Opinion
No. COA10-1131
Filed 3 May 2011 This case not for publication
Appeal by defendant from judgments entered 18 March 2010 by Judge Clifton W. Everett, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 25 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General Barry H. Bloch, for the State. Reece Reece, by Michael J. Reece, for defendant-appellant.
Pitt County File No. 09 CRS 6643-44, 6646-47.
Defendant Michael Angelo Smith appeals from judgments sentencing him to consecutive terms of a minimum of 100 months and a maximum of 129 months imprisonment and a minimum of 60 months and a maximum of 81 months imprisonment, both to be served in the custody of the North Carolina Department of Correction, with these judgments based on Defendant's convictions for separate counts of possession of cocaine with the intent to sell or deliver and Defendant's pleas of guilty to having attained the status of an habitual felon. On appeal, Defendant contends that he is entitled to a new sentencing hearing on the grounds that the trial court impermissibly considered his decision to exercise his right to trial by jury in determining his sentence. After careful consideration of Defendant's challenge to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant is not entitled to relief from the trial court's judgments on appeal.
I. Factual Background
On or about 13 July 2009, the Pitt County grand jury returned bills of indictment charging Defendant with possession of cocaine on 18 July 2008 with the intent to sell or deliver in File No. 08 CRS 59696, possession of cocaine on 21 July 2008 with the intent to sell or deliver in File No. 09 CRS 6644, possession of cocaine on 24 July 2008 with the intent to sell or deliver in File No. 09 CRS 6643, possession of cocaine on 11 November 2008 with the intent to sell or deliver in File No. 08 CRS 62905, and possession of a firearm by a convicted felon in File No. 08 CRS 55274. In addition, the grand jury returned three bills of indictment charging Defendant with having attained the status of an habitual felon, with each habitual felon allegation assigned to one of the July 2008 possession with the intent to sell or deliver charges.
The cases against Defendant came on for trial before the trial court and a jury at the 15 March 2010 criminal session of Pitt County Superior Court. Prior to trial, the trial court engaged in a colloquy with Defendant concerning the extent to which the parties had engaged in plea negotiations and whether Defendant wished to enter a negotiated plea or assert his right to trial by jury. At that time, Defendant confirmed his decision to reject the proffered plea agreement, which did not involve admission to habitual felon status, and to proceed to trial instead. After the conclusion of this colloquy, the State voluntarily dismissed the possession of a firearm by a convicted felon charge that had been lodged against Defendant in File No. 08 CRS 55274 and successfully moved to have the remaining substantive charges, all of which were drug-related, joined for trial.
At trial, the State presented the testimony of four officers from the Pitt County Sheriff's Department; two informants who allegedly made cocaine purchases from Defendant on 18, 21, and 24 July 2008; and a forensic chemist who identified the substances provided by the informants to investigating officers as cocaine. After these witnesses testified, the State indicated that the individual who allegedly purchased cocaine from Defendant on 11 November 2008 was not available, resulting in the trial court's decision to allow Defendant's motion to dismiss the possession with intent to sell or deliver charge lodged against Defendant in File No. 08 CRS 62905.
After Defendant decided not to present evidence, the trial court submitted the three remaining possession with intent to sell or deliver charges to the jury. On 18 March 2010, the jury returned verdicts finding Defendant not guilty in File No. 08 CRS 59696 and guilty as charged in File Nos. 09 CRS 6644 and 09 CRS 6643. Following the return of jury's verdict, Defendant entered pleas of guilty to two counts of having attained the status of an habitual felon.
At the ensuing sentencing hearing, the trial court found that Defendant had accumulated two prior record points and should be sentenced as a Level II offender. Despite Defendant's request and the State's expressed lack of objection, the trial court declined to consolidate Defendant's convictions for judgment. The trial court decided to sentence Defendant in the presumptive range in File No. 09 CRS 6643 and ordered that he be imprisoned in the custody of the North Carolina Department of Correction for a minimum term of 100 months and a maximum term of 129 months. The trial court made findings in aggravation and mitigation in File No. 09 CRS 6644, ultimately concluding that there were no aggravating factors; that Defendant "has accepted responsibility for [his] criminal conduct," that Defendant "supports [his] family," and that Defendant "has a positive employment history or is gainfully employed;" and that the mitigating factors outweighed the aggravating factors, so that "a mitigated sentence is justified." As a result, the trial court ordered that Defendant be imprisoned in the custody of the North Carolina Department of Correction for a minimum term of 60 months and a maximum term of 81 months in File No. 09 CRS 6644, with this sentence to run at the expiration of the sentence imposed in File No. 09 CRS 6643. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis
On appeal, Defendant's sole challenge to the lawfulness of the trial court's judgments rests on a contention that he is entitled to a new sentencing hearing on the grounds that the trial court improperly considered his decision to assert his right to trial by jury rather than entering a negotiated plea at the time that it sentenced Defendant. In essence, Defendant argues that the trial court's decision to give him a lengthy active sentence, including the decision to impose consecutive sentences upon Defendant rather than consolidating his convictions for judgment or ordering that the sentences imposed based upon those convictions be served concurrently, stemmed from its desire to punish Defendant for exercising his right to trial by jury rather than pleading guilty. We do not find Defendant's argument persuasive.
"A sentence within the statutory limit will be presumed regular and valid. However, such a presumption is not conclusive." State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). The presumption of validity is successfully rebutted "[i]f the record discloses that the court considered irrelevant and improper matter in determining the severity of the sentence." Id. In this case, Defendant attempts to rebut the presumption of validity by arguing that the trial court punished him for exercising his right to a jury trial.
"A defendant has the right to plead not guilty, and, `he should not and cannot be punished for exercising that right.'" State v. Gantt, 161 N.C. App. 265, 271, 588 S.E.2d 893, 897 (2003) (quoting Boone, 293 N.C. at 712-13, 239 S.E.2d at 465), disc. review denied, 358 N.C. 157, 593 S.E.2d 83 (2004). Put another way, the fact that a defendant exercised his right to trial by jury rather than pleading guilty may not be a factor in the trial court's sentencing decision. Id. As a result, a defendant is entitled to a new sentencing hearing "[w]here it can be reasonably inferred [that] the sentence imposed on a defendant was based, even in part, on the defendant's insistence of a jury trial." State v. Peterson, 154 N.C. App. 515, 517, 571 S.E.2d 883, 885 (2002). In order for a defendant to obtain appellate relief on the basis that a trial judge improperly considered his or her decision to go to trial rather than enter a guilty plea, however, there must be an "`express indication of improper motivation.'" Gantt, 161 N.C. App. at 272, 588 S.E.2d at 898 (quoting State v. Johnson, 320 N.C. 746, 753, 360 S.E.2d 676, 681 (1987)).
In his brief, Defendant contends that the trial court "made clear that [it] would give Defendant a lengthy active sentence should Defendant go to trial and lose." According to Defendant, the following comments by the trial court demonstrate that it improperly considered his decision to assert his right to trial by jury at the time of sentencing:
THE COURT: I don't involve myself. I'm not going to get involved with it and beat you over the head about it, Son. That's your business. I just want you to be aware you're looking at an awful lot of time. You will be an old man when you get out of jail if you're convicted. I want you to understand that. And you will have to serve all the time. You don't get out early anymore.
THE DEFENDANT: I understand, sir.
THE COURT: Well, I hope you do understand. This ain't Las Vegas. Okay.
[DEF. COUN.]: Thank you, your Honor.
We do not believe that the comments upon which Defendant relies demonstrate that the trial court impermissibly considered Defendant's decision to go to trial at the time that it imposed sentence.
Although Defendant contends that the trial court's statement that "[y]ou will be an old man when you get out of jail if you're convicted," when considered in conjunction with the trial court's decision to impose consecutive sentences, is tantamount to a threat that Defendant would be punished for exercising his right to a jury trial, we do not read the trial court's comments in the same way that Defendant does. Taken in context, the trial court's comments were part of his effort, which Defendant's trial counsel encouraged, to ensure that Defendant fully understood the consequences of his decision to insist on his plea of not guilty rather than going to trial.
Prior to the trial, the trial court engaged in the following colloquy with Defendant regarding his decision to reject the State's plea offer:
[DEF. COUN.]:. . . . My client then rejected [the State's plea offer] and requested a trial.
THE COURT: Okay.
[DEF. COUN.]: Judge, we have discussed — on the record we discussed the habitual felon status, the fact that all he needs — all that could happen is if he just got convicted of one felony, that that places him in the class of habitual status.
THE COURT: All right.
[DEF. COUN.]: Yes, sir.
THE COURT: He seems to understand it.
[DEF. COUN.]: Judge, I've gone over this with him. He's shown me no indication that he does not understand that. He's shown me every indication that that's what he wants to do.
THE COURT: He doesn't understand it?
[DEF. COUN.]: That he does.
THE COURT: Oh, okay.
[DEF. COUN.]: And he wants to go forward. And Judge — certainly.
THE COURT: Is that correct, Mr. Smith?
THE DEFENDANT: Yes, sir, your Honor, sir.
THE COURT: All right, that's the last you're going to hear out of me about it.
THE DEFENDANT: Yes, sir. Thank you, sir.
THE COURT: I don't involve myself. I'm not going to get involved with it and beat you over the head about it, Son. That's your business. I just want you to be aware you're looking at an awful lot of time. You will be an old man when you get out of jail if you're convicted. I want you to understand that. And you will have to serve all the time. You don't get out early anymore.
THE DEFENDANT: I understand, sir.
THE COURT: Well, I hope you do understand. This ain't Las Vegas. Okay.
[DEF. COUN.]: Thank you, your Honor.
At the time of this colloquy, Defendant was facing five felony charges, three of which had associated habitual felon allegations. Had Defendant been convicted as charged and sentenced as an habitual felon, he would, in fact, have been exposed to a lengthy active sentence. Although Defendant emphasizes the possibility that the trial court could have consolidated the cases against Defendant for judgment and sentenced him in the mitigated range and questions whether Defendant would have actually been "an old man" upon his release from incarceration, we understand the trial court's comments to be nothing more than an attempt to ensure that Defendant understood the potential consequences, which included the imposition of a lengthy prison sentence, in the event that he elected to go to trial rather than accept a negotiated plea. This Court has repeatedly concluded that similar comments did not impermissibly impinge upon a defendant's right to trial by jury. See State v. Tice, 191 N.C. App. 506, 512, 664 S.E.2d 368, 373 (2008) (holding that the trial court's pretrial colloquy with the defendant was a permissible explanation of the risks the defendant faced if he went to trial rather than an implicit warning that the defendant would receive an enhanced sentence if he went to trial); State v. Crawford, 179 N.C. App. 613, 619-20, 634 S.E.2d 909, 914 (2006), disc. review denied, 361 N.C. 360, 644 S.E.2d 363 (2007) (stating that "the trial court's remarks prior to trial [that] served to clarify the terms of the offered plea bargain and eliminate questions regarding a subsequent sentence" did "not allow a reasonable inference that the trial court imposed a presumptive sentence as a result of defendant's decision to exercise his right to a jury trial"); Gantt, 161 N.C. App. at 272, 588 S.E.2d at 898 (holding that the trial court's statement "I gave you one opportunity where you could have exposed yourself probably to about 70 months but you chose not to take advantage of that" did not rise to the level of an improper consideration of defendant exercising his right to a jury trial).
Defendant also claims, in reliance on Peterson, 154 N.C. App. at 518, 571 S.E.2d at 885, that the trial court's comment that "[t]his ain't Las Vegas" provides further indication that an improper motivation affected the sentences that the trial court imposed upon him. In Peterson, the trial court commented at the time of sentencing that the defendant "tried to be a con artist with the jury," "rolled the dice in a high stakes game with the jury," and "lost that gamble." Id. at 518, 571 S.E.2d at 885. The trial court also stated "that [no] rational person would [ever] have rolled the dice and asked for a jury trial with such overwhelming evidence." Id. On appeal, this Court held that, "[f]rom the trial court's statements, it can reasonably be inferred the trial court based the sentences imposed on Defendant, at least in part, on Defendant's insistence on a jury trial." Id.
Except for the fact that the trial court's mention of "Las Vegas" could be construed to make a vague reference to gambling, the comment upon which Defendant relies in this case bears little or no resemblance to the comments at issue in Peterson. The comments at issue in Peterson included a direct reference to the defendant's decision to request a jury trial and indicate that his decision to "roll the dice" had not turned out well. In this case, by contrast, the statement in question was made prior to trial at a time when the trial court was attempting to ensure that Defendant fully understood the consequences of the choice that needed to be made between going to trial or accepting a negotiated plea. As a result, we are unable to conclude that the trial court's statement that "this ain't Las Vegas" suggests that the sentence imposed upon Defendant was in any way affected by his decision to assert his right to trial by jury.
Finally, Defendant appears to suggest that the existence of an improper motivation is demonstrated by the fact that the trial court imposed consecutive sentences upon Defendant rather than consolidating his convictions for judgment in accordance with a request made by Defendant's trial counsel with the acquiescence of the State. According to well-established North Carolina law, "[t]he imposition of consecutive sentences [is] well within the trial court's discretion under the Structured Sentencing Act." State v. Butler, 147 N.C. App. 1, 14, 556 S.E.2d 304, 313 (2001) (holding that the trial court did not err by imposing consecutive sentences upon the defendant because of the impact that drugs were having on the community), aff'd, 356 N.C. 141, 567 S.E.2d 137 (2002). The record does not contain any indication that the trial court's decision to impose consecutive sentences in any way stemmed from Defendant's decision to go to trial rather than plead guilty. The trial court did not mention Defendant's decision to go to trial at the time that it decided to impose consecutive sentences upon Defendant. In fact, the trial court specifically stated that it was "not holding it against him because he had a jury trial." Instead, the trial court imposed consecutive sentences upon Defendant because:
I don't have a lot of sympathy about it and I'm not inclined to go along with what the State says, because — because the news needs to get out among the community. . . . But I have to feel like I've got to do it so the people in the public will know that the laws are being enforced and send a message to people that want to sell cocaine, they better watch out what they're doing or they'll end up like you. It's cocaine and the drug culture has complete[ly] obliterated a whole generation of our people. . . .
Thus, the record in no way suggests that the trial court imposed consecutive sentences upon Defendant as a result of his decision to assert his right to a trial by jury rather than pleading guilty.
As a result, based on our review of the record, we find no indication that the sentence imposed upon Defendant stemmed from any improper motivation on the part of the trial court. Thus, we conclude that Defendant's sole challenge to the trial court's judgments lacks merit and that Defendant is not entitled to relief from those judgments on appeal.
NO ERROR.
Judges STEPHENS and BEASLEY concur.
Report per Rule 30(e).