State v. Lewis

Court of Appeals of North Carolina

State v. Lewis

247 S.E.2d 282, 38 N.C. App. 108, 1978 N.C. App. LEXIS 2094

CourtCourt of Appeals of North Carolina

DecidedSeptember 19, 1978

Docket7821SC326

StatusPublished

Cited by13 cases

This text of 247 S.E.2d 282 (State v. Lewis) 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. Lewis, 247 S.E.2d 282, 38 N.C. App. 108, 1978 N.C. App. LEXIS 2094 (N.C. Ct. App. 1978).

Pincite

Opinion

CLARK, Judge.

The only question raised by defendant’s exceptions and brought forward in his brief is whether the trial court erred in denying defendant’s motions for judgment of nonsuit. The evidence for the State was more than sufficient to require submission to the jury and fully supports the verdict of guilty as charged.

However, it does appear from the warrant for his arrest that defendant’s date of birth was 14 October 1958, and he testified that he was 19 years of age. The trial court imposed a prison sentence without finding that the youthful offender would not benefit from treatment and supervision as a committed youthful offender.

This court required such “no benefit” finding in State v. Mitchell, 24 N.C. App. 484, 211 S.E. 2d 645 (1975). Such finding is now mandated by G.S. 148-49.14.

In State v. Niccum, 293 N.C. 276, 238 S.E. 2d 141 (1977), it was held that G.S. 148-49.14 requiring the “no benefit” finding does not apply to convictions or pleas of guilty for which death or a life sentence is the mandatory punishment.

*110 The trial court having failed to make a “no benefit” finding before imposing the prison sentence, we must remand for de novo sentencing hearing. To comply with the statutory mandate of G.S. 148-49.14 the sentencing judge must make a determination of whether the defendant would benefit from treatment and supervision as a committed youthful offender. This determination should be based on the trial evidence and evidence presented in the sentencing hearing. In making this determination circumstances relevant to the imposition of the sentence may be considered by the judge which were not considered by a judge who failed to comply with the statutory mandate in imposing sentence. Fairness to the defendant in imposing sentence requires that the resentencing be de novo with the sentencing judge having authority to impose a new sentence rather than limiting resentencing to a determination of whether the youthful offender would benefit from treatment as a committed youthful offender. On resentencing the judge may find that defendant would benefit from treatment as a committed youthful offender and impose a sentence as provided by G.S. 148-49.14, or make a “no benefit” finding and impose the same sentence, or a lesser sentence, or a greater sentence if based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed. 2d 656 (1969).

In the case sub judice, it appears that the narrative summary of the trial evidence in the record on appeal would provide the sentencing judge with sufficient knowledge of the trial evidence. See State v. Sampson, 34 N.C. App. 305, 237 S.E. 2d 883 (1977), cert. denied, 294 N.C. 185, 241 S.E. 2d 520 (1978).

No error in the trial, but judgment vacated and remanded for resentencing proceedings and sentencing consistent with this opinion.

Judges Parker and Erwin concur.

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CLARK, Judge.

The only question raised by defendant’s exceptions and brought forward in his brief is whether the trial court erred in denying defendant’s motions for judgment of nonsuit. The evidence for the State was more than sufficient to require submission to the jury and fully supports the verdict of guilty as charged.

However, it does appear from the warrant for his arrest that defendant’s date of birth was 14 October 1958, and he testified that he was 19 years of age. The trial court imposed a prison sentence without finding that the youthful offender would not benefit from treatment and supervision as a committed youthful offender.

This court required such “no benefit” finding in State v. Mitchell, 24 N.C. App. 484, 211 S.E. 2d 645 (1975). Such finding is now mandated by G.S. 148-49.14.

In State v. Niccum, 293 N.C. 276, 238 S.E. 2d 141 (1977), it was held that G.S. 148-49.14 requiring the “no benefit” finding does not apply to convictions or pleas of guilty for which death or a life sentence is the mandatory punishment.

*110 The trial court having failed to make a “no benefit” finding before imposing the prison sentence, we must remand for de novo sentencing hearing. To comply with the statutory mandate of G.S. 148-49.14 the sentencing judge must make a determination of whether the defendant would benefit from treatment and supervision as a committed youthful offender. This determination should be based on the trial evidence and evidence presented in the sentencing hearing. In making this determination circumstances relevant to the imposition of the sentence may be considered by the judge which were not considered by a judge who failed to comply with the statutory mandate in imposing sentence. Fairness to the defendant in imposing sentence requires that the resentencing be de novo with the sentencing judge having authority to impose a new sentence rather than limiting resentencing to a determination of whether the youthful offender would benefit from treatment as a committed youthful offender. On resentencing the judge may find that defendant would benefit from treatment as a committed youthful offender and impose a sentence as provided by G.S. 148-49.14, or make a “no benefit” finding and impose the same sentence, or a lesser sentence, or a greater sentence if based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed. 2d 656 (1969).

In the case sub judice, it appears that the narrative summary of the trial evidence in the record on appeal would provide the sentencing judge with sufficient knowledge of the trial evidence. See State v. Sampson, 34 N.C. App. 305, 237 S.E. 2d 883 (1977), cert. denied, 294 N.C. 185, 241 S.E. 2d 520 (1978).

No error in the trial, but judgment vacated and remanded for resentencing proceedings and sentencing consistent with this opinion.

Judges Parker and Erwin concur.

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Bluebook (online)

247 S.E.2d 282, 38 N.C. App. 108, 1978 N.C. App. LEXIS 2094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lewis-ncctapp-1978.

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