State v. Mitchell

• Decision Date: 03 April 1984
• Docket Number: No. 8321SC975,8321SC975
• Citation: 67 N.C.App. 549,313 S.E.2d 201
• Parties: STATE of North Carolina v. John Richard MITCHELL.
• Court: North Carolina Court of Appeals

Page 201

313 S.E.2d 201

67 N.C.App. 549

STATE of North Carolina v. John Richard MITCHELL.

No. 8321SC975.

Court of Appeals of North Carolina.

April 3, 1984.

Atty. Gen. Rufus L. Edmisten by Associate Atty. David E. Broome, Jr., Raleigh, for the State.

Gordon H. Brown, Winston-Salem, for defendant-appellant.

BRASWELL, Judge.

This is the second appeal of the same case. See State v. Mitchell, 62 N.C.App. 21, 302 S.E.2d 265 (1983). In the first appeal we found no error in defendant's trial but remanded for a new sentencing hearing because of errors in the finding of certain aggravating factors. The new hearing on sentencing took place on 9 June 1983 before the same Superior Court Judge.

Mitchell was convicted and sentenced for the felony of involuntary manslaughter, which carries a statutory maximum term of 10 years and a presumptive term of 3 years. G.S. 14-18, Class H felony. The active time portion of the new sentence was 7 years, which was the identical length of sentence imposed at the first hearing on 23 April 1982.

At the first hearing six aggravating factors and two mitigating factors were found. At the second hearing two aggravating and two mitigating factors were found. On each occasion the trial judge found that the factors in aggravation outweighed factors in mitigation and that all factors found were proven by a preponderance of the evidence.

This appeal challenges the balancing process of factors found in aggravation and mitigation. In essence, the defendant argues that it is error for a trial judge to impose the identical length of sentence on resentencing. In principle, the defendant argues that with the evidence being basically the same for both hearings, and with a reduction in the number of aggravating factors from six to two, he should automatically be entitled to some unspecified reduction from the original 7-year sentence. We reject this line of argument.

For all intents and purposes the resentencing hearing is de novo as to the appropriate sentence. See State v. Watson, 65 N.C.App. 411, 413, 309 S.E.2d 2, 3, 4 (1983); State v. Lewis, 38 N.C.App. 108, 247 S.E.2d 282 (1978). On resentencing the judge makes a new and fresh determination of the presence in the evidence of aggravating and mitigating factors. The judge has discretion to accord to a given factor either more or less weight than a judge, or the same judge, may have given at the first hearing. However, in the process of weighing and balancing the factors found on rehearing the judge cannot impose a sentence greater than the original sentence. G.S. 15A-1335. This statute (passed in 1977) overrides the ability to enhance a sentence on rehearing that Lewis, supra, suggests could be done. As the official commentary to this statute indicates, North Carolina has changed that part of the case of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which would have allowed a more severe sentence for intervening factors. In simple words, on resentencing, a trial judge cannot impose a term of years greater than the term of years imposed by the original sentence, regardless of whether the new aggravating factors occurred before or after the date of the original sentence. It is possible for a judge to find six aggravating factors proven by the evidence and yet in the balancing process attach great weight to only one out of the six factors and insignificant weight to the remaining five factors. The law does not require the judge to specify in his sentence which certain factor he considers to be the most significant or to list the factors in order of importance. The judge is only required to find that the specific factors he lists are proven by a preponderance of the evidence. G.S. 15A-1340.4(a) and (b). As has been stated before, one aggravating factor may outweigh two or more mitigating factors (and vice versa) in the process of balancing the weight to be given any factor, and in determining the sentence to be imposed. State v. Ahearn, 307 N.C. 584, 597, 300 S.E.2d 689, 697 (1983); State v. Baucom, 66 N.C.App. 298, 311 S.E.2d 73 (1984). As made plain in Baucom, Id. at ---, 311 S.E.2d at 75, " 'The balance struck by the trial judge will not be disturbed if there is support in the record for his...