State v. Benfield

313 S.E.2d 198 (1984)

STATE of North Carolina v. William Eugene BENFIELD.

No. 8321SC805.

Court of Appeals of North Carolina.

April 3, 1984.

*199 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Grayson G. Kelley, Raleigh, for the State.

Davis & Harwell by Fred R. Harwell, Jr., Winston-Salem, for defendant-appellant.

ARNOLD, Judge.

Defendant's foremost contention is that the trial court erred in its finding of 12 factors in aggravation at the sentencing hearing. We agree and are compelled to remand this case to superior court for resentencing.

One finding made by the court was that "a charge for which separate punishment would have been imposed has been consolidated for judgment in this case." This finding was based on the fact that the shots fired into the bedroom window of the Shaffer residence resulted in both a misdemeanor charge of assault with a deadly weapon, for the offense against defendant's wife, and a felony charge of assault with a deadly weapon with intent to kill inflicting serious bodily injury, for the offense *200 against Denny Shaffer. The trial court consolidated the felony and misdemeanor for purposes of sentencing. As a result of the court's finding in aggravation, defendant was sentenced to seven years in prison, in excess of the six-year presumptive term for a Class F felony.

The Supreme Court of North Carolina has ruled 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.

State v. Ahearn, 307 N.C. 584, 598, 300 S.E.2d 689, 698 (1983). See State v. Mitchell, 62 N.C.App. 21, 302 S.E.2d 265 (1983). We find that it was error to consolidate the misdemeanor and felony charges and then to use the misdemeanor to increase the presumptive sentence of the felony.

Another finding in aggravation made by the trial court involved the charge of assault with a deadly weapon with intent to kill inflicting serious injury as committed against Beverly Lineberry. As an aggravating factor, the court found that "the defendant inflicted serious bodily injury on the victim substantially in excess of the minimum amount to prove the offense...." For this offense defendant was sentenced to 15 years in prison, in excess of the six-year presumptive term. We find that the Court improperly found this aggravating factor, since the same evidence necessary to prove the serious injury element of the offense was used to prove the factor in aggravation. G.S. 15A-1340.4(a)(1).

Moreover, with regard to defendant's conviction for discharging a firearm into an occupied dwelling, the court found as an aggravating factor that "the defendant knowingly created a great risk of death to more than one person." For this offense defendant was sentenced to four years in prison, in excess of the three-year presumptive term for a Class H felony. We find that this finding in aggravation was made in error because the creation of great risk of death was no doubt considered by the legislature in establishing the presumptive sentence for the offense of discharging a firearm into an occupied dwelling. See State v. Huntley, 62 N.C. App. 577, 303 S.E.2d 330 (1983).

The Supreme Court of North Carolina has held 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 sentence hearing." State v. Ahearn, 307 N.C. at 602, 300 S.E.2d at 701. Although only one error in sentencing requires us to remand a case for a new sentencing hearing we have pointed out more than one improper finding in aggravation in the case before us merely to emphasize the increasing likelihood of error where additional non-statutory aggravating factors are unnecessarily found. As this Court stated recently:

In light of the increasing number of cases that have been remanded because of erroneous findings of non-statutory factors in aggravation, this Court deems it appropriate to remind trial judges that only one factor in aggravation is necessary to support a sentence greater than the presumptive term.... [T]he trial judge may wish to exercise restraint when considering non-statutory aggravating factors after having found statutory factors. This prudent course of conduct would lessen the chance of having the case remanded for resentencing.

State v. Baucom, 66 N.C.App. 298, 311 S.E.2d 73 (1984).

We have examined defendant's remaining assignments of error and find in them no merit. Because of the improper finding of non-statutory aggravating factors, however, we remand this case for resentencing.

Remanded for resentencing.

WHICHARD and BECTON, JJ., concur.