State v. Tyler

311 S.E.2d 354, 66 N.C. App. 285, 1984 N.C. App. LEXIS 2880

• Court: Court of Appeals of North Carolina
• Decided: February 7, 1984
• Docket: No. 8316DC511
• Status: Published

Opinion

VAUGHN, Chief Judge.

Defendants contend that the trial judge committed several errors during sentencing. We agree. First, the trial judge erred in finding as an aggravating factor to armed robbery that the offense was committed for hire or pecuniary gain. State v. Abdullah, 309 N.C. 63, 306 S.E. 2d 100 (1983).

Second, the trial judge erred in finding as an aggravating factor that the sentences imposed were necessary as a deterrent to others and in defendant Tyler’s case that the sentence was necessary to protect society. These factors — deterrence and protection-fall within the exclusive realm of the legislature and were presumably considered in determining the presumptive sentences. State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983). Moreover, it is improper to consider factors like these, which relate neither to the conduct nor the character of defendants, during sentencing. Id.; State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983).

Defendant Hunt also contends that the trial judge erred when he considered defendant Hunt’s lesser role but failed to specifically list this consideration as a factor in mitigation. Pursuant to G.S. 15A-1340.4(b), a judge who imposes a sentence that differs from the presumptive term must specifically list each factor in aggravation or mitigation that he finds proven by a preponderance of the evidence. He is not required to list in the judgment statutory factors considered and rejected as being unsupported by a preponderance of the evidence. State v. Davis, 58 N.C. App. 330, 293 S.E. 2d 658, review denied, 306 N.C. 745, 295 S.E. 2d 482 (1982). In sentencing defendant Hunt, the trial judge found “that the aggravating factors, by a preponderance of the evidence, outweigh the mitigating factors, and taking into consideration a lesser role, it is the judgment of this Court that the defendant be imprisoned ... for a term of twenty years.” (Emphasis added.) It appears from the Record that the judge considered defendant Hunt’s lesser role during sentencing. It was, therefore, error, under G.S. 15A-1340.4(b), not to record such consideration.

Defendants also contend that the trial judge erred by imposing sentences exceeding the presumptive terms since the mitigating factors outweigh the aggravating factors. With this contention, we find no merit. The discretion and balance struck by the judge imposing sentence does not depend on the precise number of aggravating and mitigating factors. The judge’s task is not a simple matter of mathematics; two factors in mitigation do not automatically outweigh one factor in aggravation. State v. Davis, supra.

Finally, although not raised on appeal, we note on remand that the defendants’ pleas of guilty should not be considered as mitigating factors during sentencing. State v. Ahearn, supra.

Remanded for resentencing.

Judges Hill and BECTON concur.