73 N.C. App. 238 | N.C. Ct. App. | 1985
Defendant contends that the trial judge erred in finding as a factor in aggravation that “this offense was part of a course of conduct where an outbuilding was set on fire and burned by the defendant a few days early to the commission of these offenses.” Defendant argues that this factor was not supported by a preponderance of the evidence. We agree.
Under the Fair Sentencing Act, if after considering the statutory aggravating and mitigating factors and any other factors proved by a preponderance of the evidence and reasonably related to the purposes of sentencing, the trial judge imposes a prison term for a felony that differs from the presumptive term, he must list in the record each factor in aggravation or mitigation that is proved by a preponderance of the evidence. G.S. 15A-1340.4(a), (b). If the trial judge lists an aggravating factor as supporting a sentence in excess of the presumptive term, then this must be supported by a preponderance of the evidence.
In the present case the trial judge increased defendant’s sentence beyond the presumptive because he engaged in a “course of conduct.” The trial judge described this “course of conduct” as “where an outbuilding was set on fire and burned by defendant a few days early to the commission of these offenses.” By “these offenses” the trial judge apparently referred to those to which the defendant pled guilty, and by the outbuilding burned a few days prior to the commission of “these offenses” the judge apparently meant the barn burned on 17 August 1983.
Our review of the record indicates that the evidence does not show by a preponderance that defendant engaged in a course of conduct whereby he set the barn on fire, and then the house and shed. Special Agent David Campbell of the State Bureau of Investigation (S.B.I.) testified that he was not able to determine what caused the fire in the barn. In his pre-arrest interview with Agent Campbell, defendant stated that he did not set the barn on
Given this error in the finding in aggravation, and the imposition of a sentence beyond the presumptive term, this case must be remanded for a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 602, 300 S.E. 2d 689, 701 (1983).
While under Aheam the trial judge’s error in the finding of an aggravating factor is sufficient to require a new sentencing hearing, in the interests of judicial efficiency and as an aid in resentencing we will also address defendant’s contentions as to the trial judge’s failure to find any mitigating factors. The trial judge has a responsibility, when he gives a sentence other than the presumptive term, to consider each statutory factor in light of the evidence presented. The failure of the defendant to request that he consider a particular statutory factor or to give evidence in the sentencing phase in support of that factor does not remove the judge’s duty under the Act to consider each factor. If the State presents evidence proving by a preponderance a mitigating statutory factor, then it makes no difference that defendant’s counsel has presented no additional evidence or has not requested the judge to consider that factor. If the trial judge wishes to pass a sentence other than the presumptive then he must consider and find that factor.
In the present case, we agree that the trial judge erred in failing to find the statutory mitigating factor set out in G.S. 15A-1340.4(a)(2)(l): that prior to arrest or at an early stage of the criminal process the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer. We make this conclusion even though the defendant presented no evidence and did not request that this factor be found.
As to statutory factor G.S. 15A-1340.4(a)(2)(d), that defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but significantly reduced his culpability for the offense, the evidence is not so clear. While there was evidence that defendant suffers from a personality disorder and has a history of mental instability, still, the psychiatric report prepared following defendant’s examination at Dorothea Dix Hospital, in connection with this case, concludes that defendant did not have a mental defect or disorder which would have prevented him from distinguishing right from wrong with respect to the current charges. The trial judge did not err in declining to find factor 15A-1340.4(a)(2)(d).
Finally, the trial judge did err in failing to find G.S. 15 A-1340.4(a)(2)(a), that the defendant has no record of criminal convictions or a record consisting solely of misdemeanors punishable by not more than sixty days imprisonment. The assistant district attorney stated to the trial judge that “we do not have any record in this case of prior convictions of the defendant. Only things we have in the (sic) regard is worthless checks that he made the statement to Officer Campbell about.” (Emphasis added.) The district attorney did more than merely say that he did not seek an aggravating factor as to prior convictions; rather, he declared that the State had found no record of prior convictions. This statement by the prosecuting attorney was as good evidence as any to prove the fact of an absence of a record of prior convictions. See State v. Albert, Dearen & Mills, No. 524A83, slip op. at 16 (N.C. January 8, 1985). State v. Nichols, 66 N.C. App. 318, 311
These two errors by the trial judge in finding mitigating factors also would be grounds for ordering resentencing.
We remand for a new sentencing hearing in accordance with this opinion.
Remanded for new sentencing hearing.
