State v. Swimm, 289PA85

• Decision Date: 18 February 1986
• Docket Number: No. 289PA85,289PA85
• Citation: 340 S.E.2d 65,316 N.C. 24
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Richard Mark SWIMM.

Page 65

340 S.E.2d 65

316 N.C. 24

STATE of North Carolina v. Richard Mark SWIMM.

No. 289PA85.

Supreme Court of North Carolina.

Feb. 18, 1986.

Lacy H. Thornburg, Atty. Gen. by Lucien Capone, III, Asst. Atty. Gen., for the State.

Frederick G. Lind, Asst. Public Defender for the Eighteenth Judicial Dist., Greensboro, for defendant-appellant.

MEYER, Justice.

At the 12 August 1982 Criminal Session of Superior Court, Guilford County, the defendant pled guilty to obtaining property by false pretense, five counts of conspiracy to file a false insurance claim, and two counts of filing a false insurance claim. On defendant's conviction of obtaining property by false pretense, the trial judge made findings in aggravation and mitigation, found that the aggravating factors outweighed the mitigating factors, and sentenced the defendant to the maximum ten-year term of imprisonment. The remaining charges were consolidated for judgment into three separate judgments. The defendant received the presumptive sentence for each of these three offenses, and the term of imprisonment for each was ordered to run consecutively beginning at the expiration of the ten-year sentence.

The defendant appealed from the imposition of the ten-year sentence on the obtaining property by false pretense charge. In an unpublished opinion filed 20 September 1983, the Court of Appeals held that the trial judge erred in finding certain factors in aggravation of the sentence and remanded the case for resentencing. At the completion of the resentencing hearing, the trial judge again sentenced the defendant to a term of imprisonment of ten years. The Court of Appeals found no error.

The defendant brings forward two assignments of error. He initially contends that the trial judge considered improper factors in sentencing him to a term of imprisonment in excess of the three-year presumptive sentence for the crime of obtaining property by false pretense. Specifically, he argues that the trial judge improperly considered the effect of "good time" ¹ and "gain time" ² on the length of any sentence which might be imposed. In support of this argument, the defendant points to the following exchange between defense counsel and the trial judge:

[MR. LIND:] Also, Judge, it has come out that it was a mitigating circumstance that other people were apprehended and did come to court. We were hoping--We were hoping the first time that Your Honor would impose the presumptive sentence. He doesn't want this case in court anymore. I can't understand--I couldn't understand the 10 year sentence on that at the time and I still can't. The other sentences were stacked up at the expiration. They were all presumptives. I want Your Honor to keep in mind whatever sentence Your Honor gives him, he has a four year active sentence at the expiration of it.

THE COURT: Of course, that's the--He has good time, gain time, all these other matters for which that sentence gets cut drastically.

MR. LIND: I understand that, but he has sentences--

THE COURT: My point is, under the Fair Sentencing Act, the way the Legislature set that thing up now, it's a quick release option; the whole emphasis is on quick release, so that 14 years--If he had to serve 14 years--That was the theory under which originally the Fair Sentencing Act was being sold across the state, in which he got the sentence--that's what you would serve. There was no uncertainty; everybody would know that the Judge's sentence meant what it said. Well, that's not the case the way this matter is construed now, my point only being that any sentence the Court hands down by operation of law is reduced in half by good time and then reduced further by gain time and all these other things they are doing that I read about where it's presenting a defendant with a quick release option if he behaves himself. Of course, he doesn't have to get that good credit.

MR. LIND: Judge, the point I was going to make, that depends on his behavior; and of course, we submit he would be good and he would get that.

THE COURT: I am told they are letting them out fast, real fast.

The defendant argues that these comments by the trial judge clearly indicate that in imposing the maximum ten-year sentence for obtaining property by false pretense, the judge improperly considered the possible effect that "good time" and "gain time" might have on the length of the sentence. We do not agree.

The standard of review to be employed by appellate courts when scrutinizing a judge's decision to impose a sentence which deviates from the presumptive term was set out in State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983). There, we stated:

"There is a presumption that the judgment of a court is valid and just. The burden is upon appellant to show error amounting to a denial of some substantial right.... A judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play."

Id. at 597-98, 300 S.E.2d 689, 697, quoting from State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 130 (1962). The defendant therefore bears the burden of showing that the sentence imposed is invalid due to an abuse of discretion on the part of the trial judge or on the basis of procedural conduct or other circumstances prejudicial to him.

In prior cases, our courts have held that a defendant's sentence must be vacated and the case remanded for resentencing when the record affirmatively shows that the sentence was imposed after the trial judge stated dissatisfaction with the length of time committed offenders remain in custody and after he expressed an incorrect assumption as to the timing of parole eligibility. State v. Hodge, 27 N.C.App. 502, 219 S.E.2d 568 (1975); State v. Snowden, 26 N.C.App. 45, 215 S.E.2d 157, cert. denied, 288 N.C. 251, 217 S.E.2d 675 (1975). However, we find neither of these factors to be present in this case.

A close reading of the trial judge's remarks concerning the effect of "good time" and "gain time" reveals that they were not an expression of dissatisfaction with the length of time convicted criminals must serve in prison. Instead, it is clear that they were made in an effort to respond to defense counsel's impassioned argument concerning the fact that the defendant would be required to serve other sentences totalling four years at the expiration of the sentence imposed on the false pretense conviction. We find no support for the defendant's allegation that "the trial court was using the sentencing process to thwart the Fair Sentencing Act." Furthermore, the trial judge's comments regarding the effect of "good time" and "gain time" were accurate statements of law. See N.C.G.S. § 15A-1355(c) (1985); N.C.G.S. § 15A-1340.7(b) (1985); N.C.G.S. § 148-13(d) (Cum.Supp.1985). This assignment of error is overruled.

The defendant next argues that the trial court erred by failing to find as a nonstatutory mitigating factor that he had exhibited good conduct since entering prison and had incurred no infractions. The Court of Appeals rejected this argument for two reasons: (1) the defendant failed to present sufficient evidence in support of this mitigating factor, and (2) good prison conduct is not an appropriate factor for consideration in mitigation of a sentence. We will examine these conclusions in reverse order.

Under the Fair Sentencing Act, the trial judge may consider any nonstatutory mitigating or aggravating factor that is proved by a preponderance of the evidence and which is reasonably related to the purposes of sentencing. N.C.G.S. § 15A-1340.4(a) (1985). One of the purposes of sentencing is to impose a punishment commensurate with the injury inflicted by the offense, taking into account factors which may diminish or increase the offender's culpability. N.C.G.S. § 15A-1340.3 (1985).

Good prison conduct is not one of the specifically enumerated mitigating factors set out in N.C.G.S. § 15A-1340.4(a)(2). In State v. Spears, 314 N.C. 319, 333 S.E.2d 242 (1985), we said that while a failure to find a statutory mitigating factor which was supported by uncontradicted, substantial, and manifestly credible evidence is reversible error, a trial judge's failure to find a nonstatutory mitigating factor, even when that factor is (1) requested by defendant; (2) proven by uncontradicted, substantial, and manifestly credible evidence; and (3) mitigating in effect, will not be disturbed absent a showing of abuse of discretion. Spears makes it clear that the decision of whether to find nonstatutory mitigating factors is a matter entrusted to the sound discretion of the trial judge. However, by holding that good prison conduct is not an appropriate factor for consideration in mitigation of a sentence, the Court of Appeals has ruled that a trial judge is absolutely precluded from considering a defendant's behavior while incarcerated in determining the sentence to be imposed.

We begin our discussion by noting that there are two scenarios under which this issue could arise. First, the defendant's conduct while incarcerated prior to trial could be raised at the sentencing hearing. Second, his conduct during the period between his initial incarceration after conviction and any resentencing hearing could be raised at the resentencing hearing.

With regard to the second possibility, the United States Supreme Court held, in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), that a defendant's behavior while incarcerated may be considered by the trial judge at a resentencing hearing to determine the sentence to be imposed. In holding that neither double jeopardy principles nor the equal protection clause imposes an absolute bar to the imposition of a more severe sentence upon reconviction following a successful appeal, the Court stated:

A trial...