Opinion
No. COA 15-1338
08-16-2016
STATE OF NORTH CAROLINA v. ROBERT ARTHUR PACE
Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Forsyth County, No. 13 CRS 1562 Appeal by defendant from judgments entered on 20 July 2015 by Judge A. Moses Massey in Forsyth County Superior Court. Heard in the Court of Appeals 27 April 2016. Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant. McCULLOUGH, Judge.
Robert Arthur Pace ("defendant") appeals from a sentence entered on remand. Defendant contends that the trial court erred at his sentencing hearing by failing to find two mitigating factors and that his attorney denied him effective assistance of counsel in failing to propose the two mitigating factors or make any argument for a more lenient sentence. For the following reasons, we affirm defendant's sentence and dismiss, without prejudice, defendant's claim that he received ineffective assistance of counsel.
I. Background
In 2013, an agent at the State Bureau of Investigation determined that DNA evidence linked defendant to an unsolved rape case from 1989. Defendant was subsequently indicted on 22 April 2013. He was convicted of one count of first-degree rape and one count of taking indecent liberties with a child on 5 December 2013. Defendant was sentenced to life in prison without parole for the rape, and received a ten year sentence for taking indecent liberties with a child. The trial court ordered that the sentences run consecutively.
Defendant appealed to this Court in State v. Pace, ___ N.C. App. ___, 770 S.E.2d 677, (2015) ("Pace I"). In Pace I, this Court found that the trial court had erred by sentencing defendant with an aggravated sentence of ten years for indecent liberties with a child. This assignment of error was based on the finding that (1) the trial court had not indicated that it had considered the aggravating and mitigating factors set forth in N.C. Gen. Stat. § 15A-1340.4(a) and (2) the trial court did not indicate that the aggravating factors outweighed the mitigating factors.
Now N.C. Gen Stat §15A-1340.16(e).
On remand, the Honorable A. Moses Massey of the Forsyth County Superior Court found, by a preponderance of the evidence, the existence of an aggravating factor consisting of prior convictions for criminal offenses punishable by more than sixty days confinement. The court made no findings of any mitigating factors and found that, consequentially, the factors in aggravation outweighed the factors in mitigation. On 20 July 2015, defendant was sentenced to a term of ten years - to begin at the expiration of the life sentence imposed on the first-degree rape conviction. Defendant appeals.
II. Discussion
Defendant presents two issues on appeal. First, defendant argues that the trial court should have found two mitigating factors during the sentencing phase of his trial. Next, defendant argues that he was provided with ineffective assistance of counsel. We address each argument in turn.
A. Mitigating Factors
Defendant contends that the trial court erred in failing to find the presence of one non-statutory mitigating factor and one statutory mitigating factor. Defendant argues that he was an alcoholic who had unsuccessfully attempted long-term treatment - a non-statutory factor. He also argues had he been honorably discharged from the United States Armed Services - an enumerated mitigating factor under N.C. Gen. Stat. § 15A-1340.4(a).
The standard of review on appeal of a sentencing court's failure to find a non-statutory mitigating factor is whether the court abused its discretion. State v. Spears, 314 N.C. 319, 323, 333 S.E.2d 242, 244 (1985). "A trial judge's failure to find a statutory mitigating factor is error only where evidence supporting the factor is uncontradicted, substantial, and manifestly credible." State v. Maness, 321 N.C. 454, 462, 364 S.E.2d 349, 353 (1988).
Evidence of mitigating factors was submitted to the trial court by the State. These documents were compiled as "Exhibit 1." Exhibit 1 contained evidence, that, during the sentencing phase of a 1985 trial, the court found that defendant had been honorably discharged from the United States Armed Services. Similarly, during the sentencing phase of a 1993 trial, the court found: defendant suffered from alcoholism, that he had unsuccessfully attempted long-term treatment, that he was under the influence at the time that the crime was committed, and that he had co-operated with law-enforcement officials. Other convictions in Exhibit 1 did not contain evidence of mitigating factors.
Although defendant did not provide documentary or testimonial evidence of these past findings of mitigating factors, he argues that the court should have nevertheless found these factors based on the evidence presented by the State in Exhibit 1. He also contends that the absence of an honorable discharge mitigating factor in 1993 does not contradict the presence of an honorable discharge mitigating factor in 1985. Defendant argues that it is just as likely that this mitigating factor was not presented to the court in 1993.
In State v. Canty, 321 N.C. 520, 364 S.E.2d 410 (1988) our Supreme Court held that "[t]he State has the burden of proving that aggravating factors exist, whereas the defendant has the burden of proving that mitigating factors are present." Id. at 523, 364 S.E.2d at 413. Our Supreme Court has also held that judges are not permitted to gloss over the presence or absence of mitigating factors. In Jones, the North Carolina Supreme Court held that
When evidence in support of a particular mitigating or aggravating factor is uncontradicted, substantial, and there is no reason to doubt its credibility, to permit the sentencing judge simply to ignore it would eviscerate the Fair Sentencing Act. The Act clearly states that unless the sentence is imposed pursuant to a plea arrangement "he must consider each of the [statutory] aggravating and mitigating factors."State v. Jones, 309 N.C. 214, 218-19, 306 S.E.2d 451, 454-55 (1983) (citation omitted).
However, judges are not required to detail the various mitigating and aggravating factors they might have considered. Judges are "only required to set out in the judgment the factors that [they] determine[] by the preponderance of the evidence are present . . . [and are] not required to list in the judgment statutory factors [they] considered and rejected as being unsupported[.]" State v. Davis, 58 N.C. App 330, 334, 293 S.E.2d 658, 661 (1982).
Defendant argues that the court must find a statutory mitigating factor when the evidence supports it and when the factor is listed in N.C. Gen. Stat. § 15A-1340(a)(2) - even where the defense fails to ask the court to find such a mitigating factor. Defendant relies on State v. Meynardie, 172 N.C. App. 127, 616 S.E.2d 21 (2005) to support this proposition. Meynardie holds that defendant must meet a high burden to establish that the trial court failed in its duty to find a mitigating factor, satisfying the burden of proof established in State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). Id. at 132, 616 S.E.2d at 25. Under Jones, a defendant's position is analogous to that of a party with the burden of persuasion seeking a directed verdict. The defendant is asking the court to conclude that "the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn," and that the credibility of the evidence "is manifest as a matter of law." Jones, 309 N.C. at 219-20, 306 S.E.2d at 455 (citations omitted).
The only evidence of mitigating factors presented at defendant's hearing was an exhibit, submitted by the State, which detailed defendant's prior convictions. The only evidence of the presence of statutory or non-statutory mitigating factors was evidence that previous courts, at previous sentencing hearings, had found mitigating factors. Previous courts had also found that no mitigating factors were present, or that aggravating factors were present. Defendant did not argue for the presence of mitigating factors.
It is defendant's burden to prove the existence of a mitigating factor. Because defendant failed to present any evidence regarding non-statutory mitigating factors at sentencing, we cannot hold that the trial court abused its discretion in finding that no non-statutory mitigating factors were present. Neither can we hold that defendant has presented uncontradicted, substantial, and manifestly credible evidence of a statutory mitigating factor. Similarly, because defendant failed to present any evidence to the trial court, we cannot say that the issue was presented so clearly that no other inferences to the contrary could be drawn. Defendant has not met his burden to prove the existence of either statutory or non-statutory mitigating factors. This argument is overruled.
B. Ineffective Assistance of Counsel
Defendant contends that he was denied constitutionally adequate assistance of counsel because his attorney did not propose either mitigating factor or otherwise argue in favor of a milder sentence.
At trial, defendant represented himself pro se, but with the assistance of standby counsel. Defendant's standby counsel was appointed as actual counsel for the purposes of defendant's sentencing hearing. At defendant's sentencing hearing, the court was presented with Exhibit 1, which contained evidence that previous courts had found, as mitigating factors, that defendant had been honorably discharged from the Armed Services and that he was an alcoholic who had previously unsuccessfully attempted long-term treatment. However, at his sentencing hearing, defendant did not argue for the finding of these mitigating factors, cite these portions of Exhibit 1, or in any other way call attention to their presence. On appeal, defendant contends that counsel's failure to make any argument towards a presumptive or mitigated term constituted an "actual breakdown of the adversarial process." United States v. Cronic, 466 U.S. 648, 657, 80 L. Ed. 2d 657, 667 (1984).
To prevail in an ineffective assistance of counsel claim, defendant must prove that counsel's conduct "fell below an objective standard of reasonableness." State v. Campbell, 359 N.C. 644, 690, 617 S.E.2d 1, 29 (2005). This standard is met through a two-part test:
First, defendant must demonstrate that his trial counsel's performance was "deficient," such that the errors committed were "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Second, defendant is required to show prejudice resulting from trial counsel's "deficient performance," which "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."State v. Murrell, 362 N.C. 375, 398, 665 S.E.2d 61, 77 (2008) (internal citations omitted).
In addressing whether an ineffective assistance of counsel claim may be dealt with on appeal, this Court has held that "[ineffective assistance of counsel] claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002) (internal citations omitted). Therefore, on direct appeal we must determine if these ineffective assistance of counsel claims have been prematurely brought. Id. at 167, 557 S.E.2d at 525.
Here, the record is too minimal for us to rule on the merits of defendant's ineffective assistance of counsel claim. Therefore, we must dismiss these claims without prejudice but preserve defendant's right to reassert them during a subsequent motion for appropriate relief proceeding.
III. Conclusion
For the reasons discussed above, we affirm defendant's sentence. We dismiss his ineffective assistance of counsel claims without prejudice so that he may pursue them through a motion for appropriate relief.
AFFIRMED IN PART; DISMISSED WITHOUT PREJUDICE IN PART.
Judges ELMORE and INMAN concur.
Report per Rule 30(e).