State v. Simmons , 64 N.C. App. 727 ( 1983 )

308 S.E.2d 95 (1983)

STATE of North Carolina
v.
Ronald Edward SIMMONS.

No. 823SC1268.

Court of Appeals of North Carolina.

November 1, 1983.

Atty. Gen., Rufus L. Edmisten by Sp. Deputy Atty. Gen., Daniel C. Oakley, Raleigh, for the State.

Marc D. Towler, Asst. Appellate Defender, Raleigh, for defendant-appellant.

EAGLES, Judge.

Defendant excepts to and assigns as error the judge's finding of the above-enumerated aggravating factors.

We need not consider these assignments of error nor the arguments advanced by defendant in support of them. The record in this case establishes, and both briefs concede, that defendant's conviction and sentence were based on a negotiated plea of guilty to the offenses charged.

Under our scheme of presumptive sentencing, a judge who imposes a prison term for a certain offense must impose the presumptive term for that offense. G.S. 15A-1340.4. If he imposes a term that differs from the presumptive term, he must justify the term imposed in terms of aggravating or mitigating factors and make appropriate written findings. G.S. 15A-1340.4(a). These requirements apply in all cases involving Fair Sentencing Act felonies, G.S. 14-1.1, "unless [the judge] imposes a prison term pursuant to [any/a] plea arrangement as to sentence under Article 58 ...." G.S. 15A-1340.4(a).

Here, defendant pleaded guilty to and was convicted of five class H felonies, each carrying a presumptive term of three years imprisonment and a maximum term of ten years imprisonment. G.S. 15A-1340.4(f); G.S. 14-1.1(a)(8). The charges were consolidated for sentencing and defendant was sentenced to ten years imprisonment. The sentence imposed differs from the presumptive term for these offenses and the judge ordinarily would be required to make appropriate findings as to aggravating and mitigating factors. However, since the sentence was imposed pursuant to a plea arrangement with defendant, no findings are required. Our review of the record and the transcript of plea reveals no irregularities, and defendant has alleged none, that would remove the plea arrangement from the operation of Article 58 of Chapter 15A of the General Statutes. See G.S. 15A-1021 et seq. (relating to guilty pleas in Superior Court).

We hold that the judge's findings as to aggravating and mitigating factors regarding defendant's sentence may be disregarded as surplusage. The judgment and sentence are

Affirmed.

ARNOLD and WELLS, JJ., concur.