64 N.C. App. 354 | N.C. Ct. App. | 1983
The defendant received one consolidated judgment with active sentence of 10 years’ imprisonment upon pleas of guilty in two groups of cases. One group consisted of the first breaking or entering case, a Class H felony, consolidated with the first uttering of forged check case, a Class I felony. The second group contained one breaking or entering count and two uttering of forged checks. Under his arrangement for consolidation there was a potential maximum of twenty years’ imprisonment. The presumptive sentence under the Fair Sentencing Act, G.S. 15A, Article 81A, for breaking or entering is 3 years, and for uttering a forged check is 2 years. Because the sentence imposed was in excess of the presumptive sentence of the greater of the two groups of offenses upon being consolidated for judgment, the defendant exercised his right of appeal under G.S. 15A-1444(a1).
The issue on appeal contests the sufficiency of the evidence at the sentencing stage to support the trial court’s finding as ag
The evidence shows that in the first breaking or entering case an Akai reel-to-reel tape player valued at $500 was stolen. It was recovered in working order. In the second breaking or entering case an RCA color television set was stolen and was subsequently recovered. [The indictment (without any proof in the evidence) alleged the value of the set to be $300.] The forged checks which were uttered were for $125, $75, and $159, for a total of $359. By addition, the outside maximum money for all property for consideration as pecuniary gain to the defendant totaled $1159.
In orally announcing the basis for the sentence, the trial judge used the word “financial” instead of “pecuniary” gain. The expression was: “The Court, in passing judgment . . . takes into account the fact that these crimes were committed for financial gain.” On the standard judgment form for the listing of aggravating factors the block as checked reads: “The offense was committed for hire or pecuniary gain.”
What does “pecuniary gain” mean? In its filing on 9 August 1983 of State v. Abdullah, 309 N.C. 63, 306 S.E. 2d 100 (1983), our Supreme Court definitively answers the question by holding that it means the defendant must have been hired or paid to commit the offense. The court’s reasoning includes that G.S. 15A-1340.4(a) (1)c., as amended by 1983 N.C. Sess. Laws Ch. 70, effective 1 October 1983 which will be applied retroactively, eliminates “pecuniary gain” and inserts “[t]he defendant was hired or paid to commit the offense.” In answering this question, the Supreme Court in Abdullah examined and accorded great weight to our court’s decision in State v. Morris, 59 N.C. App. 157, 296 S.E. 2d 309 (1982), which had concluded that “if the pecuniary gain at issue in a case is inherent in the offense, then that ‘pecuniary gain’ should not be considered an aggravating factor.” Id. at 161-62, 296 S.E. 2d at 313 (emphasis added in Abdullah).
Although there were multiple offenses to which the defendant pled guilty, the judgment reflects only one consolidated grouping into one form for all aggravating factors. They were not separated as required by State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983), which held “that in every case in which the sentencing judge is required to make findings in aggravation and mitigation to support a sentence which varies from the presumptive term, each offense, whether consolidated for hearing or not, must he treated separately, and separately supported by findings tailored to the individual offense and applicable only to that offense.” Id. at 598, 300 S.E. 2d at 698 (emphasis added). Also, Aheam cautions, as do we, that judges should eliminate, by marking out or otherwise obliterating those portions of the AOC form judgments that are inapplicable to the particular findings of factors, either aggravating or mitigating, in each case. Id. at 599, 300 S.E. 2d at 698.
Since there must be a new sentencing hearing because of the erroneous use of the aggravating factor of pecuniary gain, we treat lightly the additional issue raised by defendant in his addendum to brief and supplemental argument. The claimed error was that the aggravating factor of prior conviction of more than 60 days is not supported by the record on appeal. The record is silent as to whether at the time of the conviction, or convictions, the defendant was indigent, or represented by counsel, or whether he had waived counsel. In the addendum to its brief, the State would add to the record on appeal that the defendant had convictions of unauthorized use of a motor conveyance and felonious breaking or entering, that the defendant was represented by counsel, and that the defendant’s counsel for his prior convictions was the same counsel who represented him in his trial below. (We note that on appeal the defendant was given different counsel.) Perhaps this problem tends to show the wisdom of the 1983 Leg
Although the defendant did not object at trial to the court’s finding or use of any aggravating factor, we conceive that under G.S. 15A-1446(d)(5) a defendant may still raise on appeal the question of the sufficiency of the evidence by an appropriate question in his brief, as was done in this case. Rule 10(a), N.C. Rules App. Proc. Here, the evidence is insufficient to support the findings of fact as a matter of law. The record, however, does show substantial evidence of the elements of each offense in support of his plea of guilty.
We hold that the case must be remanded for a new sentencing hearing only.
Remanded.
