State v. Freeman

• Court: Court of Appeals of North Carolina
• Decided: October 4, 2022
• Docket: 22-218
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-654

No. COA22-218

Filed 4 October 2022

Wake County, Nos. 17CRS1875, 21CRS203531

STATE OF NORTH CAROLINA

v.

ALJARIEK FREEMAN, Defendant.

Appeal by defendant from judgment entered 30 September 2021 by Judge

Keith O. Gregory in Wake County Superior Court. Heard in the Court of Appeals 23

August 2022.

Attorney General Joshua H. Stein, by Assistant Attorney General Joseph R. Shuford, for the State-appellee.

Dysart Willis, by Andrew Nelson, for defendant-appellant.

GORE, Judge.

¶1 Defendant petitions for writ of certiorari claiming the trial court erred during

sentencing by not finding two mitigating factors supported by uncontradicted and

credible evidence to mitigate his sentence on one count of robbery with a dangerous

weapon and one count of conspiracy to commit robbery with a dangerous weapon.

Defendant is limited to petitioning for writ of certiorari since he has no right of appeal

under Section 15A-1444 of the North Carolina General Statutes. For the following

reasons, we deny defendant’s petition for writ of certiorari and dismiss the appeal. STATE V. FREEMAN

Opinion of the Court

I.

¶2 Defendant was involved in a robbery on 10 December 2016. During the

robbery, one of defendant’s co-conspirators shot a drug dealer in the back of the head,

killing him. Defendant pled guilty to two offenses: (1) robbery with a dangerous

weapon, and (2) conspiracy to commit robbery with a dangerous weapon. Defendant

agreed to testify for the State against his co-conspirator and cooperated accordingly.

On 28 January 2021, defendant was charged with two counts of trafficking heroin

and pled guilty to both on 8 July 2021.

¶3 Defendant was set for sentencing on all four offenses on 9 September 2021, but

he failed to appear. Defendant’s prior record was a level III due to prior convictions

in multiple counties during 2014, 2016, and 2017. On 30 September 2021, at the

rescheduled sentencing hearing, the State agreed defendant cooperated by testifying

against his co-conspirator at the co-conspirator’s first-degree murder trial. Defendant

requested the trial court mitigate his sentence based upon his cooperation with the

State. The trial court considered the evidence of mitigating factors and chose to

sentence defendant within the presumptive range for the two robbery convictions.

The State and defendant stipulated that defendant agreed to provide substantial

assistance to the Raleigh Police Department after pleading guilty to the trafficking

charges. The trial court took this substantial assistance into account and issued a

reduced sentence for defendant of 41 to 59 months rather than 70 to 93 months. STATE V. FREEMAN

Because defendant pled guilty to all his charged offenses, he has no right to appeal

unless his petition for writ of certiorari is granted. Defendant orally appealed in open

court.

II.

¶4 Defendant claims he has a meritorious issue that deserves this Court’s

consideration such that we should grant his petition for writ of certiorari. We

disagree.

¶5 Under Section 15A-1444, a defendant who enters a guilty plea is only entitled

to appeal of right when the minimum sentence handed down does not fall within the

presumptive range based upon defendant’s prior record and offense class. N.C. Gen.

Stat. § 15A-1444(a1) (2021). Otherwise, the defendant has no right of appeal and is

limited to petition for review via writ of certiorari for any sentencing issue. Id. “A

petition for the writ must show merit or that error was probably committed below. . .

. Certiorari is a discretionary writ, to be issued only for good and sufficient cause

shown.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959). “A trial court’s

weighing of mitigating and aggravating factors will not be disturbed on appeal absent

a showing that there was an abuse of discretion.” State v. Rogers, 157 N.C. App. 127,

129, 577 S.E.2d 666, 668 (2003).

¶6 In claiming a meritorious issue for appeal, defendant cites to State v. Jones, for

the proposition that a sentencing judge errs “if he fails to find a statutory factor when STATE V. FREEMAN

evidence of its existence is both uncontradicted and manifestly credible.” 309 N.C.

214, 220, 306 S.E.2d 451, 456 (1983). However, this statement made by our Supreme

Court was to give effect to the Fair Sentencing Act, which has since been repealed.

See N.C. Gen. Stat. § 15A-1340.1 to 15A-1340.7, repealed by Structured Sentencing

Act, ch. 538, sec. 14, 1993 N.C. Sess. Laws 2298, 2318. The Structured Sentencing

Act replaced the Fair Sentencing Act and under the Structured Sentencing Act, “[t]he

court shall make findings of the aggravating and mitigating factors present in the

offense only if, in its discretion, it departs from the presumptive range of sentences .

. . .” N.C. Gen. Stat. § 15A-1340.16(c) (2021). This is the case “even if the evidence of

mitigating factors is uncontroverted.” State v. Garnett, 209 N.C. App. 537, 550, 706

S.E.2d 280, 288 (2011); see State v. Dorton, 182 N.C. App. 34, 43, 641 S.E.2d 357,

363, disc. rev. denied, 361 N.C. 571, 651 S.E.2d 225 (2007) (Mem.) (“[T]he court did

not err by declining to formally find or act on defendant’s proposed mitigating factors,

regardless whether evidence of their existence was uncontradicted and manifestly

credible.”).

¶7 Although defendant may have presented sufficient evidence of mitigating

factors, the trial court, in its discretion, could refuse to mitigate the sentence.

Defendant presented sufficient evidence of mitigating factors 7 and 11 under Section

15A-1340.16(e), of which the State agreed. See N.C. Gen. Stat. § 15A-1340.16(e)

(2021). The trial court considered the evidence and the mitigating factors but, in its STATE V. FREEMAN

discretion, chose to sentence defendant in the presumptive range. Defendant

received an active sentence for the first robbery count within the presumptive range

of 84 months minimum to 113 months maximum, and for his second conspiracy to

commit robbery count, a sentence within the presumptive range of 33 months

minimum to 52 months maximum. See N.C. Gen. Stat. § 15A-1340.17(c) (2021).

Because the trial court sentenced defendant within the presumptive range, as this

Court has stated many times, it was not required to find mitigating factors or

sentence defendant to a mitigated sentence. See State v. Ramirez, 156 N.C. App. 249,

258–59, 576 S.E.2d 714, 721 (2003) (“Since the court may, in its discretion, sentence

defendant within the presumptive range without making findings regarding proposed

mitigating factors, we hold the trial court did not err by sentencing defendant within

the presumptive range without making findings as to this mitigating factor.”); State

v. Taylor, 155 N.C. App. 251, 267, 574 S.E.2d 58, 69 (2002); State v. Campbell, 133

N.C. App. 531, 542, 515 S.E.2d 732, 739 (1999).

¶8 Accordingly, because defendant fails to show a meritorious claim or that the

result would probably be different, defendant does not meet the standard for granting

petition for writ of certiorari. STATE V. FREEMAN

III.

¶9 Defendant’s petition for writ of certiorari on the sole issue of sentencing error

due to mitigating factors is denied with prejudice. For the foregoing reasons,

defendant’s petition for writ of certiorari is denied and his appeal is dismissed.

DISMISSED.

Judges DILLON and CARPENTER concur.