State v. MeltonState v. Melton
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- Before:
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Defendant has appealed this sentence pursuant to N.C.G.S. 15A-1444(a1), claiming that the trial judge erred in considering premeditation and deliberation as an aggravating factor in his sentencing decision. Appeal under this subsection is limited to the issue of whether the sentence entered is supported by evidence introduced at the trial and the sentencing hearing. State v. Davis, 58 N.C. App. 330, 293 S.E. 2d 658 (1982).
In this state murder in the second degree is a Class C felony and therefore the judge sentencing a defendant guilty of this crime must impose a fifteen-year term of imprisonment unless aggravating or mitigating factors merit imposition of a longer or shorter term.
Defendant here first argues that the trial court violated that part of N.C.G.S. 15A-1340.4(a)(l) which states that “[ejvidence necessary to prove an element of the offense may not be used to prove any factor in aggravation . . . .” Defendant contends that because the state did not introduce any testimonial evidence during the sentencing hearing, its general referral to evidence presented during the guilt adjudication phase of the proceedings amounted to the use of the same evidence to prove the elements of murder in the second degree as well as the aggravating factor of premeditation and deliberation. This argument betrays faulty reasoning.
To begin, we observe that the statutory phrase in question refers to “the offense.” In cases where a defendant is convicted of or pleads guilty to an offense different from that alleged in the bill of indictment it becomes necessary to determine the meaning of the phrase “the offense” as used in N.C.G.S. 15A-1340.4(a). Is “the offense” the crime charged in the bill of indictment or the crime of which the defendant is convicted or to which he pleads guilty or no contest? We hold that “the offense” refers to the criminal charge of which the defendant is convicted or to which he pleads guilty or no contest. The use of the phrase “the offense” at other places in the subsection leads inescapably to this conclusion. All aggravating factors listed refer to “the offense” as an accomplished fact. E.g.: “The offense was committed for the purpose . . . .” (15A-1340.4(a)(l)(b)); “The offense was committed for hire . . . .” (15A-1340.4(a)(l)(c)); “The offense was committed to disrupt . . . .” (15A-1340.4(a)(l)(d)); “The offense involved . . . .” (15A-1340.4(a)(l )(p)). Had the legislature intended that the crime charged was “the offense,” language such as “the crime charged was committed” would have been used throughout the subsection.
1
Defendant here pled guilty to murder in the second degree. In order to prove the commission of murder in the second degree, the state must prove beyond a reasonable doubt only that the defendant unlawfully killed the deceased with malice.
E.g., State v. Hutchins,
303 N.C. 321, 279 S.E. 2d 788 (1981);
State v. Jenkins,
300 N.C. 578, 268 S.E. 2d 458 (1980);
State v. Duboise,
279 N.C. 73, 181 S.E. 2d 393 (1971). Premeditation and deliberation are not elements of murder in the second degree.
Id.; State v. Lester,
289 N.C. 239, 221 S.E. 2d 268 (1976). Proof that defendant unlawfully killed the deceased does not prove that the killing was done with premeditation and deliberation. Similarly, the fact that the defendant here used a gun was sufficient to prove malice, the other essential element of murder in the second degree,
State v. Montague,
298 N.C. 752, 259 S.E. 2d 899 (1979);
State v. Woods,
278 N.C. 210, 179 S.E. 2d 358 (1971); however, the use of a gun does not by itself establish premeditation and deliberation.
State v. Faust,
254 N.C. 101, 118 S.E. 2d 769,
cert. denied,
368 U.S. 851, 7 L.Ed. 2d 49 (1961);
State v. Miller,
197 N.C. 445, 149 S.E. 590 (1929). It follows that Judge Rousseau’s finding that premeditation and deliberation were established by a preponderance of the evidence was not based upon evidence necessary to establish the two essential elements of murder in the second degree.
2
We note,
further,
Because premeditation and deliberation are not specifically listed aggravating factors in N.C.G.S. 15A-1340.4(a)(l), Judge Rousseau must have determined that they were “reasonably related to the purposes of Sentencing.”
The primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender’s culpability; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.
We hold that when a defendant pleads guilty to murder in the second degree, a determination by the preponderance of the evidence in the sentencing phase that he premeditated and deliberated the killing is reasonably related to the purposes of sentencing. Such aggravating factors may be considered in determining an appropriate sentence for the killer.
The defendant argues, however, that fundamental fairness requires that facts underlying charges which have been dismissed pursuant to a plea bargain cannot be used during sentencing for the admitted charge. We note, first, that although the parties here had the opportunity to bargain for the prosecutor’s recommendation of a particular sentence for the defendant, the record
shows that no such agreement was made.
3
Therefore, once the trial judge determined that the defendant’s guilty plea had been made voluntarily and that there was a factual basis for the plea, he was required by statute to accept the plea to murder in the second degree; however, the plea bargain did not limit the judge’s opportunity to exercise his discretion in determining an appropriate sentence for the defendant.
The mere fact that a guilty plea has been accepted pursuant to a plea bargain does not preclude the sentencing court from reviewing all of the circumstances surrounding the admitted offense in determining the presence of aggravating or mitigating factors.
People v. Klaess,
129 Cal. App. 3d 820, 181 Cal. Rptr. 355 (1982);
People v. Gaskill,
110 Cal. App. 3d 1, 167 Cal. Rptr. 549 (1980);
People v. Guevara,
88 Cal. App. 3d 86, 151 Cal. Rptr. 511 (1979). In fact, unless a sentence has been agreed to during plea bargaining, a sentencing judge is
required
to consider the statutory list of aggravating and mitigating factors during sentencing, of which many items concern circumstances that may surround the offense.
As long as they are not elements essential to the establishment of the offense to which the defendant pled guilty, all circumstances which are transactionally related to the admitted offense and which are reasonably related to the purposes of sentencing must be considered during sentencing.
We note that one court has held that a sentencing judge may not consider facts underlying an unrelated charge that was dismissed pursuant to a plea bargain. In
People v. Harvey, supra,
the defendant pled guilty to two counts of robbery under an indictment originally charging the commission of three unrelated robberies. The California Supreme Court held that it would be inequitable to consider facts underlying the unrelated robbery during sentencing because the defendant agreed to plead guilty to two counts in exchange for the dismissal of the third. “Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count.” 25 Cal. 3d at
758, 602 P. 2d at 398, 159 Cal. Rptr. at 699.
4
However, the court clearly stated that its reasoning was
Upon a finding by the preponderance of the evidence that aggravating factors outweigh mitigating factors, the question of whether to increase the sentence above the presumptive term, and if so, to what extent, remains within the trial judge’s discretion. State v. Davis, supra, 58 N.C. App. 330, 293 S.E. 2d 658 (1982).
The discretionary task of weighing mitigating and aggravating factors is not a simple matter of mathematics. For example, three factors of one kind do not automatically and of necessity outweigh one factor of another kind. The number of factors found is only one consideration in determining which factors outweigh others. The court may very properly emphasize one factor more than another in a particular case. The balance struck by the trial judge will not be disturbed if there is support in the record for his determination.
Id.;
Under the facts of this case, the trial judge did not abuse his discretion in entering the sentence to which defendant objects.
Defendant borrowed a .44-caliber magnum pistol, bought bullets for the gun, and test fired the weapon. Then he lulled his friend, the victim, into a false sense of security by drinking beer with him. He returned from the bathroom with gun in hand and killed the victim with one shot. At the time, defendant had malice in his heart because his woman had left him for the victim. The sentence was within the statutory limit, supported by the evidence properly before the judge, N.C.G.S. 15A-1444(a1) (Cum. Supp. 1981), and does not constitute
Affirmed.
Notes
. By this ruling we decline to adopt what some scholars refer to as “real offense sentencing.” Tonry,
Real Offense Sentencing: The Model Sentencing and Corrections Act,
72 Journal of Criminal Law and Criminology 1550 (1981). Real offense sentencing involves sentencing a defendant for what he actually does, regardless of the offense of which he is convicted or to which he pleads.
Cf. State v. Thompson,
275 N.W. 2d 370 (Iowa 1979) (“A sentencing court
may,
within statutory limits, impose a severe sentence for a lower crime on the ground that the accused actually committed a higher crime on the occasion involved
if
the facts before the court show the accused committed the higher crime or the defendant admits it —whether or not the prosecutor originally charged the higher crime.” 275 N.W. 2d at 372 (emphases in original).);
State v. Young,
292 N.W. 2d 432 (Iowa 1980) (following
Thompson).
In North Carolina, no matter how aggravated the offense, the defendant cannot be sentenced to more than the maximum imprisonment for the offense to which he pled guilty or of which he was convicted. For example, armed robbery is a Class D felony punishable by a maximum imprisonment of forty years.
. The case before us is fundamentally different from one in which a defendant tried for murder in the first degree was found guilty of murder in the second degree. In that situation, a fact-finding body would have decided that there was not sufficient evidence to conclude beyond a reasonable doubt that the defendant had premeditated and deliberated the killing. Under those circumstances the interesting question would arise whether the trial judge could find by the preponderance of the evidence that the killing was after premeditation and deliberation and use this finding as an aggravating factor. In the instant case, however, Melton pled guilty to murder in the second degree. No findings of fact were made during guilt adjudica tion concerning the presence or absence of premeditation and deliberation beyond a reasonable doubt because they are not elements of murder in the second degree. However, in considering factors “reasonably related to the purposes of sentencing,” the trial court was free to examine evidence not used to establish the elements of the offense to which Melton pled guilty and to conclude by a preponderance of the evidence that Melton premeditated and deliberated killing Moss.
. The record does show, however, that as required by N.C.G.S. 15A-1022(a)(6), the trial judge asked the defendant whether he understood that although the presumptive sentence for a Class C felony is fifteen years’ imprisonment, the maximum term is life imprisonment. The defendant answered “yes” and initialled this answer in the transcript of the plea.
. But see United States v. Majors, 490 F. 2d 1321 (10th Cir. 1974), cert. denied, 420 U.S. 932, 43 L.Ed. 2d 405 (1975). In that case defendant broke out of a federal penitentiary and then stole a car, driving it across state lines. Defendant was charged with escape and interstate transportation of a stolen car, in violation of separate federal statutes. Defendant agreed to plead guilty to the escape charge in exchange for the prosecutor’s agreement not to prosecute the interstate transportation charge. However, the trial judge considered the interstate transportation charge as an aggravating factor during sentencing. In affirming, the United States Court of Appeals for the Tenth Circuit stated:
By his plea bargain and the subsequent dismissal of the indictment against him for interstate transportation of a stolen motor vehicle, Majors was neither acquitted nor convicted, and the dismissal of the indictment for this offense did not deprive him of any constitutional or other right. The dismissed indictment and the charge contained in it are within the kind of information which a court may properly consider in passing sentence. The plea bargain and the indictment dismissal resulting from it did not and, indeed, could not, deprive the judge of the right and probably the duty of giving consideration to it. While a constitutionally invalid conviction cannot be considered by a sentencing judge, it does not follow that there must be a constitutionally valid conviction in order that criminal conduct may be considered.
490 F. 2d at 1324. Accord, United States v. Doyle, 348 F. 2d 715 (2d Cir.), cert. denied, 382 U.S. 843, 15 L.Ed. 2d 84 (1965).