State v. Canady

Judge GREENE

concurring in part and dissenting in part.

I agree with the majority that there was no error in the defendant’s trial. I disagree, however, with the majority’s conclusion that the failure of the defendant to object to the district attorney’s statements at the sentencing hearing amounted to a waiver of defendant’s right to complain that the statements were insufficient to support findings in aggravation of the sentence. The only evidence presented at the sentencing hearing relating to the prior criminal conduct of the defendant was the following statement of the district attorney:

Your Honor, first of all, I would like to present to the Court facts of a prior criminal record of the Defendant. The Defendant does have prior criminal convictions for felonious possession of marijuana, felonious possession of LSD, discharging a firearm into an occupied motor vehicle, and also escape from a department of corrections conviction. All of these would be within the time limits which would entitle the Court to find them as aggravating circumstances in that they are within ten years and also involve sentences of more than sixty days.

Based on the statements of the district attorney, to which defendant did not object, the trial judge found as aggravating factors that the defendant had “a prior conviction or convictions for criminal offenses punishable by more than 60 days confinement.”

I believe the statements of the district attorney are inadequate as a matter of law to support the findings of the trial judge and that the defendant has not waived the right to argue that issue in this court. “A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction.” N.C.G.S. § 15A-1340.4(e) (1988). Prior convictions may also be proven by defendant’s testimony. Here we had only the unsupported statement of the district attorney. This statement is not competent to prove prior convictions. See State v. Swimm, 316 N.C. 24, 32, 340 S.E.2d 65, 70-71 (1986); accord State v. Thompson, 309 N.C. 421, 424-25, 307 S.E.2d 156, 159 (1983) (prosecutor’s unsworn statements deemed insufficient to prove prior convictions); State v. Williams, 92 N.C. App. 752, 376 S.E.2d 21, disc. rev. denied, 324 N.C. 251, 377 S.E.2d 762 (1989). Pursuant to his active inquisitorial function during sentencing, the trial court had the duty to examine all the evidence presented to determine if it would support any of the statutory sentencing factors, even absent a request by counsel. See State v. Cameron, 314 N.C. 516, 520, 335 S.E.2d 9, 11 (1985). Furthermore, the defendant’s failure to object to the statements of the district attorney is not a bar to the defendant raising the issue on appeal. See State v. Mack, 87 N.C. App. 24, 359 S.E.2d 485 (1987), disc. rev. denied, 321 N.C. 477, 364 S.E.2d 663 (1988).

Therefore, since the remarks by the district attorney were not evidence according to the Swimm decision and since the defendant did not waive his right to argue this issue on appeal, I vote to remand to the trial court for resentencing.