State v. Melton

• Decision Date: 11 January 1983
• Docket Number: No. 417A82,417A82
• Citation: 298 S.E.2d 673,307 N.C. 370
• Parties: STATE of North Carolina v. William Hampton MELTON.
• Court: North Carolina Supreme Court

Page 673

298 S.E.2d 673

307 N.C. 370

STATE of North Carolina v. William Hampton MELTON.

No. 417A82.

Supreme Court of North Carolina.

Jan. 11, 1983.

Rufus L. Edmisten, Atty. Gen. by George W. Boylan and Marilyn R. Rich, Asst. Attys. Gen., Raleigh, for the state.

Edwin H. Ferguson, Jr., Concord, for defendant.

MARTIN, Justice.

Defendant has appealed this sentence pursuant to N.C.G.S. 15A-1444(a1), claiming that the trial judge erred in considering premeditation and deliberation as an aggravating factor in his sentencing decision. Appeal under this subsection is limited to the issue of whether the sentence entered is supported by evidence introduced at the trial and the sentencing hearing. State v. Davis, 58 N.C.App. 330, 293 S.E.2d 658 (1982).

A bill of indictment meeting the requirements of N.C.G.S. 15-144 concerning murder will support a conviction or plea of guilty to murder in the first degree as well as to murder in the second degree. State v. Talbert, 282 N.C. 718, 194 S.E.2d 822 (1973). Because the indictment charging defendant in the present case with murder was proper in form, the defendant could have been prosecuted for murder in the first degree. Instead, however, the state agreed not to try defendant for murder in the first degree in exchange for defendant's plea of guilty to murder in the second degree. See N.C.Gen.Stat. § 15A-1021(a) (Cum.Supp.1981).

In this state murder in the second degree is a Class C felony and therefore the judge sentencing a defendant guilty of this crime must impose a fifteen-year term of imprisonment unless aggravating or mitigating factors merit imposition of a longer or shorter term. N.C.Gen.Stat. § 14-17 (1981); N.C.Gen.Stat. § 15A-1340.4(f)(1) (Cum.Supp.1981); N.C.Gen.Stat. § 15A-1340.4(a) (Cum.Supp.1981). The maximum term that may be imposed for a Class C felony is life imprisonment. N.C.Gen.Stat. § 14-1.1(a)(3) (1981). In deciding upon the length of a sentence of imprisonment differing from the presumptive term listed in N.C.G.S. 15A-1340.4(f), a judge must consider sixteen possible aggravating factors and fourteen possible mitigating factors listed in N.C.G.S. 15A-1340.4(a). He may also 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 and mitigating factors are set forth [in N.C.G.S. 15A-1340.4(a) ]." Id. However, "[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation ...." N.C.Gen.Stat. § 15A-1340.4(a)(1) (Cum.Supp.1981). If the judge imposes a prison sentence longer than the presumed sentence listed in N.C.G.S. 15A-1340.4(f) for the class of felony of which the defendant is adjudged guilty, the judge must first find that the factors in aggravation outweigh the factors in mitigation. N.C.Gen.Stat. § 15A-1340.4(b) (Cum.Supp.1981). He must also "specifically list in the record each matter in aggravation or mitigation that he finds proved by a preponderance of the evidence." Id.

Defendant here first argues that the trial court violated that part of N.C.G.S. 15A-1340.4(a)(1) which states that "[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation ...." Defendant contends that because the state did not introduce any testimonial evidence during the sentencing hearing, its general referral to evidence presented during the guilt adjudication phase of the proceedings amounted to the use of the same evidence to prove the elements of murder in the second degree as well as the aggravating factor of premeditation and deliberation. This argument betrays faulty reasoning.

To begin, we observe that the statutory phrase in question refers to "the offense." In cases where a defendant is convicted of or pleads guilty to an offense different from that alleged in the bill of indictment it becomes necessary to determine the meaning of the phrase "the offense" as used in N.C.G.S. 15A-1340.4(a). Is "the offense" the crime charged in the bill of indictment or the crime of which the defendant is convicted or to which he pleads guilty or no contest? We hold that "the offense" refers to the criminal charge of which the defendant is convicted or to which he pleads guilty or no contest. The use of the phrase "the offense" at other places in the subsection leads inescapably to this conclusion. All aggravating factors listed refer to "the offense" as an accomplished fact. E.g.: "The offense was committed for the purpose ...." (15A-1340.4(a)(1)(b)); "The offense was committed for hire ...." (15A-1340.4(a)(1)(c)); "The offense was committed to disrupt ...." (15A-1340.4(a)(1)(d)); "The offense involved ...." (15A-1340.4(a)(1)(p)). Had the legislature intended that the crime charged was "the offense," language such as "the crime charged was committed" would have been used throughout the subsection. ^{1 1} The principal purpose of the Fair Sentencing Act, article 81A of chapter 15A of the General Statutes of North Carolina, is to provide guidelines and a basis for determining an appropriate punishment for the crime of which the defendant is adjudged guilty, not crimes with which he is charged.

Defendant here pled guilty to murder in the second degree. In order to prove the commission of murder in the second degree, the state must prove beyond a reasonable doubt only that the defendant unlawfully killed the deceased with malice. E.g., State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981); State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971). Premeditation and deliberation are not elements of murder in the second degree. Id.; State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976). Proof that defendant unlawfully killed the deceased does not prove that the killing was done with premeditation and deliberation. Similarly, the fact that the defendant here used a gun was sufficient to prove malice, the other essential element of murder in the second degree, State v. Montague, 298 N.C. 752, 259 S.E.2d 899 (1979); State v. Woods, 278 N.C. 210, 179 S.E.2d 358 (1971); however, the use of a gun does not by itself establish premeditation and deliberation. State v. Faust, 254 N.C. 101, 118 S.E.2d 769, cert. denied, 368 U.S. 851, 82 S.Ct. 85, 7 L.Ed.2d 49 (1961); State v. Miller, 197 N.C. 445, 149 S.E. 590 (1929). It follows that Judge Rousseau's finding that premeditation and deliberation were established by a preponderance of the evidence was not based upon evidence necessary to establish the two essential elements of murder in the second degree. ² We note, further that although the state did not introduce any testimonial evidence during the sentencing hearing, the defendant's witnesses were allowed to read into evidence the three letters Melton had written before the crime. These contain evidence in addition to that produced during plea acceptance that Melton had premeditated and deliberated killing Moss.

Because premeditation and deliberation are not specifically listed aggravating factors in N.C.G.S. 15A-1340.4(a)(1), Judge Rousseau must have determined that they were "reasonably related to the purposes of sentencing." N.C.Gen.Stat. § 15A-1340.4(a) (Cum.Supp.1981). N.C.G.S. 15A-1340.3, captioned "Purposes of sentencing," states that:

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.

We hold that when a defendant pleads guilty to murder in the second degree, a determination by the preponderance of the evidence in the sentencing phase that he premeditated and deliberated the killing is reasonably related to the purposes of sentencing. Such aggravating factors may be considered in determining an appropriate sentence for the killer. N.C.Gen.Stat. § 15A-1340.4(a) (Cum.Supp.1981).

The defendant argues, however, that fundamental fairness requires that facts underlying charges which have been dismissed pursuant to a plea bargain cannot be used during sentencing for the admitted charge. We note, first, that although the parties here had the opportunity to bargain for the prosecutor's recommendation of a particular sentence for the defendant, the record shows that no such agreement was made. ³ Therefore, once the trial judge determined that the defendant's guilty plea had been made voluntarily and that there was a factual basis for the plea, he was required by statute to accept the plea to murder in the second degree; however, the plea bargain did not limit the judge's opportunity to exercise his discretion in determining an appropriate sentence for the defendant. N.C.Gen.Stat. § 15A-1023(c) (1978).

The mere fact that a guilty plea has been accepted pursuant to a plea bargain does not preclude the sentencing court from reviewing all of the circumstances surrounding the admitted offense in determining the presence of aggravating or mitigating factors. People v. Klaess, 129 Cal.App.3d 820, 181 Cal.Rptr. 355 (1982); People v. Gaskill, 110 Cal.App.3d 1, 167 Cal.Rptr. 549 (1980); People v. Guevara, 88 Cal.App.3d 86, 151 Cal.Rptr. 511 (1979). In fact, unless a sentence has been agreed to during plea bargaining, a sentencing judge is required to consider the statutory list of aggravating and mitigating factors during sentencing, of which many items concern circumstances that may surround the offense. N.C.Gen.Stat. § 15A-1340.4(a) (Cum.Supp.1981). Such circumstances might include facts concerning both a dismissed charge as well as the admitted offense. E.g., N.C.G.S. 15A-1340.4(a)(1)(a) states the following to be an...