State v. Heggs

• Court: Court of Appeals of North Carolina
• Decided: October 19, 2021
• Docket: 20-862
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-564

No. COA20-862

Filed 19 October 2021

Wake County, No. 18 CRS 203691

STATE OF NORTH CAROLINA

v.

BARROD HEGGS, Defendant.

Appeal by Defendant from judgment entered 14 December 2018 by Judge A.

Graham Shirley in Wake County Superior Court. Heard in the Court of Appeals 25

August 2021.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Neil Dalton, for the State.

Aberle & Wall, by A. Brennan Aberle, for the Defendant.

GRIFFIN, Judge.

¶1 Defendant Barrod Heggs appeals from a judgment entered upon his guilty plea

to the charge of felony death by motor vehicle. Defendant argues the trial court erred

by sentencing him in the aggravated range because the evidence supporting three

stipulated factors in aggravation was the same as the evidence supporting the

elements of felony death by motor vehicle. Upon review, we conclude that the trial

court erred in finding two aggravating factors. We vacate Defendant’s sentence and STATE V. HEGGS

Opinion of the Court

plea agreement and remand for a new disposition.

I. Factual and Procedural Background

¶2 During the early morning hours on 24 February 2018, Trooper Clay with the

North Carolina State Highway Patrol responded to a collision between two vehicles

on Interstate 540. The crash “involved a white Dodge Challenger[,]” operated by

Defendant, and a “white sport[] utility vehicle.” The driver of the SUV was killed

during the collision. When Trooper Clay arrived on scene, Defendant was standing

by his vehicle and “admitted to driving.” “Trooper Clay noticed a strong odor of

alcohol coming from [Defendant’s] breath and noticed that [Defendant] displayed red

and glassy eyes.”

¶3 “Trooper Clay had [Defendant] perform some standardized field sobriety tests”

and administered “two portable breath tests[,]” both of which indicated that

Defendant’s blood alcohol content exceeded the legal limit. Defendant was

subsequently arrested for driving while impaired. Defendant refused to comply with

additional testing, at which point “a search warrant was obtained for [a] blood”

sample. A test of that sample measured Defendant’s blood alcohol content as 0.13.

¶4 “As the North Carolina State Highway Patrol continued [its] investigation, [it]

learned from multiple witnesses that . . . [D]efendant was travelling at speeds

estimated in excess of 120 miles per hour prior to the crash.” “There were 911 calls

placed by concerned drivers [who] questioned, . . . due to [Defendant’s] speed[,]” STATE V. HEGGS

“maneuvering” and “weaving in and out of traffic, whether [what they witnessed] was

actually a high-speed chase by the State Highway Patrol.” “A CDR download, which

is effectively the black box of the vehicle, was performed and showed that there was

no deceleration by [Defendant] prior to [the crash] and that [Defendant] was going at

speeds in excess of 98 miles per hour at the point of impact[.]”

¶5 A Wake County grand jury indicted Defendant on one count of felony death by

motor vehicle. Defendant pled guilty to driving while impaired and felony death by

motor vehicle. Pursuant to a plea agreement with the State, Defendant stipulated to

the existence of the following aggravating factors for sentencing purposes: (1)

“[D]efendant 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”; (2) Defendant “was armed with a deadly weapon at the time of the

crime”; and (3) “[t]he victim of th[e] offense suffered serious injury that is permanent

and debilitating.” Defendant further stipulated that he was a Record Level I for

sentencing purposes. The State agreed not to seek an indictment for second-degree

murder as a condition of the plea agreement.

¶6 The trial court entered a judgment upon Defendant’s plea of guilty to felony

death by motor vehicle and arrested judgment on the charge of driving while

impaired. The court found the three aggravating factors to which Defendant

stipulated, as well as five mitigating factors, and sentenced Defendant in the STATE V. HEGGS

aggravated range. Defendant subsequently filed a petition for writ of certiorari with

this Court seeking review of the trial court’s judgment, which was granted.

II. Analysis

¶7 Defendant argues that the trial court erred by sentencing him in the

aggravated range because the evidence supporting the three aggravating factors was

the same as the evidence supporting the elements of felony death by motor vehicle.

We agree that the trial court erred in finding two of the three aggravating factors.

Because Defendant stipulated to the existence of these factors in his plea agreement

with the State and now seeks to repudiate this part of the agreement, we vacate the

trial court’s judgment, as well as the plea agreement between the State and

Defendant, and remand for a new disposition.

¶8 N.C. Gen. Stat. § 15A-1340.16(a1) provides that a “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) (2019). When

“aggravating factors are present and the court determines they are sufficient to

outweigh any mitigating factors that are present, it may impose a sentence” in the

aggravated range. Id. § 15A-1340.16(b). However, “[e]vidence necessary to prove an

element of the offense shall not be used to prove any factor in aggravation[.]” Id. §

15A-1340.16(d). STATE V. HEGGS

¶9 The essential elements of felony death by motor vehicle are that the defendant

(1) “unintentionally cause[d] the death of another person”; (2) “was engaged in the

offense of impaired driving”; and (3) “[t]he commission of the [impaired driving]

offense . . . [was] the proximate cause of the death.” Id. § 20-141.4(a1) (2019).

¶ 10 In this case, the trial court found the following aggravating factors at

sentencing: (1) “[D]efendant 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”; (2) Defendant “was armed with a deadly weapon at

the time of the crime”; and (3) “[t]he victim of th[e] offense suffered serious injury

that is permanent and debilitating.” The only evidence available to support factor (3)

is that the victim was killed in the collision caused by Defendant. Because this is also

an essential element of felony death by motor vehicle, the trial court erred in finding

this aggravating factor. Similarly, the only evidence to support factor (2)—that

Defendant “was armed with a deadly weapon at the time of the crime”—is that

Defendant was driving a vehicle when the crime occurred. Because felony death by

motor vehicle requires that a defendant be engaged in impaired driving, evidence that

Defendant was driving a vehicle cannot also be used to support factor (2).

¶ 11 With respect to factor (1), we conclude that the trial court did not err in finding

that “[D]efendant 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 STATE V. HEGGS

than one person.” There is ample evidence in the Record supporting this factor, none

of which was required in order to find Defendant guilty of felony death by motor

vehicle. When summarizing the factual basis supporting Defendant’s conviction, the

prosecutor stated that the North Carolina State Highway Patrol “learned from

multiple witnesses that . . . [D]efendant was travelling at speeds estimated in excess

of 120 miles per hour prior to the crash.” “There were 911 calls placed by concerned

drivers [who] questioned, . . . due to [Defendant’s] speed[,]” “maneuvering” and

“weaving in and out of traffic, whether [what they witnessed] was actually a high-

speed chase by the State Highway Patrol.” “A CDR download, which is effectively the

black box of the vehicle, was performed and showed that there was no deceleration

by [Defendant] prior to [the crash] and that [Defendant] was going at speeds in excess

of 98 miles per hour at the point of impact[.]”

¶ 12 Evidence of excessive speed and reckless driving is not required in order to

prove any of the essential elements of felony death by motor vehicle. In response to

the State’s summary of the facts, Defendant’s counsel stated, “No additions, deletions

or corrections to that statement, [y]our Honor. We understand that [this] is what

would be introduced if we had chosen to go to trial. There’s no correction[] to the way

it was read.” Accordingly, the trial court did not err in finding that “[D]efendant

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.” STATE V. HEGGS

III. Remedy

¶ 13 With respect to the appropriate remedy, Defendant requests that we “remand

for resentencing . . . or, in the alternative, vacate the plea.”

¶ 14 “The general rule is that a judgment is presumed to be valid and will not be

disturbed absent a showing that the trial judge abused his discretion. When the

validity of a judgment is challenged, the burden is on the defendant to show error

amounting to a denial of some substantial right.” State v. Bright, 301 N.C. 243, 261,

271 S.E.2d 368, 379–80 (1980).

The presumption of lower court correctness and the wide discretion afforded our trial judges in rendering judgment is of necessity grounded on the theory that a trial judge who has participated in the actual disposition of the case [is] . . . in the best position to determine appropriate punishment for the protection of society and rehabilitation of the defendant.

State v. Harris, 27 N.C. App. 385, 387, 219 S.E.2d 306, 307 (1975) (citation and

internal quotation marks omitted).

¶ 15 Our Structured Sentencing Act reflects this presumption by vesting discretion

in our trial courts to impose an appropriate sentence. This includes the discretion to

deviate from the presumptive term and instead sentence a defendant in the

aggravated or mitigated range: “The 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 STATE V. HEGGS

discretion of the court.” N.C. Gen. Stat. § 15A-1340.16(a). “If aggravating factors are

present and the court determines they are sufficient to outweigh any mitigating

factors that are present, it may impose a sentence that is permitted by the aggravated

range[.]” Id. § 15A-1340.16(b). This is true regardless of whether the trial judge finds

only one factor in aggravation or several. State v. Parker, 315 N.C. 249, 258, 337

S.E.2d 497, 502 (1985) (“[A] sentencing judge need not justify the weight he or she

attaches to any factor. A sentencing judge properly may determine in appropriate

cases that one factor in aggravation outweighs more than one factor in mitigation and

vice versa.”).

¶ 16 Although the trial court in this case erred in finding two aggravating factors,

it correctly found one aggravating factor. Were we to remand this matter for

resentencing, the trial court would have the discretion to reimpose the same sentence

that it originally deemed appropriate. The factual basis for the plea has not changed.

The judge would make his sentencing decision based on the same evidentiary

presentation, regardless of whether the additional factors are found or not.

¶ 17 We therefore discern no prejudice to Defendant resulting from the trial court’s

erroneous finding of the two aggravating factors. Nonetheless, our Supreme Court

has held that “in every case in which it is found that the judge erred in a finding or

findings in aggravation and imposed a sentence beyond the presumptive term, the

case must be remanded for a new sentencing hearing.” State v. Ahearn, 307 N.C. 584, STATE V. HEGGS

602, 300 S.E.2d 689, 701 (1983). We are thus bound by precedent to, at a minimum,

vacate Defendant’s sentence. However, because Defendant stipulated to the

existence of the aggravating factors in his plea agreement with the State and now

seeks to repudiate this part of the agreement, we are further required to vacate the

plea agreement and remand for a new disposition rather than remand for a new

sentencing hearing. See State v. Rico, 218 N.C. App. 109, 122, 720 S.E.2d 801, 809

(Steelman, J., dissenting), rev’d per curiam for reasons stated in dissent, 366 N.C. 327,

734 S.E.2d 571 (2012).

¶ 18 In Rico, the defendant was charged with first-degree murder. Id. at 110, 720

S.E.2d at 802. Pursuant to a plea agreement with the State, the defendant pled guilty

to voluntary manslaughter and stipulated to the existence of an aggravating factor

for sentencing purposes. Id. The trial court accepted the agreement and sentenced

the defendant in the aggravated range. Id. at 111, 720 S.E.2d at 802. The defendant

then appealed to this Court, challenging the aggravating factor as well as his

aggravated sentence. Id. at 111, 720 S.E.2d at 802. However, because the defendant

sought to repudiate the portion of the plea agreement in which he stipulated to the

aggravating factor, “the entire plea agreement” was vacated. Id. at 122, 720 S.E.2d

809 (Steelman, J., dissenting) (“In the instant case, essential and fundamental terms

of the plea agreement were unfulfillable. Defendant has elected to repudiate a STATE V. HEGGS

portion of his agreement. Defendant cannot repudiate in part without repudiating

the whole.”).

¶ 19 As in Rico, Defendant seeks to repudiate the portion of his agreement with the

State in which he stipulated to the existence of aggravating factors while retaining

the portions which are more favorable; namely, his plea of guilty to felony death by

motor vehicle in exchange for the State’s agreement to not seek an indictment on the

charge of second-degree murder. “Defendant cannot repudiate in part without

repudiating the whole.” Id.; see also State v. Fox, 34 N.C. App. 576, 579, 239 S.E.2d

471, 473 (1977) (“Where a defendant elects not to stand by his portion of a plea

agreement, the State is not bound by its agreement to forego the greater charge.”).

We therefore vacate Defendant’s plea agreement in its entirety and remand for a new

disposition.

IV. Conclusion

¶ 20 For the foregoing reasons, we vacate the judgment entered upon Defendant’s

conviction and remand for a new disposition.

VACATED AND REMANDED.

Judges TYSON and CARPENTER concur.