State v. Crain

326 S.E.2d 120 (1985)

STATE of North Carolina v. David Eugene CRAIN.

No. 8429SC313.

Court of Appeals of North Carolina.

March 5, 1985.

*122 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., Nonnie F. Midgette, Raleigh, for the State.

Randy D. Duncan, Hickory, for defendant-appellant.

EAGLES, Judge.

Defendant first assigns as error the trial court's imposition of consecutive 14 year sentences. Defendant argues that the trial court erred in determining that the language of G.S. 14-87, which states that "sentences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder," removes from the trial court any discretion as to whether the sentences for armed robberies tried or disposed of at the same time should be consecutive. Defendant urges that the language "any sentence being served" means a prison term actually in effect pursuant to a judgment and order of commitment at the time defendants are being sentenced under this statute. Here, defendant had no prior convictions and at the time of this court appearance was not serving a sentence.

We hold that, where two or more armed robbery offenses are being disposed of in the same sentencing proceeding, the sentences are not required by G.S. 14-87 to be consecutive to one another because the defendant is not yet serving a sentence for any of the counts at the time of the sentencing proceeding. The sentencing court may impose consecutive sentences, but it is not required to do so. For this reason, the consecutive sentence imposed in 82CRS0288 is vacated and remanded for the trial court's determination, in its discretion, on whether to impose consecutive or concurrent sentences.

Defendant next assigns as error, the trial court's holding that defendant's guilty plea was entered freely, understandingly and voluntarily. We find no error.

Defendant's evidence tended to show that his attorney informed him that he would only receive a 7 year sentence. Defendant also contends that he entered his plea of guilty based on his understanding of the information that he received from his attorney. The State's evidence from the plea transcript, the court's questions to defendant and the testimony of defendant's attorney all tend to support the State's contention that defendant was properly and adequately informed of the consequence of his plea and that he entered into the plea arrangement freely, knowingly and voluntarily.

In State v. Thompson, 16 N.C.App. 62, 190 S.E.2d 877, cert. denied 282 N.C. 155, 191 S.E.2d 604 (1972), we held that evidence that the defendant signed a plea transcript and the judge made careful inquiry of the defendant regarding his plea, is sufficient to show that the plea was entered into freely, understandingly and voluntarily. See also State v. Hunter, 11 N.C.App. 573, 181 S.E.2d 752, affirmed 279 N.C. 498, 183 S.E.2d 665 (1971); cert. denied Hunter v. North Carolina, 405 U.S. 975, 92 S. Ct. 1195, 31 L. Ed. 2d 249 (1972). Here defendant signed a plea transcript which detailed the offenses to which he was pleading guilty, and the possible sentences he could receive, including the minimum of 14 years per count of armed robbery. Based on the evidence before the trial court, we hold that there was no error in the acceptance of the plea tendered by defendant and that defendant tendered his guilty plea freely, voluntarily and understandingly.

Defendant's last assignment of error concerns the trial court's findings that defendant received effective assistance of counsel. Defendant contends that his counsel was inadequate. We disagree.

Defendant argues that effective assistance of counsel requires that his counsel should have subpoenaed character witnesses in an effort to mitigate the sentence. G.S. 14-87(d) provides for a presumptive sentence of 14 years and a minimum sentence of 14 years. State v. Yarborough, 64 N.C.App. 500, 307 S.E.2d 794 (1983). Since the minimum sentence and the presumptive sentence under G.S. 14-87(d) is 14 years, the court may impose that sentence without making any findings of mitigating or aggravating factors. State v. Horne, 59 N.C.App. 576, 583-84, 297 S.E.2d 788, 793 (1982). The trial court found no aggravating factors. Because the law provides that 14 years is the mandatory minimum sentence, the sentence could not be less than 14 years for each count of armed robbery, notwithstanding the persuasiveness of any evidence in mitigation. For this reason, there is no basis for complaint about counsel's services based on his failure to present character witnesses.

We note that for a defendant to receive a new trial based on ineffective assistance of counsel, defendant must show: (1) that his counsel's performance was defective and (2) his defective performance prejudiced the defendant. Strickland v. Washington, ___ U.S. ___, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, ___ U.S. ___, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). The proper standard for evaluating counsel's performance is a rule of reasonableness based on the totality of the circumstances. Under this standard defendant must show that a different result at trial could occur. Defendant has not met this burden.

For the reasons stated, we vacate the consecutive sentence imposed in 82CRS0288 and remand for resentencing in accordance with this opinion.

In all other respects, we affirm the trial court.

Affirmed as to 82CRS0287 and 82CRS0289; vacated and remanded as to 82CRS0288.

WEBB and COZORT, JJ., concur.