State v. Spence
| Decision Date | 21 June 2016 |
| Docket Number | No. COA15–549.,COA15–549. |
| Citation | 787 S.E.2d 455,248 N.C.App. 103 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Robert Earl SPENCE, Jr., Defendant. |
Attorney General, Roy A. Cooper III, by Assistant Attorney General, Kimberly N. Callahan, for the State.
Amanda S. Zimmer, Southern Pines, for defendant-appellant.
Defendant Robert Earl Spence, Jr. appeals from the trial court's judgments resentencing him in the presumptive range to three consecutive sentences of 230 to 285 months. On appeal, defendant argues that the trial court failed to conduct the resentencing hearing de novo. He also argues that the court failed to comply with an earlier mandate issued by this Court when it arrested judgment on three sex offense convictions that were vacated by this Court. Since the trial court need not make specific findings of mitigating factors for a sentence in the presumptive range, and the record indicates that the court did review the evidence and factors presented anew, we conclude that it properly conducted a resentencing hearing de novo. Moreover, we find that the trial court improperly stated that it "arrested judgment" on the first-degree sex offense convictions in all four judgments, rather than properly indicating that three of those convictions were in fact vacated by this Court previously. In addition, the court also included one sex offense conviction that was not vacated by this Court in the group of " arrested" judgments. Accordingly, we affirm the trial court's judgments in part but vacate the judgment for each case in which the court noted that it was "arresting judgment" on the first-degree sex offenses and remand for proper entry and to correct the record accordingly.
Defendant was indicted on 12 December 2011 for four counts of first-degree rape, four counts of first-degree sex offense, and four counts of incest with a near relative stemming from numerous acts of sexual misconduct committed by defendant to his daughter, Donna1 , from the time she was five years old until she reached the age of 12. Defendant was tried by jury from 10 June 2013 until 18 June 2013. At the trial, Donna could recall the locations where the sexual attacks occurred but could not remember dates or time frames. The State tried to establish the time frames of the offenses by establishing when defendant lived at the various locations. On 18 June 2013, a jury found him guilty of four counts of first-degree rape, four counts of first-degree sex offense, and four counts of incest with a near relative. Defendant was sentenced in the presumptive range to three consecutive sentences of 230 to 285 months. Defendant appealed to this Court.
On 18 November 2014, this Court issued an opinion finding no error in part but also vacating three of the four convictions for first-degree sexual offense, in 11 CRS 226769, 11 CRS 226773, and 11 CRS 226774, because there was insufficient evidence in the record to establish that those offenses occurred in 2001, 2004, or 2005 as alleged in the indictments. This Court noted: "With regard to 11 CRS 226769, the only evidence that a sex offense had occurred was when Donna read an entry from her journal that chronicled her prior abuse and other witnesses testified about statements Donna made to them prior to trial." After explaining its reasoning in more detail, this Court then concluded: "the State failed to provide substantial evidence of a first-degree sex offense in 2001, and the trial court erred by denying defendant's motion to dismiss this charge in 11 CRS 226769." This Court found further that "the State failed to provide substantial substantive evidence of a ‘sexual act’ for the first-degree sex offense charges in 11 CRS 226773 and 11 CRS 226774." The case was remanded for a new sentencing hearing in light of this opinion.
On remand, the trial court acknowledged that the sex offense convictions had been vacated in 11 CRS 226769, 11 CRS 226773, and 11 CRS 226774. At the resentencing hearing, the State explained that those three convictions originally "were all consolidated with other charges." Then, the State requested "that the same sentencing occur and just subtract those." Defendant's trial counsel asked the court to consider and find multiple mitigating factors. After hearing those factors, the trial court informed defendant that it would
The court entered a judgment in 11 CRS 226769 with the following note:
In accordance to the North Carolina Court of Appeals judgment dated 8 December 2014, the court will vacate the judgments that were entered for first degree sexual offense in case numbers 11CRS 226769, 11CRS 226773, and 11CRS 226774. Therefore this court will have to conduct a new sentencing hearing.
The trial court entered judgments in 11 CRS 226769, 11 CRS 226773, 11 CRS 226774, and 11 CRS 226775 relating to the first-degree sexual offense convictions stating that "[t]he Court arrested judgment on this count based on the judgment from the Court of Appeals vacating this conviction." The court then resentenced defendant in the presumptive range to three consecutive sentences of 230 to 285 months. Defendant timely appealed to this Court.
The State filed a motion to dismiss defendant's appeal, arguing that defendant has no statutory right to appeal his presumptive range sentences imposed under N.C. Gen.Stat. § 15A–1444(a1) (2015). N.C. Gen.Stat. § 15A–1444(a1) provides:
(a1) A defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.
Specifically, the State argues that since defendant "was sentenced in the presumptive range, he does not have a right to appeal this issue under section 15A–1444(a1)."
Defendant points out, however, that he does not challenge on appeal whether his sentences were supported by the evidence. Rather, defendant raises issue with whether the trial court failed to conduct his resentencing hearing de novo and whether the trial court erred by arresting judgment on the sex offense convictions. Thus, since defendant makes no challenge regarding the sufficiency of the evidence, defendant argues N.C. Gen.Stat. § 15A–1444(a1) is inapplicable. We agree.
This Court addressed a similar situation in State v. Hagans, 188 N.C.App. 799, 656 S.E.2d 704 (2008). In Hagans, the defendant appealed after a jury found him guilty of possession of a firearm by a felon, assault with a deadly weapon, and discharge of a firearm into an occupied vehicle. Id. at 800, 656 S.E.2d at 705. This Court then vacated the possession of a firearm by a felon conviction and remanded to the trial court for resentencing. Id. The defendant appealed from his new sentence, arguing that "the trial judge who sentenced him was biased and that his due process rights, therefore, were violated." Id. at 801, 656 S.E.2d at 706. On appeal, this Court concluded that the defendant Id. at 801 n. 2, 656 S.E.2d at 706 n. 2.
Similarly, here, defendant raises issue not with whether his sentence was supported by the evidence but rather with whether the trial court applied the proper standard of review and whether it correctly followed this Court's earlier mandate to vacate three of the offenses. Since defendant, like the defendant in Hagans, does not challenge whether his sentence is supported by the evidence, N.C. Gen.Stat. § 15A–1444(a1) does not bar his appeal. Accordingly, we deny the State's referred motion to dismiss defendant's appeal and turn now to the issues raised on appeal.
On appeal, defendant first argues that the trial court erred and failed to conduct his resentencing hearing de novo. State v. Paul, 231 N.C.App. 448, 449–50, 752 S.E.2d 252, 253 (2013) (internal citation, quotation marks, and brackets omitted).
Defendant argues that the trial court erred in this case because his defense counsel presented a list of mitigating factors to be considered by the trial court and " Thus, defendant contends that the trial court erred because it did not expressly indicate that it would consider those factors or look at the matter anew.
Defendant relies on this Court's decision in State v. Jarman, 238 N.C.App. 128, 131–32, 767 S.E.2d 370, 372 (2014), where a defendant likewise claimed that the trial court had failed to conduct the resentencing hearing de novo. In Jarman, after being sentenced based on a prior record level designation as a level IV offender, the defendant "filed a motion for appropriate relief requesting a resentencing hearing to...
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