State v. Parker

92 N.C. App. 102 | N.C. Ct. App. | 1988

PHILLIPS, Judge.

Defendant’s appeal questions only the process by which he was sentenced to a prison term of ten years. The errors that he contends the court made were in finding the two aggravating factors and in not finding in mitigation that (1) he reasonably believed the victim was sixteen years old and his conduct was legal and (2) his immaturity significantly reduced his culpability. The contentions concerning the aggravating factor involving penetration and the court’s failure to find additional factors in mitigation clearly have no merit and can be quickly disposed of; but the contention concerning the other factor in aggravation is well founded and defendant must be resentenced.

Contrary to defendant’s contention, evidence of vaginal penetration was not necessary to prove the offense that he pled guilty to and was sentenced for, taking indecent liberties with a child, see G.S. 14-202.1; and the finding that his conduct indicated he was guilty of the greater offense charged was therefore not forbidden by G.S. 15A-1340.4(a)(1). The finding is authorized, though, by State v. Melton, 307 N.C. 370, 298 S.E. 2d 673 (1983), which defendant implicitly recognized by arguing not that Melton does not apply, but that it is fundamentally and constitutionally unfair and a deterrent to good faith plea bargaining because it permits a defendant to be punished for an offense that has been dismissed by accepting a lesser plea. Though the argument is interesting it would be fruitless for us to address it for an obvious reason.

As to the two factors in mitigation that the court declined to find it is enough to say that: The court was not required t'o find that defendant believed the victim was sixteen years old since the evidence bearing thereon was not undisputed, State v. Jones, 309 N.C. 214, 306 S.E. 2d 451 (1983); whether defendant’s immaturity significantly reduced his culpability was a factual question for the court to determine in its discretion after receiving the evidence and observing defendant, State v. Moore, 317 N.C. 275, 345 S.E. 2d 217 (1986), and no abuse is indicated.

But the factor in aggravation as to defendant’s lack of remorse for his crime was erroneously found. This nonstatutory factor, that a defendant after having had the opportunity to reflect on his criminal deed is without remorse for the crime committed, if supported by evidence, is authorized by State v. Parker, 315 N.C. 249, 337 S.E. 2d 497 (1985). The only evidence recorded in support of the court’s finding that defendant is unremorseful is that during the sentencing proceeding defendant laughed while the prosecutor was reading statements elicited by the police that were contradicted by his testimony as to how the sexual encounter started, and his statement that he laughed because the statements read were mostly lies. Thus, the only support for the court’s finding that defendant had no remorse is the laugh itself and defendant’s statement that he laughed for another reason. While this evidence warrants the reprimand that the court administered it does not support the court’s conclusion that the defendant was without remorse; the only finding that it could support is that he laughed because some of the statements were false. If he did not laugh for that reason, why he laughed is entirely speculative so far as the evidence shows. Some of the many possibilities are that he laughed out of mere nervousness or meanness, or because he was an immature adolescent in the toils of the law for the first time, or because he had no remorse for his crime. One thing that is not speculative, though, but known to everyone that has spent much time in court is that defendants and other witnesses often laugh or smile at being contradicted.

The judgment sentencing defendant is vacated and the case is remanded to the Superior Court for resentencing.

Vacated and remanded.

Judges Eagles and Parker concur.