In the North Carolina Court of Appeals

1

No.: COA09-158926TH JUDICIAL DISTRICT

IN THE NORTH CAROLINA COURT OF APPEALS

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)

)From BuncombeCounty

STATE OF NORTH CAROLINA )No. 08 CRS 64851-53;

) 08 CRS 65321-23;

v. ) 08 CRS 65345-46;

) 09 CRS 52393-94;

REGINA FELICIA DAVIS ) 09 CRS 52974

) 09 CRS 53159-60

) 09 CRS 53344

) 09 CRS 55578-79

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DEFENDANT-APPELLANT’SBRIEF

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INDEX

TABLE OF CASES AND AUTHORITIES...... iii

QUESTIONS PRESENTED...... 1

STATEMENT OF THE CASE...... 2

STATEMENT OF THE FACTS...... 4

STATEMENT OF GROUNDS FOR APPELLATE REVIEW...... 11

ARGUMENTS

1. THE TRIAL COURT ERRED IN FAILING TO FIND ANY FACTORS IN MITIGATION OF MS. DAVIS’S SENTENCE, WHEN EVIDENCE OF STATUTORY FACTORS IN MITIGATION WAS PRESENTED WITHOUT CONTRADICTION 12

1. THE TRIAL COURT ERRED IN ENTERING JUDGMENT, WHEN THE EVIDENCE PRESENTED REGARDING RESTITUTION WAS INSUFFICIENT TO SUPPORT ENTRY OF THE ORDERS OF RESTITUTION 18

CONCLUSION ...... 23

CERTIFICATE OF SERVICE ...... 24

TABLE OF CASES AND AUTHORITIES

N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004) 18

State v. Alexander, 359 N.C. 824, 616 S.E.2d 914 (2005) 22

State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985)12

State v. Buchanan, 108 N.C. App. 338, 423 S.E.2d 819 (1992) 19, 21, 22

State v. Butler, 341 N.C. 686, 462 S.E.2d 485 (1995)17

State v. Caldwell, 125 N.C. 446, 300 S.E.2d 903 (1997) 15

State v. Calvino, 179 N.C. App. 219, 632 S.E.2d 839 (2006) 22

State v. Canady, 153 N.C. App. 455, 570 S.E.2d 262 (2002) 21

State v. Canty, 321 N.C. 520, 364 S.E.2d 410 (1988)16

State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404 (2000) 12

State v. Clifton, 125 N.C. App. 471, 481 S.E. 2d 393 (1997) 19, 22

State v. Crisp, 126 N.C. App. 30, 483 S.E.2d 462 (1997) 17

State v. Daniel, 319 N.C. 308, 354 S.E.2d 216 (1987)15

State v. Davis, 167 N.C. App. 770, 607 S.E. 2d 5 (2005) 18, 20

State v. Daye, 78 N.C. App. 753, 338 S.E.2d 557, aff’d per curiam, 318 N.C. 502, 349 S.E.2d 576 (1986) 20

State v. Easter, 101 N.C. App. 36, 398 S.E. 2d 619 (1990) 19

State v. Hughes, 136 N.C. App. 92, 524 S.E.2d 63 (1999); disc. rev. denied, 351 N.C. 644, 543 S.E.2d 878 (2000) 13

State v. Hunt, 80 N.C. App. 190, 341 S.E.2d 350 (1986) 19, 21

State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983)15, 17

State v. Kemp, 153 N.C. App. 231, 549 S.E.2d 717,disc. rev. denied, 356 N.C. 441, 573 S.E.2d 158 (2002) 17

State v. Killian, 37 N.C. App. 234, 245 S.E.2d 812 (1978) 19

State v. Noffsinger, 137 N.C. App. 418, 528 S.E.2d 605 (2000) 17

State v. Rathbone, 78 N.C. App. 58, 226 S.E.2d 702 (1985), disc. rev. denied, 316 N.C. 200, 341 S.E.2d 582 (1986) 15

State v. Replogle, 181 N.C. App. 579, 640 S.E.2d 757 (2007) 18, 19, 22

State v. Reynolds, 161 N.C. App. 144, 587 S.E.2d 456 (2003) 19

State v. Shelton, 167 N.C. App. 225, 605 S.E.2d 228 (2004) 18, 19

State v. Spears, 314 N.C. 319, 333 S.E.2d 242 (1985)17

State v. Thomas, 153 N.C. App. 326, 570 S.E.2d 142 (2002) 13

State v. Walker, 167 N.C. App. 110, 605 S.E.2d 647 (2004) 17

State v. Wilson, 340 N.C. 720, 459 S.E.2d 192 (1995)18, 19, 21

State v. Wood, 61 N.C. App. 446, 300 S.E.2d 903 (1983) 15

Sutton v. N.C. Dep’t of Labor, 132 N.C. App. 387, 511 S.E.2d 340 (1999) 18

N.C. Gen. Stat. § 15A-1340.16 (2009)...... passim

N.C. Gen. Stat. § 15A-1340.34 (2009)...... 19, 20

N.C. Gen. Stat. § 15A-1340.35 (2009)...... 20

N.C. Gen. Stat. § 15A-1340.36 (2009)...... 19

N.C. Gen. Stat. § 15A-1442 (2009)...... 11, 12

N.C. Gen. Stat. § 15A-1444 (2009)...... 11, 12

N.C. Gen. Stat. § 15A-1446 (2009)...... passim

QUESTIONS PRESENTED

1. WHETHER THE TRIAL COURT ERRED IN FAILING TO FIND ANY FACTORS IN MITIGATION OF MS. DAVIS’S SENTENCE, WHEN EVIDENCE OF STATUTORY FACTORS IN MITIGATION WAS PRESENTED WITHOUT CONTRADICTION?

1. WHETHER THE TRIAL COURT ERRED IN ENTERING JUDGMENT, WHEN THE EVIDENCE PRESENTED REGARDING RESTITUTION WAS INSUFFICIENT TO SUPPORT ENTRY OF THE ORDERS OF RESTITUTION?

STATEMENT OF THE CASE

Regina Felicia Davis was charged with three counts of financial card theft on December 10, 2008. (R.p. 3-8) Ms. Davis was charged with six additional crimes, including burglary, larceny, property damage, and financial card theft following several incidents on December 22 and 23, 2008. (R.p. 9-18) Ms. Davis was charged with two additional crimes, including larceny and assault, following incidents occurring on February 15, 2009. (R.p. 19-22) Ms. Davis was charged with larceny and theft of a financial card following incidents occurring on March 4, 2009. (R.p. 23-24, 29-30) Ms. Davis was charged with larceny and assault with a deadly weapon following an incident occurring on March 8, 2009. (R.p. 25-28) Ms. Davis was charged with two counts of larceny following incidents occurring on April 26 and 27, 2009. (R.p. 31-34) True bills of indictment were issued on April 6, 2009; May 4, 2009 and June 1, 2009. (R.p. 35-41; 42-43; 44-48)

On or about July 23, 2009, Ms. Davis entered into a plea arrangement with the State of North Carolina wherein she pled guilty to seventeen alleged crimes. (R.p. 49-53) A Prior Record Level Worksheet was entered on July 23, 2009 indicating Ms. Davis was a prior Record Level III for sentencing purposes. (R.p. 54-55) The court found one aggravating factorand no mitigating factors on the worksheet. (R.p. 56-57; 59-60) Ms. Davis was credited with 137 days of incarceration upon her sentence. (R.p. 58)

On July 23, 2009, Ms. Davis was sentenced to a term of 116 to 149 months of incarceration on judgment 08 CRS 65322, as well as payment of restitution. (R.p. 61-62) Also, Ms. Davis was sentenced to a term of 12 to 15 months on judgment 09 CRS 52393, to be served at the conclusion of her sentence in 08 CRS 65322. (R.p. 63-65) Four restitution worksheets were entered, indicating restitution to be paid to six individuals and one bank in the total amount of $2,539.06. (R.p. 66-73)

Notice of Appeal was filed on July 30, 2009. (R.p. 74) Appellate Entries were entered on July 29, 2009. (R.p. 75-76) Appellate Counsel was assigned on September 18, 2009. (R.p. 77) The transcript was transmitted to appellate counsel on September 15, 2009. (T.p. 29) The Proposed Record on Appeal was served timely on October 19, 2009, and settled by the agreement of the parties. (R.p. 79, 81) The Record on Appeal was filed on December 2, 2009, and docketed on December 21, 2009. (R.p. 1)

STATEMENT OF THE FACTS

Regina Davis pled guilty to numerous crimes on July 23, 2009, including robbery with a dangerous weapon, first degree burglary, common law robbery, attempted robbery with a dangerous weapon, attempted common law robbery, four counts of financial card theft, two counts of misdemeanor larceny, injury to real property, financial card fraud, simple assault, assault inflicting serious injury, and two counts of larceny from the person. (R.p. 61-65; T.p. 3, 7) Ms. Davis, through her attorney, stipulated to oneaggravating sentencing factor, to being a level III for sentencing purposes, and to a factual basis for the plea agreement. (T.p. 8-10)

Ms. Alford, counsel for the State, recited the factual basis for the plea for follows: In the incident on December 9, 2008, Ms. Davis knocked on a door and asked Don Walker to use his phone. (T.p. 11) She took his wallet and cell phone, which were recovered, and he was not requesting any restitution. (T.p. 11)

On December 22, 2008, Mr. Silvestre Ramos reported that a black, pregnant female knocked on his door asking for money. (T.p. 11-12) He told her he did not have any money, but she grabbed his wallet with four dollars and a credit card in it. (T.p. 12) She demanded more money and held a kitchen knife in his face. (T.p. 12) Mr. Ramos’s credit card was found on her person when Ms. Davis was detained by police. (T.p.12) Mr. Ramos identified Ms. Davis in a line-up. (T.p. 12)

Enrike Chin was sleeping when he was awakened by someone banging on his trailer door on December 22, 2008. (T.p. 12) The back door was broken in. (T.p. 12) Ms. Davis and Mr. Westin (her co-defendant) entered Mr. Chin’s home. (T.p. 12) Mr. Westin had a gun. (T.p. 12) Ms. Davis questioned Mr. Chin and refused to leave until Mr. Chin called the police. (T.p. 13) He identified Ms. Davis in a line-up procedure. (T.p. 13)

Also on December 22, 2008, Ms. Ellen Chavis was working at Sure Tech Pharmacy in Asheville. (T.p. 13) She walked outside and saw Ms. Davis sitting on the curb, pregnant and crying. (T.p. 13) Ms. Davis asked for a ride to a friend’s home. (T.p. 13) Ms. Chavis agreed to give her a ride and took along a co-worker, Michael Waldrup. (T.p. 13) They drove Ms. Davis to Bartlett Arms, then Ms. Davis asked to be taken to Pisgah View. (T.p. 13-14) When they arrived at Pisgah View, Ms. Davis grabbed Ms. Chavis’s purse off the center console of the car and fled. (T.p. 14) The purse contained money, a cell phone and a Visa Debit card that was later used at a gas station. (T.p. 14) Mr. Waldrup identified Ms. Davis at a photo line-up. (T.p. 14)

On February 15, 2009, Barbara Berwonitz stopped at a gas station located at Short Coxe and Southside Avenues in Asheville. (T.p. 14) Ms. Davis asked her for a ride and stated that she had been abandoned by her boyfriend. (T.p. 14) Ms. Berwonitz agreed to give her a ride partly because of Ms. Davis’s pregnancy. (T.p. 14) Ms. Davis asked to ride to AstonParkTowers. (T.p. 14) When they arrived, Ms. Davis grabbed Ms. Berwonitz’s purse and fled. (T.p. 14) Ms. Berwonitz chased Ms. Davis and caught her. (T.p. 14) During the struggle, Ms. Davis bit Ms. Berwonitz, however, Berwonitz recovered her purse. (T.p. 14)

On March 4, 2009, Leslie Renai was driving and was flagged down by Ms. Davis, who stated she was pregnant and stranded. (T.p. 15) Ms. Renai agreed to give her a ride and was directed to several different locations before ending up at the Hot Spot gas station on Asheland Avenue. (T.p. 15) When Ms. Davis got out of the car, Ms. Renai noticed that her purse was open and a credit card was missing. (T.p. 15) Ms. Davis told Ms. Renai she had a three year old daughter named Neveah, or “heaven” spelled backwards. (T.p. 15) The police and DSS confirmed that Ms. Davis had a daughter with that name and age. (T.p. 15-16)

Also on March 4, 2009, Ms. Davis ran out in front of Essie Brannam’s car when she stopped and asked her for a ride. (T.p. 16) Ms. Brannam described Ms. Davis as pregnant and looking like she had been crying. (R.p. 16) Once she got into the car, Ms. Davis asked Ms. Brannam to take her to get something to eat. (T.p. 16) Ms. Brannam refused because she had a doctor’s appointment, but gave Ms. Davis three dollars for food. (T.p. 16) When she asked where Ms. Davis wanted to be dropped off, Ms. Davis grabbed Ms. Brannam’s purse. (T.p. 16) The two women struggled, and Ms. Brannam got her purse back from Ms. Davis, but not her billfold. (T.p. 16) Ms. Davis took the money out of the billfold, then threw it at Ms. Brannam and left the car. (T.p. 16) Ms. Brannam identified Ms. Davis out of a photographic lineup. (T.p. 16)

On March 8, 2009, Ms. Davis went to the Town House Motel along with Wendy Putnam, to the room of Esbaldo Caracheo, for the purpose of engaging in prostitution. (T.p. 16-17) Ms. Putnam distracted Mr. Caracheo, and while he was distracted, Ms. Putnam threatened him with a knife and Ms. Davis hit him over the head with a beer bottle. (T.p. 17) The women could not take Mr. Caracheo’s wallet because it was chained to his pants. (T.p. 17) They got into a car and drove away. (T.p. 17) When Ms. Davis was located by the police, she had a pocket knife in her possession that matched Mr. Caracheo’s description of the one held to his throat. (T.p. 17)

At about 10:30 p.m. on April 26, 2009, Celia Hodge was stopped at a stoplight on Tunnel Road. (T.p. 17-18) Ms. Davis opened the car door and beggedfor Ms. Hodge to help her escape an abusive man. (T.p. 18) Ms. Hodge agreed and drove Ms. Davis to LeeWalkerHeights, where Ms. Davis asked for five dollars. (T.p. 18) Ms. Hodge gave her the money, and was then startled by a large SUV that stopped directly behind her car. (T.p. 18) When Ms. Davis left the car, Ms. Hodge noticed that her wallet was missing. (T.p. 18) Ms. Hodge identified Ms. Davis in a photographic lineup. (T.p. 18)

On April 28, 2009, Randy Laughter was staying at the Ramada Inn with Calvin North. (T.p. 18) Both men had been activated as Army reservists, and travelled to Asheville to assist with those duties. (T.p. 18) At 3 a.m., Ms. Davis knocked on their hotel door. (T.p. 18) She had a black eye and told the men that she was fleeing an abusive boyfriend. (T.p. 18) Mr. Laughter agreed to give her a ride and took her to Hillcrest. (T.p. 18) After dropping Ms. Davis off, Mr. Laughter realized that $1,100 from his glove compartment was missing. (T.p. 18) He had taken that money from his savings account to pay his expenses for two weeks while he was in Asheville for reserve duty, and kept it in his glove compartment. (T.p. 18) Mr. Laughter identified Ms. Davis from a photographic lineup. (T.p. 19)

In this matter, one of the individuals was reimbursed for the money taken by Ms. Davis by its bank in Southside, Virginia. (T.p. 19) It was unclear as to which case the State referred to, or to whom this applied. (T.p. 19) After the prosecution summarized the factual basis for the restitution, she indicated that there were four restitution worksheets for these matters. (T.p. 19)

The State argued on sentencing that it was willing to enter a plea arrangement because Ms. Davis was willing to admit her guilt. (T.p. 20) However, the State’s attorney argued that Ms. Davis used her pregnancy to prey upon the sympathy of Good Samaritans. (T.p. 20) The only aggravating factor stipulated was the fact that Ms. Davis was on pre-trial release when some of the offenses were committed, however, the State argued that an additional factor should be that Ms. Davis took advantage of people who were trying to do the right thing. (T.p. 20) As a result, the State requested that Ms. Davis’s sentences run consecutively, and that she be sentencing in the top of the aggravated range. (T.p. 21)

In mitigation for sentencing purposes, the defense argued that Ms. Davis was a twenty-four year old who lived with her mother and younger sister, and was native to the Asheville area. (T.p. 21) Her mother was unable to attend court because she was working. (T.p. 21) Ms. Davis sought treatment at SwainRecoveryCenter in March 2009. (T.p. 21) Before that attempt at treatment, Ms. Davis committed herself into Copestone at St. Joseph’s hospital, where she was discharged to Swain. (T.p. 21) Ms. Davis was discharged from Copestone due to a problem with her medication. (T.p. 21) Ms. Davis had several untreated mental health issues stemming from abuse as a child. (T.p. 22-23) Swain eventually discharged Ms. Davis before she completed the treatment there, and she began using drugs again. (T.p. 22) There was no explanation from the health professionals for why she was released from Swain before her treatment there was completed. (T.p. 22)

Ms. Davis had an addiction to crack cocaine for many years, secondary to abuse when she was growing up, for which she has not been able to receive help. (T.p. 23) Ms. Davis took responsibility for her actions, however, she was not acting alone. (T.p. 23) Ms. Davis tearfully apologized for her actions, and stated did not mean to hurt anyone, but acted as a result of her drug problem. (T.p. 24-25) Ms. Davis had a three year old daughter and a four month old son at the time of the hearing. (T.p. 15, 24)

The court accepted the guilty plea. (T.p. 25) The court ordered Ms. Davis to be sentenced as a Level III offender for both judgments in the aggravated sentencing range. (T.p. 26) Ms. Davis was sentenced to one sentence of imprisonment for 116 to 149 months, and a second sentence of imprisonment of 12 to 15 months. (T.p. 26) Additionally, the trial court ordered Ms. Davis to pay restitution in the following amounts to the following people: $400 to Ellen Chavis, $157 to Barbara Berwonitz, $40 to Essie Brannam, $810 to Kelia Hodge, $999 to Randy Laughter, in addition to court costs and attorney fees. (T.p. 26) The restitution worksheets also included restitution to the Bank of Southside Virginia and to Silvestre Ramos. (R.p. 68) From these judgments, Ms. Davis appeals.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

This appeal is taken from a final Judgment of the SuperiorCourtofBuncombeCounty, pursuant to N.C. Gen. Stat. §§15A-1442 (5a)and (5b);15A-1444(a1)and 15A-1446(d)(18)(2009).

ARGUMENT

1. THE TRIAL COURT ERRED IN FAILING TO FIND ANY FACTORS IN MITIGATION OF MS. DAVIS’S SENTENCE, WHEN EVIDENCE OF STATUTORY FACTORS IN MITIGATION WAS PRESENTED WITHOUT CONTRADICTION.

(Assignment of Error No. 1, R.p. 61-73; T.p. 21-25)

A trial court’s decision whether to sentence outside of the presumptive range is reviewed for an abuse of discretion. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404 (2000); see also N.C. Gen. Stat. § 15A-1340.16 (2009). Counsel concedes that there was no objection to Ms. Davis’s sentencing at the time of trial. (T.p. 26-27). However, since the trial court violated a statutory mandate, the issue is preserved for appeal, even without objection. State v. Ashe, 314 N.C. 28, 39-40, 331 S.E.2d 652, 659 (1985); N.C. Gen. Stat. § 15A-1442 (5a)and (5b)(2009); N.C. Gen. Stat. § 15A-1446(d)(18)(2009). This Court must determine whether the sentence assigned is supported by the evidence introduced during the sentencing hearing. N.C. Gen. Stat. § 15A-1444(a1)(2009).

Here, Ms. Davis entered into a plea arrangement with the State of North Carolina wherein she accepted responsibility for the crimes listed on the plea transcript. (R.p. 49-53) In addition, Ms. Davis stipulated to the factual basis for the plea, as well as one aggravating factor. (T.p. 10, R.p. 54) However, defense counsel presented uncontroverted evidence of several mitigating factors during her argument, including support in the community, taking responsibility for her actions, and support of her two children. (T.p. 21-25) These factors were not evident in the trial court’s sentencing.

N.C. Gen. Stat. § 15A-1340.16 (2009) establishes that “the 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.” SeeState v. Thomas, 153 N.C. App. 326, 570 S.E.2d 142 (2002). The defendant must prove a contended mitigating factor exists by a preponderance of the evidence. N.C. Gen. Stat. § 15A-1340.16 (2009). It is an abuse of discretion when a court fails to find a mitigating factor when a defendant introduces substantial, uncontradicted, credible evidence of its existence so that no other reasonable inferences could be drawn. State v. Hughes, 136 N.C. App. 92, 100, 524 S.E.2d 63, 68 (1999), disc. rev. denied, 351 N.C. 644, 543 S.E.2d 878 (2000).

Factors that the trial court should consider in mitigation include the following, in pertinent part:

(1)The defendant committed the offense under duress, coercion, threat, or compulsion that was insufficient to constitute a defense but significantly reduced the defendant’s culpability.

. . .

(3)The defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but significantly reduced the defendant’s culpability for the offense.

(4)The defendant’s age, immaturity, or limited mental capacity at the time of commission of the offense significantly reduced the defendant’s culpability for the offense.

. . .

(11) Prior to arrest or at an early stage of the

criminal process, the defendant voluntarily

acknowledged wrongdoing in connection with the

offense to a law enforcement officer.

. . .

(15) The defendant has accepted responsibility for the

defendant’s criminal behavior.

(16) The defendant has entered and is currently

involved in or has successfully completed a drug

treatment program or an alcohol treatment program

subsequent to arrest and prior to trial.

(17) The defendant supports the defendant’s family.

(18) The defendant has a support system in the

community.

N.C. Gen. Stat. §15A-1340.16 (2009). Ms. Davis’s counsel presented information on each of these factors, which was ignored by the trial court. The information presented by defense counsel was not opposed by the prosecutor, nor was it contradicted or disproven in any way. Yet, there is no indication upon the record that the trial court considered any of these eight factors while sentencing Ms. Davis.

A judge, during sentencing, must consider any statutory mitigating factors that are supported by uncontraverted, substantial or manifestly credible evidence. SeeState v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). If a court fails to find such a mitigating factor, a new sentencing hearing is required. State v. Daniel, 319 N.C. 308, 315, 354 S.E.2d 216, 220 (1987); State v. Wood, 61 N.C. App. 446, 300 S.E.2d 903 (1983). This Court has previously held that there need be no findings in mitigation unless the trial court deviates from the presumptive range of sentencing, as it did here. State v. Caldwell, 125 N.C. App. 161, 479 S.E.2d 282 (1997); N.C. Gen. Stat. § 15A-1340.16(c)(2009).