State v. Pender

622 S.E.2d 664, 2005 N.C. App. LEXIS 2710, 2005 WL 3465356
CourtCourt of Appeals of North Carolina
DecidedDecember 20, 2005
DocketNo. COA04-1198.
StatusPublished

This text of 622 S.E.2d 664 (State v. Pender) 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. Pender, 622 S.E.2d 664, 2005 N.C. App. LEXIS 2710, 2005 WL 3465356 (N.C. Ct. App. 2005).

Opinion

JACKSON, Judge.

On 26 August 1994, Clarence Williams, Sr., Clarence Williams, Jr., and Marcus Simpson were playing cards in a game room owned by Clarence Williams, Sr. in Plymouth, North Carolina. Around 1:00 a.m., Arnold Michael Pender ("defendant") and Jason Troy Hackett ("co-defendant") entered the game room, showed their firearms, demanded money, and told the card players to get on the floor. As Clarence Williams, Sr. began to turn, defendant shot him in the buttocks. Defendant and co-defendant took money from the card table, the game room's cash register, and the card players' pockets. Defendant and co-defendant subsequently left the scene.

On 13 March 1995, a grand jury indicted defendant on two counts of armed robbery and assault with a deadly weapon with intent to kill inflicting serious injury on Clarence Williams, Sr.

On 8 May 1995, three witnesses testified for the State in co-defendant's trial. Clarence Williams, Sr. testified that defendant and co-defendant took between approximately one thousand dollars ($1,000.00) and eleven hundred dollars ($1,100.00) in cash from his pocket and one hundred and fifty dollars ($150.00) to one hundred and sixty dollars ($160.00) from the cash register. He also testified that his medical bills from the shooting were close to between twenty-seven thousand dollars ($27,000.00) and twenty-eight thousand dollars ($28,000.00). Clarence Williams Jr. testified that defendant and co-defendant took seven hundred dollars ($700.00) in cash from his pocket and person. During co-defendant's trial, co-defendant changed his plea from not guilty to guilty on the armed robbery charges and the State dismissed the assault charge. The trial court accepted his pleas and entered Judgment and Commitment against him. At his sentencing proceedings, the State stated that Clarence Williams, Sr. incurred medical expenses in the amount of twenty-nine thousand eight hundred and thirty-seven dollars and twenty-nine cents ($29,837.29) as a result of the shooting. Co-defendant's attorney did not object to or dispute the State's recitation of the amount of medical expenses.

On 9 May 1995, defendant's case came before the trial court. Pursuant to a plea agreement that left the matter of defendant's sentencing to the trial court's discretion, defendant entered Alford pleas on two counts of armed robbery and the lesser offense of assault with a deadly weapon inflicting serious injury. At the sentencing hearing, the trial court found in aggravation that the offenses involved the actual taking of property of great monetary value. The trial court also found in mitigation that defendant had no prior criminal record. During defendant's sentencing hearing, defendant's attorney stipulated that the State could summarize the *667evidence. Included in the State's recitation was the fact that Clarence Williams Sr.'s medical bills totaled twenty-nine thousand eight hundred thirty-seven dollars and twenty-nine cents ($29,837.29). Defendant objected on the grounds that the monetary loss of the medical expenses was an element of the charge of assault with a deadly weapon inflicting serious injury.

At the sentencing hearing, neither the State nor defendant called witnesses to testify. Rather, defendant's attorney stipulated that there was a factual basis for the entry of the plea, that the State's attorney could make a recitation if he wished to do so, and that the trial court could consider information from co-defendant's case. The State submitted that the trial court had "heard the evidence of the assault where [Clarence Williams, Sr.] was shot in the right buttocks with the weapon being fired, shot in and up around his hip.... [and that Clarence Williams, Sr.'s] medical bills [were in the amount of] $29,837.29." The trial court then stated that it did not "need to hear anything else about that." Subsequently, defendant's attorney summarized the evidence and contentions supporting possible mitigating factors, including the absence of any prior criminal convictions in defendant's record.

The trial court sentenced defendant to twenty-five years imprisonment for each armed robbery case, which carried a prescribed statutory maximum presumptive sentence of fourteen years. The trial court then sentenced defendant to five years imprisonment for the assault with intent to inflict bodily injury case, which carried a prescribed statutory maximum presumptive sentence of three years. The trial court ordered all sentences to run consecutively for a total consecutive sentence of fifty-five years imprisonment. Defendant did not appeal.

On 26 November 2003, this Court allowed defendant's petition for the purpose of reviewing the trial court's 9 May 1995 judgments and provided that review was limited to those issues within defendant's appeal of right pursuant to North Carolina General Statutes, section 15A-1444(a1) and (a2). On 26 January 2005, this Court allowed the State's motion to amend the record on appeal to include the restitution worksheet, which had been referenced by the trial court at the bottom of each judgment in defendant's three cases.

Prior to reaching the merits of the case before us, we first must address the State's contention that defendant waived appellate review as to the issue of whether the trial court erroneously considered evidence from his co-defendant's trial. Specifically, the State contends that defendant failed to properly preserve this issue for appeal pursuant to Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure which provides, in relevant part, "[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context."

This Court recently stated that "[a]n error at sentencing is not considered an error at trial for the purpose of Rule 10(b)(1) because this rule is `directed to matters which occur at trial and upon which the trial court must be given an opportunity to rule in order to preserve the question for appeal.'" State v. Curmon, ___ N.C.App. ___, ___, 615 S.E.2d 417, 422 (2005) (quoting State v. Hargett, 157 N.C.App. 90, 93, 577 S.E.2d 703, 705 (2003) (citing State v. Canady, 330 N.C. 398, 401, 410 S.E.2d 875, 878 (1991))). Accordingly, defendant was not required by Rule 10(b)(1) to object during sentencing in order to properly "preserve this issue for appellate review." Id.

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Cite This Page — Counsel Stack

Bluebook (online)
622 S.E.2d 664, 2005 N.C. App. LEXIS 2710, 2005 WL 3465356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pender-ncctapp-2005.