State v. McNeill ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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(Mar. 1, 2005) (unpublished).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).