84 N.C. App. 696 | N.C. Ct. App. | 1987
Defendant first argues that the trial court erred by using as an aggravating factor evidence of a joinable offense for which he was being sentenced. Defendant contends that “[b]y aggravating the defendant’s sentence for burglary with a finding that the crime was especially heinous, atrocious, and cruel, the court below must have been relying on evidence of other crimes that occurred once the defendant was inside the house.” We agree.
Recently, in the case of State v. Westmoreland, 314 N.C. 442, 334 S.E. 2d 223 (1985), the Court relying upon State v. Lattimore, 310 N.C. 295, 311 S.E. 2d 876 (1984), stated the following:
In the case before us the trial judge did not explicitly use defendant’s convictions as aggravating factors. Rather, he relied on defendant’s murderous course of conduct in committing the offenses that support the convictions. The State contends that this does not violate the rule of Lattimore. We cannot agree. Whatever name is given to it, the effect of the trial judge’s action was to use defendant’s contemporaneous convictions of joined offenses as an aggravating factor in violation of the rule of Lattimore. Of course, a trial judge is not precluded from finding as an aggravating factor that a defendant has engaged in a criminal course of conduct when such conduct is not the basis of either of the joined offenses.
In sentencing defendant for first-degree burglary the trial judge found as a statutory aggravating factor that the offense was especially heinous, atrocious, or cruel. From our review of the record on appeal it is apparent that the trial court improperly considered evidence of defendant’s course of conduct in the commission of a joinable offense, to wit: first-degree murder. Therefore, based upon Lattimore, supra, and Westmoreland, supra, we must remand for resentencing on defendant’s first-degree burglary conviction.
Upon sentencing defendant for larceny and breaking or entering the trial court found as the only aggravating factor that “[t]he defendant engaged in a pattern of conduct causing serious danger to society.” Consistent with our remand of defendant’s conviction for first-degree burglary, we likewise remand defendant’s convictions of larceny and breaking or entering for resen-tencing. From a review of the record on appeal the only basis for the trial court’s finding of the aforementioned non-statutory aggravating factor was evidence of joinable offenses for which defendant was also being sentenced. The principle established in Lattimore and Westmoreland, supra, prohibits this result.
Defendant’s final Assignment of Error is that the trial court erred by not finding as a mitigating factor that defendant aided in the apprehension of another felon. We agree.
Prior to sentencing a convicted felon to a prison term other than the presumptive a trial court must consider any mitigating or aggravating factors set forth in G.S. 15A-1340.4. Id. If a trial court imposes a prison term for a felony that differs from the presumptive term set forth in G.S. 15A-1340.4(f), then the trial court “must specifically list in the record each matter in aggravation or mitigation that he finds proved by a preponderance of the evidence. If he imposes a prison term that exceeds the presumptive term, he must find that the factors in aggravation outweigh the factors in mitigation.” G.S. 15A-1340.4(b) (emphasis supplied).
Defendant complains that there was a preponderance of the evidence to establish as a mitigating factor that he “aided in the apprehension of another felon,” G.S. 15A-1340.4(a)(2)h. The record on appeal bears out defendant’s assertion. There was uncontra-
Remand for resentencing.
