State v. McNeill

• Court: Court of Appeals of North Carolina
• Decided: July 1, 2014
• Docket: 14-64
• Status: Unpublished

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA14-64 NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

STATE OF NORTH CAROLINA

v. Cumberland County No. 01 CRS 53303 JERRY McNEILL

Appeal by Defendant from judgments entered 26 September

2013 by Judge James F. Ammons, Jr., in Cumberland County

Superior Court. Heard in the Court of Appeals 19 May 2014.

Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.

Bruce T. Cunningham, Jr., for Defendant.

Dillon, Judge.

I. Background

On 24 January 2002, a Cumberland County jury entered

verdicts convicting Defendant Jerry McNeill of attempted robbery

with a dangerous weapon, first degree burglary, assault with a

deadly weapon inflicting serious injury, and conspiracy to

commit robbery with a dangerous weapon. Defendant pleaded

guilty to attaining habitual felon status and was sentenced to -2- three consecutive terms of 116 to 149 months imprisonment. On

appeal, this Court affirmed Defendant’s convictions, but

remanded for resentencing based on an error made by the trial

court in determining Defendant’s prior record level. State v.

McNeill, 158 N.C. App. 96, 580 S.E.2d 27 (2003). On remand, the

court imposed three consecutive sentences and one concurrent

sentence of 100 to 129 months imprisonment. These sentences

were upheld by this Court in State v. McNeill, No. COA04-1092

(Mar. 1, 2005) (unpublished).

Defendant subsequently filed a motion for appropriate

relief (MAR), seeking a new resentencing based upon alleged

ineffective assistance of counsel during his initial

resentencing. The MAR asserted that defense counsel at

Defendant’s resentencing failed to introduce and argue certain

mitigating factors that could have potentially reduced

Defendant’s sentences. Defendant’s MAR request for a new

resentencing was granted by order entered 23 September 2013, and

the matter came on for hearing in Cumberland County Superior

Court on 26 September 2013. Following the resentencing hearing,

the court entered an order vacating Defendant’s previous

sentences, but imposing the same three consecutive sentences of -3- 100 to 129 months imprisonment. From this order, Defendant

appeals.

II. Analysis

A. Defendant’s Burglary Conviction

Defendant’s first two arguments on appeal pertain to the

merits of his first degree burglary conviction. As indicated

above, this Court has already affirmed Defendant’s convictions,

including his conviction for first degree burglary. McNeill,

158 N.C. App. 96, 580 S.E.2d 27. Defendant had the opportunity

to raise these contentions in his first appeal to this Court and

is now procedurally barred from asserting them. State v.

Speaks, 95 N.C. 689, 691 (1886) (“As the defense now sought to

be set up could as well have been made available when the first

appeal was taken, it has passed into the domain of res judicata,

and cannot now be pressed into service.”); State v. Melton, 15

N.C. App. 198, 200, 189 S.E.2d 757, 758 (1972). Defendant’s

arguments on this issue are, accordingly, dismissed.

B. Defendant’s Mitigating Evidence

Defendant next contends that “the sentencing judge failed

to find the existence of mitigating factors which were

uncontroverted and manifestly credible.” We disagree. -4- N.C. Gen. Stat. § 15A-1340.16 provides, in pertinent part,

that “[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) (2013). Our Supreme

Court has offered the following additional guidance:

Except for Class A felonies and other offenses for which a particular punishment is set by statute, the range of sentences that the trial court may impose becomes known only after a series of findings and calculations. After a jury returns its verdict or verdicts, it must then determine whether any submitted aggravating factors exist, thereby permitting a defendant’s sentence to be enhanced. In addition, the court independently determines whether any submitted mitigating factors also exist and, if so, whether the factors in aggravation outweigh the factors in mitigation, or the factors in mitigation outweigh the factors in aggravation, or the factors are in equilibrium. After weighing aggravating factors found by the jury and mitigating factors found by the court, the court decides whether to impose an aggravated, presumptive, or mitigated sentence.

State v. Lopez, 363 N.C. 535, 539, 681 S.E.2d 271, 274 (2009)

(internal citations omitted). “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.” -5- State v. Rogers, 157 N.C. App. 127, 129, 577 S.E.2d 666, 668

(2003).

Here, Defendant introduced testimony from a number of

family and friends at his resentencing hearing, in the hope that

this testimony would persuade the court to “find mitigating

factors of a support system in the community, positive

employment and support of his children.” The court ultimately

determined, however, that “nothing . . . ha[d] been presented to

the Court in way of mitigation that would justify a mitigated

sentence” and sentenced Defendant within the presumptive range.

Defendant contends that the court, in violation of Lopez, “took

the position that [the court] could make a decision, before

considering the existence of mitigating circumstances, to

sentence in the presumptive range.” (Emphasis in original).

Defendant predicates this contention on an inquiry made by the

court at the resentencing hearing concerning whether the court

was permitted, within its discretion, to “simply find a sentence

within the presumption range and make no findings[.]” We

disagree with Defendant’s interpretation of the court’s inquiry

and analytical process in reaching its decision. Contrary to

Defendant’s interpretation, the transcript reveals the court’s

indication that it had, in fact, considered the mitigating -6- evidence, but that it was acting within its discretion,

notwithstanding that evidence, to sentence Defendant within the

presumptive range. The court was not required to make findings

with respect to the mitigating evidence in sentencing Defendant

within the presumptive range, State v. Garnett, 209 N.C. App.

537, 550, 706 S.E.2d 280, 288, disc. review denied, 365 N.C.

200, 710 S.E.2d 31 (2011); State v. Dorton, 182 N.C. App. 34,

43, 641 S.E.2d 357, 363 (2007), and we otherwise discern no

violation of Lopez or the relevant sentencing provision, N.C.

Gen. Stat. § 15A-1340.16, in the court’s resentencing of

Defendant. Accordingly, this contention is overruled.

C. Ineffective Assistance of Counsel

Defendant finally contends that, to the extent his

arguments have not been preserved for appellate review, “he

received ineffective assistance of counsel . . . at both trial

and appellate levels.” Defendant cites only generally to

Strickland v. Washington, 466 U.S. 668 (1984), and makes no

attempt to explain how he was prejudiced in this respect. We,

therefore, deem the issue abandoned. N.C.R. App. P. 28(b)(6).

III. Conclusion

In light of the foregoing, we affirm the trial court’s 26

September 2013 judgments. -7- AFFIRMED.

Chief Judge MARTIN and Judge STEELMAN concur.

Report per Rule 30(e).