge acted fairly, reasonably and impartially in the performance of his office." (Emphasis supplied.) State v. Spencer, 7 N.C.App. 282, 285, 172 S.E.2d 280, 282 (1970); modified and affirmed 276 N.C. 535, 173 S.E.2d 765 (1970). Moreover when the sentence imposed is "... within statutory limits. . .[it] cannot be considered excessive, cruel or unreasonable." State v. Johnson, 5 N.C.App. 469, 470, 168 S.E.2d 709, 711 (1969). Thus, "... sentences imposed, which are within the limits provided by law, are beyond our review." State v. Frazier, 14 N.C.App. 104, 106, 187 S.E.2d 357, 358 (1972); cert. denied 281 N.C. 315, 188 S.E.2d 899 (1972). Also see State v. Wright, 261 N.C. 356, 134 S.E.2d 624 (1964). Notwithstanding the principle that such sentences are nonreviewable, appellate courts have reviewed sentences when the particular sanction imposed is clearly and palpably gross, harsh and abusive. Only when such an abuse of discretion is readily discernible will appellate courts intercede. State v. Wright, supra, at 357; State v. Woodlief, 172 N.C. 885, 889, 90 S.E. 137 (1916). The defendant, attacking a sentence, however, is confronted by the presumption that the trial judge acted "... fairly, reasonably, and impartially in the performance of the duties of his office.... Our entire judicial system is based upon the faith that a judge will keep his oath. `Unless the contrary is made to appear, it will be presumed that judicial acts and duties have been duly and regularly performed.' ... So long as errants make it necessary for other men to judge them it is best to indulge the presumption that a judge will do what a judge ought to do." State v. Stafford, 274 N.C. 519, 528, 164 S.E.2d 371, 377 (1968). (Citations omitted.)

The presumption of lower court correctness and the wide discretion afforded our trial judges in rendering judgment is of necessity grounded on the theory that a trial judge who has participated in the actual disposition of the case and oversaw the detail inherent in the trial process is "... in the best position to determine appropriate punishment for the protection of society and rehabilitation of the defendant." State v. Powell, 6 N.C.App. 8, 11, 169 S.E.2d 210, 212 (1969); no error, 277 N.C. 672, 178 S.E.2d 417 (1970). Our General Assembly enacted a flexible statutory scheme enabling the trial court to "... impose a sentence appropriate to the individual defendant and to the specific factual situation. As stated in State v. Cooper, 238 N.C. 241, 77 S.E.2d 695, a trial judge `may inquire into such matters as the age, the character, the education, the environment, the habits, the mentality, the propensities, and the record of the person about to be sentenced.'" State v. Stewart, 4 N.C.App. 249, 251, 166 S.E.2d 458, 460 (1969).

*308 Here the trial court rendered a sentence which falls within the appropriate statutory limit and the record indicates no abuse of discretion. This trial court, reacting to the full implications of this particular case, resolved that defendant Harris should serve ten years in our State prison system. "In our lexicon a sentence is harsh only when it exceeds merited punishment." State v. Stafford, supra, at 528, 164 S.E.2d at 378. The record is completely devoid of any circumstances which would bring this sentence within the situation referred to by Justice Higgins in State v. Wright, supra, which would allow this Court to review the trial judge as to quantum of punishment.

"If defendant believes that the punishment imposed is unduly severe in fact, his recourse is to seek action by the Board of Paroles or other exercise of the power of executive clemency." State v. Baugh, 268 N.C. 294, 295, 150 S.E.2d 437, 438 (1966); State v. Stewart, supra, at 252, 166 S.E.2d 458. No error.

HEDRICK and ARNOLD, JJ., concur.