State v. Harris, 67 N.C. App. 725

67 N.C. App. 725 | N.C. Ct. App. | 1984

WELLS, Judge.

The state opposes defendant’s appeal on the grounds that criminal defendants may not appeal from sentences imposed pursuant to a plea agreement approved and accepted by the trial court. We disagree. Defendant’s plea agreement provided only that his convictions would be consolidated for sentencing, and did not deal with the question of length of punishment. Therefore, defendant is free to contend on appeal that the trial court erred in finding certain factors in aggravation of his sentence. State v. Jones, 66 N.C. App. 274, 311 S.E. 2d 351 (1984). Compare State v. Simmons, 64 N.C. App. 727, 308 S.E. 2d 95 (1983), where defendant’s plea bargain provided he could be sentenced up to ten years in jail, the sentence imposed was within this limit, and no appeal was permitted.

We turn now to the merits of defendant’s appeal. Where a defendant is convicted of more than one crime, but only one sentencing hearing is held, the trial judge should list aggravating and mitigating factors separately, as they relate to each crime. State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983). This rule applies both to the situation in which the crimes are consolidated for judgment, and where they are not. Id. Because the trial court in the case at bar failed to treat each offense separately and make findings tailored to the individual offense, the case must be remanded for resentencing. State v. Farrow, 66 N.C. App. 147, 310 S.E. 2d 418 (1984).

We deem it appropriate to note several additional errors committed by the trial court during the sentencing hearing.

In aggravating factor number one, the court found that the offense was committed for pecuniary gain, as provided under the former version of N.C. Gen. Stat. § 15A-1340.4(a)(l)(c) (1981 Cum. Supp.). It is clear, however, that a finding of this factor must be supported by evidence that defendant was hired to commit the crime. State v. Abdullah, 309 N.C. 63, 306 S.E. 2d 100 (1983). The mere fact that defendant profited in some way from his crime is insufficient. See also amended version of G.S. § 15A-1340.4(a)(l)(c), effective 1 October 1983, substituting the term “was hired or paid” for the term “for hire or pecuniary gain.”

In factor number six, the trial court held that a lesser sentence would unduly depreciate the seriousness of the crime. This non-statutory factor was rejected as unrelated to the purposes of sentencing by our supreme court in State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983). Therefore, it was error for the trial court to use this factor.

Next, we note that the trial court also erred as to factor number seven. “Fundamental fairness requires that once the trial judge accepted the plea bargain . . . the court was required to consolidate the cases for sentencing under one judgment and not treat the offenses separately. . . . [T]he court could not, in violation of the terms of the accepted negotiated plea, have imposed a separate sentence in each case to run concurrently or consecutively.” State v. Jones, supra. It was error for the court to find as a factor in aggravation that it could have entered concurrent or consecutive jail terms. Id.

We turn next to factor number eight, “defendant’s obvious continued determination in breaking the criminal law,” and factor number five, “defendant’s criminal history makes it necessary to separate him from the general public for its safety.” It is clear that both of these factors in aggravation are based only upon evidence of defendant’s prior criminal record, the same evidence used in finding factor number four. It is beyond question that a trial court may not use the same evidence to support more than one aggravating factor, see, e.g., State v. Higson, 310 N.C. 418, 312 S.E. 2d 437 (1984), and therefore the trial court erroneously found factors number eight and five.

Remanded for resentencing.

Judges Arnold and Braswell concur.