State v. Truesdale

473 S.E.2d 670 (1996)

STATE of North Carolina v. Derrick TRUESDALE.

No. COA95-896.

Court of Appeals of North Carolina.

August 20, 1996.

*671 Attorney General Michael F. Easley by Assistant Attorney General Elizabeth Rouse Mosley, for the State.

Samuel L. Bridges, Raleigh, for defendant-appellant.

McGEE, Judge.

Defendant argues the trial court erred in using three of his felony convictions to increase his prior record level when each of those convictions had been consolidated for judgment with a felony conviction used to establish habitual felon status. We find no error in the trial court's sentencing.

In this case, defendant had previously been convicted of two felonies on 18 October 1988, two more felonies on 14 June 1991, and four felonies on 25 June 1992. The State used one conviction from each of the three days to prove habitual felon status. The trial court then used another conviction from each day to determine prior record points. Defendant contends the court should not have used convictions consolidated with offenses used to establish habitual felon status to determine his prior record level.

Defendant bases this argument upon his interpretation of G.S. 14-7.6 and G.S. 15A-1340.14(d) as amended under the Structured Sentencing Act. G.S. 14-7.6 reads, in part: "In determining the prior record level, convictions used to establish a person's status as an habitual felon shall not be used." G.S. 15A-1340.14(d) states: "For purposes of determining *672 the prior record level, if an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used." Defendant, presenting an issue of first impression before this Court, argues that because the same conviction cannot be used to establish habitual felon status and prior record level, and because separate convictions during the same calendar week cannot be used to determine prior record level, it follows that separate convictions during the same week cannot be used to establish both habitual felon status and prior record level. We disagree.

The language and plain meaning of G.S. 14-7.6 prohibits using the same conviction to establish both habitual felon status and prior record level. The language and plain meaning of G.S. 15A-1340.14(d) prohibits the use of more than one conviction obtained during the same calendar week to increase the defendant's prior record level. However, we find nothing in these statutes to prohibit the court from using one conviction obtained in a single calendar week to establish habitual felon status and using another separate conviction obtained the same week to determine prior record level.

The previous version of G.S. 14-7.6 allowed the same prior conviction to be used to establish habitual felon status and as an aggravating factor increasing the presumptive sentence. See, e.g., State v. Roper, 328 N.C. 337, 363, 402 S.E.2d 600, 615, cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991). The General Assembly amended G.S. 14-7.6 effective 1 January 1995 to prohibit the use of the same conviction to establish both habitual felon status and prior record level. Had the General Assembly also wished to prohibit the use of separate convictions within the same week for both purposes, they could have done so. Therefore, this assignment of error is overruled.

Defendant also argues the trial court erroneously failed to find as a mitigating factor pursuant to N.C. Gen.Stat. § 15A-1340.16(e)(19) (Cum.Supp.1995) that he had a positive employment history or was gainfully employed. Defendant presented evidence of his employment history which was uncontradicted by the State. "The trial court is required to find a statutory mitigating factor... if the evidence supporting that factor is uncontradicted and there is no reason to doubt its credibility." State v. Hood, 332 N.C. 611, 623, 422 S.E.2d 679, 685 (1992), cert. denied, 507 U.S. 1055, 113 S. Ct. 1955, 123 L. Ed. 2d 659 (1993). The State concedes defendant was entitled to this mitigating factor. However, defendant cannot show he was prejudiced by the trial court's failure to find this factor.

The court found the mitigating factors outweighed the aggravating factors and sentenced defendant to the lowest mitigated minimum term available for a category IV Class C felon under the version of G.S. 15A-1340.17(c)(4) then in effect. Therefore, even if the court had properly found the additional mitigating factor, the court still could not have sentenced defendant to a minimum term less than the sixty-nine month minimum term he received. As a result, defendant suffered no prejudice.

For the reasons stated, we find no prejudicial error in defendant's sentencing.

No Error.

EAGLES and LEWIS, JJ., concur.