State v. Watts

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA13-24 NORTH CAROLINA COURT OF APPEALS Filed: 1 October 2013 STATE OF NORTH CAROLINA Union County No. 11 CRS 52696 v. DOUGLAS BERNARD WATTS Review by certiorari from judgment entered 6 September 2012 by Judge Anna Mills Wagoner in Union County Superior Court. Heard in the Court of Appeals 23 September 2013. Attorney General Roy Cooper, by Assistant Attorney General Bethany A. Burgon, for the State. Richard J. Costanza for defendant-appellant. ERVIN, Judge. Defendant Douglas Bernard Watts seeks review of a judgment sentencing him to a term of 23 to 28 months imprisonment based upon his conviction for larceny of a motor vehicle. On appeal, Defendant contends that the trial court erred by sentencing him in the aggravated range. 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 this case should be remanded resentencing. to the Union County Superior Court for -2I. Factual Background On 18 May 2011, a warrant for arrest charging Defendant with felonious larceny and financial transaction card theft was issued. On 6 September 2011, the Union County grand jury returned a bill of indictment charging Defendant with felonious larceny and financial transaction card theft. 2012, Defendant entered a plea of no larceny pursuant to a plea arrangement On 6 September contest to felonious with the State under which, in return for his guilty plea, other pending charges would be dismissed and Defendant would be sentenced in the top of the presumptive range. determining that presumptive range After accepting Defendant s plea and Defendant as a should Level VI be sentenced offender, the in trial the court entered a judgment sentencing Defendant to a term of 23 to 28 months imprisonment. pro se notice of On 13 September 2012, Defendant filed a appeal which did not clearly specify the judgment from which Defendant s appeal purported to be taken and failed to name the Court to which the appeal was being taken as required by N.C.R. App. P. 4. As a result, Defendant filed an alternative petition for the issuance of a writ of certiorari, which we have elected, in the interest of justice, to allow. II. Substantive Legal Analysis On appeal, Defendant contends that he is entitled to a new sentencing hearing because the trial court erroneously sentenced -3him in the aggravated range.1 More specifically, Defendant argues that the aggravated-range sentence embodied in the trial court s judgment was imposed in error because (1) Defendant s plea, which the trial court accepted, was tendered pursuant to a plea agreement which specifically provided for the imposition of a sentence in specifically the found presumptive that a range; sentence in (2) the the trial court presumptive range would be appropriate; and (3) the trial court did not find the existence of any aggravating factor before sentencing Defendant in the aggravated, rather than the presumptive, range. As the State acknowledges, Defendant s contention has merit. At the sentencing hearing, the trial court determined that Defendant had been convicted of a Class H felony and should be sentenced as a Level VI offender. version of N.C. Gen. Stat. According to the applicable § 15A-1340.17, the maximum presumptive sentence which the trial court had the authority to impose upon Defendant based upon his conviction was 20 to 24 months imprisonment. felonious larceny However, the 23 to 28 month sentence which the trial court actually imposed upon Defendant fell within presumptive, range. 1 the aggravated, rather than the The trial court did not, however, have Defendant has not challenged the validity of his conviction in any way before this Court, so his guilty plea and resulting conviction remain undisturbed. -4authority to impose an aggravated-range sentence upon Defendant in this case. As an initial matter, the trial court failed to comply with the statutory provisions governing the imposition of aggravated sentences prior to entering the judgment which is before us in this case. Pursuant to N.C. Gen. Stat. § 15A-1340.16(c), a trial must court mitigation if the make written sentence findings which he or in she aggravation seeks to and impose departs from the presumptive range of sentences specified in N.C. Gen. Stat. § 15A-1340.17(c)(2). In addition, before a factor in aggravation can be found, either a jury must determine that the aggravating factor in question exists or the defendant must admit to its existence. N.C. Gen. Stat. § 15A-1340.16(a1). Although the trial court imposed an aggravated-range sentence upon Defendant, a jury did not find, Defendant did not admit, and the trial court did not make findings of fact establishing that any aggravating factor existed. As a result, the trial court statutory failed to comply with the requirements delineating the circumstances under which an aggravated-range sentence could be properly imposed. Secondly, the trial court does not appear to have intended to impose an aggravated-range sentence. The written judgment entered in this case reflects that the trial court checked a box stating that [t]he Court . . . makes no written findings -5because the prison term imposed is . . . within the presumptive range of sentences authorized under G.S. 15A-1340.17(c). result, instead sentence upon of intending Defendant, to the impose trial an court As a aggravated-range appears to have erroneously believed that the sentence reflected in its judgment was drawn from the presumptive, rather than the aggravated, range. Finally, the trial court failed to follow the statutory requirements for rejecting a plea arrangement, which would have been a necessary prerequisite to the imposition of an aggravated-range sentence in this case given the contents of Defendant s plea agreement. According to N.C. Gen. Stat. § 15A- 1023(b), [i]f the judge rejects [a plea] arrangement, he must so inform the parties, refuse to accept the defendant s plea of guilty or no contest, and advise the defendant personally that neither the State nor the defendant is bound by the rejected arrangement. Defendant s plea agreement specifically provided that [d]efendant w[ould] receive a sentence in the top of the presumptive range. Although the trial court accepted Defendant s plea, it failed to impose a sentence consistent with the provisions of Defendant s plea agreement. sentence that was inconsistent with the By imposing a sentence to which Defendant and the State had agreed, the trial court essentially rejected Defendant s plea arrangement without complying with the -6applicable statutory provisions governing such situations. As a result, the trial court s judgment was unlawful for this reason as well. III. Conclusion Thus, although we find no legal defect in Defendant s conviction, we conclude that the trial court erred by sentencing Defendant in the aggravated range. As a result, this case should be, and hereby is, remanded to the Union County Superior Court for resentencing. REMANDED FOR RESENTENCING. Judges GEER and DILLON concur. Report per Rule 30(e).

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