State v. Jones , 59 N.C. App. 472 ( 1982 )

297 S.E.2d 132 (1982)

STATE of North Carolina
v.
Johnny J. JONES, Sr.

No. 823SC376.

Court of Appeals of North Carolina.

November 16, 1982.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. David S. Crump, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Lorinzo L. Joyner, Raleigh, for defendant-appellant.

ARNOLD, Judge.

Defendant first attacks his sentence on the ground that the trial judge relied upon the same evidence to prove a fact in aggravation which was necessary to prove an element of the offense in violation of G.S. 15A-1340.4. We agree.

The offense that defendant pled no contest to was attempting to burn an uninhabited dwelling in violation of G.S. 14-67. Thus, that the structure was uninhabited and was a dwelling when defendant tried to burn it were two elements of the offense.

Aggravating factors listed by the court included that the residence was "the usual and customary dwelling house" of the Letchworths and that they were not home at the time of the alleged burning.

When the case was heard, the prosecutor alleged that the house was the Letchworths, and that it was unoccupied at the time of the offense. Although the court apparently thought that G.S. 14-67 uses the word "uninhabited" to mean "unoccupied," an examination of the record makes it clear that the trial court incorrectly relied on the same evidence to establish an element of the offense and an aggravating factor.

We also agree with the defendant that it was incorrect for the trial judge to find as an aggravating factor the fact that the Letchworths were not at home when the offense was committed. If anything, this should be considered a mitigating factor. In defining the degrees of arson, G.S. 14-58 distinguishes first degree from second degree in that the more serious offense occurs when the dwelling is occupied. Thus, the fact that the Letchworths' house was unoccupied when a G.S. 14-67 offense was committed should be considered a mitigating factor.

Defendant's third attack is on the trial judge's consideration of the fact that the house "was actually partially burned." He contends that it was a violation of his substantive due process rights to consider this fact as aggravating since it is an element of arson, a charge that the State dropped against him in exchange for this plea bargain. It is also pointed out that the trial judge told defendant that his plea to the lesser offense was in lieu of all other charges. We find no error on this point.

First, the trial judge was not using a dismissed charge to aggravate the sentence. He was only considering a fact in evidence as allowed by the G.S. 15A-1340.4 guidelines. The statute provides that the trial judge may consider "any aggravating and mitigating factors that he finds are proved by the preponderance of the evidence, and that are reasonably related to the purposes of sentencing, whether or not such aggravating or mitigating factors are set forth herein...." (Emphasis added.) It was proper for the trial judge to consider that the house was actually burned as related to one purpose of the sentencing here, i.e., to remove him from society and prevent similar acts by him.

Second, we find no violation of the spirit of plea bargaining here because the defendant was fully informed of the maximum sentence of ten years before he entered his plea.

Finally, we note that defendant benefited from the plea bargain even though he received the maximum sentence. If the State had proceeded on the original charge, the evidence tended to show second degree arson under G.S. 14-58, which is a Class D felony. The presumptive sentence for Class D felonies is twelve years. G.S. 15A-1340.4(f). The maximum sentence for Class D felonies is forty years imprisonment or a fine or both. G.S. 14-1.1(a)(4). Thus, the plea arrangement was defendant's best alternative.

We acknowledge that the trial judge at one point stated that "[a]ctually, you are looking at a first-degree arson case." While this comment was an incorrect conclusion, it alone does not require reversal absent a showing of prejudice by the defendant. Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E.2d 296 (1968).

Because of our holding that certain factors were improperly considered in the sentencing here, defendant's sentence is vacated and the case is remanded for a new sentencing.

The stated goals of the Fair Sentencing Act should guide trial judges in pronouncing sentence. G.S. 15A-1340.3 states those purposes as:

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; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.

See also, Comment, The North Carolina Fair Sentencing Act, 60 N.C.L.Rev. 631 (1982).

Balancing the aggravating and mitigating factors is still a discretionary matter for the trial judge and "is not a simple matter of mathematics.... The number of factors found is only one consideration in determining which factors outweigh others. Although the court is required to consider all statutory factors to some degree, it may very properly emphasize one factor more than another in a particular case." State v. Davis, 58 N.C.App. 330, 293 S.E.2d 658, 661 (1982).

Sentence vacated. Remanded for sentencing only.

HILL and JOHNSON, JJ., concur.