Opinion
No. 299A83
Filed 3 November 1983
APPEAL by the state from a decision of a divided panel of the Court of Appeals, 62 N.C. App. 66, 302 S.E.2d 262 (1983), which remanded for a new sentencing hearing. N.C. Gen. Stat. 7A-30 (2) (1981).
Rufus L. Edmisten, Attorney General, by John R. B. Matthis, Special Deputy Attorney General, and John F. Maddrey, Assistant Attorney General, for the state appellant.
Habegger Johnson by Daniel S. Johnson, for defendant appellee.
The sentencing court found, among others, the following factors in aggravation: The offense was especially heinous; defendant had a prior conviction; defendant was associated with a motorcycle gang; and defendant went to the scene armed with a shotgun intending to do revenge.
The Court of Appeals concluded there was error in each of these findings. Concerning the prior conviction circumstance, the Court of Appeals concluded it should not have been considered because there was no evidence that defendant was not indigent or was represented by counsel at the prior conviction. Because defendant did not make an issue of the validity of the prior conviction in the trial court, the Court of Appeals erred in so concluding for the reasons stated in State v. Thompson, No. 150PA83 (filed 27 September 1983). Otherwise the Court of Appeals should be affirmed. The decision of the Court of Appeals is therefore modified and affirmed accordingly.
Modified and affirmed.