State v. Mabry, 217 N.C. App. 465

Mabry appeals a mitigated-range sentence of 230–285 months after a second resentencing hearing.
Defendant previously stood convicted on multiple counts of first-degree statutory sex offense and indecent liberties with her two minor daughters, with prior appellate history confirming some convictions and remanding for resentencing.
At the second resentencing, the court found one mitigating factor (honorable discharge from the Navy) and imposed the mitigated-range sentence.
Mabry challenged (a) the right to direct appeal of sentence in the mitigated range and (b) the court’s failure to find four additional mitigating factors and to address a prior-record-point assessment based on a 1995 prayer for judgment continued (PJC).
The court held Mabry may appeal the sufficiency of sentencing evidence in mitigated-range cases, rejected the four argued mitigating factors as unpersuasive, and upheld the mitigated-range sentence as not an abuse of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Mabry may appeal the sufficiency of sentencing evidence in a mitigated-range case.	State contends no direct appeal right unless aggravated range.	Mabry argues statutory right to appeal exists for mitigated-range sentences.	Yes; defendant may appeal the sufficiency of the evidence.
Whether the trial court erred by not finding four mitigating factors (good character, supports family, community support, positive employment).	Mabry argues evidence supports these mitigating factors.	Trial court could reasonably reject them.	No error; factors were not uncontradicted and manifestly credible.
Whether use of Mabry's 1995 prayer for judgment continued for a prior record level violates due process or constitutional rights.	State relies on statutory interpretation.	Constitutional challenges were previously rejected; arguments barred.	Constitutional challenges rejected; PJC use upheld.
Whether the trial court abused discretion by giving weight to mitigation yet keeping the same sentence as the presumptive range.	Mitigation should yield a lighter sentence.	Weight of factors is within judge’s discretion; not required to numerically balance.	No abuse of discretion; sentence within the range justified.

State v. Knight, 87 N.C. App. 125, 360 S.E.2d 125 (1987) (right to appeal mitigated-range sentences and procedural limits on appeal)
State v. Murphy, 152 N.C. App. 335, 567 S.E.2d 442 (2002) (uncontradicted evidence of good character not necessarily manifestly credible)
Kemp, 153 N.C. App. 231, 569 S.E.2d 717 (2002) (community support system evidence requires more than family testimony)
State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983) (guidance on appellate review of mitigating factors)
State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983) (discretion in weighing mitigating factors and sentencing)
State v. McGaha, 306 N.C. 699, 295 S.E.2d 449 (1982) (strict construction of criminal statutes and proscription against adding language)