State v. Gardner , 312 N.C. 70 ( 1984 )

320 S.E.2d 688 (1984) 312 N.C. 70

STATE of North Carolina
v.
John Sterling GARDNER.

No. 207A84.

Supreme Court of North Carolina.

October 2, 1984.

Rufus L. Edmisten, Atty. Gen. by John R.B. Matthis, Sp. Deputy Atty. Gen. and Alan S. Hirsch, Asst. Atty. Gen., Raleigh, for the State.

M. Bays Shoaf, Salisbury, for defendant-appellant.

BRANCH, Chief Justice.

Defendant assigns as error the failure of the trial judge, ex mero motu, to find as a mitigating factor that prior to arrest, or at an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer. N.C. Gen.Stat. § 15A-1340.4(a)(2)(l) (1983).

We considered a question similar to the one here presented in State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). There, in finding that the trial court erred in failing to find one of the statutory mitigating factors listed in N.C.Gen.Stat. § 15A-1340.4(a)(2) this Court stated:

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." G.S. 15A-1340.4(a) (Cum.Supp.1981) (emphasis added). The Act further states that one of "[t]he primary purposes of sentencing a person convicted of a crime [is] to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender's culpability...." G.S. 15A-1340.3 (Cum.Supp.1981). To allow the trial court to ignore uncontradicted, credible evidence of either an aggravating or a mitigating factor would render the requirement that he consider the statutory factors meaningless, and would be counter to the objective that the punishment imposed take "into account factors that may diminish or increase the offender's culpability." The sentencing judge, even when required to find factors proved by uncontradicted, credible evidence, may still attribute whatever weight he deems appropriate to the individual factors found when balancing them and arriving at a prison term. State v. Ahearn, 307 N.C. 584, 596-97, 300 S.E.2d 689, 697 (1983) (quoting State v. Davis, 58 N.C.App. 330, 333-34, 293 S.E.2d 658, 661, disc rev. denied, 306 N.C. 745, 295 S.E.2d 482 (1982)); G.S. 15A-1340.4(b) (Cum.Supp.1981) (trial court must find aggravating factors outweigh mitigating if he imposes term greater than presumptive or that mitigating factors outweigh aggravating if he imposes term less than presumptive).

. . . . .

[T]he defendant bears the burden of persuasion on mitigating factors if he seeks a term less than the presumptive. Thus, when a defendant argues, as in the case at bar, that the trial court erred in failing to find a mitigating factor proved by uncontradicted evidence, his position is analogous to that of a party with the burden of persuasion seeking a directed verdict. He 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." (Citations omitted).

State v. Jones, 309 N.C. at 220, 306 S.E.2d at 455.

In the instant case all of the substantial, uncontradicted and manifestly credible evidence supports a finding that prior to his arrest for the murder of Ray Eugene Shaver, "the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer." N.C.Gen.Stat. § 15A-1340.4(a)(2)(l). We therefore hold that the trial judge erred when he failed to find this statutory mitigating factor, even though defendant did not request this finding. For this reason, this cause must be remanded for a new sentencing hearing. See State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 700-01 (1983).

We wish to make it abundantly clear that the duty of the trial judge to find a mitigating factor that has not been submitted by defendant arises only when the evidence offered at the sentencing hearing supports the existence of a mitigating factor specifically listed in N.C.Gen.Stat. § 15A-1340.4(a)(2) and when the defendant meets the burden of proof established in State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). The trial judge is not required to consider whether the evidence supports the existence of non-statutory mitigating factors in the absence of specific request by defense counsel.

The judgment entered in the trial court is vacated and this cause is remanded for a new sentencing hearing.

REMANDED for a new sentencing hearing.