State v. Harrison

596 S.E.2d 834, 164 N.C. App. 693, 2004 N.C. App. LEXIS 999
CourtCourt of Appeals of North Carolina
DecidedJune 1, 2004
DocketNo. COA03-84
StatusPublished
Cited by3 cases

This text of 596 S.E.2d 834 (State v. Harrison) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Harrison, 596 S.E.2d 834, 164 N.C. App. 693, 2004 N.C. App. LEXIS 999 (N.C. Ct. App. 2004).

Opinion

CALABRIA, Judge.

Jeffrey Ray Harrison (“defendant”) pled guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970) on 28 May 2002 in Beaufort County Superior Court on twelve counts each of forgery and uttering forged papers, five counts of having attained habitual felon status, one count of assault with a deadly weapon on a government official, one count of fleeing to elude arrest with a motor vehicle, one count of possession of a stolen vehicle, and three counts of obtaining property by false pretenses. Pursuant to defendant’s plea bargain with the State, all counts were consolidated for judgment and defendant was sentenced as a habitual felon in the class C felony range. The court found no mitigating factors and two aggravating factors: the offense was committed for the purpose of avoiding or preventing a lawful arrest (the “first factor”) and defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person (the “second factor”). The court determined defendant’s prior record level as a level VI and imposed a sentence of a minimum term of 210 to a maximum term of 261 months in the North Carolina Department of Correction. Defendant appeals.

Prior to 11 June 2001, defendant stole a truck belonging to Donnie Baker. Inside the truck were various items of personal property, including a checkbook and tools. Defendant pawned the tools and presented numerous forged checks at several locations. At approximately 8:00 a.m. on 11 June 2001, defendant attempted to present another forged check at Food Lion. Food Lion employees recognized the check was forged and summoned officers from the Washington Police Department. A high-speed chase ensued, at times reaching speeds in excess of 100 mph. During his attempt to elude law enforcement, defendant tried to ram his vehicle into one driven by Officer Hails, who was involved in the pursuit, and forced him off the road. The chase commenced in Beaufort County and continued into Pitt County, where defendant abandoned the stolen vehicle. Defendant fled on foot to Martin County, where he was ultimately apprehended.

While the case was pending, defendant was incarcerated and overheard incriminating statements by another inmate concerning the attempted murder of a police officer. Defendant’s cooperation regarding the incriminating statements he overheard prompted defendant’s plea bargain with the State. Defendant appeals, asserting the trial court erred in (I) finding aggravating factors and imposing an aggravated sentence because such factors were elements of the [695]*695charged offenses; (II) finding aggravating factors where there was insufficient evidence to support them; (III) failing to find any mitigating factors; and (IV) imposing a cruel and unusual sentence.

I. Elements of the Charged Offense

Defendant assigns error to the trial court’s use of the two aggravating factors to enhance the sentence imposed on the grounds that the factors constituted elements of the offenses to which defendant pled guilty. Specifically, defendant contends the trial court erred because the first factor constitutes an element of the offense of fleeing to elude arrest and the second factor constitutes an element of the offense of assault with a deadly weapon on a law enforcement officer.

“Evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation . . . .” N.C. Gen. Stat. § 15A-1340.16(d) (2003).

[W]hen separate offenses of different class levels are consolidated for judgment, the trial judge is required to enter judgment containing a sentence for the conviction at the highest class. Accordingly, the trial judge is limited to the statutory sentencing guidelines, set out at N.C.G.S. § [15A-] 1340.17(c), for the class level of the most serious offense, rather than any of the lesser offenses in that same consolidated judgment. The trial court may, however, depart from the appropriate sentencing guidelines for the most serious offense upon finding that aggravating or mitigating factors exist.

State v. Tucker, 357 N.C. 633, 637, 588 S.E.2d 853, 855 (2003). Aggravating factors found by the trial court and applied to the sentence entered on a consolidated judgment “necessarily only apply to the offense in the judgment which provides the basis for the sentencing guidelines.” Id. Accordingly, “aggravating factors applied to the sentence for a consolidated judgment will only apply to the most serious offense in that judgment.” Id.

Unlike Tucker, each of the offenses in the instant case were equally classified as class C felonies by virtue of defendant’s status as a habitual felon. Accordingly, each offense is equally the highest classified offense in the consolidated judgment and each offense could provide the basis for the sentencing guidelines. Where multiple offenses are equally classified, we hold the consolidated judgment can be aggravated by any factor that is an element of one, but not all, of the offenses.

[696]*696Although the findings in the judgment do not specify to which offense each aggravating factor applies, the transcript indicates the trial court found the assault was committed for the purpose of avoiding or preventing a lawful arrest. There is no error in the trial court’s application of the first factor to this offense. Moreover, we note defendant asserts the second factor, that defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person, is an element of assault with a deadly weapon on a law enforcement officer, but it is not an element of the offense of fleeing to elude arrest, which had also been elevated to a class C offense. Accordingly, the court correctly found both of these aggravating factors, even though the judgments were consolidated, since each factor could apply to a co-equal highest class offense in the consolidated judgment.

II. Insufficient Evidence

Defendant asserts there was insufficient evidence supporting the aggravating factors found by the trial court, and the trial court merely accepted the prosecutor’s assertion that the factors existed. “Under the Structured Sentencing Act, the trial court must impose a sentence within the statutorily set presumptive range unless it determines that aggravating or mitigating factors warrant a greater or lesser sentence.” State v. Radford, 156 N.C. App. 161, 164, 576 S.E.2d 134, 136 (2003) (citing N.C. Gen. Stat. § 15A-1340.16(a) (2001)). Deviation from the presumptive range is “in the discretion of the court.” N.C. Gen. Stat. § 15A-1340.16(a) (2003). The State bears the burden of proving, by a preponderance of the evidence, that an aggravating factor exists. Radford, 156 N.C. App. at 164, 576 S.E.2d at 136. Where the evidence supporting the existence of an aggravating factor consists merely of a prosecutor’s assertion, the State has not carried its burden, and defendant is entitled to a new sentencing hearing. Radford, 156 N.C. App. at 164, 576 S.E.2d at 136-37. Where defendant, however, stipulates to the existence of an aggravating factor, the prosecutor’s statements constitute adequate evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
596 S.E.2d 834, 164 N.C. App. 693, 2004 N.C. App. LEXIS 999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harrison-ncctapp-2004.