State v. Nixon, No. COA03-148 (N.C. App. 12/16/2003)
| Decision Date | 16 December 2003 |
| Docket Number | No. COA03-148,COA03-148 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA, v. DON EUGENE NIXON, JR. |
Adrian M. Lapas, for defendant-appellant.
Don Eugene Nixon, Jr. ("defendant") entered into a guilty plea to the offenses of trafficking in heroin by manufacturing and trafficking in heroin by possessing more than four grams but less than fourteen grams of heroin, as well as the offense of maintaining a dwelling to keep and deliver a controlled substance ("maintaining a dwelling"). Under the plea agreement, defendant was to receive two (2) consecutive terms of imprisonment of a minimum of seventy (70) months and a maximum of eighty-four (84) months for each trafficking offense. Defendant also stipulated that he had a prior record "Level V" for the maintaining a dwelling charge and that he would receive a consecutive sentence within theaggravated range of a minimum of ten (10) months and a maximum of twelve (12) months for this offense. As part of the plea agreement, the State agreed to dismiss several other charges against defendant.
On 21 October 2002, the court entered judgment consistent with the terms of the plea. Defendant agreed to a sentence for the maintaining a dwelling conviction that contained a term of imprisonment in the aggravated range, which required the court to make a finding in aggravation. At the sentencing hearing, the court inquired whether defendant had committed this offense while on supervised probation. The State informed the court that defendant was on probation at the time of the incident. The court then asked whether "you submit that as an aggravating factor?" Defense counsel replied, "We stipulate to as [sic] an aggravating factor." The court then stated, "Let the record reflect that the defendant has stipulated he committed the offenses while he was on supervised probation and further stipulates that that is an aggravating factor." Defendant's sentence was imposed consistent with the guilty plea agreement. Defendant appeals.
The issue is whether the trial court erred in sentencing defendant in the aggravated range, based upon his stipulation to a nonstatutory aggravating factor, pursuant to a guilty plea.
Defendant argues the trial court erred by finding as a nonstatutory aggravating factor that defendant committed theoffense of maintaining a dwelling while on supervised probation. Defendant failed to object at the hearing and has failed to properly preserve this issue for appellate review. N.C.R. App. P 10(b)(1) (2003). In State v. Degree, this Court emphasized the requirements for appellate review, stating that, "failure to object to an alleged error in the trial court waives the consideration of such error on appeal." 110 N.C. App. 638, 642, 430 S.E.2d 491, 494 (1993). In Degree, we held defendant failed to object at the sentencing hearing to the trial court's consideration of the nonstatutory aggravating factor. Defendant has failed to give this Court notice of his failure to object at trial, and has also failed to establish that any rule or law would preserve his assignment of error without an objection at trial. He does not argue that the trial court's consideration of the aggravating factor constituted plain error. His right to appellate review on this issue is, therefore, waived.
Id. at 643, 430 S.E.2d at 494. Here, as in Degree, defe...
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