State v. Benfield , 76 N.C. App. 453 ( 1985 )

333 S.E.2d 753 (1985)

STATE of North Carolina
v.
William Eugene BENFIELD.

No. 8421SC1101.

Court of Appeals of North Carolina.

September 3, 1985.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Richard L. Kucharski, Raleigh, for the State.

Davis & Harwell, P.A. by Fred R. Harwell, Jr., Winston-Salem, for defendant-appellant.

WHICHARD, Judge.

Defendant contends the court erred and abused its discretion in its findings of aggravating and mitigating factors, in determining the weight given to those factors, and in imposing a sentence greater than the presumptive in No. 82CRS47156. He first argues that his prior convictions may not be used as a factor in aggravation because the court made no findings as to his indigency or representation by counsel at the time thereof. Defendant has the burden of proof on this issue, however, State v. Thompson, 309 N.C. 421, 427, 307 S.E.2d 156, 161 (1983), and he has failed to carry that burden.

Defendant further argues that the prior convictions were not adequately proven. Defendant stipulated, however, that records which he furnished to the court were official court records, and he admitted that they bore the name "William Benfield." These records also reflected that the defendant in those cases lived on the same road as does the defendant here. G.S. 15A-1340.4(e) provides, in pertinent part:

The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.

Defendant thus had the burden of proving that the records were not in fact his, and he failed to carry that burden.

Defendant further argues that the court, in finding prior convictions as an aggravating factor, improperly considered his convictions in cases in which prayer for judgment was continued. We are constrained to agree. The record indicates that prayer for judgment was continued in cases in which defendant was convicted of communicating threats and of exceeding a safe speed. It is evident that the court considered at least the conviction for communicating threats in finding the aggravating factor of prior convictions. The State does not argue to the contrary but contends that proof of the conviction for communicating threats was by a preponderance of the evidence and that the aggravating factor of prior convictions thus was properly found.

At the time of the resentencing hearing the parties and the trial court did not have the benefit of this Court's decision in State v. Southern, 71 N.C.App. 563, 322 S.E.2d 617 (1984), aff'd per curiam, 314 N.C. 110, 331 S.E.2d 688 (1985). The court there held, based on the statutory definition of "prior conviction," that a conviction with prayer for judgment continued cannot support a finding of prior convictions as an aggravating factor. It stated:

The definition of "prior conviction" appears in G.S. 15A-1340.2(4):

A person has received a prior conviction when he has been adjudged guilty of or has entered a plea of guilty or no contest to a criminal charge, and judgment has been entered thereon and the time for appeal has expired, or the conviction has been finally upheld on direct appeal. (Emphasis added.)

Thus, an offense is a "prior conviction" under the Fair Sentencing Act only if the judgment has been entered and the time for appeal has expired, or the conviction has been upheld on appeal. When an accused is convicted with prayer for judgment continued, no judgment is entered, see State v. Thompson, 267 N.C. 653, 148 S.E.2d 613 (1966), and no appeal is possible (until judgment is entered). Such a conviction therefore may not support a finding of an aggravating circumstance under G.S. 15A-1340.4(a)(1)(o).

Id. at 565-66, 322 S.E.2d at 619. We thus hold that the court erred in basing a finding of prior convictions as an aggravating factor at least in part on a conviction or convictions on which prayer for judgment was continued. The case accordingly must be remanded for a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983).

Defendant further argues that the court erred in failing to find as mitigating factors (1) that he acted under strong provocation or that the relationship between him and the victim was otherwise extenuating, and (2) that he was suffering from a mental or physical condition that reduced his culpability. We note that the trial court has great discretion in determining the existence of aggravating and mitigating factors. State v. Graham, 309 N.C. 587, 592, 308 S.E.2d 311, 315 (1983); see also State v. Thompson, 310 N.C. 209, 220, 311 S.E.2d 866, 872 (1984), quoting State v. Ahearn, 307 N.C. 584, 596, 300 S.E.2d 689, 697 (1983). Further, the defendant bears the burden of proof in regard to mitigating factors. State v. Jones, 309 N.C. 214, 219, 306 S.E.2d 451, 455 (1983).

Defendant's contention that he was under provocation, or that the relationship between him and the victim was otherwise extenuating, is based on the fact that the shooting occurred after he saw his wife with another man. This Court has previously noted that provocation within the meaning of G.S. 15A-1340.4(a)(2)(i) "requires a showing of a threat or challenge by the victim to the defendant." State v. Puckett, 66 N.C.App. 600, 606, 312 S.E.2d 207, 211 (1984). There was no such showing here. While there may have been an extenuating relationship between defendant and his wife, that could not justify or mitigate defendant's act of shooting randomly into a house and hitting an innocent bystander. We thus find this contention without merit.

Defendant's contention that as a result of having been shot he suffered from a mental or physical condition that reduced his culpability is also without merit. Mental and physical conditions recognized as possible mitigating factors have been those which existed prior to a defendant's criminal act. State v. Taylor, 309 N.C. 570, 572, 308 S.E.2d 302, 305 (1983) (chronic brain syndrome); State v. Puckett, 66 N.C.App. 600, 601-02, 312 S.E.2d 207, 208-09 (1984) ("post-traumatic stress disorder" in Vietnam veteran); State v. Salters, 65 N.C. App. 31, 36, 308 S.E.2d 512, 516, disc. rev. denied, 310 N.C. 479, 312 S.E.2d 889 (1984) (alcoholism); State v. Jones, 59 N.C.App. 472, 473-74, 297 S.E.2d 132, 133-34, disc. rev. denied, 307 N.C. 579, 299 S.E.2d 651 (1983) (epileptic seizures and brain surgery). We believe this reflects legislative intent in the enactment of G.S. 15A-1340.4(a)(2)(d). Here defendant was wounded after he initiated a shootout. Since his own culpable conduct led to his being shot, he cannot properly claim diminished responsibility on that account.

Defendant contends the court erred and abused its discretion in imposing sentences to be served consecutively rather than concurrently. G.S. 15A-1354(a) gives the sentencing court discretion to run multiple sentences either concurrently or consecutively. Our Supreme Court has stated that the General Assembly, by leaving this statute substantially intact when it enacted the Fair Sentencing Act, must have intended that the sentencing judge retain this discretion. State v. Ysaguire, 309 N.C. 780, 785, 309 S.E.2d 436, 440 (1983). Consecutive sentencing thus does not violate our statutes. Id.

We also find defendant's "proportionality" argument, i.e., that the imposition of consecutive sentences results in punishment so grossly disproportionate to the crimes committed that it violates the Eighth Amendment, without merit. "Only in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment." Ysaguire at 786, 309 S.E.2d at 441. Like the Court in Ysaguire, "we find nothing so grossly disproportionate in this sentencing judgment for these criminal offenses to justify our upsetting via the Eighth Amendment the traditional sentencing prerogatives of the legislature and the trial court." Id. at 787, 309 S.E.2d at 441.

Defendant contends the court erred and abused its discretion in failing to afford him an opportunity to be represented on appeal in forma pauperis "with regard to all appealable issues ... in all of the cases before the court," instead of only in the one case (No. 82CRS47156) in which the sentence exceeded the presumptive. Defendant was entitled to appeal as of right only in that case, since only in that case did the sentence exceed the presumptive. G.S. 15A-1444(al). Since defendant could appeal as of right only in case No. 82CRS47156, the court neither erred nor abused its discretion in refusing to allow him to appeal in forma pauperis in the other cases.^[1]

Defendant contends the court erred and abused its discretion in denying his motion for appropriate relief made at the conclusion of the sentencing hearing. Since the motion presented an argument we have herein found without merit, we find no error or abuse of discretion in its denial.

Remanded for resentencing.

WELLS and PHILLIPS, JJ., concur.

NOTES

[1] Defendant was entitled to petition the appellate division for a review of the other cases. G.S. 15A-1444(a1). We take judicial notice of the records of this Court, In re Trucking Co., 285 N.C. 552, 557, 206 S.E.2d 172, 176 (1974), and note that defendant filed with this Court a petition for writ of certiorari in the other cases. On 18 September 1984 another panel of this Court denied the petition. We may not overrule that decision. N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 299 S.E.2d 629 (1983).