State v. Carmichael

Opinions

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-662

Filed 15 July 2026

Wayne County, Nos. 22CRS348320-950, 24CR000004-950

STATE OF NORTH CAROLINA

v.

DEONZA LAMAR CARMICHAEL, Defendant.

Appeal by Defendant from judgment entered 26 July 2024 by Judge Robert C.

Roupe in Wayne County Superior Court. Heard in the Court of Appeals 2 June 2026.

Attorney General Jeff Jackson, by Assistant Attorney General Hunter E. Fritz, for the State.

Jason Christoper Yoder for Defendant.

GRIFFIN, Judge.

Defendant Deonza Lamar Carmichael appeals from the trial court’s judgment

entered after a jury found him guilty of felony fleeing to elude arrest with a motor

vehicle and guilty of attaining the status of a habitual felon. Defendant raises two

issues on appeal: (1) the trial court erred by ordering an aggravated sentence; and (2)

the trial court erred by failing to find any statutory mitigating factors. In the

alternative, Defendant argues he received ineffective assistance of counsel. We hold

Opinion of the Court

the trial court did not err, and Defendant did not receive ineffective assistance of

counsel.

I. Factual and Procedural Background

The evidence presented at trial tended to show the following:

On 22 November 2022, Defendant’s vehicle was stopped by Trooper L.S.

Frederick for a revoked registration plate due to no insurance on the vehicle. Trooper

Frederick approached the vehicle and smelled an odor of alcohol coming from the

vehicle. Trooper Frederick also observed an open container of beer in the passenger

door and asked Defendant if he had been drinking. Defendant replied, “not too much”

and Trooper Frederick asked him to step out of the vehicle. Defendant suddenly

shifted the vehicle into drive and fled the scene. Trooper Frederick pursued

Defendant and witnessed him run a red light and pass two vehicles in a no-passing

zone. Trooper Frederick estimated that Defendant was traveling approximately 80

to 90 miles per hour in a 55 mile per hour limit zone. Defendant then sped through

multiple stop signs and circled a residential area at a high rate of speed. Finally,

Defendant stopped the vehicle. After exiting the vehicle, Trooper Frederick arrested

Defendant and confirmed the suspension of his license.

Defendant was indicted for felony fleeing to elude arrest and attaining the

status of habitual felon. On 16 April 2024, the State filed and served notice of its

intent to prove the existence of two aggravating factors pursuant to N.C. Gen. Stat. §

15A-1340.16(a6). The notice informed Defendant the State intended to prove: (1) a

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statutory aggravating factor under N.C. Gen. Stat § 15A-1340.16(d)(12) that

Defendant committed the offense while on pretrial release on another charge; and (2)

a non-statutory aggravating factor under the catch-all provision of N.C. Gen. Stat. §

15A-1340.16(d)(20), that “all elements of a current offense are included in a prior

convicted offense.” The notice also informed Defendant of the State’s intent to show

a prior record level point under N.C. Gen. Stat. § 15A-1340.14(b)(7) because the

offense was committed while on probation.

On 26 July 2024, a jury found Defendant guilty of felony fleeing to elude arrest

and attaining the status of a habitual felon. Following the jury’s verdict, the case

proceeded to sentencing where the trial court discussed aggravating factors. During

this time, Defendant was informed of his right to have a jury determine the existence

of aggravating factors and any additional sentencing points. Defendant

acknowledged his right and stipulated that: (1) he committed the offense while on

pretrial release on another charge; (2) all elements of the current offense were

included in a prior convicted offense; and (3) at the time of the present offense, he was

on probation.

Prior to sentencing, Defendant’s Prior Record Level Worksheet reflected a total

of nine prior record level points based on his previous convictions. Defendant’s

admissions that all elements of a current offense were included in a prior offense and

that he committed the offense while on probation each added one point to his total,

resulting in a total of eleven prior record points and a classification as a Level IV

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offender.

Defense counsel requested the court find three statutory mitigating factors

pursuant to N.C. Gen. Stat. § 15A-1340.16(e)(17)-(19). The trial court made no

findings in mitigation and ordered Defendant receive an aggravated sentence of 120

months minimum to 156 months maximum as a Level IV offender convicted of a Class

D felony. Defendant gave notice of appeal immediately following sentencing.

II. Analysis

Defendant contends the trial court erred by: (1) ordering an aggravated

sentence; and (2) failing to find any statutory mitigating factors. In the alternative,

Defendant argues he received ineffective assistance of counsel.

A. Aggravated Sentence

Defendant argues the trial court erred by ordering an aggravated sentence.

Specifically, Defendant contends he is entitled to a new sentencing hearing because

he was never indicted with the non-statutory aggravating factor that “all elements of

a current offense are included in a prior convicted offense.” We disagree.

We review a trial judge’s weighing of aggravating and mitigating factors for an

abuse of discretion. State v. Parker, 315 N.C. 249, 259, 337 S.E.2d 497, 503 (1985).

“The balance struck by the sentencing judge in weighing the aggravating against the

mitigating factors, being a matter within his discretion, will not be disturbed unless

it is manifestly unsupported by reason, or so arbitrary that it could not have been the

result of a reasoned decision.” Id. at 258–59, 337 S.E.2d at 502–03.

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In determining a defendant’s sentence, “[t]he court shall consider evidence of

aggravating or mitigating factors present in the offense that make an aggravated or

mitigated sentence appropriate, but the decision to depart from the presumptive

range is in the discretion of the court.” N.C. Gen. Stat § 15A-1340.16(a) (2025). “The

State bears the burden of proving beyond a reasonable doubt that an aggravating

factor exists.” Id. If the court determines that existing aggravating factors outweigh

existing mitigating factors, it may impose a sentence in the aggravated range

pursuant to N.C. Gen. Stat. § 15A-1340.17(c)(4). Id.

“[A] trial judge need not justify the weight he attaches to any factor. He may

properly determine that one factor in aggravation outweighs more than one factor in

mitigation and vice versa.” State v. Ahearn, 307 N.C. 584, 596–97, 300 S.E.2d 689,

697 (1983). A single aggravating factor is sufficient to authorize an aggravated

sentence. See State v. Everette, 361 N.C. 646, 658, 652 S.E.2d 241, 249 (2007) (citing

Ahearn, 307 N.C. at 596–97, 300 S.E.2d at 697); State v. Penley, 318 N.C. 30, 52, 347

S.E.2d 783, 796 (1986) (holding that the trial court did not abuse its discretion in

determining one aggravating factor outweighed seven mitigating factors).

“The defendant may admit to the existence of an aggravating factor, and the

factor so admitted shall be treated as though it were found by a jury.” N.C. Gen. Stat.

§ 15A-1340.16(a1) (2025). “Admissions of the existence of an aggravating factor must

be consistent with the provisions of [N.C. Gen. Stat. 15A-1022.1].” Id. Before an

admission can be accepted, the trial court must determine whether the State has

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provided the defendant with adequate notice of its intent to prove aggravating factors

or a prior record point. See N.C. Gen. Stat. § 15A-1022.1(a) (2025). Aggravating

factors alleged under the catch-all provision of N.C. Gen. Stat. § 15A-1340.16(d)(20)

must be included in an indictment or other charging instrument. N.C. Gen. Stat. §

15A-1340.16(a4) (2025).

An improperly included aggravating factor does not necessarily mandate

resentencing if other aggravating factors are properly found. See State v. King, 386

N.C. 601, 616, 906 S.E.2d 808, 819 (2024). “Importantly, under this approach, not

every case in which the trial court erroneously finds an aggravating factor for itself

will require reversal.” Id. “Put another way, under this reading, prejudice is not

automatically presumed. Instead, prejudice is present when a trial court’s error

affects the level of punishment imposed.” Id.

Defendant’s first argument fails because the trial court could have properly

ordered an aggravated sentence independently of the non-statutory aggravating

factor not included in his indictment. At trial, defense counsel acknowledged

Defendant’s notice of the State’s intent to prove two aggravating factors under N.C.

Gen. Stat. § 15A-1340.16(d). Defendant proceeded to admit to the statutory

aggravating factor that he committed the offense while on pretrial release on another

charge and the non-statutory aggravating factor that all the elements of the offense

related to his current conviction were included in a prior conviction. Even assuming

arguendo that the trial court erred in including the non-statutory aggravating factor

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at sentencing, Defendant did not suffer prejudice. Defendant’s admission to the

statutory aggravating factor that Defendant committed the offense while on pretrial

release on another charge permitted the trial judge to order an aggravated sentence

even if the non-statutory aggravating factor was improperly included.

Defendant argues State v. Ross is instructive. There, this Court held the trial

court erred in ordering an aggravated sentence when three non-statutory

aggravating factors not included in an indictment were weighed in sentencing. State

v. Ross, 216 N.C. App. 337, 351, 720 S.E.2d 403, 412 (2011). Ross is distinguishable.

In Ross, all three aggravating factors presented by the State were non-statutory

aggravating factors pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(20), requiring the

State to include them in an indictment in compliance with N.C. Gen. Stat. § 15A-

1340.16(a4). Id. at 350, 720 S.E.2d at 411. The State did not present any statutory

aggravating factors. Id. Here, the State gave Defendant notice of its intent to prove

the existence of a statutory aggravating factor pursuant to N.C. Gen. Stat. § 15A-

1340.16(d)(12). “Aggravating factors set forth in [N.C. Gen. Stat. § 15A-1340.16(d)]

need not be included in an indictment or other charging instrument.” N.C. Gen. Stat.

§ 15A-1340.16(a4) (2025).

Therefore, the trial court properly found a statutory aggravating factor and

was authorized to order an aggravated sentence, even if a non-statutory aggravating

factor was not included in an indictment.

Defendant next argues that the trial court erred by counting the fact

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Defendant’s current offense had the same elements as a prior convicted offense as

both a non-statutory aggravating factor and a prior record level point. Defendant

contends that the General Assembly’s inclusion of “all elements of a current offense

have the same elements as a prior convicted offense” as a prior record point is

evidence the factor was not intended to be double-counted as an aggravating factor.

This Court dispelled the same argument in State v. Moore, holding “there is no

statutory provision prohibiting a trial court from using the same prior convictions

both as evidence . . . during trial and to increase the defendant’s prior record level.”

State v. Moore, 188 N.C. App. 416, 427, 656 S.E.2d 287, 294 (2008). In Moore, this

Court rejected the defendant’s assertion that using the same factors to increase his

prior record level and aggravate his sentence was improper. Id. Here, the trial court

properly used elements of Defendant’s prior convictions as evidence of the existence

of an aggravating factor. Accordingly, the trial court was permitted to use the

evidence of Defendant’s prior convictions to increase his prior record level as well.

Furthermore, Defendant’s stipulation to committing the offense on probation raised

his prior record level point total to 10, classifying him as a Level IV offender under

structured sentencing. See N.C. Gen. Stat. § 15A-1340.17(c) (2025). Defendant would

have been classified as a Level IV offender even if the trial court did not allocate an

additional point for Defendant’s current offense having the same elements as a prior

convicted offense.

Thus, the trial court did not abuse its discretion. It ordered an aggravated

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sentence within the range authorized by N.C. Gen. Stat. § 15A-1340.17(c).

B. Mitigating Factors

Defendant next argues that the trial court erred by failing to find three

mitigating factors. See N.C. Gen. Stat. § 15A-1340.16(e)(17)-(19) (2023). Specifically,

Defendant contends the trial court erred by not finding that: (1) Defendant supports

his family; (2) Defendant has a support system in the community; and (3) Defendant

has a positive employment history. We disagree.

“[T]he sentencing judge has a duty to find a statutory mitigating factor when

the evidence in support of a factor is uncontradicted, substantial and manifestly

credible.” State v. Spears, 314 N.C. 319, 321, 333 S.E.2d 242, 244 (1985). The

defendant bears the burden of proving mitigating factors by a preponderance of the

evidence. N.C. Gen. Stat. § 15A-1340.16(a) (2025). We review instances where a trial

court fails to find a statutory mitigating factor de novo. State v. Rojas, 298 N.C. App.

95, 101, 912 S.E.2d 867, 871 (2025).

When a defendant alleges that the trial court erred in failing to find a statutory

mitigating factor, he is asking this Court to “conclude that the evidence so clearly

establishes the fact in issue that no reasonable inferences to the contrary can be

drawn.” Id. at 102, 912 S.E.2d at 872. Thus, this Court may reverse a trial court’s

failure to find mitigating factors only when “the evidence offered in support of that

factor is both uncontradicted and manifestly credible.” Id.

A trial court can properly find no mitigating factors when the only evidence

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offered in support of mitigation is the defendant’s own testimony. See State v. Mabry,

217 N.C. App. 465, 472, 720 S.E.2d 697, 703 (2011). In Mabry, this Court held the

trial court did not err in finding no mitigating factors when the sole evidence provided

in support of those factors was testimony from the defendant and her close relatives.

Id. This Court reasoned those sources were “not so manifestly credible” that the trial

court was required to find mitigation. Id; see also State v. Murphy, 152 N.C. App.

335, 346, 567 S.E.2d 442, 449 (2002) (holding that the relationship between those

testifying in support of mitigation and the defendant is a factor the trial court can

consider in deciding credibility).

Here, Defendant attempted to prove statutory mitigating factors under N.C.

Gen. Stat. § 15A-1340.16(e)(17)-(19) through his own testimony that he supports his

family, has a support system in the community, and has a positive employment

history. Although the State did not cross-examine Defendant or present any evidence

to impeach his testimony, the trial court is required to find a mitigating factor only if

the evidence in support of that factor is so clear that no reasonable alternative can be

drawn. See Rojas, 298 N.C. App. at 101, 912 S.E.2d at 872. Defendant cannot be said

to have met this burden. Like the defendant in Mabry, Defendant’s self-serving

testimony does not rise to the level of being manifestly credible. Therefore, the trial

court did not err in not finding factors in mitigation.

C. Ineffective Assistance of Counsel

In the alternative to his first two arguments, Defendant asserts he received

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ineffective assistance of counsel. Defendant argues his counsel’s failure to object to

the trial court’s use of a non-statutory aggravating factor that was not included in an

indictment constituted deficient performance.

On appeal, this Court reviews de novo ineffective assistance of counsel claims.

State v. Gleason, 273 N.C. App. 483, 486, 848 S.E.2d 301, 303 (2020). When a

defendant makes an ineffective assistance of counsel claim, “he must show that his

counsel’s conduct fell below an objective standard of reasonableness.” State v.

Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 248 (1985). Braswell created a two-

pronged test for showing ineffective assistance of counsel. First, the defendant must

show that “counsel’s performance was deficient.” Id. at 562, 324 S.E.2d at 248. This

can be achieved by demonstrating that counsel made errors severe enough to

undermine the “counsel” guaranteed to the defendant by the Sixth Amendment. Id.

Second, the defendant must show that the deficient performance “prejudiced the

defense.” Id. “This requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial.” Id. Thus, the “fact that counsel made an error,

even an unreasonable error” does not entitle the defendant to a reversal unless there

is a “reasonable probability that, but for counsel’s errors, there would have been a

different result in the proceedings.” Id. at 563, 324 S.E.2d at 248.

Here, Defendant has failed to show the alleged deficient performance was

prejudicial. Even assuming arguendo that Defendant could show error by his counsel,

Defendant’s sentence would be authorized even if the trial court did not weigh the

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non-statutory aggravating factor at the sentencing proceeding. At trial, Defendant

stipulated to committing the offense while on probation, adding an additional point

to his prior record level. This admission elevated Defendant to a Level IV offender

independently of the non-statutory aggravating factor. Defendant’s ineffective

assistance of counsel claim fails.

III. Conclusion

We hold the trial court did not err in sentencing Defendant. Additionally,

Defendant did not receive ineffective assistance of counsel.

NO ERROR.

Judges CARPENTER and STADING concur.

Report per Rule 30(e).

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