State v. Canady, No. 278A90

• Decision Date: 06 December 1991
• Docket Number: No. 278A90
• Citation: 330 N.C. 398,410 S.E.2d 875
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Ricky Lynn CANADY.

Page 875

410 S.E.2d 875

330 N.C. 398

STATE of North Carolina v. Ricky Lynn CANADY.

No. 278A90.

Supreme Court of North Carolina.

Dec. 6, 1991.

Lacy H. Thornburg, Atty. Gen. by J. Charles Waldrup, Asst. Atty. Gen., for State.

Arnold Locklear, Pembroke, for defendant-appellant.

WEBB, Justice.

The defendant argues, under his only assignment of error, that it was error for the court to rely on the statement of the prosecuting attorney in finding the aggravating factor. We believe this argument has merit.

"Under the Fair Sentencing Act, a trial court may not find an aggravating factor where the only evidence to support it is the prosecutor's mere assertion that the factor exists." State v. Swimm, 316 N.C. 24, 32, 340 S.E.2d 65, 70-71 (1986); State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983). Pursuant to this rule, the defendant is entitled to a new sentencing hearing.

The State argues that the defendant seemed to concede the accuracy of the statements by the prosecuting attorney. See State v. Mullican, 329 N.C. 683, 406 S.E.2d 854 (1991). It bases this argument on the statement of the attorney for the defendant at the sentencing hearing in which he said, "[t]hese charges and convictions now against him are out of character and not consistent with what he's been involved in in the past." This statement is too equivocal to serve as an admission by the defendant to prior convictions.

Justice Whichard, in his dissent, argues that by remaining silent when the prosecutor was making the statement and by attempting to distinguish his past misconduct from the charges presently against him, defendant implicitly stipulated to the accuracy of the prior convictions. We made it clear in Mullican that the statement by the prosecuting attorney that he would summarize the evidence with the permission of the defendant was an invitation to the defendant to object if he had not consented. Id. at 686, 406 S.E.2d at 855. There was not such an invitation in this case. We do not feel that a defendant's silence while the prosecuting attorney makes a statement should support an inference that the defendant consented to the statement. Nor do we feel that the argument by the defendant's attorney, that the things with which he was charged in this case are not consistent with his past involvements, should be taken as a consent to the making of the statement by the prosecuting attorney. Rightly or wrongly, the court was considering the matters about which the prosecuting attorney had spoken, and the defendant had the right to argue the matters without being held to have admitted them.

The State contends that the defendant cannot complain because he did not object to the statement of the prosecuting attorney at the time it was made. This is not a question of the admission of evidence. As Swimm and Thompson make clear, a statement of the prosecutor is not sufficient evidence to support the finding of an aggravating factor although there is no objection to the statement.

Finally, the State argues that the defendant cannot appeal the finding of the aggravating factor because he did not object to it when the finding was made. The State relies on State v. Bradley, 91 N.C.App. 559, 373 S.E.2d 130 (1988), disc. rev. denied, 324 N.C. 114, 377 S.E.2d 238 (1989). In that case, the Court of Appeals held that the defendant could not appeal from the finding of an aggravating factor because he did not object to the finding pursuant to N.C.R.App.P. 10(b)(2). Rule 10(b)(2), at the time Bradley was decided and at the time the sentence was entered in this case, contained a sentence which said, "[a] separate exception shall be set out to the making or omission of each finding of fact or conclusion of law which is to be assigned as error." This sentence has now been deleted from Rule 10(b)(2) effective as to all judgments entered after 1 July 1989.

Assuming Rule 10 requires an exception to be made to the finding of an aggravating factor, we hold the defendant has complied with the Rule. At the time of sentencing the judge said, "[f]or the record, the Court did take into consideration two previous felony convictions, possession of marijuana and LSD, and a charge of escape from the department of corrections." The defendant marked an exception to this statement and made it the subject of an assignment of error. This was sufficient to preserve the question for appellate review.

Justice Meyer in his dissent relies on Rule 10(b)(1) of the Rules of Appellate Procedure and argues that an objection to the finding of the aggravating factor should have been made at the time the factor was found. We note that the State in its brief does not rely on Rule 10(b)(1) which says:

In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion. Any such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be made the basis of an assignment of error in the record on appeal.

This subsection of the rule does not have any application to this case. It is directed to matters which occur at trial and upon which the trial court must be given an opportunity to rule in order to preserve the question for appeal. The purpose of the rule is to require a party to call the court's attention to a matter upon which he or she wants a ruling before he or she can assign error to the matter on appeal. State v. Hedrick, 289 N.C. 232, 221 S.E.2d 350 (1976); State v. Isom, 52 N.C.App. 331, 278 S.E.2d 327, disc. rev. denied, 303 N.C. 548, 281 S.E.2d 398 (1981). If we did not have this rule, a party could allow evidence to be introduced or other things to happen during a trial as a matter of trial strategy and then assign error to them if the strategy does not work. That is not present in this case. The defendant did not want the court to find the aggravating factor, and the court knew or should have known it. This is sufficient to support an assignment of error.

State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983), is not authority for this case. There was language in that case to the effect that a party may not go through the record or the transcript and insert exceptions. None of the exceptions in that case dealt with findings of fact in the judgment.

Justice Whichard, in his dissent, argues that pursuant to N.C.G.S. § 15A-1446(d)(5) an appeal may be taken although no objection was made to the finding of the aggravating factor. He bases this argument on the wording of the statute which says, "insufficiency of the evidence as a matter of law 'may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.' "

We might agree with Justice Whichard if we had to go so far as to implicate N.C.G.S. § 15A-1446(d)(5). We do not believe it is necessary to rely on this section because we have held that Rule 10(b)(1) does not apply to this case. We base this holding on our knowledge of the way our judicial system works. As we understand the dissent by Justice Meyer, he would require a party to object to any finding of fact in a judgment at the time the finding of fact is made. This would be a near impossibility in many cases in which the court renders a judgment at some time after the trial is concluded. We do not believe it was the intention of Rule 10(b)(1) to impose such a requirement. We shall not require that after a trial is completed and a judge is preparing a judgment or making findings of aggravating factors in a criminal case, that a party object as each fact or factor is found in order to preserve the question for appeal.

Assuming, as the dissent contends, that the defendant should have objected to the finding of the aggravating factor when it was found, we hold that he did so. The defendant argued at the sentencing hearing that he be sentenced to the "statutory minimums." This should have alerted the court to the fact the defendant did not want it to find the aggravating factor.

This case is remanded to the Court of Appeals for further remand to the Superior Court, Robeson County for a new sentencing hearing.

REVERSED AND REMANDED.

MEYER, Justice, dissenting.

I agree with the majority that a prosecutor's statements concerning a defendant's prior convictions are not sufficient evidence to support a trial court's finding of the prior convictions aggravating factor, N.C.G.S. § 15A-1340.4(a)(1)(o) (Supp.1991). However, I do not agree that defendant has properly preserved for appeal the issue of whether his sentence was supported by sufficient evidence. By failing to object or otherwise note his opposition to the trial court's finding during the course of the trial proceedings, it is my opinion that defendant waived his right to appeal this issue, and I therefore dissent from the majority opinion.

Defendant concedes that he waived objection to the competency of the prosecutor's statement as an acceptable method of proving defendant's prior convictions. However, defendant contends that according to N.C.G.S. § 15A-1446(d)(5), he is still entitled to assert on appeal the insufficiency of the prosecutor's statements to prove his prior convictions. See State v. Mack, 87 N.C.App. 24, 359 S.E.2d 485 (1987), disc. rev. denied, 321 N.C. 477, 364 S.E.2d 663 (1988). I disagree.

On its face, N.C.G.S. § 15A-1446(d)(5) would appear to allow defendant to appeal the issue of whether his sentence was supported by sufficient evidence. N.C.G.S. § 15A-1446(d)(5) provides that insufficiency of the evidence as a matter of law "may be the...