*1
429
APPEALS
IN THE COURT OF
STATE v. HURT
App.
(2004)]
N.C.
429
[163
in
Statutes
not
costs
the North Carolina General
expenses
listed as
Inc.,
Housing,
Charlotte
will not be accommodated.
Manufactured
786;
Cosentino,
at
160
accord
160 N.C.
App. at
In the instant filed a dismissal pur- prejudice pursuant 41(a). motion for costs to Rule Defendant’s are Rule two items which not enumerated 41(d) suant to referenced McNeely, principles set forth in 7A-305(d). in Based on §G.S. Housing, Cosentino, Sealy, Charlotte Area Manufactured tax these denying did in motion to trial court not err defendant’s expenses against plaintiff. summary award- entering judgment,
The trial court’s orders for costs plaintiff, denying defendant’s motion ing costs affirmed. are
Affirmed. Judge Judge McGEE concur.
Chief MARTIN CAROLINA, HURT, v. DAVID FRANKLIN STATE OF NORTH Plaintiff
No. COA03-26 April (Filed 2004) per- Sentencing— one other factor — committing son by find- in a case second-degree The trial erred murder court defendant, who an factor that ing as person one other court did not find because the trial offense com- joined with more than one defendant had required an which is to find mitting 15A-1340.16(d)(2). N.C.G.S. under Wynn dissenting. Judge judgment August
Appeal entered County Superior Heard S. in Caldwell Court. Judge Claude Sitton Appeals October 2003. the Court of
Attorney Roy Cooper, by Attorney General Assistant General Dawson, Bradley Lisa the State. for Appellate Staples Hughes, Appellate Assistant Defender Blackman, S. defendant-appellant. Barbara Defender for ELMORE,Judge.
David (defendant) appeals judgment impos- Franklin Hurt ing a aggravated following plea sentence from range guilty his degree to second murder. Because we conclude the trial court erred by finding as an factor that one defendant the offense of and was not we vacate defendant’s sentence and remand re-sentencing. court for murder, indicted on 15 for first degree March 1999 degree burglary, first and common-law arising from the February 1999 of Howard slaying (Mr. Cook). August Cook On 26 pled guilty defendant to second murder in exchange remaining charges.1 presented dismissal of the The evidence at the plea hearing Mr. tended to show Cook died his own home as multiple head, result of neck, chest, abdomen, stab wounds to his and police back. Hours Mr. murdered, after Cook was officer discovered extremely nephew, (Parlier), Mr. Cook’s William Parlier intoxicated lying and in a ditch. Parlier told the officer his uncle had mur- been night dered the before identified defendant the murderer. Over gave police the next several Parlier hours three statements con- previous cerning night’s varied, events. Some the details but implicated each statement Mr. Cook’s defendant as killer. According statement, to Parlier’s third which the State relied on plea agreement, as the factual basis for the Parlier and defendant were riding drinking night around in defendant’s van Mr. Cook’s pulled murder. Defendant and Parlier a Hardee’s parking into lot and They it, but robbing considered decided not to. drove to Mr. Cook’s year-old fifty-seven Cook, home and the door. knocked on Mr. pajamas, door, point pushed clad cracked the at which defendant open, Mr. causing According Parlier, the door Cook to fall. defend- ant then hit Mr. Cook his fists three or four times in the face. money Defendant demanded from Mr. Cook instructed Parlier wallet, remove the Mr. contents of Cook’s which amounted to four stipulated having eight prior points, prior 1. Defendant record for a record of III. level APPEALS THE COURT OF
STATE v. HURT immediately knife, which defendant grabbed then dollars. Mr. Cook told Mr. Cook Parlier, defendant then According him. took from him to let die, begged Mr. Cook defendant going to that he was Bible, briefly reading from his him. After pray defendant killed before door, and defendant and locked the Mr. ran into his bedroom Cook closet into the bedroom Mr. Cook then retreated kicked in the door. open closet door. pushed when defendant and fell to the floor going he was told Mr. Cook again According to head. Mr. Cook over Mr. Cook’s placing a blanket to die before pleaded that he help him and Parlier stated Parlier to begged three Mr. Cook uncle, kill but defendant stabbed defendant not to Parlier again asked and abdomen. Cook or four times in the chest *3 spare to help again pleaded Parlier with defendant to him and Parlier away Mr. Cook and walked uncle’s life. Defendant stop to the bleed- Mr. Cook’shead and tried removed the blanket from Parlier, defendant then According to ing from his uncle’s chest. him Mr. Cook’s head and stabbed placed the blanket back over then cut the neck, chest, and abdomen. Defendant repeatedly in the Mr. Cook’s it, along with the knife and telephone and handed cord they leaving. After and told him jacket belt, to Parlier defend- fingerprints, door handles to remove wiping down all the Dam, Parlier threw the where Parlier drove to the Rhodhiss ant and water. knife, jacket, and belt into the questioned statements, defendant was on Parlier’s
Based having night of the murder or Mr. home on the being at Cook’s denied that he and murder. Defendant stated any in Mr. Cook’s involvement at some night and that trailer drinking Parlier were defendant’s van and left the trailer. defendant’s point Parlier borrowed pair about one hour and borrowed Parlier returned after stated that “fallen in some defendant he had pants; Parlier told of defendant’s he and jeans muddy.” Defendant stated that gotten mud and his blue acquaintance, where the residence of a female Parlier then went to early morning to see sleep the next and awoke defendant went to leave was allowed van. Defendant driving Parlier off defendant’s day. After the next statement, he was arrested this but giving after him, had the all and he with blood over was the one stating “[Parlier] right to you?” invoked his tell money[,] does that [w]hat the district representatives of Later, interview with in an counsel. attorney’s office, had loaned that Mr. Cook niece stated Mr. Cook’s money, and that wanted more money past, that Parlier in the Parlier murder. couple of weeks before Mr. Cook Parlier had threatened physical police evidence collected included four bloody possession; one-dollar bills found in testing Parlier’s revealed profile. blood matched Mr. Cook’s DNA Blood on Parlier’s shirt was also tested and profile, found to match his uncle’s DNA as was pair jeans blood from a found in defendant’s van. Blood found on DNA, defendant’s shirt and boot also matched Mr. Cook’s and saliva cigarette on a butt found at the front door Mr. Cook’s residence matched defendant’s DNA.
Defendant and Parlier were each arrested and with first degree murder, pled April guilty Parlier 2002 and was sen- imprisonment exchange testify tenced to life agreeing against However, shortly defendant. before defendant was to stand trial, testify. Parlier indicated he would not The State there- accept agreed plea after guilty defendant’s second murder. plea hearing,
At defendant’s presenting after the State’s factual plea basis for ney above, as described the assistant district attor- that, opinion, stated in his “when described what [Parlier] did those describing statements his own [defendant] [Parlier] activities... . And based on that I came to the conclusion that William Parlier is the actual . . . killer. The more I talked to Parlier the more I Nevertheless, realized that he did it.” the trial court found accept there were plea sufficient facts to guilty defendant’s *4 proceeded second murder and to sentencing. presented
Prior to sentencing, defendant evidence that he and his repeatedly by mother were during abused his childhood defendant’s father. At incarceration, the time of his gainfully defendant was employed and his alcoholic mother and brother living were with him. presented tending Evidence was to show that defendant ahas drink- problem presented and has four DWI convictions. Defendant inmates, statements from six each of whom claim Parlier admitted to them he, defendant, while incarcerated that killed Mr. Cook. disciplinary Defendant has had no infractions while incarcerated. Since his incarceration regularly by defendant has been ministered to uncle, pastor, his corresponded and has congregants of his uncle’s church. evidence,
At the by preponder- close of the trial court found the statutory ance of the following factors, pur- evidence the mitigating suant to N.C. Gen. 15A-1340.16(e)(2003): § Stat. (1) defendant has supported family past, support system (2) has a in a 433 community, positive Christian (3) employment history, has a well factors, as two mitigating that (1) defendant good been a (2) may inmate while incarcerated and had a have lesser role the commission by of the offense. The trial also court found preponderance of the following ag- evidence two pursuant gravating factors, to N.C. Stat. 15A-1340.16(d) (2003): § Gen.
(1) robbing one other Mr. Cook and was not committing conspiracy; and (2) the especially heinous, atrocious, cruel, or as well as one non-statutory aggravating factor, that defendant took four dollars by by from Mr. placing bodily Cook force and fear Cook in harm. The trial court found that outweighed factors the mitigating factors and sentenced defendant between imprisonment, aggravated months the maximum range term for a felony class B2 prior defendant’s record level III. Defendant 1,277 days spent received credit prior confinement the date judgment. appeals. single appeal on issue is whether the trial findings court’s regarding aggravating and mitigating supported by factors were properly evidence and were support utilized court imposed they sentence from the aggravated range. We that hold not, and we therefore vacate defendant’s sentence and remand to the trial re-sentencing. court for 15A-1340.16(a)
Section General Statutes states the trial court “shall mitigating consider evidence of or factors present in aggravated the offense that mitigated make sentence appropriate, depart presumptive but the decision to range is in the discretion the court.” 15A-1340.16(a) N.C. Gen. Stat. (2003). Moreover, present the court finds that are factors “[i]f outweigh any mitigating are sufficient to present, factors that are may impose it permitted a sentence that aggravated range is described in 15A-1340.17(c)(4).” G.S. N.C. Gen. Stat. 15A-1340.16(b) (2003). It is well settled that court be reversed for abuse “[a] only upon manifestly of discretion showing its actions are unsupported by White, 770, 777, reason.” White v. S.E.2d *5 finding ag- contends court erred as an gravating joined with factor that defendant one other in committing charged the offense of and was with not conspiracy. agree. We APPEALS COURT OF THE N.C. sentencing a crimi- provided grounds for legislature
Our that range exist where defendant aggravated nal from the “[t]he committing offense joined person other with more than one conspiracy.” N.C. Gen. Stat. charged committing was a not added). examination of (emphasis Our 15A-1340.16(d)(2)(2003) § through the words “more judge that trial marked record reveals immediately preceding and added the words “for than” “one” space immediately “conspiracy” in the on the following of victim” statutory aggravating fac- findings to this corresponding worksheet transcript plea the trial court Likewise, hearing of the shows tor. factor the defendant found as an “[t]hat Wayne Parlier, committing of rob- co-defendant, William was bery victim, Cook, from the of the conspiracy.” committing trial court intended It is from the record whether the unclear non-statutory a aggravat- a or finding for this to constitute clearly did not find that defendant ing factor. Because the trial court any person” than one other had “more offense, under N.C. Gen. required find an factor no was (2003), and because evidence 15A-1340.16(d)(2) Stat. by any party than presented tending to show involvement that, to murder, in Mr. we conclude defendant and Parlier Cook’s a statu- this to constitute the extent the court intended tory aggravating factor, the trial court erred. proved by that, preponderance a of the evi-
We are mindful when may dence, trial court find a “reasonably purposes sentencing.” N.C.
where
related to the
it is
280,
Taylor, 322 N.C.
15A-1340.16(d)(20)(2003);State v.
Gen. Stat. §
provided
286,
664,
legislature has
that one
(1988).
Our
“impose punishment
primary purposes
sentencing
is to
of the
caused,
injury
taking into
with the
the offense has
commensurate
culpa-
the offender’s
account factors that
diminish
increase
Moreover,
bility.”
appellate
Gen. Stat. 15A-1340.12
our
consistently stated
“the enhancement of a defend-
courts have
upon
beyond that
goes
must
conduct which
ant’s sentence
be based
encompassed by
particular
which
defend-
normally
crime for
S.E.2d
Jones,
is
v.
ant
322,
convicted.” State
pre-
“[A]ny factor
to increase or decrease
(1991).2
used
predecessor
Although
Jones 2.
decided
to the Structured
under
analysis
Sentencing
Act,
Sentencing
both
Act
is not affected. Under
the Structured
by pre-
required
prove aggravating
Sentencing Act,
State is
factors
and the Fair
*6
v.
STATE HURT
(2004)]
[163
sumptive term must
to the
or
relate
character
conduct of the
respect
offender.”
joining
Id.
Our Supreme Court, reasoning that “it must be assumed that every aggravation every factor in against measured in mitiga tion, each, with concomitant weight attached to contributes severity quantitative of the sentence —the variation from the norm of presumptive term[,]” every has held that “in case in which it is judge found that a finding findings erred in in aggravation and imposed beyond presumptive term, a sentence must case be sentencing Ahearn, remanded for new hearing.” State v. 307 N.C. 584, 602, light In of the we foregoing, need not address defendant’s trial contentions that the court erred find additional factors.
Because the court erred in as an aggravating fac- tor that defendant with one com- mitting the and was
we vacate defendant’s sentence and remand the trial court for re-sentencing.
Vacated and remanded.
Judge TIMMONS-GOODSONconcurs.
Judge WYNNdissents. ponderance (Struc- §15A-1340.16(a) (2003) of the evidence. See N.C. Gen Stat. Act); (repealed Sentencing 15A-1340.4(a) 1995) (Fair tured N.C. Gen. Stat. Sentenc- ing Act). COURT OF APPEALS THE
STATE HURT v. WYNN,Judge, dissenting. its I the trial court did not abuse discretion
Because conclude *7 with another aggravating an factor that offense, I respectfully the dissent person in commission of the my majority opinion colleagues. the of well-learned prove aggravat- the of an required The is existence State N.C. Stat. by the evidence. Gen. preponderance factor a listed the factors 15A-1340.16(a)(2003). aggravating In addition to § in its Statutes, the trial court 15A-1340.16(d) in section of General reasonably may “[a]ny aggravating find factor related discretion purposes sentencing.” 15A-1340.16(d)(20) Gen. Stat. § to the N.C. purposes are to (2003). sentencing injury impose punishment a commensurate with the may caused, diminish taking has into account factors protect public culpability; increase offender’s restraining offenders; to assist the offender toward rehabilitation community citizen; pro- as a lawful and to and restoration to the vide to criminal behavior. general a deterrent majority, the (2003). As § N.C. Gen. Stat. 15A-1340.12 noted nonstatutory be aggravating find a factor trial court’s decision to unsup- manifestly only upon showing that its decision is reversed a ported by reason. 608, 319 Manning, (1990),
In v. 327 N.C. 398 S.E.2d State Supreme properly use as a nonstatu- Court held the trial court could tory was committed for the fact that the offense aggravating factor Appeals. thereby by the Court of pecuniary gain, reversing a decision for Manning the defendant his convic- The trial court sentenced aiding abetting the solicitation to com- tions of the crimes of nonstatutory As a conspiracy mit to commit murder. murder factor, found the crimes committed the trial court sup- pecuniary Although was substantial evidence gain. for there hired or port factor, was no that the defendant was there evidence time, Sentencing At Fair Act paid to commit offense. statutory aggravating find as factor that allowed a trial court to a paid Gen. hired or to commit the offense.” N.C. defendant was “[t]he Appeals (1988). The Court of reversed 15A-1340.4(a)(l)(c) Stat. pecu- use court, holding the trial court could not decision of the nonstatutory be niary where it could not gain as a factor statutory Manning, See v. used as a factor. State
STATE v. HURT App. 502, 504-05, 96, (1989), reversed, 327 N.C.
S.E.2d 319 Appeals The Court of examined the aggravating factor and the Assembly intent of the General in its en- action, reasoning that North Legislature Carolina pecuniary
[t]he
indicated that
gain
may be considered as an aggravating
only
very
peculiar
In essence,
circumstances.
paid”
the “hired or
language of
N.C.G.S. 15A-1340.4(a)(l)(c) requires
the criminal act occur as
bargained
result of a
arrangement.
. . .
Legislature
[T]he
sought
impose greater punishment
where the crime arose from
agreement
contractual
involving pecuniary compensation.
Manning,
96 N.C.
(citation
S.E.2d at 97
omitted).
prove by
Because “the State
preponderance
did not
of the evidence
that the
participated
in the crime as a
bargained
result of a
*8
for arrangement,”
Appeals
the Court of
pecuniary
held that
gain could
not be used
nonstatutory
court as a
aggravating factor and
reversed the trial court. See id.
504-05,
On further
Supreme
Court reversed the decision
by the Court
Appeals,
of
stating that
the evidence
“[b]ecause
support
statutory
would not
the
aggravating
factor
N.C.G.S.
15A-1340.4(a)(l)(c)
... does not mean that it cannot
sup-
be used to
port nonstatutory
a
long
reasonably
factor” as
as it was
purposes
related to the
sentencing.
of
Manning, 327
613-14,
N.C. at
Supreme
S.E.2d at 322. The
Court
person
stated that
who
“[a]
conspires and
taking
person’s
solicits the
life,
of a
so that he
live
proceeds
off the
person’s
insurance
from that
death and
live
that
person’s home,
culpable by
is more
reason of
motives,
those
and a
greater
presumptive
sentence
than the
purposes
is warranted for
of
protection
deterrence as well as
of the unsuspecting public.” Id. at
615, 398
Supreme
S.E.2d at 323. Because the
pecuniary
Court deemed
gain as an incentive to commit a
reasonably
crime to be
related to the
purposes
sentencing,
explained
of
pecuniary
it
gain “can be a
nonstatutory aggravating factor unless there is something
preclude
to
its use.” Id. at
In instant com- finding aggravating factor that Defendant court erred in as an person. majority opinion ex- mitted the offense another language factor of section amines the joins aggravation where the defendant 15A-1340.16(d)(2) allowing person and concludes that than one to commit the offense more a higher degree culpability a legislature “our ascribed accomplice carry joins than out defendant who with more one analysis, enterprise.” explanation further criminal With no majority to the that it opinion “the trial court erred extent concludes joined with one other intended for its that defendant was committing the offense I conspiracy factor.” to constitute disagree with this conclusion. tending to show
There is substantial evidence
record
fact
joined
committing
with Parlier in
the offense. This
nonstatutory aggravat-
properly
could
used
the trial court as a
be
reasonably
ing
long
purposes
as it
to the
of sen-
factor as
was
related
precluded
tencing
nothing
its use. The fact that Defendant
thereby
person
crime,
committing
another
separate
culpa-
crime of criminal
increased Defendant’s
bility
reasonably
purposes
related to the
of sen-
therefore
preclude
use,
tencing.
its
trial court
grounds
As there
no
using
acted within its discretion in
factor that Defendant
nonstatutory
aggravat-
with another
commit
crime as
Manning,
613-15,
N.C. at
No. COA03-679 (Filed 2004) 6 April Neglect— psychological testing par- 1. Child Abuse noncompliance ents —willful in a case neglect
The trial court did not err child abuse respondent parents’ noncompliance with court finding that parents requiring was will- psychological testing of orders circumstances, by ordering ful financial and not due their respondents (1) efforts with because: DSS to cease reunification