State v Mabry

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NO. COA11-108 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 STATE OF NORTH CAROLINA v. Stanly County Nos. 05 CRS 5906-13 07 CRS 563-65 07 CRS 50127-29 BRIDGETTE LEIGH MABRY Defendant. Appeal by defendant from judgment entered 28 September 2010 by Judge Tanya T. Wallace in Stanly County Superior Court. Heard in the Court of Appeals 1 September 2011. Attorney General Roy Cooper, by Assistant Attorney General Brenda Menard, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant. GEER, Judge. Defendant Bridgette Leigh Mabry appeals from a mitigatedrange sentence of 230 to 285 following a resentencing hearing. months imprisonment imposed Defendant primarily argues in this appeal that the trial court erroneously failed to find four statutory mitigating sentencing factors. Because none of the four mitigating factors was established by evidence that was both uncontradicted and manifestly credible and because we find defendant's remaining arguments unpersuasive, we affirm. -2Facts Defendant was indicted in 2005 and 2007 for 11 counts of first degree indecent statutory liberties sex with offense her two and 11 minor counts daughters. of taking A full description of the underlying facts is set forth in this Court's prior opinion in State v. Mabry, 195 N.C. App. 598, 673 S.E.2d 800, 2009 N.C. App. LEXIS 220, at *1-2, 2009 WL 511986, at *1-2 (Mar. 3, 2009). A jury convicted defendant of all the charges on 5 September 2007. Id., 2009 N.C. App. LEXIS 220, at *1-2, 2009 WL 511986, at *1-2. At sentencing, record point for defendant stipulated a misdemeanor larceny to having charge that one prior had been resolved through a prayer for judgment continued ("PJC"). The trial judge sentenced defendant as a prior record level II to a single presumptive-range sentence of 240 to 297 months in prison. Id., 2009 N.C. App. LEXIS 220, at *2, 2009 WL 511986, at *2. This Court, on appeal, vacated eight of defendant's convictions, upheld the remaining 14 convictions, and remanded for resentencing. Id., 2009 N.C. App. LEXIS 220, at *30, 2009 WL 511986, at *11. Following a resentencing hearing, the trial court sentenced defendant to 230 to 285 months imprisonment. appealed. Defendant again In an unpublished opinion, State v. Mabry, ___ N.C. -3App. ___, 698 S.E.2d 202, 2010 N.C. App. LEXIS 1262, at *1-2, 2010 WL 2817047, at *1-2 (July 20, 2010), this Court concluded that one prior record level point could be imposed based on the PJC. Id., 2010 N.C. App. LEXIS 1262, at *7-8, 2010 WL 2817047, at *2. record Because, however, the record did not include a prior level determined worksheet that sentencing showing defendant purposes, resentencing hearing. was this how a prior Court the trial record remanded court level for a II had for second Id., 2010 N.C. App. LEXIS 1262, at *7, 2010 WL 2817047, at *2. At the second resentencing hearing, defendant requested that the trial court find five mitigating factors: (1) defendant was honorably discharged from the United States Armed Services; (2) defendant has been a person of good character or has a good reputation in the community in which defendant lives; (3) defendant has supported her family; (4) defendant has a support system in the community; and (5) defendant employment history or was gainfully employed. has a positive The trial court - - after finding only one mitigating factor (that defendant was honorably discharged) and no aggravating factors -- sentenced defendant as a prior record level II in the mitigated range to 230 to 285 months imprisonment. this Court. Defendant timely appealed to -4I The State contends that "[d]efendant's appeal should be dismissed because she does not have a right to a direct appeal from a sentence in the mitigated range . . . ." The State relies on N.C. Gen. Stat. § 15A-1444(a1) (2009), which provides: A defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, a defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari. (Emphasis added.) According to the State, under this statute, a defendant may contest the sufficiency of the evidence supporting his or her sentence only if sentenced in the aggravated range. Prior to 1995, N.C. Gen. Stat. § 15A-1444(a1) (1993) (emphasis added) entitled a defendant to appeal "as a matter of right the issue of whether his sentence is supported by evidence introduced at the trial and sentencing hearing only if the prison term of the sentence exceed[ed] the presumptive term set by G.S. 15A-1340.4, and if the judge was required to make findings as to aggravating or mitigating factors pursuant to this Article." This Court held, based on the plain language of -5this version of the statute, that a defendant with a sentence in the mitigated range did not have a right to appeal. See State v. Knight, 87 N.C. App. 125, 131, 360 S.E.2d 125, 129 (1987) ("[D]efendant attempts to assert, on this direct appeal, error relating to his sentence. He is not entitled to do so because the sentence which he received is less than the presumptive term . . . ."). In 1993, however, the General Assembly amended N.C. Gen. Stat. § 15A-1444(a1), effective January 1, 1995. Sess. Laws 538 sec. 27. 1993 N.C. That amendment -- resulting in the version at issue in this appeal -- deleted the reference to a "sentence exceed[ing] the presumptive term" and instead provided a right to appeal "if the minimum sentence of imprisonment does not fall within the presumptive range." Id. We must determine whether the General Assembly intended this new language to have the same regarding effect the as the prior sufficiency of language the of limiting sentencing appeals evidence to aggravated-range sentences. A fundamental principle of statutory construction is that "'[w]e presume that the legislature acted with full knowledge of prior and existing law and its construction by the courts.'" State v. Anthony, 351 N.C. 611, 618, 528 S.E.2d 321, 324 (2000) (quoting State ex rel. Cobey v. Simpson, 333 N.C. 81, 90, 423 -6S.E.2d 759, 763 (1992)). Therefore, in this case, we presume the General Assembly knew, when amending N.C. Gen. Stat. § 15A1444(a1), that this Court had construed the prior version of the statute so as to preclude an appeal from a mitigated-range sentence. The State's position in this appeal would require us to construe the current version of N.C. Gen. Stat. § 15A-1444(a1) in precisely construed. the same way that the pre-1995 statute was In order to adopt this construction, we would have to conclude that the General Assembly -- knowing the existing state of the law -- did not intend its amendment to change that law. It is, however, equally well established that "[i]t must be presumed, where the Legislature has amended a statute, that it intended to add to or to change the existing enactment." Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 590, 264 S.E.2d 56, 62 (1980). We must, therefore, also presume, in this case, that the General Assembly intended to change the law when it amended N.C. Gen. Stat. § 15A-1444(a1) to allow an appeal as of right for a sentence that does not fall within the presumptive range -- omitting the requirement that the sentence "exceed" the presumptive range. -7"Changes made by the legislature to statutory structure and language are indicative of a change in legislative intent . . . ." Electric Supply Co. of Durham, Inc. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 295 (1991). We cannot conclude that, although the General Assembly significantly changed the pertinent language of N.C. Gen. Stat. § 15A-1444(a1), it did not intend to make any change in the effect of the statute. Instead, we must presume that when the General Assembly deleted the language limiting appeals to those "exceed[ing]" a presumptive-range term, the legislature intended to change that limitation. The plain language of the amended version of N.C. Gen. Stat. § 15A-1444(a1) precludes an appeal only when the sentence is "within the presumptive range." Since a mitigated-range sentence by definition does not fall "within the presumptive range," a defendant receiving a mitigated sentence must, under the plain language of the statute, have a right to appeal the sufficiency of the evidence supporting his or her sentence. See Campbell v. First Baptist Church of the City of Durham, 298 N.C. 476, 482, 259 S.E.2d 558, 563 (1979) ("The duty of a court is to construe a statute as it is written. It is not the duty of a court to determine whether the legislation is wise or unwise, appropriate or inappropriate, or necessary or unnecessary."). -8Our construction of N.C. Gen. Stat. § 15A-1444(a1) to allow defendant's appeal in this case well-established principle that is also "criminal consistent with the statutes are to be construed strictly against the state and liberally in favor of the defendant." 449, 451 (1982). State v. McGaha, 306 N.C. 699, 702, 295 S.E.2d The State's construction would require us to interpret N.C. Gen. Stat. § 15A-1444(a1) in its favor by in effect restoring to the statute the excluded requirement that the sentence exceed the presumptive range. This Court, however, has "no power to add to or subtract from the language of the statute." Ferguson v. Riddle, 233 N.C. 54, 57, 62 S.E.2d 525, 528 (1950). As the sole authority for its position, the State cites an unpublished opinion of this Court, State v. Howze, 151 N.C. App. 599, 2002 N.C. App. LEXIS 2264, 2002 WL 1544229 (July 16, 2002), which concluded that a defendant sentenced in the mitigated range has no right to appeal the sufficiency of the evidence supporting his or her sentence. Unpublished opinions are not, however, controlling authority and cannot bind later panels of this Court. Moreover, the opinion contains no discussion of the General Assembly's 1993 amendment to the statute -- apparently, that change in statutory language was not called to the attention of the Court -- and cites no authority supporting its -9construction of the statute. We, therefore, do not find the opinion persuasive. We hold that a defendant may, pursuant to N.C. Gen. Stat. § 15A-1444(a1), appeal the issue of the sufficiency of the evidence to support his or her sentence even though he or she was sentenced in the mitigated range. The State's motion to dismiss is denied. II Defendant contends that the trial court erroneously failed to find four statutory mitigating factors: (1) defendant has been a person of good character or has had a good reputation in the community in which defendant lives; (2) defendant supports defendant's family; (3) defendant has a support system in the community; and (4) defendant has a positive employment history or was gainfully employed. Under N.C. Gen. Stat. § 15A-1340.16(a) (2009), "the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists." mitigating factor uncontradicted, credibility.'" and "'when there the is A defendant proves a evidence no reason is to substantial, doubt its State v. Johnson, 196 N.C. App. 330, 336, 674 S.E.2d 727, 731 (quoting State v. Kemp, 153 N.C. App. 231, 241, -10569 S.E.2d 717, 723 (2002)), appeal dismissed, 363 N.C. 378, 679 S.E.2d 395 (2009). As this Court has previously explained, "'[a] trial judge is given wide latitude in determining the existence of . . . mitigating factors, and the trial court's failure to find a mitigating factor is error only when no other inferences can be drawn from the evidence.'" v. Norman, (2002)). failing 151 An to N.C. App. appellate find a 100, court 105-06, may mitigating factor Id. (quoting State 564 reverse only reasonable a S.E.2d 630, 634 trial court for when the evidence offered in support of that factor "is both uncontradicted and manifestly credible." State v. Jones, 309 N.C. 214, 220, 306 S.E.2d 451, 456 (1983). Defendant failing to first find contends that that "defendant the has trial been a court erred person of in good character or has had a good reputation in the community in which the defendant lives." N.C. Gen. Stat. § 15A-1340.16(e)(12). At the sentencing hearing, defendant presented two witnesses as to her character Andrew, and testified on and reputation: defendant's her first cousin, Donna Brooks. her own behalf regarding her 18-year-old son, Defendant also good character, explaining that she attended Bible study in prison and took classes. -11This evidence is similar to the evidence presented in State v. Murphy, 152 N.C. App. 335, 567 S.E.2d 442 (2002), in which the defendant submitted 24 letters regarding his character to the trial court. This Court noted: The individuals who wrote the letters included family members, close friends, fellow church members, members of the community with whom defendant had worked, and prisoners with whom defendant had been incarcerated. These letters paint a picture of a devoted family man with three children who was active in his church and his community. Specifically, they show that defendant was active in the PTA, volunteered his time to coach youth athletic teams, once served as president of the high school athletic club, served on the board of the homeowners' association, ran for a seat on the town council, sponsored refugees from Africa, and was an active member of Bible study while serving time in prison. Id. at 344-45, 567 S.E.2d at 448. although the letters provide The Court pointed out that "uncontradicted evidence of defendant's good character, this evidence does not rise to the level of being manifestly credible." Id. at 345, 567 S.E.2d at 449. The Court concluded that the relationship between those making statements of good character and the defendant was a factor the trial court could consider in deciding credibility. Id. at 346, 567 S.E.2d at 449. In this case, all of the testimony regarding defendant's good character or reputation came from individuals having a -12close family herself. relationship with defendant or from defendant These sources are not so manifestly credible that the trial court person of was good required to character and find that has a defendant good has reputation been in a her community. Defendant failing to family." next find contends that that the "defendant trial supports court the N.C. Gen. Stat. § 15A-1340.16(e)(17). erred in defendant's On this issue, defendant's son answered affirmatively when defendant's attorney asked whether "assisted you defendant, and the through family in her veteran's trying to benefits, maintain had certain expenses, seeing that things get paid and that sort of thing." Defendant's son, however, also testified that Donna Brooks has the power of attorney for defendant's veteran benefits, and Ms. Brooks testified that the veteran's benefits check "goes to basically do upkeep or [sic] [defendant's] personal possessions we have stored." At best, Ms. Brooks testified that she -- Ms. Brooks and not defendant -- had used the veteran's benefits to help defendant's family to the best of Ms. Brooks' ability and time. son's Thus, Ms. Brooks' testimony conflicted with defendant's testimony about whether through her veteran's benefits. defendant supported her family -13While defendant claims on appeal also to have supported her family before her conviction, defendant argued to the trial court solely "that through her veteran's benefits, [defendant] has tried to support her family with what limited means she has." Defendant's son affirmed that everything he had testified about at the second resentencing hearing "is things that have happened since the trial." Defendant's evidence did not so clearly establish that defendant supports her family such that no other reasonable inference could be drawn. judge thus did not err in refusing to The sentencing find this mitigating factor. Defendant next contends that the trial court erred in failing to find that "defendant has a support system in the community." N.C. Gen. Stat. § 15A-1340.16(e)(18). Defendant's son testified that defendant had the support of her mother, her cousin, and four family friends. Defendant's cousin testified that defendant had the support of defendant's cousin, son, and mother. Defendant's mother testified that defendant had a support system in the community, but did not elaborate as to what that system was. The close family friend who testified knew defendant from "[w]hen she used to live with me and my daddy." defendant However, had any he did not support specifically system in indicate the that community. -14Additionally, there did not appear to be any testimony regarding whether defendant intended to utilize whatever support structure existed and, if so, how. In Kemp, 153 N.C. App. at 241, 569 S.E.2d at 723, the defendant's support "sister-in-law structure community." testified available to that [the there was defendant] a in large the This Court, however, found that this "evidence did not demonstrate that [defendant] was engaged in this support structure or intended to utilize it. Furthermore, no evidence was presented indicating what this support structure consisted of. Testimony demonstrating the existence of a large family in the community and support of that family alone is insufficient to demonstrate the separate mitigating factor of a community support system." Id. at 241-42, 569 S.E.2d at 723. In this case, as in Kemp, defendant presented testimony of the support of her family. While her son claimed that four family friends also supported defendant, only one testified, and defendant's mother referred community support system. in only conclusory fashion to a Further, defendant did not establish that she was engaged in that support structure or explain how she would use the system of support. Under Kemp, this evidence, although relevant to the mitigating factor, was not sufficient -15to require the trial court to find that defendant had a support system in the community. Defendant's last contention regarding potential mitigating factors is that the trial court erred in failing to find that "defendant has a positive employment history or is gainfully employed." N.C. Gen. Stat. § 15A-1340.16(e)(19). On this issue, defendant testified that she served in the Navy from 1988 to 1995. Defendant testified she also worked as a waitress and bartender, as a paid tutor while attending community college, and then in the mobile home industry, with a second job as a waitress. Defendant explained that she then went on medical leave due to a car accident and was arrested while on leave. During the time that she was on house arrest, defendant worked with her landlord cleaning houses "on a limited basis." She also completed a dental class while in prison and was working as a dental lab worker. Defendant's other witnesses generally corroborated some parts of this employment history, but provided no specific details regarding defendant's employment history. With the exception of the honorable discharge in 1995, none of defendant's evidence on this mitigating factor indicates whether defendant's employment history was positive. Further, the employment history testimony does not necessarily establish continuous employment, the numbers of hours defendant was -16working, or what she was paid. Given the lack of details regarding defendant's employment history or the quality of her performance, we cannot conclude that the trial court was required to find either that defendant had a positive employment history or that she was gainfully employed within the meaning of N.C. Gen. Stat. § 15A-1340.16(e)(19). See State v. Hughes, 136 N.C. App. 92, 102, 524 S.E.2d 63, 69 (1999) (holding that trial court was not required to find N.C. Gen. Stat. § 15A- 1340.16(e)(19) mitigating factor when defendant only presented evidence he held various jobs up until date of his arrest, but provided no other evidence of positive employment history). In sum, based on our review of the record, we cannot conclude that the evidence on these four mitigating factors was both uncontradicted and manifestly credible. We, therefore, hold that defendant has failed to demonstrate that the trial court erred in not finding these mitigating factors. III Defendant next contends that she is entitled to a new sentencing hearing because the trial court erroneously assigned a prior record point based on defendant's 1995 PJC. Defendant makes both a statutory argument (that a PJC does not count as a "prior conviction" under the Structured Sentencing Act) and a constitutional argument (that the point imposed for the PJC is -17"in violation of her State and Federal Constitutional rights to fundamental fairness under the Due Process Clause of the Fourteenth Amendment, a speedy trial, the law of the land, a jury trial in Superior Court, and appeal"). Defendant concedes that her statutory argument was already rejected by this Court in her prior appeal, but contends that this Court never addressed her constitutional arguments. Our review of the opinion indicates that this Court addressed and rejected both the statutory and the constitutional arguments. In the prior appeal, defendant's sixth argument stated: "Defendant is entitled to a new sentencing hearing because the trial court may have assigned a prior record point based on a 1995 prayer for judgment continued in violation of state law." Defendant's seventh argument stated: "Defendant is entitled to a new sentencing hearing because the trial court may have assigned a prior record point based on a 1995 prayer for judgment continued in violation of her state and federal constitutional rights." With respect to the PJC, this Court held: In Defendant's sixth and seventh arguments, she contends the trial court erred by using a misdemeanor larceny conviction, for which Defendant received a prayer for judgment continued (PJC), as the basis for elevating her prior record level from a prior record level I to a level II. We disagree. -18We address this argument because Defendant may decide to raise it again on resentencing. . . . Defendant's sixth and seventh arguments are without merit. Mabry, 2010 N.C. App. LEXIS 1262, at *7-8, 2010 WL 2817047, at *3 (emphasis added). analyze the rejects as asserted record While the opinion does not specifically constitutional "without the merit" questions, defendant's unconstitutionality level purposes. the of Since opinion seventh using the expressly argument PJC defendant's for that prior constitutional argument has already been decided, this Court cannot revisit the issue. IV Finally, defendant contends that the trial court abused its discretion sentenced when to a the court found mitigated-range that term defendant of should imprisonment be but nonetheless gave defendant the same sentence as the presumptiverange term previously imposed. In defendant's first resentencing, the trial court sentenced her in the presumptive range to a term of 230 to 285 months imprisonment. The sentence resulting from the second resentencing hearing was also 230 to 285 months, sentence.1 1 although Defendant it was claims identified the as trial a mitigated-range court abused its The 230 to 285 month sentence falls at the bottom of the presumptive range and the top of the mitigated range for -19discretion as "mitigation must count for something" and "[s]entencing so oblivious to found mitigation 'eviscerates' our State's statutory sentencing scheme . . . ." Our Supreme Court has given any factor sentencing judge. is explained that within the sound "the weight to be discretion of the The judge is not required to engage in a numerical balancing process. By the same token, our appellate courts should not attempt to second guess the sentencing judge with respect to the weight given to any particular factor. . . . It is only the sentencing judge who is in a position to reevaluate the severity of the sentence imposed in light of the adjustment." State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983). See also Jones, 309 N.C. at 219, 306 S.E.2d at 455 ("The sentencing judge, even when required to find factors proved by uncontradicted, credible evidence, may still attribute whatever weight he deems appropriate to the individual factors found when balancing them and arriving at a prison term."). In this case, when defendant was initially sentenced, the first trial judge consolidated all of the charges into a single judgment rather than sentencing defendant potentially consecutive terms of imprisonment. to multiple, On appeal, this defendant's class of offenses and prior record level. Because of the overlapping of the ranges, the sentence is both a valid presumptive-range sentence and a valid mitigated-range sentence. -20Court upheld the jury's conviction with respect to seven counts of first degree statutory sexual offense and seven counts of indecent liberties with a child. remand for resentencing, The second trial judge, on apparently concluded that the circumstances were such that, even in the absence of a finding of mitigating factors, defendant should be given the lowest possible presumptive-range sentence. At the second resentencing hearing, the third trial judge found as the sole mitigating factor that defendant had been honorably discharged from the Navy. The trial court was entitled to determine, as it apparently did, that an honorable discharge, which occurred 10 years before the indictment and 15 years before the sentencing hearing was not entitled significant weight given the nature of the offenses. to While defendant, when testifying at the second resentencing hearing, continued to maintain her innocence and to suggest that the charges were manufactured by her former husband, she had been convicted by a jury of the very serious offenses. We do not believe that it was manifestly unreasonable for the third trial judge to decide, given the seriousness of the offenses, that the discharge years reduction beyond single earlier the mitigating did not reduction factor warrant that had a of an honorable further effectively sentence already -21occurred at each prior sentencing hearing. We cannot say that the sentence imposed below was "'so arbitrary that it could not have been the result of a reasoned decision.'" State v. Cannon, 341 N.C. 79, 87, 459 S.E.2d 238, 243 (1995) (quoting State v. Weddington, 329 N.C. 202, 209, 404 S.E.2d 671, 676 (1991)). Consequently, we hold that the trial court did not abuse its discretion by finding a mitigating factor and then sentencing defendant to the maximum mitigated-range sentence. No error. Judges STROUD and THIGPEN concur.

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