State v. Ahearn

• Citation: 307 N.C. 584,300 S.E.2d 689
• Decision Date: 08 March 1983
• Docket Number: No. 596A82,596A82
• Parties: STATE of North Carolina v. Neal Francis AHEARN.
• Court: United States State Supreme Court of North Carolina

Page 689

300 S.E.2d 689

307 N.C. 584

STATE of North Carolina v. Neal Francis AHEARN.

No. 596A82.

Supreme Court of North Carolina.

March 8, 1983.

Rufus L. Edmisten, Atty. Gen., by Christopher P. Brewer, Asst. Atty. Gen., Raleigh, for the State.

White, Hall, Mullen, Brumsey & Small by Gerald F. White, Elizabeth City, for defendant-appellant.

Adam Stein, Appellate Defender, and James H. Gold, Asst. Appellate Defender, Raleigh, amicus curiae.

MEYER, Justice.

Because this case presents us with our first opportunity to fully discuss the policies, purposes, and implementation of the new "Fair Sentencing Act," we find it appropriate to discuss the issues presented in the context of the historical background of the Act and to set out pertinent portions of the statute. ¹ In response to a perceived need for certainty in sentencing, to a perceived evil of disparate sentencing, and to a perceived problem in affording trial judges and parole authorities unbridled discretion in imposing sentences, Governor James B. Hunt, Jr., urged the adoption of presumptive sentencing legislation in an address to the North Carolina General Assembly in 1977. Originally enacted in 1979 as "An Act to Establish a Fair Sentencing System in North Carolina Criminal Courts," the Fair Sentencing Act underwent technical amendments in 1980 and more substantial amendments in 1981. See Comment, Criminal Procedure--The North Carolina Fair Sentencing Act, 60 N.C.L.Rev. 631 (1982). The sentencing procedures in the Act apply only to felonies committed on or after 1 July 1981. N.C.Gen.Stat. § 15A-1340.1(a) (Cum.Supp.1981).

As set out in the Fair Sentencing Act,

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.

G.S. § 15A-1340.3.

The Act provides in pertinent part:

(a) ... If the judge imposes a prison term, whether or not the term is suspended, and whether or not he sentences the convicted felon as a committed youthful offender, he must impose the presumptive term provided in this section unless, after consideration of aggravating or mitigating factors, or both, he decides to impose a longer or shorter term, or unless he imposes a prison term pursuant to any plea arrangement as to sentence under Article 58 of this Chapter. In imposing a prison term, the judge, under the procedures provided in G.S. 15A-1334(b), may consider any aggravating and mitigating factors that he finds are proved by the preponderance of the evidence, and that are reasonably related to the purposes of sentencing, whether or not such aggravating or mitigating factors are set forth herein, but unless he imposes the term pursuant to a plea arrangement as to sentence under Article 58 of this Chapter, he must consider each of the following aggravating and mitigating factors:

(1) Aggravating factors:

(Here follows a list of the statutory aggravating factors.)

Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation, and the same item of evidence may not be used to prove more than one factor in aggravation.

The judge may not consider as an aggravating factor the fact that the defendant exercised his right to a jury trial.

(2) Mitigating factors:

(Here follows a list of the statutory mitigating factors.)

(b) If the judge imposes a prison term for a felony that differs from the presumptive term provided in subsection (f), whether or not the term is suspended, and whether or not he sentences the convicted felon as a committed youthful offender, the judge must specifically list in the record each matter in aggravation or mitigation that he finds proved by a preponderance of the evidence. If he imposes a prison term that exceeds the presumptive term, he must find that the factors in aggravation outweigh the factors in mitigation, and if he imposes a prison term that is less than the presumptive term, he must find that the factors in mitigation outweigh the factors in aggravation. However, a judge need not make any findings regarding aggravating and mitigating factors if he imposes a prison term pursuant to any plea arrangement as to sentence under Article 58 of this Chapter, regardless of the length of the term, or if he imposes the presumptive term.

The Fair Sentencing Act is an attempt to strike a balance between the inflexibility of a presumptive sentence which insures that punishment is commensurate with the crime, without regard to the nature of the offender; and the flexibility of permitting punishment to be adapted, when appropriate, to the particular offender. Presumptive sentences established for every felony provide certainty. Furthermore, no convicted felon may be sentenced outside the minimum/maximum statutory limits set out for the particular felony. The sentencing judge's discretion to impose a sentence within the statutory limits, but greater or lesser than the presumptive term, is carefully guarded by the requirement that he make written findings in aggravation and mitigation, which findings must be proved by a preponderance of the evidence; that is by the greater weight of the evidence. We are guided in our definition of the term preponderance of the evidence by the following statement which, although generally applied in civil cases, is no less appropriate for a sentencing hearing where the judge sits in a dual capacity as judge and jury:

"This preponderance does not mean number of witnesses or volume of testimony, but refers to the reasonable impression made upon the minds of the jury by the entire evidence, taking into consideration the character and demeanor of the witnesses, their interest or bias and means of knowledge, and other attending circumstances." ... There would seem to be great merit in the suggestion that what is meant by the formula is that the jury should be satisfied of the greater probability of the proposition advanced by the party having the burden of persuasion--i.e., that it is more probably true than not.

2 Stansbury's North Carolina Evidence § 212 (Brandis Rev.1973).

The Fair Sentencing Act was not intended, however, to remove all discretion from our able trial judges. The trial judge should be permitted wide latitude in arriving at the truth as to the existence of aggravating and mitigating circumstances, for it is only he who observes the demeanor of the witnesses and hears the testimony. While he is required to justify a sentence which deviates from a presumptive term to the extent that he must make findings in aggravation and mitigation properly supported by the evidence and in accordance with the Act, a trial judge need not justify the weight he attaches to any factor. He may properly determine that one factor in aggravation outweighs more than one factor in mitigation and vice versa. In this respect we quote with approval from an opinion written by Judge (now Justice) Martin:

The fair sentencing act did not remove, nor did it intend to remove, all discretion from the sentencing judge. Judges still have discretion to increase or reduce sentences from the presumptive term upon findings of aggravating or mitigating factors, the weighing of which is a matter within their sound discretion. Thus, 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.

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. Although the court is required to consider all statutory factors to some degree, it may very properly emphasize one factor more than another in a particular case. N.C.Gen.Stat. 15A-1340.4(a). The balance struck by the trial judge will not be disturbed if there is support in the record for his determination.

State v. Davis, 58 N.C.App. 330, 333-34, 293 S.E.2d 658, 661 (1982). See State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983).

Should the Appellate Court find no error in the trial court's findings in aggravation and mitigation, our standard of review respecting its decision to deviate from a presumptive term remains as it did prior to the effective date of the Act.

There is a presumption that the judgment of a court is valid and just. The burden is upon appellant to show error amounting to a denial of some substantial right.... A judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.

State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 130 (1962). See State v. Jackson, 302 N.C. 101, 273 S.E.2d 666 (1981); State v. Bright, 301 N.C. 243, 271 S.E.2d 368 (1980); State v. Wilkins, 297 N.C. 237, 254 S.E.2d 598 (1979).

Furthermore, our appellate courts will apply the above-quoted standard in determining the propriety of the sentencing judge's decision to quantitatively vary the presumptive term to any substantial degree. Where the sentence ultimately imposed is within the statutory limits prescribed for the offense, we defer to the wisdom of our Legislature the appropriateness of the minimum or maximum punishment. We defer to the wisdom of the trial judge the appropriateness of the severity of punishment imposed on the...