Opinion
No. 8916SC884
Filed 19 June 1990
1. Criminal Law 1064 (NCI4th) — sentencing hearing — method of proving aggravating circumstance — failure to object — appeal waived Failure of defendant to object to the nature of evidence offered by the State to prove prior convictions during the sentencing phase amounted to a waiver of his right to appeal the sufficiency of the evidence to support the finding of the prior convictions aggravating factor. Appellate Rule 10 (b)(2).
Am Jur 2d, Criminal 598, 599.
2. Criminal Law 1082 (NCI4th) — sentence greater than presumptive term — no error The trial court did not err in sentencing defendant to a term greater than the combined presumptive sentence for two crimes, since the judge found in aggravation of the sentence that defendant had been convicted of crimes punishable by more than 60 days' confinement and found no mitigating factors, and defendant's was well below the maximum sentence for his most serious felony.
Am Jur 2d, Criminal Law 598, 599.
APPEAL by defendant from a judgment entered 6 April 1989 by Judge George R. Greene in Superior Court, ROBESON County. Heard in the Court of Appeals 9 May 1990.
Attorney General Lacy H. Thornburg, by Assistant Attorney General J. Charles Waldrup, for the State.
Locklear, Jacobs Sutton, by Arnold Locklear, for the defendant.
Judge GREENE concurring in part and dissenting in part.
On 17 January 1989, defendant was indicted for second degree burglary and felonious larceny. Defendant entered a plea of not guilty and waived arraignment. Defendant was tried and found guilty on both charges. On 6 April 1989, Judge Greene sentenced the defendant to a twenty-year active sentence. Defendant appeals.
On 18 November 1988, defendant and two accomplices broke into an unoccupied home and stole several items of personal property.
Defendant assigns as error the admission into evidence of certain testimony that he had threatened his two accomplices about not testifying against him. This evidence is admissible unless "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ." N.C. Rule of Evidence 403; State v. Smith, 19 N.C. App. 158, 159, 198 S.E.2d 52, 53, cert. denied, 284 N.C. 123, 199 S.E.2d 662 (1973). The decision to admit or exclude evidence under Rule 403 is a matter within the sound discretion of the trial court. State v. Jones, 89 N.C. App. 584, 594, 367 S.E.2d 139, 145 (1988). We do not find that the trial court abused its discretion by admitting this evidence.
Defendant next argues that the trial court erred by sentencing the defendant for a period greater than the presumptive sentence based upon the fact that the State did not offer any exhibits into evidence. The State presented information to the court that defendant had prior convictions for felonious possession of marijuana, felonious possession of LSD, discharging a firearm into an occupied motor vehicle and escape from the Department of Corrections. The defendant never objected to the nature of the evidence offered by the State to prove the prior convictions and further stated in the record that his record did not show transgressions against property and are "not consistent with what he's been involved in in the past." Appellate Rule 10 (b)(2) requires a party to object to the failure of the trial court to make necessary findings and conclusions in order to advance those issues on appeal. "The purpose of this rule appears to be to provide the trial court an opportunity to correct any obvious defects and thereby eliminate the need for an appeal and a new proceeding." State v. Bradley, 91 N.C. App. 559, 564, 373 S.E.2d 130, 132-33, disc. rev. denied, 324 N.C. 114, 377 S.E.2d 238 (1989). Because defendant failed to object to the State's statements at sentencing, he has waived his right to appeal.
Finally, defendant argues that the trial court erred in sentencing him to a prison term in excess of the presumptive sentence. The combined presumptive sentence is fifteen years for the two crimes. The judge found, in aggravation of the sentence, that the defendant was convicted of crimes punishable by more than sixty days confinement and found no mitigating factors. Defendant's conviction of second degree burglary alone subjected him to a maximum sentence of forty years. Defendant's sentence of twenty years imprisonment is well below the maximum sentence for his most serious felony and is therefore proper. State v. Phillips, 84 N.C. App. 302, 305, 352 S.E.2d 273, 275, disc. rev. denied, 319 N.C. 462, 356 S.E.2d 12 (1987). The trial court did not err in sentencing the defendant to a term greater than the presumptive sentence combined.
No error.
Judge ORR concurs.
Judge GREENE concurs in part and dissents in part.