State v. HoltState v. Holt
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Laureen Millar Holt (“defendant”) appeals from the judgment and commitment imposed on resentencing. On appeal, defendant assigns error to (1) the trial court’s finding as an aggravating factor that “[t]he victim suffered serious injuries that were permanent and debilitat
ing,” and (2) the trial court’s imposition of a greater sentence on resentencing in violation of
At trial, the State’s evidence tended to show that while in defendant’s care on 7 July 1994, Amber Hall (“Amber”), a six month old infant whom defendant provided day care for in her home, suffered a severe head trauma, as well as, significant brain damage, as the result of a “nonaccidental trauma or . . . shaken baby syndrome.” After her initial injury, Amber survived for approximately twenty-two months. During those twenty-two months, Amber was in a vegetative state; she was blind; she suffered from cerebral palsy and seizures; she lost her circadian rhythm resulting in her inability to sleep; she was unable to chew or swallow; she could not learn to crawl, walk, or speak; her skull collapsed; and her head shrank. Then on 26 May 1996, Amber died of pneumonia related to her severe head trauma. Ultimately,
At defendant’s first sentencing hearing on 1 July 1998, the trial court found two aggravating and one mitigating factors. The court then determined that the aggravating factors outweighed the mitigating factor, and sentenced defendant in the aggravated range under the Structured Sentencing Act,
On appeal, this Court found no error in the trial; however, we held that defendant was improperly sentenced under the Structured Sentencing Act.
State v. Holt,
134 N.C. App. 499, 526 S.E.2d 509 (1999) (unpublished). Effective 1 October 1994, the Fair Sentencing Act,
On 13 September 1999, at defendant’s resentencing hearing, the trial court found two aggravating factors — “[t]he victim was very
young” and “[t]he victim suffered serious injuries that were permanent and debilitating” — and five mitigating factors. Nevertheless, the trial court again determined that the aggravating factors outweighed the mitigating factors, and therefore sentenced defendant in the aggravated range. Specifically, the court sentenced defendant as a Class C felon (
In her first assignment of error, defendant argues that the trial court erred in finding as an aggravating factor that “[t]he victim suffered serious injuries that were permanent and debilitating,” and consequently sentencing her in the aggravated range. Particularly, defendant contends that a serious and debilitating injury is not a proper aggravating factor for a homicide case, because evidence of a serious and debilitating injury is used to prove malice, an essential element of second degree murder. We disagree.
“Second-degree murder is the unlawful killing of a human being with malice, but without premeditation and deliberation.” State v. Robbins, 309 N.C. 771, 775, 309 S.E.2d 188, 190 (1983). Clearly, a serious and debilitating injury is not an expressed element of second degree murder. However, defendant claims that the evidence of Amber’s serious and debilitating injuries was evidence used to show malice.
We recognize that, “[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation . . . .”
Although
the statute lists several aggravating factors which the trial judge is required to consider and also authorizes him to consider any other aggravating factors “that he finds are proved by the preponderance of the evidence, and that are reasonably related to the purposes of sentencing. ...”
State v. Thompson, 310 N.C. 209, 220, 311 S.E.2d 866, 872 (1984), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988). Here, the State’s evidence was sufficient to establish that Amber suffered serious and debilitating injuries in excess of that normally present in second degree murder. Thus, the trial court had the authority to find as an aggravating factor that Amber suffered serious injuries that were permanent and debilitating, as long as the court’s finding was proved by a preponderance of the evidence and reasonably related to the purposes of sentencing. Such was the case here.
Moreover, we note that this Court has held in the past that a serious injury may be used as an aggravating factor.
See State v. Nichols,
66 N.C. App. 318, 311 S.E.2d 38 (1984) (prior to the Structured Sentencing Act, serious injury could be used as a factor in aggravation);
see also State v. Crisp,
126 N.C. App. 30, 483 S.E.2d 462 (in prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, aggravating factors may include that victim suffered permanent and debilitating serious injury). Additionally, under Structured Sentencing as it is presently in effect, serious injury that is permanent and debilitating is a listed aggravating factor for consideration pursuant to
In her second assignment of error, defendant argues that the trial court’s imposition of a greater sentence on resentencing is in violation of
The statute on resentencing after appellate review states:
When a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.
Clearly,
applies to the situation where the trial judge is weighing aggravating and mitigating factors on resentencing a defendant or on sentencing a defendant after a new trial. The statute prohibits the trial judge from imposing a more severe sentence because of reweighing aggravating factors, or because of new aggravating factors. .. .
State v. Williams,
74 N.C. App. 728, 730, 329 S.E.2d 709, 710 (1985). At bar, the trial court did weigh aggravating and mitigating factors on resentencing. Therefore, “ ‘[i]n simple words, on resentencing, a trial judge cannot impose a term of years greater than the term of years imposed by the original sentence ....’”
State v. Hemby,
333 N.C. 331, 335, 426 S.E.2d 77, 79 (1993) (quoting
The sole exception to
At bar, defendant was sentenced under the Fair Sentencing Act. Pursuant to the Fair Sentencing Act, the presumptive sentence for a Class C felon was fifteen years (
The State relies on both
State v. Williams,
74 N.C. App. 728, 329 S.E.2d 709, and
State v. Kirkpatrick,
89 N.C. App. 353, 365 S.E.2d 640, for its position that
First, in
Williams,
74 N.C. App. 728, 329 S.E.2d 709, the defendant was found guilty of armed robbery and sentenced to twelve years imprisonment.
Id.
Subsequently, this Court granted defendant’s motion for appropriate relief and ordered a new trial.
Id.
On retrial, defendant was again found guilty of armed robbery and was resentenced to a term of fourteen years pursuant to
Likewise in
Kirkpatrick,
89 N.C. App. 353, 365 S.E.2d 640, the defendant was found guilty of felonious possession of stolen property
and of being an habitual felon.
Id.
As a result, the trial court sentenced the defendant to three years imprisonment for the possession of stolen property conviction and fifteen years, imprisonment for his habitual felon status.
Id.
On appeal, this Court held that the defendant was improperly given a separate sentence for his habitual felon status, and we remanded for resentencing.
Id.
On remand, the trial court resentenced the defendant as an habitual felon to a single term of fifteen years for the felonious possession of stolen property conviction pursuant to N.C. Gen. Stat. Ԥ 14-7.6 (1986).
Id.
Specifically, under § 14-7.6, an habitual felon was required to be sentenced as a Class C felon; and pursuant to
In summary, we affirm the trial court’s use of serious and debilitating injuries as an aggravating factor in this second degree murder case. However, we vacate the trial court’s sentence on resentenc-ing and remand with instructions that defendant’s sentence
Affirmed in part, vacated and remanded in part.
Chief Judge EAGLES and Judge CAMPBELL concur.