Opinion
COA22-509
12-20-2022
STATE OF NORTH CAROLINA v. JAQWON FINCHER, Defendant.
Attorney General Joshua H. Stein, by Assistant Attorney General Torrey Dixon, for the State-appellee. Sarah Holladay for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 29 November 2022.
Appeal by defendant from judgment entered 5 November 2021 by Judge Jonathan W. Perry in Union County Superior Court No. 20CRS54413.
Attorney General Joshua H. Stein, by Assistant Attorney General Torrey Dixon, for the State-appellee.
Sarah Holladay for defendant-appellant.
GORE, Judge.
¶ 1 Defendant, Jaqwon Fincher, appeals from judgment entered upon his conviction for robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and being a felon in possession of a firearm. The trial court imposed a sentence of 97 to 129 months for robbery, to run consecutively with 38 to 58 months for the consolidated charges of conspiracy and felon in possession. 1 Defendant presents one issue on appeal: whether the trial court erred in considering the State's proffer regarding matters not in evidence as part of its sentencing decision. Upon review, we discern no prejudicial error.
I. A.
¶ 2 After the jury returned its verdict, the trial court proceeded to sentencing. Defendant stipulated to having a Prior Record Level of IV for sentencing purposes. The State sought consecutive sentences at the top of the presumptive range.
¶ 3 As part of its argument during the sentencing proceeding, the State alleged that while incarcerated, defendant made a phone call urging a third party to offer the complaining witness money not to come to court. The State sought to introduce the jail call to "specifically illuminate[] where [defendant] is in terms of acceptance of responsibility and where he is in terms of his respect for the law and his willingness to abide by that[.]"
¶ 4 Defense counsel objected to the jail call being played for the trial court because that call had not been authenticated. The defense further explained its basis for objecting, contending that playing the jail call would be "more prejudicial than probative" because "[i]t wasn't admitted evidence, no charges were filed as a result of [defendant's] behavior[,]" and "there was no communication actually made with the State's witness in this matter." 2
¶ 5 The trial court subsequently issued its ruling on the objection, and the following exchange occurred:
THE COURT: Okay. So here's my take on your request to play [the jail call] .... I mean, I'm looking at 15A-1334. It's just the general rules and procedure regarding sentencing hearings. I mean, formal rules of evidence don't apply. There's [] case law where I'm looking at the annotations. It specifically says the trial court did not err in admitting hearsay evidence of an alleged bribe offered to the witness by Defendant at Defendant's sentencing. I mean, I think . . . the case would indicate to me that [the State] could play it. I'll just - I mean, you've already conveyed to me the information in the recording, [prosecutor], I don't know that I need to hear it, as far as that goes.
[THE STATE]: I don't mind relying on that proffer, Judge.
THE COURT: Okay.
[THE STATE]: I don't need to produce the jail call if your Honor is going to rely on that proffer.
THE COURT: I mean, at this point you've already conveyed the substance of what's in it anyway. I don't think I need to further hear it, if that makes sense. So I mean, [defense counsel], I don't know if that was a formal objection, but based on this case law I don't think there's any issue with that as a sentencing factor for the Court to consider.
[THE STATE]: And just so that the record is clear on that, your Honor, I would indicate that [defense counsel] does have a copy of those jail calls, we produced those to her.
...
[DEFENSE COUNSEL]: And your Honor, that is correct.3
I would say for the purposes of this if you would note our objection and that way it's at least preserved for the record. It sounds like the case law is fairly clear but we would just make that notation of our objection and just ask the Court to preserve that.
...
THE COURT: Okay. And [defendant] didn't wish to come back and be heard on the sentencing aspect of it, did he?
[DEFENSE COUNSEL]: He merely asked that we inform him of the sentence of the Court, Judge.
¶ 6 After hearing arguments from counsel, the trial court sentenced defendant to 97 to 129 months' imprisonment for robbery with a dangerous weapon, to run consecutively with 38 to 58 months' imprisonment on consolidated charges of conspiracy to commit robbery with a dangerous weapon and possession of a firearm by a felon. Defendant gave oral notice of appeal in open court.
B.
¶ 7 Defendant entered a plea of not guilty to all criminal charges filed against him, and a jury returned a verdict finding him guilty on all counts. Defendant appeals from a final judgment entered upon his conviction by a superior court. Accordingly, this Court has jurisdiction to hear his appeal as a matter of right pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) (2021).
II.
A. 4
¶ 8 During sentencing, defense counsel objected to the State's proffer of a recording of defendant's jail call. Regardless of whether defendant formally objects, this Court has jurisdiction to consider non-constitutional sentencing issues on appeal without the need for contemporaneous exception noted at the trial level. N.C. Gen. Stat. § 1446(d)(18) (2021) (permitting appellate review of whether a "sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law."); see State v. Meadows, 371 N.C. 742, 747, 821 S.E.2d 402, 406 (2018) (The "defendant need not have voiced a contemporaneous objection to preserve her nonconstitutional sentencing issues for appellate review."); see also State v. Love, 156 N.C.App. 309, 318, 576 S.E.2d 709, 714 (2003) (quotation marks and citations omitted) ("When a trial court acts contrary to a statutory mandate, the error ordinarily is not waived by the defendant's failure to object at trial.").
B.
¶ 9 "Alleged statutory sentencing errors are questions of law which we review de novo." State v. Gamble, 274 N.C.App. 425, 427, 852 S.E.2d 655, 656 (2020) (citation omitted). "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." State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962). 5
III.
A.
¶ 10 "Trial judges in North Carolina are allowed wide latitude in conducting sentencing hearings and are encouraged to seek all relevant information which may be of assistance in determining an appropriate sentence." State v. Midyette, 87 N.C.App. 199, 204, 360 S.E.2d 507, 510 (1987) (citations omitted). "The defendant and prosecutor may present witnesses and arguments on facts relevant to the sentencing decision and may cross-examine the other party's witnesses. N.C. Gen. Stat. § 15A-1334(b) (2021) (emphasis added). "Formal rules of evidence do not apply at the hearing." Id.; see also N.C. Gen. Stat. § 8C-1, Rule 1101(b)(3) (2021).
¶ 11 "The latitude and discretion accorded trial judges in the conduct of the sentencing hearing are not, however, without limits." Midyette, 87 N.C.App. at 204, 360 S.E.2d at 510. "All information coming to the notice of the court which tends to defame and condemn the defendant and to aggravate punishment should be brought to his attention before sentencing, and he should be given full opportunity to refute or explain it." Pope, 257 N.C. at 335, 126 S.E.2d at 133.
¶ 12 Here, the only evidence the trial court considered regarding the jail call was the prosecutor's description of the call itself. However, "it is axiomatic that the arguments of counsel are not evidence." State v. Collins, 345 N.C. 170, 173, 478 S.E.2d 191, 193 (1996). 6
¶ 13 In State v. Hardy, the trial court permitted the defendant to present "additional evidence concerning why he should be sentenced at the low end of the mitigated range." 250 N.C.App. 225, 231, 792 S.E.2d 564, 568 (2016). The only evidence the defendant's trial counsel presented "as to why [the] [d]efendant's prison sentence should be reduced was his own argument - unsupported by any evidence . . . ." Id. We determined that the arguments of counsel "d[id] not constitute competent evidence as to why [the] [d]efendant's prison sentence should have been reduced." Id. at 232, 792 S.E.2d at 568. However, we ultimately held that the trial court did not err in re-sentencing the defendant because, inter alia, the trial court "did, in fact, undertake [its] own independent evaluation of the evidence ...." Id.
¶ 14 "As mentioned above, the Rules of Evidence do not apply to sentencing hearings, and a trial judge has 'wide latitude' in what evidence he admits in such hearings." State v. Sings, 182 N.C.App. 162, 165, 641 S.E.2d 370, 372 (2007) (citation omitted). In this case, however, the prosecutor's description of defendant's jail call is an argument of counsel; it does not constitute competent evidence. The trial court did not play the jail call recording in open court or otherwise conduct its own independent evaluation.
B.
¶ 15 While defendant has shown error, he fails to demonstrate prejudice. "[A]ll 7 information received by the court relating to punishment [wa]s made known to . . . defendant and his counsel[,]" and defendant was "given the opportunity to explain or refute it." Midyette, 87 N.C.App. at 204-05, 360 S.E.2d at 510; see also Pope, 257 N.C. at 334, 126 S.E.2d at 133 (The defendant "shall be given full opportunity to rebut defamatory and condemnatory matters urged against him, and to give his version of the offense charged, and to introduce any relevant facts in mitigation.").
¶ 16 The defense had notice and opportunity to respond to the State's evidence at sentencing. Defense counsel sought to prevent the jail call from being played but also confirmed it had received a copy of the recording. During the proceeding, defense counsel further commented on the contents of the jail call, and presented an alternative interpretation of defendant's conduct, stating:
And certainly, your Honor, while we would not justify any behavior, like I said in my argument objecting to the State's evidence of his calls that he was making to potentially have some impact on the witness whether or not the witness was going to testify, and we'll just leave it at that as far as the description. I would note one other thing that the State did not bring up, which was that that call was actually made this past March. So my client has - obviously has not continued to try to influence the outcome of this trial any other way other than to participate in the trial system, in the trial process and of course in his own defense that he and I worked on together in regards to this case.
So I would ask the Court to also recognize that [defendant] is understanding that there is a sentence attached to this that he is facing and he did not make any further attempts to my knowledge that - and I'm not criticizing the State,8
I'm not aware of any other issues or attempts where that was discussed or any other attempts. And like I said, it does not appear any such message was actually passed on to the State's witness in this matter or any direct communication certainly from my client to the State's witness where he would be accused of interfering with the witness in this matter, your Honor. And so again, your Honor, we would ask the Court to consider consolidating this sentence at the bottom of the presumptive range.
¶ 17 Here, defense counsel acknowledges defendant made the call while incarcerated and awaiting trial. She does not dispute the State's description of the call's substantive contents. She only emphasizes that the call had been made in March, that defendant had not engaged in any further efforts to impermissibly influence the outcome of the trial, and that defendant's "request" was never delivered to the complaining witness. Defendant's trial counsel further argued for a lower, consolidated sentence.
¶ 18 During sentencing, defendant sought to prevent the State from introducing competent evidence upon which the trial court could rely. See § 15A-1334(b); Sings, 182 N.C.App. at 165, 641 S.E.2d at 372. On appeal, defendant infers the State's description of the call was no substitute for the call itself. Defendant cannot have it both ways. Accordingly, he fails to demonstrate "manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play." Pope, 257 N.C. at 335, 126 S.E.2d at 133.
IV. 9
¶ 19 For the foregoing reasons, we conclude that defendant received a fair sentencing proceeding, free of prejudicial error.
NO PREJUDICIAL ERROR.
Judges ZACHARY and WOOD concur. 10