Opinion
No. 06-1604.
Filed January 15, 2008.
Guilford County Nos. 92 CRS 69514, 92 CRS 20763.
Appeal by defendant from judgments entered 18 September 1995 by Judge Steve Allen in Guilford County Superior Court. Heard in the Court of Appeals 9 October 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney General John G. Barnwell, for the State. Nora Henry Hargrove for defendant-appellant.
Jesse Thompson, Jr. ("defendant") pled guilty to second degree murder and conspiracy to commit murder on 18 September 1995. Defendant received a term of life imprisonment for second degree murder and a consecutive term of fifteen (15) years' imprisonment for conspiracy to commit murder. Defendant filed a petition for writ of certiorari, which this Court allowed on 23 January 2006, in order to appeal his sentence. Our grant of certiorari, however, was limited to "to those [issues] to which [defendant] originally had an appeal of right." Because defendant pled guilty, he is only able to appeal aspects of his sentence under the prevailing law at the time. See N.C. Gen. Stat. § 15A-1444(a1) and (e) (1988) (subsequently amended effective 1 October 1994). Under that statute, a defendant who entered a guilty plea had an appeal of right as to his sentence only if: (1) "the prison term of the sentence exceeds the presumptive terms set by G.S. 15A-1340.4," and (2) "the judge was required to make findings as to aggravating or mitigating factors pursuant to this Article." Id. Here, both of defendant's sentences were beyond the presumptive range, which thus required the trial judge to make findings as to aggravating/mitigating factors. See State v. Parker, 315 N.C. 249, 254, 337 S.E.2d 497, 500 (1985). After careful consideration, we affirm the trial court's judgment.
The date of the alleged crime was 12 August 1992; thus defendant was sentenced under the Fair Sentencing Act, which was later repealed and replaced by the Structured Sentencing Act in 1994.
On 14 December 1992, defendant was indicted for conspiracy to commit murder and for the murder of Elmon Tito Davidson, Jr. ("the victim"). Co-defendants Charles Walker ("Walker"), Pamela Haizlip ("Haizlip"), Rashar Darden ("Darden"), and Antion Wrenn ("Wrenn") were also charged with murdering the victim.
Co-defendants Darden, Wrenn, and Haizlip entered into plea agreements by which they agreed to testify against Walker and defendant. Walker was tried capitally, convicted of first degree murder and conspiracy to commit murder, and sentenced to death. The testimony offered by the co-defendants against Walker was received into evidence at defendant's sentencing hearing.
The State's evidence against Walker tended to show the following: Defendant
tied [the victim's] hands with duct tape and radio wire . . . [, Walker] gave a .380-caliber pistol to [defendant] and left the apartment . . . [, defendant] cut [the victim's] throat three times and then shot him through a pillow in the little finger and in the arm . . . [, Walker] then reentered [the] apartment, took the gun from [defendant], and shot [the victim] in the neck.
State v. Walker, 343 N.C. 216, 220, 469 S.E.2d 919, 921 (1996). In that case, the jury found the murder of the victim to be "especially heinous, atrocious, or cruel[.]" Id. at 225-26, 469 S.E.2d at 924.
Following defendant's guilty pleas on 18 September 1995, the trial court found, as to each offense, two aggravating factors and three mitigating factors. The trial court concluded that the factors in aggravation outweighed the factors in mitigation and entered judgment against defendant. Subsequent to the trial court's sentencing, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), in which it held that aggravating factors must be submitted to the jury for determination if they serve to increase a defendant's sentence.
Defendant presents the following issues for this Court's review: (1) whether the holding of Blakely applies to his case; (2) whether the trial court erred by not finding statutory mitigating factors; (3) whether the trial court erred by not finding certain non-statutory mitigating factors; (4) whether the trial court abused its discretion in balancing the aggravating and mitigating factors it found; and (5) whether defendant was sentenced beyond the statutory limit.
I.
Defendant argues that the trial court erred by finding in aggravation that the crime was especially heinous, atrocious, and cruel and that defendant committed the crime while on pretrial release on another felony. Under Blakely, "`[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)). Failure to submit aggravating factors to the jury violates a defendant's Sixth Amendment right to a trial by a jury. Id. at 305, 159 L. Ed. 2d at 414-15. Although the trial court did not submit the aggravating factors to a jury in this case, that does not end our inquiry.
Where a case was "not pending on direct review and was final at the time the rule in Blakely was issued, the rule cannot be retroactively applied to defendant's appeal before this Court by writ of certiorari." State v. Hasty, 181 N.C. App. 144, 147, 639 S.E.2d 94, 96 (2007). In this case, defendant pled guilty in 1995, approximately nine (9) years before Blakely was decided. Defendant, however, argues that his case was not "final" because he gave notice of appeal in September 1995. We disagree.
The rule in Hasty is clear: This Court will not review alleged Blakely errors after granting a writ of certiorari. Id. (citing State v. Pender, 176 N.C. App. 688, 693-94, 627 S.E.2d 343, 347 (2006)). Defendant is on appeal to this Court via writ of certiorari, and he never perfected his original notice of appeal. Accordingly, the Blakely rule does not apply to defendant's case, as his guilty plea was entered before the Supreme Court's decision in Blakely. Defendant's assignments of error as to this issue are therefore rejected.
II.
Defendant next argues that the trial court erred in failing to find the statutory mitigating factors that "defendant committed the offense under duress, coercion, threat, or compulsion which was insufficient to constitute a defense but significantly reduced his culpability" and that the defendant's "limited mental capacity at the time of commission of the offense significantly reduced his culpability for the offense." See N.C. Gen. Stat. § 15A-1340.4(a)(2) b and e (1992). We disagree.
"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). With this standard of review in mind, we address the mitigating factors presented, but not adopted by the trial court, in turn.
The first mitigating factor at issue reads: "The defendant committed the offense under duress, coercion, threat, or compulsion which was insufficient to constitute a defense but significantly reduced his culpability." N.C. Gen. Stat. § 15A-1340.4(a)(2) b (1992). Compulsion is the "`driving or urging by force or by physical or moral constraint' or the `forcible inducement to the commission of an act.'" State v. Holden, 321 N.C. 689, 695, 365 S.E.2d 626, 629 (1988) (quoting Black's Law Dictionary 260 (5th ed. 1979)). As to the other terms listed, the Court in Holden held that "it is clear from the definition and the context that the mitigating factor is intended to apply to situations in which some type of external pressure is directly exerted upon the defendant in an attempt to force commission of the offense." Id. Defendant's only argument as to this factor is that he was "caught up" with an older man. This is not a showing of any external pressure. Accordingly, defendant has failed to establish that the evidence was uncontradicted, substantial, and manifestly credible, and thus, his argument as to this issue is rejected.
The next mitigating factor states that the "defendant's immaturity or his limited mental capacity at the time of the commission of the offense significantly reduced his culpability for the offense." N.C. Gen. Stat. § 15A-1340.4(a)(2)e (1992). Because the statute is worded in the disjunctive, it was treated as two mitigating factors by the trial court. The trial court did find the mitigating factor of immaturity as defendant was seventeen (17) at the time of the crime. The trial court did not, however, find a mitigating factor of limited mental capacity applicable to defendant. There is conflicting evidence as to this factor.
There was evidence presented to the trial court that defendant had an IQ of seventy-four (74) and was therefore borderline mentally retarded. Defendant, however, in a statement to the trial court said:
"First and foremost, let me extend my deepest apology to the family, but giving thanks to God for keeping my sanity, while experiencing this situation. But most of all, I'd like to give thanks to my family, for the strength and encouragement and love that they have given me during this incarceration. And I would also like to give thanks to those who stood by me during this incarceration, and may God bless them. Thanks goes out especially to my lawyers, for taking time out for comforting my family about my case. I truly and deeply appreciate the cooperation and attention. Thank you."
Upon questioning from the court, defendant stated that he composed that statement and chose the words used. The trial judge stated that, "[t]hose are the words that this young man chose himself, [no] borderline person bearing a 74 [IQ] is going to come up with that kind of language." We agree with the trial court that defendant's own statement presents conflicting evidence as to his mental capacity. There being a conflict in the evidence as to defendant's mental capacity, defendant is unable to establish that the trial court erred. Defendant's arguments as to this issue are therefore rejected.
III.
Defendant next argues that the trial court erred by not finding non-statutory mitigating factors. We disagree.
A trial judge's failure to find a non-statutory mitigating factor will not be disturbed on appeal absent an abuse of discretion. State v. Cameron, 314 N.C. 516, 519, 335 S.E.2d 9, 10-11 (1985). Under prevailing law at the time of defendant's plea of guilty, a trial judge's decision in finding non-statutory mitigating factors would not be overturned even where the non-statutory mitigating factor is: "`(1) requested by the defendant, (2) proven by uncontradicted, substantial and manifestly credible evidence, and (3) mitigating in effect[.]'" Id. at 519, 335 S.E.2d at 10 (citation omitted). We address each of defendant's arguments in turn.
The factor that defendant was abandoned by his mother may have been uncontradicted, but he was also taken in by his grandparents, who, according to defendant, provided love and strength to him. The factor that co-defendant Walker had a history of violence does nothing to mitigate the fact that defendant willingly engaged in violence with him. The factor that defendant was of lower level intellectual functioning, as discussed above, was not proven by uncontradicted evidence. Finally, the factor that defendant "has an extended responsible family to provide him with advice and support" duplicates the statutory mitigating factor that defendant "has reliable supervision available[,]" which the trial court found. Accordingly, we cannot say that the trial court abused its discretion in declining to find non-statutory mitigating factors. Defendant's assignments of error as to this issue are therefore rejected.
IV.
Defendant next argues that the trial court erred in determining that the aggravating factors outweighed the mitigating factors by a preponderance of the evidence. We disagree.
"The balance struck by a trial court when weighing mitigating and aggravating factors will not be disturbed if there is support in the record for the trial court's determination." State v. Canty, 321 N.C. 520, 527, 364 S.E.2d 410, 415 (1988). Once the trial court finds the aggravating factors to outweigh the mitigating factors by a preponderance of the evidence, the trial court is permitted to increase the sentence beyond the presumptive term. Id. In the instant case, the trial court found the aggravating factors to outweigh the mitigating factors by a preponderance of the evidence, imposed the maximum sentence for second degree murder of life imprisonment and increased the sentence for conspiracy to commit murder beyond the presumptive range by six (6) years.
In aggravation, the trial court found that the victim suffered a "heinous, atrocious [and] cruel" death and that defendant was on pretrial release at the time of the offenses. In mitigation, the trial court found that defendant was immature at the time of the offenses, had reliable supervision available, and that defendant had been a person of good character and good reputation when he was living in Brooklyn, New York. "In determining whether an offense is especially heinous, atrocious, or cruel, `the focus should be on whether the facts . . . disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense.'" State v. Blalock, 77 N.C. App. 201, 205, 334 S.E.2d 441, 444 (1985) (citation omitted). In this case, the State's evidence tended to show that defendant tied the victim's hands and feet with duct tape and radio wire and then acted in concert with Walker, who beat the victim's kneecaps with a hammer. Defendant stabbed the victim multiple times and shot him in the little finger and in the arm. Under such circumstances, the trial court did not abuse its discretion in determining that the victim was dehumanized and suffered excessive brutality at the hands of defendant. Indeed, the evidence tends to show that the victim's death was drawn out through brutality not needed to further his death, evidenced by defendant shooting the victim in a finger and arm after the victim's kneecaps had been beaten. Moreover, in co-defendant Walker's trial, the jury found the murder to be "especially heinous, atrocious, or cruel[.]" Walker, 343 N.C. at 225-26, 469 S.E.2d at 924. Defendant's assignments of error as to this issue are rejected.
V.
Defendant next argues that the trial court sentenced him to a term of imprisonment for second degree murder that is for a duration not authorized by law. We disagree.
The trial court sentenced defendant to a term of his natural life for second degree murder, a Class C felony, in accordance with the statute in effect at the time. See N.C. Gen. Stat. § 14-1.1 (1993) (Class C felonies are punishable by, inter alia, imprisonment up to fifty years or by life imprisonment). Accordingly, we find no error in the trial court's sentence as to this charge.
Defendant makes no argument as to his sentence for conspiracy to commit murder in violation of N.C. Gen. Stat. § 14-18.1 (1992) (repealed by Session Laws 1994, Extra Session, c. 14, s. 73).
Defendant notes that a Department of Correction's website indicates that he is not eligible for parole. The website is not in the record on appeal. The State believes that defendant is mistaken and that he would be eligible for parole. Regardless, "parole [is a] discretionary act? of grace or clemency extended by the State as a reward for good behavior, conferring no vested rights upon the convicted person." Goble v. Bounds, 13 N.C. App. 579, 583, 186 S.E.2d 638, 640 (1972). If defendant believes that the Department of Correction has erred in determining his parole eligibility, N.C. Gen. Stat. § 148-118.2(a) (2005) provides an administrative remedy to him. Defendant's final assignment of error is therefore rejected.
VI.
In summary, we hold that Blakely does not apply to the issues raised by defendant. We affirm the trial court's finding, or failure to find, certain mitigating and aggravating factors. We also affirm the trial court's determination that the aggravating factors outweighed the mitigating factors by a preponderance of the evidence. Finally, defendant's sentence for second degree murder was authorized by law. Accordingly, defendant is not entitled to resentencing.
Affirmed.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).