State v. Wolfe, No. COA08-38 (N.C. App. 4/7/2009)
| Decision Date | 07 April 2009 |
| Docket Number | No. COA08-38.,COA08-38. |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. DANA EUGENE WOLFE |
Leslie C. Rawls for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force for State.
On 24 September 2007, a jury found Dana Eugene Wolfe (Defendant) guilty of first degree arson. Based on his conviction, the trial court entered judgment imprisoning Defendant. From this judgment, Defendant appeals. On appeal, Defendant contends that the trial court erred during the sentencing process by failing to find the existence of certain specified mitigating factors and by penalizing him for his decision to proceed to trial. We dismiss in part and find no error in part.
Shortly after 11:00 p.m. on 6 June 2006, Defendant and his nephew, Brian Walker (Walker), purchased fireworks at a local K-Mart in Burlington, North Carolina. At the time that he paid for this purchase, Defendant told the store clerk that he planned to play a prank on a friend. Defendant, Walker, and Walker's girlfriend, Amanda Isley (Isley), then drove to the apartment of Nicholas Collara (Collara).
After arriving at Collara's apartment, Defendant and Walker exited the car, went to the rear of the building, and threw fireworks onto Collara's deck. According to their testimony at trial, both Defendant and Walker initially threw "Silver Salute" sparklers onto Collara's balcony, after which Walker returned to Isley's car, obtained a larger "Firecracker Fountain," and, despite discouraging comments from Defendant, threw it onto Collara's balcony as well. At the time of their initial interviews with officers of the Burlington Police Department, however, neither Defendant nor Walker told investigating officers that Defendant discouraged Walker from using the "Firecracker Fountain" or that Walker threw the larger incendiary device onto Collara's balcony by himself.
After Walker threw the "Firecracker Fountain," he ran back to the car and Isley drove away. As the group left the area, Defendant saw smoke coming from "directly behind Nick Collara's apartment . . . ." Even so, the trio rode off without waiting to see if the smoke stopped.
The apartment building caught on fire quickly. Collara and a friend were inside the apartment building when the fireworks were thrown onto his balcony. After a neighbor alerted him that the building was on fire, Collara started to leave and then returned to retrieve his cat. Upon opening the door to his bedroom during this return visit, Collara observed that the corner of the room was on fire. By the time that he removed the cat from behind his dryer and ran back outside, half of the room was on fire.
Although all of the occupants of the apartment building were safely evacuated, Collara's apartment and belongings were destroyed. Other residents sustained property losses as a result of the fire as well. Repairs to the building necessitated by the fire totaled $181,000.
Lieutenant Stuart L. Cozort, III (Cozort), of the Burlington Fire Department examined the scene and tested both types of fireworks that were allegedly used by Defendant and Walker. According to Cozort, the fire resulted from the intentional placement of the fireworks on the apartment deck. Cozort could not say with certainty which type of firework actually caused the fire. However, he opined that both types were capable of causing the fire.
Walker entered into a negotiated plea with the State under which he pled guilty to a charge of attempted first degree arson and was sentenced for a minimum of 29 months and a maximum of 44 months imprisonment. Defendant entered a not guilty plea and went to trial. On 24 September 2007, a jury found Defendant guilty of first degree arson. The trial court sentenced Defendant to a minimum of 84 months and a maximum of 110 months in the custody of the North Carolina Department of Correction. Following the entry of judgment, Defendant appealed.
Defendant argues on appeal that the trial court erred by (1) failing to find the existence of four mitigating factors during the sentencing process1 and (2) sentencing the Defendant, at least in part, based on his decision to proceed to trial rather than enter a guilty plea.
Prior to analyzing the claims presented by Defendant, we must first consider the State's assertion that Defendant is not entitled to assert those claims on appeal as a matter of right. The right to appeal in a criminal case is statutory in nature. State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002), dis. rev. den., 356 N.C. 442, 573 S.E.2d 163 (2002); State v. McBride, 120 N.C. App. 623, 624, 463 S.E.2d 403, 404 (1995), aff'd, 344 N.C. 623, 476 S.E.2d 106 (1996). "A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty ofa crime, is entitled to appeal as a matter of right." N.C. Gen. Stat. § 15A-1444(a) (2007). Without more, N.C. Gen. Stat. § 15A-1444(a) (2007) appears to give a criminal defendant who entered a plea of not guilty and was convicted by a jury the right to appeal and to raise any issue listed in N.C. Gen. Stat. § 15A-1442 (2007) during that process. However, N.C. Gen. Stat. § 15A-1444(a1) (2007) provides that:
[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 the 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
Thus, N.C. Gen. Stat. § 15A-1444(a1) (2007) precludes a defendant from challenging the sufficiency of the evidence to support his or her sentence when he or she was sentenced within the appropriate presumptive range.
The State contends that Defendant has no to right appeal issues relating to his sentence because the minimum sentence imposed upon him by the trial court was within the appropriate presumptive range. N.C. Gen. Stat. § 14-58 (2007) provides that a defendant convicted of first degree arson is punishable as a Class D felon. The trial court found that Defendant had six prior record points, so that he should be classified as Level III for sentencing purposes. The 84 month minimum sentence imposed upon Defendant is at the lower end of the presumptive range for individuals with a prior record level of III sentenced for committing a Class D felony. N.C. Gen. Stat.§ 15A-1340.17(c) (2007). As a result, Defendant is precluded by N.C. Gen. Stat. § 15A-1444(a1) (2007) from challenging the sufficiency of the evidence to support his sentence on appeal. State v. Hill, 179 N.C. App. 1, 26, 632 S.E.2d 777, 792 (2006); State v. Brown, 146 N.C. App. 590, 593, 553 S. E. 2d 428, 430 (2001), dis. rev. den., 356 N.C. 306, 570 S.E.2d 734 (2002). The contention that the trial court failed to find certain specific mitigating circumstances is, in essence, a challenge to the sufficiency of the evidence to support Defendant's sentence. State v. Hill, 179 N.C. App. at 26, 632 S.E.2d at 792.2 Thus, the State correctly contends that the Defendant has no right to appeal the trial court's refusal to find the existence of certain specific mitigating circumstances during the sentencing process.3 While the State correctly argues that Defendant is not entitled to challenge the trial court's failure to find certain matters in mitigation of Defendant's sentence on appeal, the same is not true of the Defendant's challenge to the trial court's alleged adverse comment on his decision to go to trial rather than enter a guilty plea. As the Court has already noted, a criminal defendant who enters a not guilty plea and is convicted by a jury is entitled to appeal to the Appellate Division pursuant to N.C. Gen. Stat. § 15A-1444(a) (2007). Defendant's challenge to the trial court's comments during the sentencing process amounts to a claim that an "other error of law was committed by the trial court to the prejudice of defendant." N.C. Gen. Stat. § 15A-1442(6) (2007). As a result of the fact that Defendant is not, by means of his second argument, attempting to challenge the sufficiency of the evidence to support his sentence, N.C. Gen. Stat. § 15A-1444(a1) (2007); the fact that no other statutory provision precludes him from raising this issue on appeal from the judgment entered against him; and the fact that Defendant was not required to object to the trial court's comments at the time of sentencing in order to preserve this issue for appeal, State v. Person, 187 N.C. App. 512, 525-526, 653 S.E.2d 560, 569 (2007), Defendant is entitled to challenge the trial court's comments on appeal to this Court. State v. Hagans, ___ N.C. App. ___, ___, 656 S.E.2d 704, 706 (2008) (). We conclude that the State's motion to dismiss should be allowed as to Defendant's first claim and that the State's motion to dismiss should be denied as to Defendant's second claim.
Assignments of error alleging that the trial court considered an improper factor during the sentencing process, such as the defendant's decision to go to trial rather than enter a plea of guilty, are reviewed de novo. State v. Person, 187 N.C. App. 512, 525-528, 653 S.E.2d 512, 569 (2007); State v. Gantt, 161 N.C. App. 265, 271-273, 588 S.E.2d 893, 897. (2008)
A sentence imposed within the statutory limit is presumed valid. State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). "If the record...
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