STATE v. CANADY
No. 278A90
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 6 December 1991
330 N.C. 398 (1991)
STATE OF NORTH CAROLINA v. RICKY LYNN CANADY
The trial court erred when sentencing defendant for burglary and larceny by relying on the statement of the prosecutor in finding the aggravating factor of prior convictions. A defendant‘s silence while the prosecuting attorney makes a statement does not support an inference that the defendant consented to the statement, and the argument by defendant‘s attorney that the things with which he was charged in this case are not consistent with his past involvements should not be taken as a consent to the making of the statement by the prosecuting attorney.
Am Jur 2d, Criminal Law §§ 598, 599.
2. Appeal and Error § 147 (NCI4th) — aggravating factor — unsupported statement of prosecutor — no objection to statement or to finding — question preserved for appeal
A burglary and larceny defendant could raise on appeal the reliance of the court on the statement of the prosecuting attorney as to prior convictions even though defendant did not object to the statement at the time it was made or object to the finding of the aggravating factor of prior convictions when it was made. This is not a question of the admission of evidence and, assuming that Appellate Rule 10 requires an exception to be made to the finding of an aggravating factor, defendant has complied with the rule. Subsection (b)(1) of App. R. 10 does not have any application to this case. The defendant did not want the court to find the aggravating factor and the court knew or should have known it. This is sufficient to support an assignment of error; it is not necessary to implicate
Am Jur 2d, Appeal and Error §§ 545, 624; Criminal Law §§ 598, 599; Habitual Criminals and Subsequent Offenders § 32.
Justice MEYER dissenting.
Justice WHICHARD dissenting.
Justice MITCHELL joins in this dissenting opinion.
The defendant was convicted of second degree burglary and felonious larceny. At the sentencing hearing, the prosecuting attorney told the court that the defendant had prior convictions of felonious possession of marijuana, felonious possession of LSD, discharging a firearm into an occupied motor vehicle and escape from the Department of Corrections. Thеre was no other evidence of prior convictions of the defendant.
The court found one aggravating factor, that the defendant had prior convictions for criminal offenses punishable by more than 60 days’ confinement. No mitigating factors were found. The court enhanced the sentence to more than the presumptive sentence for both crimes.
Lacy H. Thornburg, Attorney General, by J. Charles Waldrup, Assistant Attorney General, for the State.
Arnold Locklear for defendant appellant.
WEBB, Justice.
[1] The defendant argues, under his only assignment of error, that it was error for the court to rely on the statement of the prosecuting attorney in finding the aggravating factor. We believe this argument has merit.
“Under the Fair Sentencing Act, a trial court may not find an aggravating factor where the only evidence to support it is the prosecutor‘s mere assertion that the factor exists.” State v. Swimm, 316 N.C. 24, 32, 340 S.E.2d 65, 70-71 (1986); State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983). Pursuant to this rule, the defendant is entitled to a new sentencing hearing.
The State argues that the defendant seemed to concede the accuracy of the statements by the prosecuting attorney. See State v. Mullican, 329 N.C. 683, 406 S.E.2d 854 (1991). It bases this argu-
Justice Whichard, in his dissent, argues that by remaining silent when the prosecutor was making the statement and by attempting to distinguish his past misconduct from the charges presently against him, defendant implicitly stipulated to the accuracy of the prior convictions. We made it clear in Mullican that the statement by the prosecuting attorney that he would summarizе the evidence with the permission of the defendant was an invitation to the defendant to object if he had not consented. Id. at 686, 406 S.E.2d at 855. There was not such an invitation in this case. We do not feel that a defendant‘s silence while the prosecuting attorney makes a statement should support an inference that the defendant consented to the statement. Nor do we feel that the argument by the defendant‘s attorney, that the things with which he was charged in this case are not consistent with his past involvements, should be taken as a consent to the making of the statement by the prosecuting attorney. Rightly or wrongly, the court was considering the matters about which the prosecuting attorney had spoken and the defendant had the right to argue the matters without being held to have admitted them.
[2] The State contends that the defendant cannot complain because he did not object to the statement of the prosecuting attorney at the time it was made. This is not a question of the admission of evidence. As Swimm and Thompson make clear, a statement of the prosecutor is not sufficient evidence to support the finding of an aggravating factor althоugh there is no objection to the statement.
Finally, the State argues that the defendant cannot appeal the finding of the aggravating factor because he did not object to it when the finding was made. The State relies on State v. Bradley, 91 N.C. App. 559, 373 S.E.2d 130 (1988), disc. rev. denied, 324 N.C. 114, 377 S.E.2d 238 (1989). In that case, the Court of Appeals held that the defendant could not appeal from the finding of an aggravating factor because he did not object to the finding pursuant to
Assuming Rule 10 requires an exception to be made to the finding of an aggravating factor, we hold the defendant has complied with the Rule. At the time of sentencing the judge said, “[f]or the record, the Court did take into consideration two previous felony convictions, possession of marijuana and LSD, and a charge of escape from the department of corrections.” The defendant marked an exceрtion to this statement and made it the subject of an assignment of error. This was sufficient to preserve the question for appellate review.
Justice Meyer in his dissent relies on
In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party‘s request, objection or motion. Any such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be made the basis of an assignment of error in the record on appeal.
This subsectiоn of the rule does not have any application to this case. It is directed to matters which occur at trial and upon which the trial court must be given an opportunity to rule in order to preserve the question for appeal. The purpose of the rule is to require a party to call the court‘s attention to a matter upon which he or she wants a ruling before he or she can assign error to the matter on appeal. State v. Hedrick, 289 N.C. 232, 221 S.E.2d 350 (1976); State v. Isom, 52 N.C. App. 331, 278 S.E.2d 327 (1981), disc. rev. denied, 303 N.C. 548, 281 S.E.2d 398 (1981). If we did not
State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983), is not authority for this case. There was language in that case to the effect that a party may not go through the record or the transcript and insert exceptions. None of the exceptions in that case dealt with findings of fact in the judgment.
Justice Whichard, in his dissent, argues that pursuant to
We might agree with Justice Whichard if we had to go so far as to implicate
Assuming, as the dissent contends, that the defendant should have objected to the finding of the aggravating factor when it was found, we hold that he did so. The defendant argued at the sentencing hearing that he be sentenced to the “statutory minimums.” This should have alerted the court to the fact the defendant did not want it to find the aggravating factor.
Reversed and remanded.
Justice MEYER dissenting.
I agree with the majority that a prosecutor‘s statements concerning a defendant‘s prior conviсtions are not sufficient evidence to support a trial court‘s finding of the prior convictions aggravating factor,
Defendant concedes that he waivеd objection to the competency of the prosecutor‘s statement as an acceptable method of proving defendant‘s prior convictions. However, defendant contends that according to
On its face,
As we have previously noted,
The former version of North Carolina
What the majority fails to recognize, however, is that
Any exception which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be made the basis of an assignmеnt of error.
In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party‘s request, objection or motion. Any such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be made the basis of an assignment of error in the record on appeal.
In State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983), we were called upon to decide whether a defendant‘s post-trial insertion of the notation “exception” throughout the transcript properly preserved the alleged errors for appellate review. After examining the language of the former Rule 10 and its official commentary, we noted that “Rule 10 functions as an important vehicle to insure that errors are not ‘built into’ the record, thereby causing unnecessary appellate review.” Id. at 334, 307 S.E.2d at 311. We disapproved of the defendant‘s practice of noting exceptions and held:
A party may not, after trial and judgment, comb through the transcript of the proceedings and randomly insert an exception notation in disregard of the mandates of
Rule 10(b) .... Where no action was taken by counsel during the course of the proceedings, the burden is on the party alleging error to establish its right to review; that is, that an exception, “by rule or lаw was deemed preserved or taken without any such action,” or that the alleged error constitutes plain error.
Id. at 335, 307 S.E.2d at 312.
In an attempt to bolster its erroneous conclusion that
The instant case, however, is not a situation where the court reserved judgment until a later date and thereafter rendered its judgment out of session. The majority seems to imply that the preparation of the judgment and the affixing of the trial judge‘s signature are not actions “taken during the course of proceedings in the trial tribunal.” This is clearly wrong. In this case, the trial court entered its judgment sentencing defendаnt to twenty years’
The majority further suggests that defendant complied with
Contrary to the majority‘s conclusion, the defendant in this case failed to preserve his exception for appellate review during the course of the trial proceedings when the judgment was prepared and signed. Defendant did not at any time object to the prosecutor‘s statement or object to or otherwise indicate his opposition to the trial court‘s finding during the trial proceedings. Rather, defendant waited until after judgment had beеn entered and the transcript of the trial had been prepared and only then inserted into the transcript a handwritten notation of “Exception No. Five” to the trial court‘s finding that defendant had previously been convicted of felonious possession of marijuana and LSD and escape from the Department of Correction. As we concluded in Oliver, defendant‘s subsequent insertion of a notation of “exception” did not properly preserve this exception for appellate review.
Other than
Because defendant failed to object to the district attorney‘s statement of defendant‘s prior offenses and because he has failed to show that an exception to the trial court‘s finding has been preserved by rule or law or that the trial court‘s finding constituted plain error, the trial court‘s finding is conclusive on appeal. State v. Perry, 316 N.C. 87, 107, 340 S.E.2d 450, 462 (1986); Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982). The trial court‘s findings support the sentence imposed by the trial court, and therefore defendant‘s assignment of error should be overrulеd. For these reasons, I dissent from the majority opinion and vote to affirm the decision of the Court of Appeals.
Justice WHICHARD dissenting.
I believe defendant, through counsel, admitted or implicitly stipulated to the existence of his prior criminal record as presented to the court by the prosecuting attorney and that this was sufficient to support the trial court‘s finding of the “prior convictions” aggravating factor.
In this case the prosecuting attorney opened the sentencing phase by saying, “Your Honor, first of all, I would like to present to the Court facts of a prior criminal record of the Defendant.” He then told the court that the defendant had prior convictions of felonious possession of marijuana, felonious possession of LSD, discharging a firearm into an occupied motor vehicle, and escape
The statement at issue here is less equivocal than statements in other cases in which we have upheld the trial court‘s finding of an aggravating or mitigating factor. In State v. Albert, 312 N.C. 567, 324 S.E.2d 233 (1985), we held that the trial court erred in failing to find as a mitigating factor that the defendant had no record оf criminal convictions. In Albert, the defendant‘s attorney asserted that the defendant had “no record at all in her lifetime” and had “never been in court before” except as a juror. We noted that, standing alone, those statements would not have been sufficient to meet defendant‘s burden of persuasion on the mitigating factor. Id. at 579, 324 S.E.2d at 241. However, we also noted that the trial court asked the prosecutor whether any of the three defendants in the case had a prior criminal record, to which the prosecutor replied, “only Mr. Dearen.” We concluded that the trial court erred in rejecting the mitigating factor because “the State appears to have stipulated that neither the defendant Mills nor the defendant Albert had a criminal record. . . .” Id. at 579-80, 324 S.E.2d at 241.
Similarly, in State v. Mullican, 329 N.C. 683, 406 S.E.2d 854 (1991), the prosecutor opened the sentencing proceeding by stating “[w]ith the permission of the Court and the Defense, I will summarize what the State‘s evidence will show.” Without objection or complaint by the defendant, the prosecutor then described the evidence that ultimately supported the aggravating factor found by the court. In presenting the defendant‘s evidence relating to sentencing, defense counsel described the circumstances of the crime and stated, “Of course that is not any excuse for his doing this. He told the Officer that he was sorry, sorry for committing the offense. . . .” Id. at 684, 406 S.E.2d at 855. Our Court of Appeals held in Mullican that “defense counsel admitted the correctness
Finally, in State v. Brewer, 89 N.C. App. 431, 366 S.E.2d 580 (1988), cert. denied, 322 N.C. 482, 370 S.E.2d 229 (1988), we find the following:
At the sentencing hearing, the prosecutor stated that in 1974 defendant was convicted of larceny and received a four year sentence as a committed youthful offender; that in 1977 defendant was convicted of felonious assault for which he received a ten year sentence as a regular youthful offender. In response to the prosecutor‘s remarks, defense counsel stated:
MR. PRICE: Your Honor, Mr. Brewer last worked in April or May of 1986 for a сontractor in roofing work. He has a G.E.D. and is 28-years-old. He has been living with his father and step-mother. I would emphasis [sic], Your Honor, that his record indicates no convictions for almost 10 years. We would ask for leniency.
. . . .
Considering the State‘s remarks about defendant‘s record of convictions and defense counsel‘s immediate response that he would like to emphasize to the court that defendant‘s record “indicates no convictions for almost 10 years,” we find and so hold that defense counsel was referring to the record of convictions the State had just referenced. From the full context of the remarks we find that no reasonable inferences to the contrary can be drawn. Defense counsel‘s response is tantamount to an admission or a stipulated fact that defendant has the convictions so represented by the State.
Id. at 435-36, 366 S.E.2d at 583.
In this case, the prosecutor‘s description of the prior convictions, combined with defense counsel‘s express acknowledgement
While I agree with the result he would reach, I decline to join Justice Meyer‘s dissent because I discern no contradiction between
Any . . . question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted[,] or which by rule or law was deemed preserved or taken without any such action, may be . . . made the basis of an assignment of error . . . .
For the foregoing reasons, I dissent and vote to affirm the Court of Appeals.
Justice MITCHELL joins in this dissenting opinion.