State v. Bates

334 S.E.2d 73 (1985)

STATE of North Carolina v. Michael S. BATES.

No. 8412SC1183.

Court of Appeals of North Carolina.

September 17, 1985.

*74 Atty. Gen. Lacy H. Thornburg, by Asst. Atty. Gen., W. Dale Talbert, Raleigh, for the State.

Appellate Defender Adam Stein, by Asst. Appellate Defender Robin E. Hudson, Raleigh, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant assigns error to the trial court's aggravation of his sentence by its non-statutory finding that "The defendant left the victim dying in a field and did not seek to have help sent to him." An aggravating factor can properly be found only if the defendant has exhibited some behavior which serves to "increase the offender's culpability." G.S. 15A-1340.3. It is error for an aggravating factor to be based on circumstances which are part of "the very essence" of a crime because "it can be presumed that the Legislature was guided by this unfortunate fact when it established presumptive sentences...." State v. Higson, 310 N.C. 418, 424, 312 S.E.2d 437, 441 (1984). The exceptional nature of a defendant "attempting to secure immediate medical attention for [his victim]" has been noted by the Supreme Court. State v. Bondurant, 309 N.C. 674, 694, 309 S.E.2d 170, 183 (1983). We therefore conclude that the trial court erred in finding as an aggravating factor defendant's failure to aid his victim.

The Supreme Court has ruled 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." State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983). Since there must be a new sentencing hearing, we find it unnecessary to discuss defendant's remaining assignments of error.

Remanded for resentencing.

ARNOLD and COZORT, JJ., concur.