State v. Jones , 26 N.C. App. 63 ( 1975 )

214 S.E.2d 779 (1975)

STATE of North Carolina
v.
Tommy JONES, Alias Tommy Bryant.

No. 7512SC98.

Court of Appeals of North Carolina.

May 21, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Archie W. Anders, Raleigh, for the State.

Cherry & Grimes by Sol G. Cherry, Fayetteville, for defendant appellant.

MORRIS, Judge.

With commendable candor, counsel for the defendant concedes that in his review of the record he has found no error. He requests, however, that we examine the record for error. We have reviewed the organization of the court, the bill of indictment, and the plea, and find no error. With respect to the judgment, however, we find it necessary to remand this case for further proceedings and for resentencing. See State v. Teat, 24 N.C.App. 621, 211 S.E.2d 816 (1975), cert. den. 286 N.C. 726, 213 S.E.2d 725 (1975). The judgment in this case provides as follows:

"As to felonious breaking or entering: It is adjudged that the defendant be imprisoned for the term of six (6) years in the North Carolina Department of Corrections as a regular youthful offender. This sentence shall be credited with ___ days confinement pending trial. The court recommends he receive vocational or educational training. The Court recommends that this defendant be incarcerated in some prison unit other than the prison unit where Daniel Putchaconis is incarcerated.

As to felonious larceny: It is adjudged that the defendant be imprisoned for the term of four (4) years in the North Carolina Department of Corrections as a committed youthful offender. This sentence is to begin at the expiration of the sentence imposed in the first count of felonious breaking or entering." (Emphasis supplied.)

This judgment was entered pursuant to Article 3A, Chapter 148 of the General Statutes (G.S. §§ 148-49.1 through 148-49.9) which is entitled "Facilities and Programs for Youthful Offenders". The Article defines a "youthful offender" as a person under the age of 21 and a "committed youthful offender" as one sentenced under the Article. The purposes of this Article, according to G.S. § 148-49.1, are "to improve the chances of correction, rehabilitation and successful return to the community of youthful offenders, sentenced to imprisonment by preventing, as far as practicable, their association during their terms of imprisonment with older and more experienced criminals, and by closer coordination of the activities of sentencing, training in custody, conditional release, and final discharge".

The last sentence of G.S. § 148-49.4 is as follows:

"If the court shall find that the youthful offender will not derive benefit from treatment and supervision pursuant to this Article, then the court may sentence the youthful offender under any other applicable penalty provision."

In State v. Mitchell, 24 N.C.App. 484, 211 S.E.2d 645 (1975), we said that the General Assembly by this sentence expressed its intent that a youthful offender shall receive the benefits of a sentence as a "committed youthful offender" unless the trial court shall find that he would "not derive benefit from treatment and supervision pursuant to" the statute. Therefore, the trial court may consider sentencing the defendant as a "committed youthful offender" as a sentencing option when the defendant is eligible for it. If, however, he decides the defendant would not benefit from such a sentence, he must make a finding which makes it clear that he did consider the option but decided defendant would derive no benefit therefrom. He need not support this finding with his reasons therefor. State v. Mitchell, supra, at p. 488, 211 S.E.2d 645. Since the trial court sentenced the defendant on the felonious breaking and entering charges as a "regular youthful offender" without the required finding, that judgment must be vacated.

As to felonious breaking and entering— judgment vacated and cause remanded for further proceedings and resentencing.

As to felonious larceny—no error.

VAUGHN and CLARK, JJ., concur.