State v. McNeill

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA14-64 NORTH CAROLINA COURT OF APPEALS Filed: 1 July 2014 STATE OF NORTH CAROLINA v. Cumberland County No. 01 CRS 53303 JERRY McNEILL Appeal 2013 by by Judge Superior Court. Defendant James from F. judgments Ammons, Jr., entered in 26 September Cumberland County Heard in the Court of Appeals 19 May 2014. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Bruce T. Cunningham, Jr., for Defendant. Dillon, Judge. I. Background On 24 January 2002, a Cumberland County jury entered verdicts convicting Defendant Jerry McNeill of attempted robbery with a dangerous weapon, first degree burglary, assault with a deadly weapon commit robbery inflicting with a serious dangerous injury, weapon. and conspiracy Defendant to pleaded guilty to attaining habitual felon status and was sentenced to -2three consecutive terms of 116 to 149 months imprisonment. appeal, this Court affirmed Defendant s convictions, On but remanded for resentencing based on an error made by the trial court in determining Defendant s prior record level. State v. McNeill, 158 N.C. App. 96, 580 S.E.2d 27 (2003). On remand, the court one imposed three consecutive sentences and sentence of 100 to 129 months imprisonment. concurrent These sentences were upheld by this Court in State v. McNeill, No. COA04-1092 (Mar. 1, 2005) (unpublished). Defendant relief (MAR), ineffective subsequently seeking a new assistance resentencing. The filed of MAR a motion resentencing counsel asserted for based during that appropriate upon alleged his initial defense counsel at Defendant s resentencing failed to introduce and argue certain mitigating factors that Defendant s sentences. could have Defendant s MAR potentially request reduced for a new resentencing was granted by order entered 23 September 2013, and the matter came on for hearing in Cumberland County Superior Court on 26 September 2013. the court entered an Following the resentencing hearing, order vacating Defendant s previous sentences, but imposing the same three consecutive sentences of -3100 to 129 months imprisonment. From this order, Defendant appeals. II. Analysis A. Defendant s Burglary Conviction Defendant s first two arguments on appeal pertain to the merits of his first degree burglary conviction. As indicated above, this Court has already affirmed Defendant s convictions, including his conviction for first degree burglary. 158 N.C. App. 96, 580 S.E.2d 27. McNeill, Defendant had the opportunity to raise these contentions in his first appeal to this Court and is now procedurally barred from asserting them. State v. Speaks, 95 N.C. 689, 691 (1886) ( As the defense now sought to be set up could as well have been made available when the first appeal was taken, it has passed into the domain of res judicata, and cannot now be pressed into service. ); State v. Melton, 15 N.C. App. 198, 200, 189 S.E.2d 757, 758 (1972). Defendant s arguments on this issue are, accordingly, dismissed. B. Defendant s Mitigating Evidence Defendant next contends that the sentencing judge failed to find the existence of mitigating uncontroverted and manifestly credible. factors which We disagree. were -4N.C. Gen. Stat. § 15A-1340.16 provides, in pertinent part, that [t]he mitigating court factors shall consider present in evidence the of offense aggravating or that an make aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court. N.C. Gen. Stat. § 15A-1340.16(a) (2013). Our Supreme Court has offered the following additional guidance: Except for Class A felonies and other offenses for which a particular punishment is set by statute, the range of sentences that the trial court may impose becomes known only after a series of findings and calculations. After a jury returns its verdict or verdicts, it must then determine whether any submitted aggravating factors exist, thereby permitting a defendant s sentence to be enhanced. In addition, the court independently determines whether any submitted mitigating factors also exist and, if so, whether the factors in aggravation outweigh the factors in mitigation, or the factors in mitigation outweigh the factors in aggravation, or the factors are in equilibrium. After weighing aggravating factors found by the jury and mitigating factors found by the court, the court decides whether to impose an aggravated, presumptive, or mitigated sentence. State v. Lopez, 363 N.C. 535, 539, 681 S.E.2d 271, 274 (2009) (internal mitigating citations and omitted). aggravating A factors trial will court s not be weighing of disturbed on appeal absent a showing that there was an abuse of discretion. -5State v. Rogers, 157 N.C. App. 127, 129, 577 S.E.2d 666, 668 (2003). Here, Defendant introduced testimony from a number of family and friends at his resentencing hearing, in the hope that this testimony factors of a would persuade support the system court in to the find mitigating community, employment and support of his children. positive The court ultimately determined, however, that nothing . . . ha[d] been presented to the Court in way of mitigation that would justify a mitigated sentence and sentenced Defendant within the presumptive range. Defendant contends that the court, in violation of Lopez, took the position that [the court] could make a decision, considering the existence of mitigating sentence in the presumptive range. before circumstances, to (Emphasis in original). Defendant predicates this contention on an inquiry made by the court at the resentencing hearing concerning whether the court was permitted, within its discretion, to simply find a sentence within the presumption range and make no findings[.] We disagree with Defendant s interpretation of the court s inquiry and analytical process in reaching its decision. Contrary to Defendant s interpretation, the transcript reveals the court s indication that it had, in fact, considered the mitigating -6evidence, but that it was acting within its discretion, notwithstanding that evidence, to sentence Defendant within the presumptive range. The court was not required to make findings with respect to the mitigating evidence in sentencing Defendant within the presumptive range, State v. Garnett, 209 N.C. App. 537, 550, 706 S.E.2d 280, 288, disc. review denied, 365 N.C. 200, 710 S.E.2d 31 (2011); State v. Dorton, 182 N.C. App. 34, 43, 641 S.E.2d 357, 363 (2007), and we otherwise discern no violation of Lopez or the relevant sentencing provision, N.C. Gen. Stat. Defendant. § 15A-1340.16, in the court s resentencing of Accordingly, this contention is overruled. C. Ineffective Assistance of Counsel Defendant arguments have finally not contends been that, preserved for to the appellate extent his review, he received ineffective assistance of counsel . . . at both trial and appellate levels. Defendant cites only generally to Strickland v. Washington, 466 U.S. 668 (1984), and makes no attempt to explain how he was prejudiced in this respect. therefore, deem the issue abandoned. We, N.C.R. App. P. 28(b)(6). III. Conclusion In light of the foregoing, we affirm the trial court s 26 September 2013 judgments. -7AFFIRMED. Chief Judge MARTIN and Judge STEELMAN concur. Report per Rule 30(e).

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